ANALYSIS OF PROFESSSIONAL MEDICAL NEGLIGENCE IN NIGERIA

ANALYSIS OF PROFESSSIONAL MEDICAL NEGLIGENCE IN NIGERIA

CHAPTER ONE

INTRODUCTION

BACKGROUND OF STUDY

All over the world, people may at one time suffer damage from the careless acts of other persons. A careless or negligent act may be done intentionally, unintentionally, or accidentally. As a general rule, there is negligence whenever there is a duty of care and there is a breach of the duty. The purpose of the tort of negligence is to identify breach of duty of care, and offer remedy to a person who has suffered harm.

In other words the purpose of the law of negligence is to offer remedy to a person who has suffered, because of a breach of duty of care. Negligence is from the latin word ‘negligentia’, from ‘neglegre’ which means to neglect. The area of tort law known as negligence has to do with harm caused by carelessness, not necessarily intentional harm; Lord Wright [1], gave an explanation that

“In strict legal sense, negligence means more than heedless or careless conduct whether in omission or commission. It properly connotes the complex concept of duty, breach damage thereby suffered by the person to whom the duty is owed”.

Alderson B in Blight v Birmingham Waterworks Co.[2]had given what can be regarded as classic definition when he said

“negligence is the omission to do something which a reasonable man would do or doing something what a prudent reasonable man would not do.”

In Donoghue v Stevenson[3] where the court had to interpret the neighbour principle. The courts laid down the principles and ingredients of the tort of negligence, such that a claimant wishing to succeed in an action in negligence must prove that the defendant owes him a duty of care; that such duty had been breached by the defendant; and that he had suffered a loss as a result of such breach.2The general standard of care in negligence is the reasonable prudent man’s standard.

The courts have to consider the key elements in neighbor principle

1. Whether it was foreseeable that the defendant’s action would cause the victim any injury?
2. Whether there is sufficiently close relationship between the plaintiff and the defendant?
3. Whether there is a public policy reason which argues against a duty of care being found?

A medical injury may have been caused to the plaintiff by anyone or more of the medical professional who has attended to the patient. In determining whether, there has been negligence the treatment, the court will ascertain the standard of skill expected from the practitioner in the medical context against the customary practice. The court has addressed the standard of doctors in a number of decisions.

In hospitals, there is often a slogan pasted on the wall which says “WE CARE, BUT GOD HEALS”. This sign can be translated to be a warning and at the same time, a cause for relief. Warning in the sense that total treatment of a disease, which can lead to recovery is not always verifiable and at the same time, it means, one can get relief from such sickness. We will focus on the WE CARE part.

This means that a medical practitioner is mandated to care for patients until there’s no further remedy. But can we say all medical practitioners follow this rule. Too many people have died before treatment starts, during the course of treatment and after the treatment is complete. It is widely known that doctors and other medical professionals can make serious errors due to negligence.

What is less known is how those errors permanently impact the victims of negligence. These victims are forced to deal with the emotional and physical consequences of the injuries that doctors cause. Those effects commonly impact the rest of their lives[4]. A patient approaching a doctor expects medical problem. The relationship takes shape of a contract retaining the essential elements of tort.

A doctor owes certain duties to his patient and a breach of any of these duties gives a cause of action for negligence against the doctor. The doctor has a duty to obtain prior informed consent from the patient before carrying out diagnostic tests and therapeutic management[5].

The standard of care required of a medical practitioner is an objective one. It is the standard of the ordinary reasonable medical practitioner in the shoes of the defendant. The factors which commonly affect the standard of care expected of a medical practitioner in any society as compared to another society depends on a number of factors, which include;

1. The locality or society being considered
2. The availability of relevant medical facilities
3. The specialist skill of the medical practitioner concerned
4. Accepted medical practice; and
5. Whether there was an emergency, or not

These are relevant factors that may be considered, as the case may be, in determining whether a particular medical practitioner has exercised the standard of care expected of an ordinary reasonable medical practitioner in his shoes. Explaining the standard of care expected of a medical practitioner in the case of Whitehouse v Jordan[6], Lord Edmund-Davies in the House of Lords explained it thus:

“The test [of negligence] is the standard of the ordinary skilled man, exercising professing to have that special skill. Surgeon fails to measure up to that standard in any respect, clinical judgment, or otherwise he has been negligent”.

ANALYSIS OF PROFESSSIONAL MEDICAL NEGLIGENCE IN NIGERIA

STATEMENT OF PROBLEM

Medical practitioners have often been accused of not working up to par as they should, being that they are in charge of making sure whosoever comes for treatment receives maximum and proper treatment. In the instance of the job done not up to that standard, what should the patient do? It is only recent that people are coming to the knowledge that they can actually demand accountability concerning their treatments and not just subject it to “God’s Will”.

Anyone who is called to be a professional, must act accordingly. Failure to do such demands accountability for such actions. Failure of a medical professional in his course of duty of means Negligence.

