A medical doctor must, at his peril, use proper skill and caution in administering a poisonous drug. But where the doctor’s treatment of his patient is lawful, the criminal law will regard the patient’s death as exclusively caused by the injury or disease to which the condition is attributable.
If a medical practitioner honestly and bona fide performs an operation or uses a dangerous instrument, which causes the patient’s death, he may not be morally liable.
But if he is guilty of criminal misconduct, arising from gross ignorance or criminal inattention and not from mere error of judgment, he may be liable for unlawful homicide.
The same is true of a person who is not a regular medical practitioner. If he has a competent degree of skill and knowledge and makes accidental mistake in the treatment of a patient, through, which mistake, death ensues, he may not thereby be guilty of unlawful killing
However, where proper medical assistance can be had, a practitioner totally ignorant of the science of medicine, takes on himself to and administers a violent and dangerous remedy to one labouring under disease, and death ensues in consequence of that dangerous remedy
having been so administered, then he may be liable not for murder but for manslaughter.
This is somewhat a difficult part of the criminal law. Perhaps a few examples and activities may make it clearer.
Activity
Uba is a medical doctor. He administers to Ijeoma (a patient) certain pain-serving drugs, which would shorten life, seeing that she has severe pains.
Identity the following:
a. Intervening act
b. Uba’s intervention in fact c. Uba’s motives in fact
d. What the law says about (1) intervention (2) Motive i.e (Purpose) e. What the literal approach of the criminal Code is
f. What the judicial approach has been
g. The effect it would have in your answer if the doctor had administered a large
h. dose of sedative, causing the patient to lapse into a coma in which he dies instead
of the fatal pain killer.
i. The difference, if any, an unqualified and unauthorized person had done the same thing the licensed medical practitioner did.
j. Read section 313 of the criminal code concerning injury causing death in consequence of subsequent treatment.
Let us consider some relevant cases.
R.V Smith
Garba inflicts stab wounds and causes his victim some injury. The victim is admitted into the hospital, this good chances of recovery from the stab wounds. At the hospital, the director gives him what experts described as “thoroughly bad treatment’ from which he dies.
These were the facts as found by the court in R v Smith and the judgment of the court was that death flowed from the stab wound. To avail a defense, novus actus interveniens must be so overwhelming as to make the original wound merely part of history
R v Jordan (1956)
J inflicts stab would on V, the stab wound is responding to treatment and is largely healing. While still undergoing treatment, V is injected with a drug and large liquid and he dies. Expert evidence is that the treatment is “abnormal, so negligent and palpably wrong” Held” J is not liable. ‘The wound was merely the scene of the cause of death not the cause itself. Legal writers regard this case as exceptional.
F v Cheshire
C stabs V at the chest, and legs. The injury does not threaten life.
Without first diagnosing the patient’s ailment, the doctor inserted a tube in his wing pipe to aid breathing and dies from the negligence. Held: C is liable.
In the case above, the factual causations point to the novuos actus interveniens (the acts of the medical practitioner) but the legal causation indicates the original acts as the effective and operating cause.
The purpose of medical treatment is to restore health and to relieve pain and suffering It sounds bizarre to argue that a medical practitioner who is doing his or her best to save life is the cause of death.
If a medical malpractice is the immediate cause of death, it could also in certain circumstances be regarded in law as the cause of a victim’s death to the exclusion of the accused’s acts provided where, for example, where the malpractice is most extra-ordinary or so potent in causing death. In this situation the issue you are to consider is not the degree of fault. It is not also the recklessness of treatment. It is the consequence of treatment, whether the maltreatment is the cause of death to example the exclusion of the original act.
Example :Nuhu and Zakari have a fierce quarrel; Nuhu hits Zakari’s head over a TV set and injures him. Zakari needs to be operated but he is diagnosed to have a pre-existing ulcer. This makes the operation risky because he may die under anaesthesia. Nonetheless, the doctor carries out the operation and Zakari dies.
The treatment here is not reckless; nor the potent cause of death. It is Nuhu’s act and Nuhu is liable. This was the case of R v Mckechnie (1992)
4.0 Conclusion
Every one has a right to freedom of thought; be it good or evil. You can freely have within the realm of thought a desire to kill or to maim and go to sleep. You may express a desire to kill Mr. X and Mr. X dies a few days later of cardiac failure. In either case you incur no criminal liability. The reason is that there is no nexus or causal link (or legal causation) between your evil intention and the proscribed event. Causation may be factual or legal, both of which must correspond in order to establish a legal nexus
5.0 Summary
You have learned about a factual causation as well as a legal causation, It is important to dichotomise both concepts. In appropriate cases, who and what is responsible for killing a victim in fact may not stand the legal test of who and what has caused the killing in law There may have been a novus actus interveniens . In this connection you learned about the de minimis rule, the applicable test and judicial attitude towards cases of death arising from medical mistreatment and the Police fire power.
6.0 Tutor Marked Assignment
The criminal law protects medical malpractice and police carelessness.
Discuss critically with reference to decided cases.
7.0 References
Jefferson , M G (2003), Criminal law 6th Ed. Longman, London
Butler T. and Garsia M: (1969), Archbold, Pleading, Evidence and Practice, Sweet and Maxwell, London.
Madarikan C and Agada T, (1974) Brett and Mclean’s: The Criminal Law and Procedure of the Six Southern States of Nigeria, Sweet and Maxwell.
Ormord D (2005), Smith and Hogan Criminal Law. 11th Ed . oxford University , Press ,London
Molan M (2003) Criminal law 4th Ed . Old Bailey Press, London