Legal Perspective to Medical Malpractices I: A General Overview

 Author: Dada Damilola Gideon

Edited And published by Okediya Peter O.

Medical malpractice or negligence as may be termed and its relation to law is a lengthy one[1], and so this work is merely a skeletal aspect in relation to how vast this field of study is. The fact that no specific area of medical malpractice is being focused on goes to further show how relatively minute this work would be in relation to the entirety of Medical Malpractice, not only in Nigeria but the world at large. Despite the fact that this work might be relatively small compared to the entire field, it is yet very informative, enlightening and very useful.

Medical malpractice is not an issue that begun just recently, it has being present for a very long time. The earliest reported medical malpractice case was Stratton V Swanlond[2], and the case was decided in 1347.[3] It is surprising how medical malpractice or negligence causes a lot of deaths. According to the Journal of the American Medical Association (JAMA), medical negligence is the third leading cause of death in the US; right behind heart disease and cancer.[4] For any country in the world, these figures are alarming and not good in any way. Before going into more statics, it is good to first understand what medical malpractice really is.  A hospital, doctor or other health care professional is expected to provide a certain standard of care. This professional is not liable for all the harms a patient experiences. However, they are legally responsible if the patient experiences harm or injury because the health provider deviated from the quality of care that is normally expected in similar situations.[5] Medical malpractice occurs when a hospital, doctor or other health care professional through a negligent act or omission causes an injury to a patient. The negligence might be the results of errors in diagnosis, treatment, after care or health management. [6] For you to be able to sue a doctor, hospital or health care provider for any wrong doing, there must first be a duty of care which thy owe to you. If there is no duty of care owed to you, no matter what happens they cannot be sued.[7]

                                                                                                                                                                                                 

Generally, professional medical negligence or malpractice has been on the increase and needs to be addressed in terms of the attitude of the law towards medical practice for the protection of the patient to make the physician liable as well as to secure punitive punishment for any medical practitioner who through carelessness causes harm to a patient.[8] In Nigeria, litigations against professionals such as Lawyers, Doctors and Engineers etc are not common.[9] This is because of three main factors which are Cultural, Social and Legal Factors.[10] Indeed, much litigation against health care providers sound in negligence, even though in Nigeria, medical negligence remains virtually un-litigated compared with a country like Britain where in 1981 alone, an estimated 700 writs were issued[11]. In Nigeria like other countries, medical malpractice is a recognised wrong[12], and so different countries have different ways in tackling malpractice cases.  As mentioned earlier, a hospital or health care provider must first owe you a duty of care, and it is in the eventual breach of this duty that results in a form of bodily harm, that they can be sued[13]. It is not only as soon as it has been certified that a health care provider owed a duty of care that they can be held liable, other factors must be present.  According to malpractice Lawyers in the US, for medical malpractice to be considered a number of factors must be involved. These are; failure to provide a proper standard of care, an injury resulting from negligence and the injury has damaging consequences. From this, it is not necessarily when a health care professional or provider deviates from the normal standard of carrying out his or her job that they can be held negligent, it must be proved that their act or omission led to a failure to provide proper standard of care. If it has been proved that they failed to provide a proper standard of care, it also has to be ascertained if they acted negligently, and their negligent act or omission led to injury to the patient, and that this ‘injury’ has damaging consequences. If all these can be proved, then there is a proper malpractice case. To better understand this principle, it is good one also knows what ‘duty of care’ is all about.  The principle of ‘duty of care’ was established in the famous case of Donoghue V Stevenson[14], where it was stated by Lord Atkin that there was a general duty to take reasonable care to avoid foreseeable injury to a neighbour.[15]  Many negligence lawsuits file do not actually sail through because the plaintiffs are most time not able to prove that there was a duty of care owed on the part of the health care providers.[16]  In Nigeria, The Medical Practitioner’s Act of 1963 of Nigeria was enacted to regulate the practice of the medical and the dental profession.[17] This act clearly states what a health care provider should do and should not do, and in a situation of erring against these provisions by anyone, there are certain disciplinary actions that would be taken. In Nigeria, if a medical practitioner is alleged to have done something wrong, a Medical tribunal is set up to try the individual this was done before, but not now. The afore mentioned act also stipulates some critical things health care professionals in Nigeria should not do; among these things is abortion[18]. This is view is totally different in a country like the US, where it is totally legal. In the case of Roe V Wade[19] it was held by the Supreme Court that every individual has the right to abortion, and this is backed by the constitution.[20] This further shows the diversity of the Legal Systems, and thus how the law views Medical Malpractice. This also shows that as different as countries are, so is the way they see Medical Malpractice. Thus what may be seen as malpractice in country 'A' would be seen as very legal in country 'B'. For the purpose of this study, Medical Malpractice in the eye of Nigeria would be considered.    

The topic 'Legal Perspective to Medical Malpractice' is divided into parts or sections based on the sub-topics we would examine. It would also serve as an eye opener to the ignorant; it is terribly sad that many people are victims of negligent or mal-practical acts by health providers, but they just bear the pain in silence because they don’t know their right against such practices.  Keep in touch with the page to be educated by subsequent interesting topics and we won't disappoint you.

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[1] https://physiciansnews.com/2017/05/10/brief-history-medical-malpractice/ (last accessed on 20 June 2017)

[2] (1374) CLC 40.

[3] www.bsmph.com/Articles/The-History-and-Origins-of-Medical-Malpractice-Litigation.shtml (last accessed on 29 April 2017.)  

[4] https://www.forbes.com/sites/learnvest/2013/05/16/10-things-you-want-to-know-about-medical-malpractice-/#64d75ea2416b (last accessed on 16 May 2017.)  

[5] www.medicalnewstoday.com/articles/248175.php (last accessed on 16 May 2017.)  

[6] www.abpla.org/what-is-malparctice (last accessed on 9 May 2017.)  

[7] www.ncbi.nlm.nih.gov/pmc2628513/ (last accessed on 12 May 2017.)  

[8] Eric Okojie(LL.M, BL)  Professional Medical Negligence In Nigeria(2012), at para 1

[9] JA Dada Legal Aspect of Medical Practice in Nigeria (2013) at 8

[10] as above at 9

[11] as above at 125

[12] Okojie (n 8 above) at para 3

[13] www.ncbi.nlm.nih.gov/pmc2628513/ (last accessed on 12 May 2017.)  

[14] (1932) A.C 562

[15] https://academic.oup.com/bjaed/article/11/4/124/266921/Duty-of-care-and-medical-negligence (last accessed on 16 May2017 ) 

[16] https://academic.oup.com/bjaed/article/11/4/124/266921/Duty-of-care-and-medical-negligence (last accessed on 1 May2017)  

[17]Okojie (n 8 above) at para 3

[18]Okojie  (n 8 above) at Para 6

[19] (1973) 410 US 113

[20] https://www.thoughtco.com/is-abortion-legal-in-every-state-721094 (last accessed 15 June 2017)


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