A Review of Professional Medical Negligence in Nigeria
Chapter One
Objectives of the Study
The main objective of this study is to critically review professional medical negligence in Nigeria.
CHAPTER TWO
REVIEW OF RELATED LITERATURE
Introduction
This chapter presents the review of related literature on a review of professional medical negligence in Nigeria. Views and opinions of other authors are presented as follows.
Concept of Negligence
Negligence (Latin Negligentia, from negligence to neglect, literally “not to pick up”) is a legal concept in the common law legal system usually used to achieve compensation from injuries (not accidents) negligence is a type of tort or delict (also known as a civil wrong). However, the concept is sometimes used in criminal law as well. “Negligence” is not the same as “carelessness”, because someone might be exercising as much care as they are capable of, still fall below the level of competence expected of them. It can generally be defined as conduct that is capable because it falls short of what a reasonable person does to protect an individual from foreseeable risks of harm.
The Black’s Law Dictionary defines negligence as “the omission to do something, which a reasonable man, guided by those ordinary considerations, which ordinarily regulate human affairs, would do or the doing of something, which a reasonable and prudent man would not do. Negligence is the failure to use such care as reasonable prudent and careful person would use under similar circumstances; it is the doing of some acts, which a person of ordinary prudence would not have done under similar circumstances or failure to do what a person of ordinary prudent would have done under similar circumstance”.
The Black’s Law Dictionary defines negligence as “the omission to do something, which a reasonable man, guided by those ordinary considerations, which ordinarily regulate human affairs, would do or the doing of something, which a reasonable and prudent man would not do. Negligence is the failure to use such care as reasonable prudent and careful person would use under similar circumstances; it is the doing of some acts, which a person of ordinary prudence would not have done under similar circumstances or failure to do what a person of ordinary prudent would have done under similar circumstance”.
CHAPTER THREE
GENERAL OVERVIEW OF MEDICAL NEGLIGENCE
Introduction
The law of negligence is pervasive, in that it is applicable to the conduct of every person whether a layman or a professional. In addition, certain ethical standards are applied to the professionals. This is particularly so in the medical profession where negligence may not only cost a man/woman his/her limb, leg or hand but his or her life. As a result of the extent of the impact that medical negligence has on health care delivery and the lives of citizens, it has been described as an “emotive term” for both Doctors and patients. This underscores the need to critically examine the nature of medical negligence.
CHAPTER FOUR
INGREDIENTS OF MEDICAL NEGLIGENCE
Introduction
Medical negligence as a tort is the breach of a legal duty to take care which results in damage, undesired by the Doctor, to the patient. Like every tort, there are certain critical elements that must be established in order to succeed in an action against a negligent Doctor.
CHAPTER FIVE
CONCLUSION AND RECOMMENDATIONS
Conclusion
Roe Vminister For Health where his lordship observed that-“If the anesthesia had foreseen that the ampoules might get cracked with cracks that could not be detected on inspection, they would no doubt have dyed the phenol a deep blue and this would expose the contamination. But I do not think their failure to see this was negligence. It is so easy to be wise after the event and to condemn as negligence that which is only a misadventure. We ought always to be on our guard against it, especially in cases against doctors and hospitals. Medical science has conferred great benefits on mankind but these operations are attended by risks”.
However, as laudable as this position taken by Lord Denning is, one must also acknowledge the grievous nature of a surgeon’s mistake or error of judgment and the possible injury the patient will suffer. There is the dire need to balance the interests of all the parties so that one party is not at the receiving end.
The reform required is a system that effectively handles the issue of compensation, enhances accountability and improves the standard of care expected from practitioners without promoting defensive medicine. In order to effectively handle problem of judicial delay and technicalities, an alternative dispute resolving system that is designed specifically for medical practice needs to be put in place.
Recommendations
The following recommendations were put forward by the researcher;
- Nigeria should, like the United States of America, adopt a no- fault system in medical negligence cases as this will reduce the enormous burden of proof on the plaintiff. This is in the light of the established difficulty of proving the physician’s fault in Court actions. In the alternative, the burden of proof in medical negligence cases can be shifted to the Doctor to show that he was not negligent in treating the patient. This will go a long way in solving the problems attached to the proof of medical negligence.
- On the problem of expert evidence, the Nigerian Medical Association should be encouraged not to clamp down on any of its members who testifies for victims (this is referred to as bottleneck syndrome among the medical profession) against a Medical Doctor. This will encourage high standard practice among Medical Practitioners and will help eliminate the “conspiracy of silence” among Medical Doctors in actions against their colleague.
- Law requires evidence and documentary evidence in the form of case papers and medical reports have to be meticulously prepared. The duty of the Doctor is to treat the patient, however, it is also important to document the treatment given and at times the reason why such treatment has been given. Cases generally reach the Courts after several months and years of the occurrence of the injury and by that time, the only thing on which the parties can rely in the Court is the case file. The oral evidence of Doctors and other staff also adds to the evidence, however, the documentary evidence always gets precedence, until and unless proved to be forged. It is also important to have transparency in the system and give a copy of all the papers, reports, films, etc. to the patient. In such a case the confidence of a patient in the hospital and its system increases. This will also increase the evidence at the disposal of the patient should there be a breach of duty by the Doctor and subsequent litigation.
- Medical Law as a course of study for lawyers should be introduced at the undergraduate level so that lawyers are properly equipped to handle technical issues involved in medical negligence cases. Lawyers should also pursue specialising in this area of the law. It is strongly believed that if lawyers are well equipped to handle medical negligence cases, it will improve the lot of litigants in this area of law.
WORKS CITED
BOOKS
- Allen, C., Practical Guide to Evidence, 2nd Ed. (London: Cavendish Publishing Ltd., 2001)
- Amupitan, J. O., Evidence Law: Theory and Practice in Nigeria, (Lagos: Innovative Communications, 2013)
- Dada, J. A., Legal Aspects of Medical Practice in Nigeria, 2nd Ed. (Calabar: University of Calabar Press, 2013)
- Dada, J. A., The Law of Evidence in Nigeria, 2nd Ed. (Calabar: University of Calabar Press, 2015)
- Dugdale, A.M., Stanton, K. M., Professional Negligence (London: Butterworths 1982)
- Efevwehan, D.I., Principles of Civil Procedure in Nigeria, 2nd Ed. (Enugu: Snap Press Ltd., 2013) at Pg. 101
- Emiri, F., Medical Law and Ethics in Nigeria (Lagos: Malthouse Press Ltd, 2012)
- Gasiokwu, M.O.U., Legal Research And Methodology, (Jos: University of Jos, 2004)
