Mr. HarrisonAN ANALYSIS OF THE PROOF OF MEDICAL NEGLIGENCE UNDER NIGERIAN LAW
CHAPTER ONE GENERAL INTRODUCTION
1.1 BACKGROUND OF STUDY
Litigation against professionals such as; lawyers, Medical Practitioners, engineers, surveyors, architects, accountants, among others, for professional negligence, unethical practice or incompetence are not common in this country. This is so notwithstanding the fact that very grave consequences may result from the acts of these professionals.1 This phenomenon is most apparent in the medical profession.
It is a settled fact that the medical profession is one profession that is indispensable in today’s civilized world. It is one profession whose activities touches on the lives of virtually all members of the society and one profession that literally holds in its hands, the power of life and death. Very instructive on the relevance of the medical profession with respect to their relationship with their patients, is the dictum of the Court in the case of Abatan v. Awudu2 where the Court of Appeal per Aderemi JCA, held that “The relationship between a Doctor and his patient is one of trust and confidence; a relationship where one has the power and duty to treat and restore the other to mental and physical well-being.”3 With the enormous power that Medical Practitioners wields, comes also, enormous responsibilities on their part to exercise such powers diligently so as not to cause injury to patients in their care.
One is saddened by the reality in Nigeria which is far from the ideal. It is a situation where patients who go to hospitals for treatment, end up leaving with more injuries than they went there with, these injuries having been incurred from the negligent acts of their Doctors or supposed care-givers. Reports abound of various instances where patients suffer injuries, some even death, as a result of the negligent acts of their doctors. Yusuf Ali, S.A.N4 , cited two instances reported in the media, where doctors were reported to have been negligent in treating their patients leading to the latter sustaining various degrees of injuries. The first case was that in The Sun Newspaper of Saturday 14th August, 2004 at page 34, which reported as follows:
Negligence, carelessness and callousness on the part of medical officials of Lagos State University Teaching Hospital may have caused the death of an accident victim, Kayode Toluse, leaving his relations wailing and weeping.
The second incidence was captioned as UCH vs Baby Kehinde, involving a baby who had her hand amputated three months after her birth in what the hospital’s Chief Medical Director described as “a regrettable mistake”.5
More recently, particularly in 2010, the news of a Doctor who slashed a baby’s head during a caesarean session on the baby’s mother went viral on the social media. The victim in this case suffered brain damage for which the Doctor apologised and called the accident an inadvertence.6
Despite all the above excesses of Medical Practitioners in Nigeria and several others that do not get to become public knowledge, patients are still reluctant to institute actions in Court on the injuries they sustained from their Doctor’s negligence. This reluctance and near total failure of victims of medical negligence to pursue the award of damages against their Doctors or even other forms of actions to be taken against these Doctors, has been attributed to a lot of factors. According to Dada,7 the reasons for the paucity of cases against professional men and women, including Doctors are basically three, which are:
- Cultural Factors: According to the learned author, Africans, and particularly Nigerians, are not as litigious as Europeans or Americans. To him, by the culture of the people, litigation is not usually an option for dispute settlement, especially in cases where the persons sought to be proceeded against are well known persons in the society. Those who would have ordinarily litigated are hence limited by this cultural factor for fear of discouragement or even castigation from the society.
- Social Factor: The level of illiteracy in Nigeria is undoubtedly still very abysmal despite various policies by government at all levels to ensure high literacy. A majority of Nigerians as a result of their illiteracy do not know their rights, and naturally, a man who does not know his rights will not know or appreciate when a breach has occurred, not to mention of taking steps to seek redress. They rather adopt a mentality of “leaving everything in God’s hands”, which attitude has led Nigeria to this degenerative or abysmal state.8 Contextually speaking, this poor literacy level has made many health care providers to go scot-free in cases where they ordinarily would have been made answerable at the suit of aggrieved patients.