In medical practice, the standard of care is usually contained in the rules of professional ethics for medical practitioners in different regions. In Nigeria, the standard of care is set by the Medical and Dental Council of Nigeria. other medical bodies including the Nigerian Medical Association, the Medical and Dental Consultants Association of Nigeria also have principles of ethics guiding their members with disciplinary measures in place to ensure compliance[7].

This paper seeks to contrast and compare notes on medical negligence in Nigeria, United Kingdom and Australia. This project also addresses the “avenue to demand accountability from the medical professionals on the treatment rendered with consent given by the patients and accountability from the patient in doing their possible best to follow through with the instructions given and the personal decisions they make with or without the medical professional.

The project also seeks to examine the questions that confront the Nigerian courts on Medical Negligence. This project at the end seeks to suggest ways in which Nigerian Courts can apply the rules of the developed countries which indigents of the country can seek redress and damages from.

ANALYSIS OF PROFESSSIONAL MEDICAL NEGLIGENCE IN NIGERIA

 SIGNIFICANCE OF STUDY

This paper calls to shed more light on medical negligence especially in Nigeria and understand what the concept means and encourage litigation on the issue and on ways on which relief can be sought.

OBJECTIVES

The aim and objectives of this research is to understand the following topics:

1. Medical Negligence and Medical Malpractice
2. Literature Review
3. Causation
4. Nigerian Courts Opinion on Medical Negligence.
5. Summary and Conclusion

RESEARCH QUESTIONS

1. What is Medical Malpractice?
2. What is Medical Negligence?
3. What is Standard of Care or Duty of Care?
4. When does Breach of Duty Occur?
5. History of Medical Negligence
6. Is there relief for a victim on Medical Negligence?
7. Is Medical Negligence recognised by Nigerian Courts?
8. What should be the approach of Nigerian courts to the standard of care of medical personnel?
9. How should the courts respond to the manifest inadequacies in resources, even to the most basic requirements for needles and gloves?

 RESEARCH METHODOLOGY

Key words that are important to the objectives of the review were used in the search including medical negligence, standard of care, duty of care, criminal negligence, doctor-patient relationship and health related rights. Eligible articles were included for review only when abstracts contained explicit information about the issues of interest. Full text of the relevant articles and literature were then accessed and read.

Also, relevant laws within the Nigerian legal system were reviewed and provisions relevant to the review were highlighted in the review. The review also included detailed analysis of existing judicial decisions and case law relating to the issue of interest.

ANALYSIS OF PROFESSSIONAL MEDICAL NEGLIGENCE IN NIGERIA

Research for this project was conducted through electronic media due to the incidence of Covid’19 pandemic which made all public establishments in which libraries are included close down.. An attempt has been made to include analysis of the law, not only in Nigeria but in the two other countries

This review was conducted using both peered reviewed and grey literature focusing on research evidences derived from the fields of law and medicine especially in Nigeria, United Kingdom and Australia.

LIMITATIONS

Any comparison or analysis of different societies or search for a nexus must be carried within dimensional identities[8]. This means there is need to understand the various factors such as the educational, sociological, religious factors that affect law making and information dispensation in both developing and developed countries.

While the above topic may have been of a standard practice or well-known subject in the developed world, some of these issues are still relatively new to us in developing countries. In developing countries, the issue is slowly getting attention after a myriad of difficulties.

ANALYSIS OF PROFESSSIONAL MEDICAL NEGLIGENCE IN NIGERIA

This project is an analysis between three countries; two developed and one developing country. The two developed countries make their analysis more easier due to numerous case laws and articles which have been published in the countries and some have been used in far and wide  judgment of some cases and have therefore established a universally accepted rules on the subject.

As such, their analysis with a developing country is a bit of a challenge. We shall therefore acknowledge some of the challenges below.

Some of the challenges that confront research for this project especially in Nigeria is the relative inaccessibility of case-law. Nigerian judgments are not electronically accessible. There is a limited amount of commercially-driven electronic materials but one has largely to rely on traditional hand-copy law reports. Also in Nigeria, due to the fact that medical negligence is an upcoming phenomenon, not much case are reported concerning the subject. Case laws of the other two countries are readily accessible on the internet.  But some are hard to access by foreigners, as only parts of the case are accessible or a summary of the laws.

This limitation reflects the fact that in Nigeria, medical negligence is rarely the subject of litigation. This is due to a number of reasons such as: medical negligence claims are hard to prove as some citizens do not understand what medical negligence is and most of the time, decide that what happens is a “Will of God”

The cultural and religious attitudes in parts of Nigeria tend to weaken the assertion by patients of their rights; expert witnesses are few, the test for determining professional negligence is not easy to raise; causation may be hard to establish even where negligence can be proved; and also, the courts at times show little sympathy for the challenges facing patients and generally apply traditional, conservative principles just to appease the victims..

 Also, due to the almost non-existent scope of medical negligence, the Nigerian courts have been forced to consult foreign textbooks of countries such as United Kingdom and Australia and apply the rules stipulated, not minding that such rules might have been amended in the latter years.