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1.1       Background to the Study                    

That every person has the right to life is indisputable. All over the world, it is recognized and protected. [1]  Circumstances where it can be abrogated are clearly spelt out [2]. Imbedded in this right is the right to medical care [3]. Though not justifiable in Nigeria [4], the law regulates the provision of medical care by holding medical care givers to a standard known as the duty of care.
The concept duty of care is a common law creation.
[5] A very key area this duty arises is in medical care. The duty to care in medical care arises majorly from contract [6]. Medical practitioners are under an obligation to exercise a level of professionalism in their care for their patients. When this duty is breached, the medical practitioner is said to have committed medical malpractice.

Medical malpractice lawsuits are a global phenomenon and Nigeria as a country is slowly but surely catching up with the reality of increasing patients’ awareness of their rights and expectations in relation to healthcare. This is becoming evident in the rising number of allegations and lawsuits against Nigerian healthcare workers practicing in both private and public hospitals. [7]

Notwithstanding the above, medical Jaw in Nigeria is still not as developed as in other climes.
There are few medical and legal practitioners who specialize in medical law in the country.
Medical law is still not taught is many law faculties
[8] in the country. This makes one to
wonder the extent to which the medical profession is being held up to its obligation to care.
It becomes paramount that there be an excursion into the extant provisions of law that imposes the duty to care on medical professional. The various indices that make up this duty to care will be analysed, when this duty is breached and remedies available to victim. It is unarguable that case laws make up a great part of our body of laws. We will be looking out decided cases on the duty of care of Nigerian courts, courts and in other jurisdictions.

1.2       Statement of the Problem

Medical malpractice still goes on at an alarming rate in Nigeria because of variety of reasons. [9] Stories of relatives and friends dying due to lack of proper care by medical professionals still abound in newspapers. [10] Recent study by the World Health Organisation shows that Nigeria is the eleventh worst place to give birth in the world. [11] Medical malpractice undoubtedly has contributed to the abysmal state of the health sector. When the rights of patients are known, it will be easier for the enforcement of those rights.

1.3       Research Questions

The study will address the following research questions:

1.         What are the rights of patients in Nigeria?

ii.         How are these rights protected?

iii.        What are the legal framework that guarantee the protection of the rights of patients in       Nigeria?

1.4       Aim and Objectives of the Study

The aim of the study was to assess the duty of care and its implications to the medical profession in Nigeria. The specific objectives of the study are:

i.          To examine the rights of patients in Nigeria

ii.         To know how these rights protected

iii.        To examine the legal framework that guarantee the protection of the rights of patients       in Nigeria?

1.5       Research Methodology

The study adopts the doctrinal design. Reliance was placed on primary and secondary source of data. The primary source of data relied on include statutes, while secondary source of data relied on include cases, textbooks, journals and the Internet. Also, the understanding of various writers on the next matter and their opinions is shown. Regard was also had to newspaper articles to see how individuals in the society have been affected by the subject matter.

1.6       Scope of the Study

This research work deals with the rights of patients under the Nigerian legal framework with particular emphasis on duty of care owed by doctors. The general understanding of what duty of care means is extensively discussed but is restricted to discuss the implications of duty of care in the medical profession only. To do this, regard will be had to judicial decisions, both in our jurisdiction and in other jurisdiction. [12]

1.7       Literature Review

The first work that will be reviewed is the article written by Obioha, J. 0. & Obioha, K. C. E. [13] They started the article by saying that a patient approaching a doctor expects medical treatment with all the knowledge and skills that the doctor possesses to bring relief to his medical problem. The relationship according to them takes the shape of a contract while 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 services of the doctor are covered under the provisions of the Consumer Protection Council Act [14] and a patient can seek redress of grievances from the consumer courts.

Obioha, J. O. and Obioha, K. C. E defined negligence as a conduct that falls below the standards of behavior established by law for the protection of others against unreasonable risk of harm and negligence in medical practice as the failure or alleged failure on the part of a physician or other health care provider to exercise ordinary, reasonable, usual, or expected care, prudence, or skill that would usually and customarily be exercised by other reputable physicians treating similar patients in performing a legally recognised duty, resulting in foreseeable harm, injury or loss to another.

They also looked at four elements that a person who alleges negligent medical malpractice must prove it includes: that a duty of care has owed by the physician; the physician violated the applicable standard of care; the person suffered a compensable injury and the injury was caused in fact and proximately caused by the substandard conduct.