AN ANALYSIS OF THE PROOF OF MEDICAL NEGLIGENCE UNDER NIGERIAN LAW
iii. Legal Factor: This factor I believe is most relevant to this work. Learned author, Dada, sited the high cost of litigation as a deterrent to actions against professionals. Also, the length of time it takes for one to get judgement that he deserves, makes litigants recline from such actions. One case that clearly shows how slowly the wheels of justice moves in Nigeria is the case of Plateau State Health Services Management Board where the injury the Plaintiff/Respondent had suffered occurred sometime in August 1990 whereupon he instituted an action against the hospital claiming damages. The case dragged on for 22 years before in 2012 the Supreme Court gave final in respect to the matter. To think that Plaintiffs must wait for this long in order to get judgement against the negligent Doctor, makes litigating such injuries unattractive.
AN ANALYSIS OF THE PROOF OF MEDICAL NEGLIGENCE UNDER NIGERIAN LAW
On his part, Hon. Justice I. A. Umezulike (O.F.R), cited by Ali,10 has attributed the failure of patients to institute actions against negligent Doctors, to the fact that medicine is practiced behind what he described as the “fortress of Jericho walls”. The consequence of this wall is that while it is easy to identify breaches committed by other professionals, it is not so easy for a medical health worker. Since members of the public are unable to assess the performance and quality of care delivered by health givers, they are unable to know therefore whether injuries they sustained after contact with these health practitioners was as a result of the latter’s negligence.
Adding to the above, the difficulty in successfully establishing ones claim against a Medical Practitioner for negligence, has also been a deterrent to the institution of medical negligence actions. There are a lot of unreported medical negligence cases where the plaintiffs had failed as a result of their failure to proof their case against the Medical Practitioner. This difficulty in proving medical negligence is as a result of the lack of knowledge on the part of both lawyers and litigants on the particular pieces of evidence that are relevant and material in the proof of medical negligence among other important tools in the establishment of a successful action against a Medical Practitioner.
This difficulty in successfully proving a claim of medical negligence against a Medical Practitioner is further compounded by the ever unwillingness of Medical Practitioners in coming into the open against their colleagues in problems involving medico/legal interface.
This unwillingness has been described by Emiri as Doctor’s ‘conspiracy of silence’.12 Actions based on medical negligence in Nigeria is also fault-based, meaning the plaintiff must establish the fault of the defendant Doctor. This increases the burden of proof on the plaintiff and further increases the difficulty in establishing Flowing from the above, there is obviously a need to analyse available authorities on the proof of medical negligence, particular the ingredients that must be proved and the material evidence in proving same. This is with a view to providing a contemporary work for lawyers and litigants on relevant authorities to aid the proof of a claim of medical negligence.
1.2 STATEMENT OF RESEARCH PROBLEM
Although the tort of medical negligence is an old Common Law claim and highly litigated in civilized countries, the tort is not litigated in Nigeria leading to the lack of awareness of litigants and health care receivers on the tort. This is the first research problem. The poor awareness of Nigerians of their rights even against their Doctors, has let a lot of Doctors who were negligent in treating their patients to go scot free without any form of retribution from the law and has in turn worsened the level of health care delivery in the country.
Another problem, which draws from the first one discussed above, is that the absence of litigation in the area of medical negligence has led to a dearth of judicial authorities on the subject matter of medical negligence and also the lack of interest on the part of legal scholars to research on this area of law. This has made it impossible for the very few persons who intend to pursue a claim of medical negligence against their Doctors, to withdraw same due to the lack of authorities in this area.
Another problem relates to the difficulty in proving that a Medical Doctor is negligent.
This failure is caused majorly by the fact that other Doctors who would ordinarily be the right persons to establish that the Doctor being sued was negligent, work under a ‘conspiracy of silence’ by refusing to testify against a fellow Doctor. Without the testimony of another Doctor, it become extremely difficult to proof that a Doctor acted below the standard of a qualified Doctor which act caused injury to the plaintiff.
