Absence Of Codification Of Medical Negligence The Law

Project and Seminar Material for Law

Absence Of Codification Of Medical Negligence The Law

Chapter One

1.1 Introduction

The American Heritage Dictionary defines the term negligence to mean “The commission or the neglect of any reasonable precaution or act”. In Lochgelly Iron and Coal Co. V. Mc Mullan1 Lord Wright observed as follows “In Strict legal analysis, negligence means more than a needless or careless conduct whether in omission or commission, it properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owing” The doctrine has found its place in the medical profession, this is due to the fact that more than any other profession, great amount of care is required here since it deals with life and health Medical negligence connotes the inability of medical professionals to meet the acceptable standard of care practiced by professional men of similar calling.2 (1934) A. C. Cit P.24 Uko E. J. “Human Right Law, Right to Health In Africa; and Aspects of Tortuous liability and Medical Negligence” (2007) Livingo Pub. At P.85

1.2 Statement of the Problem

Victims of medical negligence in Nigeria do not have an enabling environment to enforce their rights. The factors that inhibit the enabling environment include: Absence of codification of medical negligence the law recognizes that it is only the medical professional body that can set acceptable standards of care and can also determine when such standards are violated or breached. The Problem of confidentiality and access to medical records, confidentiality and access to medical records, confidentiality is an ethnical imperative placed on the medical profession.

Due to this to prove the case of a victim of medical negligence that is dead, will bore difficult, since the medical personnel can hide under the covering of confidentiality.4 Again a patients right to his records and not absolute 3. Uko E. J. Ibid, P.90 4. Professor Osagie Giwa Compendium of Medical Law under Common Wealth & United State with treaties on Assisted Conception. (2006) Maiyati Chambers Pub. P.22 Attitude of the Courts. In Vancouver General Hospital V. Mc Daniel5. It was observed that the courts are reluctant to attach negligence to an act of a medical practitioner if such an act conforms with the acceptable practice. Illiteracy and ignorance of victims rights Cost of litigation, duration of litigation and general attitude of the Courts Custom and practices of the people.

1.3 The Legal Problem

Absence of codification of medical negligence is a legal problem of this research. The law recognition that it is only the medical professional body that can set acceptable standards of care and can also determine when such standards are violated. By this, the notion of bias cannot be far fetched from the decisions of the body, in a case of medical negligence. 5. (1935) 152 LTR 56 It can be concluded that, medical negligence lacks precise definition and in based solely on “what his colleagues would say..” as said by Professor Giwa Osagie.

1.4 Rationale and Justification of Study

The need to create an enabling environment for victims of medical negligence to seek remedy under the law cannot be over emphasized. This work also bring to light how a victims right can be enforced and the measures that can be taken against the negligent medical personnel. This work having exposed the liability and duties owed to patients by medical personnels, would encourage an increased level of care towards the patients. This work also is in partial fulfillment of requirement for obtaining an L.L.B in the Faculty of Law, University of Uyo.

1.5 Literature Review

Poopoola A. O. & Adodo E. O. (eds) “Current Legal Development in Nigeria: Essay in memory of Professor J. O. Ojo” (2007) Obafemi Awolowo University Press Nigeria. P.312 Jhon Ademola Yakubu in his article “The legal implication of a request for sterilization by vasectomy”, is of the view that “medical negligence is a situation where in the medical practitioner is said to have fallen below the standard required where the act or omission is such that would not have been done by a reasonable person in the position of the medical practitioner.6

In Bolam V Frien Hospital Committee,7 it was held that the true test for establishing negligence in diagnosis or treatment on the part of the doctor in whether he has been proved to be guilty of such failure as no doctor of ordinary skill will be guilty of it acting with ordinary care. Giwa Osagie holds that “A medical man should not be found guilty of negligence unless he has done something of which his colleagues would say; he really did mare a mistake there. He ought not to have done it”8 Lord Clyde in Hunter V Hanley9 held the view that though a medical practitioner may be liable in negligence if he deviates from the general and approved practice and injury result of such deviation. However such a deviation is not necessarily evidence of negligence that “if it were so, inducement to progress in medical science would be destroyed”.

Hewart C. J. in R. V Bateman10 summarized the law relating to the liability of medical men for negligence “If a person holds out as possessing special skills and knowledge and he is consulted as possessing such skill… he owe a duly to use diligence, care, knowledge, skill and coalition in administering treatment. To do below this will make him guilty of negligence”. 7. (1957) 2 All ER 118 8. Professor Osasgie Giwa Ibid, P.22 9. (1953) SCD. 200 10. (1925) 12 WACA 56 In R. V Ezeocha”, it was held that where persons who are not qualified attempt to practice medicine, they are judged by the same stand and as qualified practitioners.