In analysing standard of care, they said “a standard of care is a medical or psychological treatment guideline, and can be general or specific. It specifies appropriate treatment based on scientific evidence and collaboration between medical and/or psychological professionals involved in the treatment of a given condition”. [15]

In an insightful piece, a learned author [16] shares the same concerns as already expressed in this work. He analysed two views on the extent to which medical decisions should be the object of legal scrutiny and control. At one extreme, he said, there are those who hold that the medical profession should be left to regulate itself and that it alone should decide what is an acceptable conduct. The contrary view, frequently expressed just as firmly denies that there is any reason why doctors alone should regulate the relationship with patients. According to this proposition, the aspect of reserving to the medical profession the right to decide on issues of life and death is an improper derogation from an area of legitimate public concern. The law is designed to vindicate individual rights and to ensure that certain basic rules of social conduct are observed. He opined that the medical profession like any other professions has become increasingly open to legal scrutiny.

In analyzing duty of care he stated that once a doctor undertakes to treat a patient, whether or not there is an agreement, a duty of care arises. This duty according to him also extends to the hospital.

He makes a very important point on the standard of care expected of medical doctors when he said that if a doctor holds out to a patient as possessing special skills and knowledge in a particular field of medicine or surgery, the doctor must exercise the same degree of care and skill as a doctor who generally practices in that field.

On the confusion as to whether the standard of care is assessed according to the doctor’s qualifications, the post within the organisation that he holds or the task that he is engaged in performing. He submits that the correct measure is the task that the individual undertakes that fixes the standard, irrespective of his qualification or job title.

He further makes a very interesting observation when he said that the problem of proving medical negligence is peculiar since some of the harm is slow to manifest and their symptoms only become noticeable long after the breach. [17]

Another work will be reviewed in this long essay. [18] The author defined medical negligence as a breach of a duty of care by a person in the medical profession, to a patient, which results in damage to the patient. According to the author, medical negligence does not only give rise to civil claims but can also result in criminal actions being instituted against the practitioner. However, his negligence or incompetence must be so great as to show a disregard for life and safety and to amount to a crime against the state, and conduct deserving punishment. Consequently, for criminal liability, the degree of negligence required of health care providers is that it should be “gross” and not “mere” negligence.

The author also analysed what happens when a person not qualified to act as a medical practitioner does so. The author posits that such a person cannot excuse his act by saying that he did his best, if his best fell below the required standard of care [19]

The fourth work to be reviewed is a work by E.O. Malemi. Negligence was discussed extensively in chapter ten of the book. [20] He traced the origin of duty of care to the much celebrated case of Donoghue v Stevenson [21]in 1932. The author discussed elements of negligence, standard of test and different forms of professional negligence. The interest in this work is his exposition on medical negligence. He summarized the duty a medical practitioner owes his patient into four: duty to provide adequate counseling, duty to warn the patient on the risk of treatment, duty to carry out proper diagnosis and duty to administer proper treatment. [22]
The work is quite thorough although it is restricted to the practices of medical doctors and not all medical practitioners. The author also displayed a firm grasp of the legal principles pertaining to medical negligence expressed in case laws. His work is embellished with lots of cases.
Another author, W.V.H. Rogers in his book
[23] stated that there is no doubt that what amounts to reasonable care is to be determined by a legal standard framed by the court, not by the profession or industry in question. He however recognized that considerable deference is paid to the practice of the professions (particularly the medical profession) as established by expert evidence and the court should not attempt to put itself to into the shoes of the surgeon or other professional man.

In this essay, it is intended to align with the view of the writers expressed above but with substantial additions and more detailed explanation.

[10] See the story of Sandra David, Eddy Pious and John Paul written by E. Okakwu, “Investigation: Nigerian hospital where ‘medical negligence’ causes death of women, babies”, (31 December 2016) available at https:/?www.prem i I 9289-investiation-nigerian-hospital-medical-nelience causes-death-women-babies.html (last accessed 23 April 2018 at 11:23am). And the story of Lanre Onidundun, Ruth, Juwara Amo-onidundun written by T. Olofinlua, “Medical Negligence in Nigeria [Part 2]: The Slow Road to Justice” (23 June 2015) available at accessed 23 April 2018 at 1:10pm). See also the story of Kingsley Kalu, Debbie Amos Dunamis written by A. Owoseye, “SPECIAL

  REPORT: How patients lose lives, body parts due to alleged medical negligence at Nigerian hospitals” (14 January 2018) available at 5476-special-report-patients- lose-lives-body-parts-duealleged-medical-nepligence-nigerian-hospitals.html (last accessed 23 April 2018 at 1:19pm).

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