Duty Of Care; It’s Implications To The Medical Profession In Nigeria

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Duty Of Care; It’s Implications To The Medical Profession In Nigeria


Abstract


The Medical field is one of the most referred and reverenced profession in that it deals with the lives of human beings and in the course of their dealings with patients, these patients go through tests, operations, diagnosis to mention but a few.

The Medical professionals in the course of discharging their duties are sometimes Negligent as regards adhering strictly to their professional Code of Conduct. For instance where a doctor leaves operating instruments in the abdomen of a patient. In Nigeria there exists a countless catalogue of Negligent cases in which the involved Medical Personnel go scot free because their victims are ignorant of their rights let alone enforcements of such rights.

The peculiarities imposed on the practice of Medicine in Nigeria by our Culture and Environment have been examined. The laxity or absence of policing of drugs and food in Nigeria has been highlighted. It is clear from this that some Nigerian laws which relate to many aspects of Medicine are outmoded and inadequate. This particular point is emphasized especially in matters of abortion an mental illness.

This Negligent act can be described as the breach of duties, standard, care and diligence required by the Medical Profession. The main focus of this long Essay is to discuss the Legal Implications of the breach of Duty in the Medical Profession. As regards this, solutions would be proferred to curb all acts which might later occur in the nearest future.

This work is divided into five chapters, chapter one deals basically with the general introduction. Chapter two gives us an insight into Medicine as a whole, how it evolved in Nigeria and how we received it. Chapter three gives us a proper understanding of the concept, Duty of Care and Medical Negligence, Chapter four avails a Medical Practitioner the opportunity to be free from liability in essence, they have defences they can rely on. Lastly, Chapter five deals with the general conclusion.


Chapter Five


Conclusion and Recommendation

5.1 Conclusion

The primary duty of a Medical Practitioner is to take care or to find cure for the ailment of a patient that may be put in his care. This duty has been recognized from time immemorial. The duty in this regard is usually said to be Contractual. It is also one of the incidents of various provisions of the Law put in place for the purpose of achieving this objective. Much as the duty is Contractual and some of the remedies that are usually found when there is a breach of Contract can be asked for in a relationship of a Medical Practitioner and patient, it is not unusual to ask for the remedies that are usually granted in the case of a delicit or a tort, the reason being on the dichotomy of Criminal and Civil aspects of Law175. Thus, while it may be said that a Medical Practitioner accepts to treat a patient who presents himself to him for advice, diagnosis or cure by reason of which a Contractual relationship is created, if however along the line, the Medical Practitioner is Negligent in the performance of the Duty of Care he owes by reason of his position as a Medical Practitioner, he becomes liable to pay damages to the patient not necessarily by reason of the Contractual nature of the duty, but by reason of the classification or characterization of the claim by the patient or his counsel, as in Tort, in consequence of which the matter is taken out of the confines of a Contract and becomes a Tort. Therefore, the same act or relationship of a Medical Practitioner and patient may be regarded not only as Contract but it may generically be called a Contractual relationship that may give rise to a
Tort176.

As regards this Long Essay, references were made from various textbooks on Medical Negligence, Case books and Statutory Enactment. Reference was also gotten from various Scholars and Articles from the Internet as regards Medical Negligence.

Chapter One of this Long Essay deals basically with the General Introduction of Medical Negligence as seen in the Profession

Chapter Two gives us an insight as to what Medicine entails, its evolution in Nigeria, An overview of the Medical and Dental Practitioners Act, Nature and Scope of Medical Ethics and the Nature of Professional Responsibility.

In Chapter Three the Duty of Care and Negligence was dealt with extensively. Under this heading, the Writer made us understand the meaning of Professional Negligence, the Essential Elements of the Tort of Negligence, the Consequences of Breach of Duty, Damages, Criminal Liability in Negligence under this, the Writer took cognizance of Murder or Culpable homicide punishable with death and Manslaughter or Culpable homicide not punishable with death, the Burden of Proof and Vicarious Liability in Negligence.

Chapter Four gives us an insight of the Defences that may avail a Medical Practitioner once a breach of duty has been committed. These Defences includes the Defence of Accident, Emergency, Consent, Contributory Negligence and Remoteness of Damage.


5.2 Recommendations

In view of the above mentioned as regards the Breach of Duty as evident amongst Medical Practitioners, the Writer recommends that:

  1. The Medical Practitioners should adhere strictly to the Geneva Declaration which makes us understand that they must maintain a universally acceptable professional standard of practice as well as meet the demands of practice.
  2. Nigerians should also be aware of Medical quackery. In essence, the Nigerian Medical Council with the Courts should take strict measure in eradicating quackery in Medical Practice. The Court should discourage the act by penalizing the offenders which will in turn serve as a deterrence to other intending quacks.
  3. The Medical Disciplinary Tribunal should be independent. Independent in the sense that they should be free from the Court inferring with their duties. This will enable the Practitioner to ensure that their Conduct is in accordance with the stipulated standard expected of them in the practice of their Profession.
  4. A Law should be put in place for free Litigation Service because in Nigeria as regards Medical Care there are paucity of cases basically because Litigation fee is a mitigating factor for those who really want to express their grieviance in the Court of Law. In the United Kingdom and America there is a provision on Conditional fee arrangement of Legal Services for victims of Medical Negligence in their Court177. The Nigerian Legislature should enact a Law as regards free arrangements so that lack of money will not be a reason for not instituting an action.
  5. Moreso, the entire Nigerian populace should be enlightened as to the Rights they have as Citizens. It is observed that due to our cultural background, people are not readily disposed to Litigation. It is generally believed in Africa that resorts should not be heard to the Judicial process particularly against known persons. This believe is predicated on the axiom that ‘there can no longer exist friendship after Litigation’. Africans prefer to leave judgement to God rather than fight for their rights. In relation to this, a program should be organized to awaken the entire populace of their Medical Rights.
  6. In conclusion, Medical Practitioners should be cautious in carrying out their duties, they should act the way any reasonable person should act. They should try their possible best not to fall short of their Code of Conduct either by their acts or omission as regards the Conduct expected among Practitioners. They should not neglect or disregard professional responsibilities to patients for their care and treatment. Their behaviour should not be derogatory to the reputation of the Medical Profession such as drug abuse and they should not abuse professional priviledges and skills given to them.

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