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1.1       Background to the Study

Health care practitioners are professionals in their respective fields of endeavour and include but not only – Physicians, Surgeons, Psychiatrists, Gynecologists, Nurses, Pharmacists, Anesthetists, Medical laboratory Scientists, etc. They must possess a reasonable degree of proficiency and apply a reasonable degree of diligence. Where the duty of care owed to the patient is breached by any acts or omissions due to ignorance, incompetence, and carelessness and a patient suffers bodily, mental or financial disability or even loss of life, the health provider becomes liable for negligence.

Applying the ‘Neighbourhood test’ in Donoghue v Stevenson [1] Lord Atkin enunciated the foundation of the duty of care. The doctor and other health practitioners in a health facility is a very close neighbour of the patient who comes to them for any medical attention or course of treatment. The medical professionals owe such a patient duty of care. This is apart from the contractual obligation between the patient and the owner of the health facility. The breach of the duty of care can result to civil, criminal or vicarious liability when it results to damage undeserved by the patient.

Civil and professional negligence are species of tort and the tort has three elements and they are:

  • A duty of care owed by the defendant to the plaintiff
  • Breach of that duty of care by the defendant
  • Damage to the plaintiff resulting from the breach

Damages will normally be awarded in favour of the victim of negligence or the survivors, heirs, or legal representatives if the victim is deceased against a tortfeasor. A health personnel adjudged to be guilty of professional negligence would usually be sanctioned [2] by the appropriate disciplinary organ as laid down in the enabling Statute. [3] The sanction could be admonition, suspension of the practitioner from practice, or removal of his name from the register. Most often in cases on medical negligence, the decisions of the disciplinary organs like the Medical and Dental Practitioners Disciplinary Tribunal end up in the appellate courts.

Litigation against professionals, corporate bodies or the government at the local, state or federal levels for dereliction of duty, unethical practices or incompetence and professional negligence are not common in our country Nigeria notwithstanding the near decay of primary and secondary health care facilities and the grave consequences these have on health care delivery coupled with the dire consequences of the acts and omissions of health care practitioners. It has been obvious that over the years, hospital authorities and health care givers refused to admit or attend to victims of gunshot. It has been a clear case of dereliction of duty on part of the health providers since there was no enabling statute on which they based their action. It is a welcome relief that the bill [4] has been signed into law in December 2017. Any health facility that refuses to attend to such cases should be prosecuted accordingly.

The health of a nation is the wealth of the nation hence health care delivery is indispensable in today’s civilized world. Good health is paramount for everybody and for the survival of a nation consequently all health care practitioners literarily hold in their hands the power of life and death of individuals and that of survival of the country.

The present state of affairs in the health care sector is not very encouraging. The lack of adequate health care facilities, the poor response to emergencies, the out of stock syndrome and most importantly the negligent acts of health care practitioners which have left many victims with more mental and physical injury than they had, are circumstances which can be said to be undeserving, yet these health professionals who are in one way or the other civil, criminally or vicariously liable for their acts and omissions escape liability for many reasons.

The citizens of this country and those who have suffered injury from health care givers are still very reluctant to seek redress in court for the injury suffered or to compel the appropriate authorities to do their duty. The factors responsible for this laissez faire [5]attitude are

Legal factor: This is a very relevant factor that determines the response of victims of negligence to litigation. One of the factors according to the learned author Olunlade [6] is the high cost of litigation and also the length of time it takes one to get the judgment he deserves. The case of Plateau State Health Services Management Board and Anor v Goshwe [7]  shows clearly how slow the system or wheel of justice can drag in Nigeria. In this case the plaintiff/Respondent suffered the injury in August 1990 whereupon he instituted an action against the hospital claiming damages but the case dragged on for 22yrs before the Supreme Court gave final judgment in respect of the matter in 2012. No litigant would want to spend money on litigation and wait for decades before getting his deserved judgment

Another factor is that medicine is practiced behind what is described as the ‘fortress of Jericho walls’ [8] the result of which is that it is not easy to identify breaches committed by health practitioners compared to other professionals. Members of the public do not easily access and assess the performance and quality of care delivered by health care givers. They equally have difficulty knowing if the injury suffered was as a result of the health practitioner’s negligence. Another problem is the inability to prove medical negligence against a health care giver due to poor knowledge of both the lawyer and the litigant on the relevant materials and evidence required to prove medical negligence. This difficulty is further compounded by the unwillingness of fellow practitioners to give expert evidence to establish negligence, a term described as ‘conspiracy of silence’. [9] Actions in medical negligence are fault based and this increase the burden of proof by the patient and consequently the more difficulty in establishing negligence on part of the practitioner

Social factor: Literacy level is still very low in Nigeria despite government efforts at virtually all levels to ensure that the citizens acquire education. Majority of Nigerians even literate ones do not know their rights due to low public enlightenment consequently they do not know when their rights have been violated or when a breach has occurred neither do they know the measures to take to seek redress. They often adopt the mentality of leaving everything in God’s hand.  Many health practitioners and authorities have been escaping liability where their actions or omissions have been called to question

Cultural factors: It is quite obvious that Africans and especially Nigerians are not litigious as those in the western world. Litigation has not been our method of dispute resolution especially when the cases are against renowned individuals or against a person who is seen literarily as working or doing everything to save your life. The society seems to frown at or discourage such litigants who want to redress the injury they have suffered.