1.6 Data Collection / Methodology

The researcher intends to use both primary and secondary sources of data collection.

Primary source;

Interviews, questionnaire and visit to locus

Secondary source:

Library and internet research methods will be used

1.7 Scope and Limitation of Study

The scope of this problem will be negligence in the medical profession. To this extent, Medical Center, Ubongabasi Hospital, University of Uyo Health Care Center shall be used as a case study.

Chapter Six

Conclusion and Recommendations

The near absence of medical negligence cases in our case law may give one an impression that the instances of such events are rare in Nigeria. But in reality they occur quite frequently though they never get to the courts for obvious reasons discussed in the previous chapter. Instances of such occurrences were cited  by Dr. Beko Kansorne Kuti in a letter to the Nigerian Medical Association in connection with proposed peace meeting with Lagos University Teaching Hospital doctors.1

He alleged that:

  1. A 35 years old man shot by aimed robbers and taken to the hospital on January 28, 1987 was not operated upon until 10 hours later. He died and death was referred to Head of the department for investigation with no response until three months later
  2. A pregnant woman with signs of toxaemia spent two weeks in the hospital with the foetus dead in her womb. Labour was induced on March 23, 1987  and she died from rapture uterus.

Dr. Rensom Kuti ended by writing:

The above are just a few example of death in which negligence has been contributing factors. This is a frequent feature in L.U.Y.H not to mention other made deficiencies that have little to do with lack of drugs or equipment

More disturbing is the fact that victims of medical negligence or their relations (where victims are dead) are hardly compensated for obvious reason including: ignorance of rights of victims, attitude of the courts, cost of litigation, cultural reasons, lack of witnesses and lack of precise definition of the term medical negligence.

From the survey taken, 58% of the respondents strongly agree that lack of medical equipment is the major cause of Medical Negligence followed by the general carelessness (36%) of Medical Personnels.

96% of respondents strongly believe that victims of Negligence never get compensated. 84% believe that ignorance of right of compensation on part of victim causes the denial of compensation. 54% of respondents believe that general attitude of the courts, along with the cost of litigation possess as the most challenging factors that affect the enforcement of a victims right against medical personnel.

Going by the above, both the courts, medical personnel, and NGO’s have a great job to play, inorder to increase awareness, ensure compensation is given to victims of Medical Negligence and generally to tame the heat of occurrence of Medical Negligence.

6.1 Recommendations

In view of the factors stated above a Section (no.20) of the questionnaire was created for the respondents to give recommendation on how to tame the on going situation they include:

That a forum be set up by concerned non governmental organizations to educate patients on their rights and on how it is okay to sue medical practitioners.

That medical practitioners be more equipped both financially and with medical equipments to work with. Private individuals as well should join in the good fight and donate to hospitals.

In addition, on the issue of ignorance of victims right, the media (Radio, television and Internet) should join forces with the NGO’s to create more awareness about the situation to educate the public.

Victims of medical negligence should also set up a symposium to educate would be patients as to their rights.

Again a body should be set up by the Nigerian medical practitioner council to hold yearly symposium reminding medical practitioners of the Hippocratic oath which is the basis of professional responsibility and how to avoid being negligence.

One the issue of cost of litigation, the scope of the legal and council should be widened to cover more civil cases, and their activities given due publicity in order to help the poor people who may be restrained by lack of funds from pursuing their rights.

A body should be set up by the Nigerian Medical and Dental Practitioner to join forces with selected lawyers to form a medico-legal society, this way medical negligence can be codified  rather than remain subject to” what a medical colleagues would say

Through the medico-legal society, medical practitioner may get acquitted with the legal implications of medical treatment and procedures and the lawyers in turn will broaden their knowledge on cases with medical implications.

J.S.C Tobi in Ojo V Gharor3 recommended that the medical profession must invent surgical needles that will stand the test of time to ensure that they do not break or snap easily in human bodies.

Access to justice an NGO that was concerned with the rampant  cases of death in hospitals and police custody passed a law through the state house of assembly last year imposing a legal duty on any person to make any report of death to  the appropriate authority and such death shall be subject to post mortem to find out if it was caused by self neglect or negligence of others.

Reportable death under the law also include death due to negligent medical intervention misconduct or malpractice death due to negligence during saying or  before recovery from anesthesia or diagnostic or therapeutic procedure and death as a result of non-conventional medical procedure or medication.3

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