While noting the above problems of the research, the research seeks to provide answers to the following questions:
- What is the nature of a tortious claim of medical negligence?
- What are the ingredients that must be proved by a plaintiff in order to succeed in an action of medical negligence?
- What are the various pieces of evidence that are material and relevant to proof a case of medical negligence?
AN ANALYSIS OF THE PROOF OF MEDICAL NEGLIGENCE UNDER NIGERIAN LAW
1.3 AIM AND OBJECTIVES OF THE STUDY
The primary aim of this research is to address the dearth of authorities in the area of medical negligence especially on the question of the proof of the tort of medical negligence. It is hoped that by achieving this aim, the work will aid the prospective litigant in establishing a successful claim against his negligent Doctor. It is further hoped that it will also help in creating awareness among patients and the common man on the street, on their rights against negligence Doctors and health givers.
On the other hand, the objectives of this work is that upon completion, it should be able to find sufficient solutions to the questions posed by the research question. It must be able to:
- Analyse the nature of the tortious claim of medical negligence.
- Analyse in sufficient details the ingredients that must be proved by a plaintiff in order to succeed in an action of medical negligence.
- Analyse with relevant authorities the various pieces of evidence that are material and relevant to proof a case of medical negligence.
1.4 SCOPE AND LIMITATION OF THE STUDY
The tort of negligence and indeed medical negligence is an area of law that cannot be satisfactorily exhausted by a work as this one. As will be seen in subsequent parts of this work, negligence by a Medical Practitioner in relation to his patient, may attract various causes of action in various Courts. This work will however focus on just one of these causes of action which is the tortious claim of medical negligence.
Furthermore, it will not be concerned with every area of medical negligence although it may touch on them for the purposes of laying a foundation to the main discuss. Its focus shall be on proof of medical negligence. It shall focus on what ingredients or elements must be proved to establish a case of medical negligence and how this elements can be proved before a Court, or better put, what pieces of evidence are material to the proof of a civil claim of medical negligence.
The limitation of this research is clearly the dearth of Nigerian authorities, both primary and secondary, on the issue of proof of medical negligence and on the tort of medical negligence generally. This is no doubt because of the low level of awareness of the general public and even lawyers and legal scholars on the viability of this area of the law. Resort will therefore be had to the few Nigerian authorities that exist and also foreign authorities from the United State, United Kingdom, India among other jurisdictions.
Another limitation that this writer will face is in the fact that the few books which are relevant to this research, are not readily available or assessable. The very few Nigerian books on the area of medical law are not easily found in bookstores in Jos where the writer is domiciled. The enormous cost of buying the books from the publisher and having them mail it to the writer makes it impossible for the writer to access this books, where at all such a transaction is possible.
AN ANALYSIS OF THE PROOF OF MEDICAL NEGLIGENCE UNDER NIGERIAN LAW
1.5 RESEARCH METHODOLOGY
This research work employs the doctrinal method of research in reaching its conclusion. Doctrinal research is research into doctrines. It involves analysis of case law and statutory provisions by application of the power of reasoning.13 The work will deal with doctrines and principles propounded by other researchers and also the position of case law with respect to the subject matter of this research.
The research also employs an analytical approach in the research. An analytical research as the name implies, analysis a particular law and enables one to know what the law is about on a particular subject. This type of research examines all the statutes on a particular subject matter, all the case law there is, all commentaries and learned articles and even if there are similar laws either in other states or countries.
The subject matter of this research is largely regulated by common law principles of the law of the tort and principles of evidence in the Nigerian Evidence Act 2011. This work will therefore analyse the provisions of these laws with respect to the issue of proof of medical negligence. Research materials to be used therefore, will be statutes, case law, legal books, and learned articles in journal and on the internet, inter alia other research materials to be consulted and used, which are not necessarily written by learned authors or for learned readers.
Mr. Harrison