Political reasons: Our level of political awareness and politicking is still very poor coupled with the endemic corruption in the system. We still vote in line with ethnic and religious sentiments and still go all out in defense and support of the activities of those people we voted into power even when we know they have failed in their duty. We find it difficult to take measures legally to compel them to do their duty

Another stumbling block is that the constitution [10]conferred immunity on some public officers such that you cannot litigate against them until they leave office while in some cases the citizens are discouraged from taking up any redress in court. [11]

This work is to sensitize the public on the scope, duties and liabilities of medical practitioners, how to know when breaches have occurred, the necessary steps to take to redress their injury and for the judicial authorities to provide a contemporary platform to aid lawyers and litigants in establishing relevant evidence and to prove medical negligence among health care providers. This will put health practitioners on their toes and spur them to give in their best when dealing with any patient knowing well that there are consequences for any act of negligence.

1.2       Statement of the Problem

There is a very low awareness of Nigerians on their rights consequently medical negligence is not highly litigated on as done in civilized countries. The result of this attitude is the reason why there are dearth of judicial authorities and lack of interest on the part of legal scholars to research on this area of law.

Health practitioners who are negligent while treating their patients have often escaped the liability from the law because the victims are not ready to seek redress. This is having a negative impact on health care delivery in the country. Another reason for the poor litigation on this area of law and the lack of authorities is the difficulty in proving negligence of a medical practitioner since the onus lies on their colleagues to provide expert evidence but most often the medical personnel are not willing to testify a situation described as ‘conspiracy of silence’.  There is equally the burden of proving the fault of the defendant health care provider and that the injury suffered was sustained in the course of treatment by the health practitioner and was as a result of the practitioner’s negligence.  

1.3       Research Questions

In carrying out the study, the researcher adduced the following questions to guide the conduct of the study:

  • What does medical negligence mean and how can it controlled?
  • What are the scope, duties and liabilities of medical practitioners in Nigeria?
  • What are the defences for medical negligence in Nigeria?

1.4       Aim and Objectives of the Study

The aim of the study is to assess the scope, duties and liability of medical negligence for practitioners in Nigeria. The specific objectives of the study will include the following: 

  • to examine what medical negligence and how can it controlled.
  • to identify the scope, duties and liabilities of medical practitioners.
  • to identify the defences for medical negligence.

1.5      Research Methodology

This research work is based on primary and secondary sourced materials. The primary sources include the 1999 Constitution of the Federal Republic of Nigeria as amended, statute books, law reports and journals relevant to the subject matter. While the secondary sources include, textbooks written by foreign and Nigerian authors, dictionaries, juristic articles found on the internet, books, journals, newspapers, magazines, conference papers and other materials necessary for the achievement of the aim of this study.

1.6      Significance of the Study

This research work is significant at this material time because of the level of medical negligence by health care providers and practitioners in the country. This research work will be of immense help to the researcher as it will help him to know more scope, duties and liabilities of medical practitioners. This research work will also be of immense benefit to the legislators in enacting laws that will guide the enforcement of the provisions of the different agencies in the fight against medical negligence.

It will be of great benefit to; academia’s, especially law lecturers, social scientists, historians, because it could be of great academic succour for further research and teaching; it could also be of great importance to legal practitioners both at municipal and international level. This study will be of great importance to students and other researchers since it will serve as a reference point for upcoming researchers.

1.7      Scope and Limitation

The work will cover dereliction of duty of individuals in their collective or personal capacity as health care providers or otherwise and negligence of professionals in the health care sector. Negligence as a tort can create civil liability, primary liability or vicarious liability however when the negligence is gross and leads to loss of life, the law will input criminal liability in form of involuntary manslaughter or voluntary manslaughter as in euthanasia or where consent is fraudulently obtained and criminal abortion is procured.

The proof of negligence by a medical practitioner is fault based and requires expert evidence and judicial authorities to serve as precedent hence resort will be made to foreign case laws from the U.S.A, United Kingdom, India, Canada where there are common law jurisdictions to help the prospective litigant in Nigeria because of the dearth of sufficient authorities in Nigeria.

