Legal Perspective to Medical Negligence II: The Nigerian Medical Landscape
Author: Dada Damilola Gideon
Edited and published by Okediya Peter O.
What is medical negligence?
Edited and published by Okediya Peter O.
What is medical negligence?
The medical profession is seen by most as a very noble profession because
it seeks to preserve and protect life. It is also believed that life and good
health is God given, so to be used by God to save life is seen as a privilege
by some[1].
Medical malpractice is a professional negligence by act or omission by a health
care provider in which the treatment provided falls below the accepted standard
of practice in the medical community, and subsequently causes death or injury
to the patient. In the majority of cases, the medical malpractice or negligence
involved a medical error, possibly in diagnosis, medication dosage, health
management, treatment or aftercare. The error may have been because nothing was
done (an act of omission), or a negligent act.[2]
Medical malpractice cases arise when a patient is harmed by a doctor or nurse
(or other medical professional) who fails to provide proper health care
treatment. Fortunately, doctors, nurses, and hospitals make mistakes in a small
number of cases. But within that small minority of cases, certain types of
errors crop up more often than others[3].
There's a lot more to a
viable medical malpractice case than merely a mistake on the part of a health
care professional or facility. Here’s an overview of the different elements
that must be in place -- and that, when in dispute, must be established through
evidence and testimony by the plaintiff and his or her legal team -- in order
to bring a successful medical malpractice lawsuit:
- the existence of a doctor-patient
relationship
- the provision of care (which
includes decisions, treatment, and the failure to treat) that fell below
the accepted medical standard of care (a “breach” of the standard of care
that amounts to “medical negligence,” in the language of the law)
- a causal connection between the
care provider’s medical negligence and the patient’s harm, and
- quantifiable harm (“damages”) to the patient as a result.[4]
When an
individual has a medical problem, he or she goes to the hospital or a medical
facility to get treatment, and he puts all his trust in that Doctor to save his
life. A doctor may not be in a position to save his patients life at all times,
the Doctor does what he feels he can do and what is the right thing. Therefore,
it is expected that a doctor carry out necessary investigation or seeks a
report from the patient. Furthermore, unless it is an emergency, he obtains
informed consent of the patient before proceeding with any major treatment,
surgical operation, or even invasive investigation. Failure of a doctor and
hospital to discharge this obligation is essentially a tortious liability. A
tort is a civil wrong (right in rem) as against a contractual obligation
(right in personam) – a breach that attracts judicial intervention by
way of awarding damages. Thus, a patient's right to receive medical attention
from doctors and hospitals is essentially a civil right. The relationship takes
the shape of a contract to some extent because of informed consent, payment of
fee, and performance of surgery/providing treatment, etc. while retaining
essential elements of tort
Medical malpractice in Nigeria
The Medical
Practitioner’s Act of 1963 of Nigeria was enacted to regulate the practice of
the medical and the dental profession. Persons who are seeking to become
medical or dental practitioners need the following requirements;
·
Registration of consultants:
those who are entitled to be registered as consultants are those qualified in
specialised branches of medicine, surgery, midwifery or dental surgery. Such
persons must have the necessary post qualification experience as may be
prescribed by the rules made by the council.
·
Separate registers are
maintained for medical practitioners and for dental surgeons. The register
consists of three parts. The first part is in respect of fully registered
persons while the second part is in respect of provisionally registered persons
and the third part is in respect of temporarily registered persons. It is the
act of registration and not the medical qualification that confers on the practitioner
the legal right to practice medicine. This emphasizes the need for registration
with the Nigerian Medical Council before engaging in any form of medical practice[5].
Medical ethics
The
Nigerian Medical Council has laid down rules and regulations for medical
practitioners towards a patient, and where a medical practitioner goes contrary
to the rules and regulations, a medical tribunal is set up to try him or her
for malpractices. Medical practitioners are to avoid the following things advertising
association, addiction, abortion and adultery. When a medical practitioner is
found guilty of any of these offences he is deemed to be guilty of infamous
conduct in a professional respect. Two problems arise from these, and that is
problem of meaning. The thrust of the regulation against advertisement is
similar to the ban on lawyers against self-advertisement for the purpose of
obtaining patients. In this connection a physician may not use others to
canvass for business nor should he acquiesce in such a conduct as was in the
case of Allison v General Council Medical Education and Registration. In
that case the following charge was made against the plaintiff by the society
called Medical Defence Union that claimed that being a registered medical
practitioner, a licentiate of the royal college of physicians and surgeon of
Edinburgh, he systematically sought to attract practice by the system of
extensive public advertisements containing his name and address and
qualification and invitations to person in need of medical aid to consult him.
The court held that infamous it is where a medical man in pursuit of his
profession does something, which is regarded as disgraceful or dishonourable by
his professional brethren of good repute and competent conduct. The ban against
association with non-medical personnel is strictly ban against co-operating
with a person without medical training in treating a patient. This ban covers
knowing, allowing or enabling an unqualified person to assist in the management
of a patient. The ban excludes nurses, physiotherapists, midwives and dispensers.
Addiction to mind altering drug or to alcohol is considered an infamous conduct
since it can impair a physician’s judgement. A doctor is also not expected by the
ethics of his profession to induce a non-therapeutic abortion or to attempt to procure
an abortion or a miscarriage either within or outside Nigeria. A doctor’s name will
be struck off the register of medical practitioners if he has sexual
relationship with a patient of the opposite sex. These rules are enforced by
the Medical Council itself, but a good number of legal problems have come out.
This is in relationship with the courts strictness on application of natural
justice in a situation where a tribunal or an administrative body purports to
make a decision affecting the rights of another without observing the principle
of audi alterem partem and fair hearing. Moreover, the Supreme Court has
held in Garba v University of Maiduguri that an administrative tribunal
does not have jurisdiction to conduct inquiries or take decisions in a matter
involving an allegation of crime. The court’s concern for the civil rights of everybody
even of those accused of infamous conduct has led to different results. An
example is the case of Denloye v Medical Council Disciplinary Tribunal the
appellant appealed against the decision of the Medical and Dental
Practitioners’ Disciplinary Tribunal which found him guilty on five counts of
infamous conduct in a professional respect and ordered the removal of his name
from the medical register. The court gave judgement in his favour on the ground
that the withholding of the evidence by the tribunal when the appellant
demanded for it constituted a denial of justice to the appellant. Due to that
effect, his name was restored back to the register[1].
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We also specialize in writing articles, reports, essays, research works and autobiographies for various organizations.
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We also specialize in writing articles, reports, essays, research works and autobiographies for various organizations.
Tweet @Diya_Peter
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