The researcher encountered some limitations while carrying out the study;

Unavailability of Research Materials: The research materials available to the researcher were insufficient, thereby limiting the study

Oath of Secrecy: The oath not to divulge certain pieces of information termed privileged and confidential by medical practitioners equally limited the research.

In all, the researcher was able to surmount all the limitations.

1.8      Synopsis of Chapters

This research work is divided into five chapters. Chapter one provides a general introduction of medical negligence, background to the study, it sets out the research questions, statement of the problem, aim and objectives of the study, research methodology, significance of the study, scope and limitation, synopsis of chapters and definition of terms.

Chapter two is a general overview on health care practitioners. It examined the nature of professional responsibility, ethics of health care practitioners, inter alia.

Chapter three deals with Negligence and duty of care. Care was taken to examine things like dereliction of duty and negligence, professional negligence, acts amounting to Negligence in health care delivery, ingredients of negligence in health care delivery, civil liability in negligence, criminal liability in negligence, inter alia.

Chapter four deals on defences to breach of duty of care. Defences such as contributory negligence, remoteness of damage, defence of consent, defence emergence, defence necessity and other defences like res ipsa loquitur were examined.

Chapter five provides a summary of findings, recommendations and conclusion of the study.

1.9       Definition of Terms/Conceptualisation of Terms

In definitions, we must understand that every definition is as good as any other definition and every definition is as bad as any other definition. Professor Okuniga said: ‘Nobody has been able to offer, is offering, and will be able to offer a definition that will end all definitions of Law’  However, for an average person to understand the essence of this long essay, some terms that you will come across in this essay have been defined.

Act: An Act may denote something done by an individual, as a private citizen, or as an officer: or by a body of men as a legislature, a council , or a court of justice: including not merely physical acts, but also decrees, edicts, laws, judgments, Resolves, awards and determinations

Anesthesia: Insensibility to touch or pain, loss of sensation in a part or whole of the body induced by drugs

Breach: Breach is the breaking or violating of a law, right, obligation engagement, or duty, either by commission or omission. It exists where one party to a contract fails to carryout term, promise or condition of the contract.

Civil Remedy:  Civil remedy relates to private rights and remedies sought by civil actions as contrasted with criminal proceedings.

Conduct:  This is a person’s behavior, collectively a person’s deeds whether by action or inaction, verbal or nonverbal: the manner in which a person behaves. It covers both acts and omissions. [12]

Court: A space which is uncovered, but which may be partly or wholly enclosed by buildings or walls.  In its technical sense it is an organ of government belonging to the judicial department, whose function is the application of the laws to controversies brought before it and the public for the administration of justice.

Dental Surgeon: A dental surgeon is one who gives any advice or treatment or performs any operation necessary for the cure or preservation of teeth. A dental surgeon performs all operations necessary or incidental to the preparation and fitting of dentures artificial teeth or other dental appliances. [13]

Disciplinary Authority: A tribunal or regulatory body charged with enforcing rules and standards of professional responsibility: the duly exercised power to enforce rules and ethical guidelines

Duty of Care: In Negligence, it is an obligation, to which law will give recognition and effect, to comport to a particular standard of conduct towards another, and the duty is invariably the same, one must conform to legal standard of reasonable conduct in light of apparent risk. The word duty is used throughout the restatement of tort to denote that the actor is required to conduct himself in a particular manner at the risk that if he does not do so he becomes subject to liability to another to whom the duty is owed for any injury sustained by such other.

Ethics: A system of moral tenets or principles; the collective doctrines relating to the ideals of human conduct and character: The study of behaviour as judged by moral right or wrong, including the sources, principles and enforcement of behavioral standards. [14]

Iatrogenic:  Disorders or medical condition that results from risk or natural consequences of a surgical or medical treatment.

Law: That which is laid down, ordained, established. A rule or method according to which phenomena or actions co-exist or follow one another. In its generic sense, is a body of rules of action or conduct prescribed by controlling authority and having binding legal force.

Legal Duty: An obligation arising from contract of the parties or the operation of the law e.g. legal duty of doctors to cure patients.

Legal Practitioner: A legal practitioner is one who is employed of a profession that is law as opposed to one who teaches such. [15] 

Liability: The quality, condition or state of being bound or obliged in law or justice to do, pay, or make something good; the state of one who is bound in law and justice to do something which may be enforced by action.

Medicine: The science and art dealing with the prevention, cure and alleviation of diseases, in a narrower sense that part of science and art of restoring and preserving health which is the province of the physician as distinguished from the surgeon and obstetrician.

Oath: Any form of attestation by which a person signifies that he is bound in conscience to perform an act faithfully and truthfully e.g. President’s Oath before he assumes of office.

Tort: A private or civil wrong or injury, including action for bad faith, other than a breach of contract, for which the court will provide remedy in the form of an action for damages.

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