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Section 3. Family law
https://doi.org/10.29013/EJLPS-20-2-27-37
Adepoju Adebiyi Anthonyy LLB, LLM, M.PHIL, BL.
Lecturer at Faculty of Law, Redeemer's University, Ede, Osun State and a Ph.D Student at Babcock University,
Ilishan-Remo, Ogun State E-mail: anthony_adepoju@yahoo.com; sundaybiyi77@gmail.com
Cheluchi Onyemelukwe Onuobia, DR. (MRS.), Lecturer and Associate Professor, College of Law, Babcock University, Ilishan-Remo, Ogun State
E-mail: cheluchi7@yahoo.com
AN ANALYSIS OF COMPENSATION IN MEDICAL NEGLIGENCE IN NIGERIA
Abstract. The duty which a medical doctor or personnel has is to treat somebody with an ailment and thereby collect money for the services rendered. This service does not end at the point of discharging a particular patient but goes beyond that level. A medical doctor having held himself out to be someone who has possessed special skill and knowledge, he owes a duty to the patient to use due diligence in admitting care and treatment to that patient or else, he shall be liable where malpractice, mistake or negligence is recorded. Negligence is a failure to reach the expected standard of care in the course of discharging ones duty to a patient. Duties owed by the doctor include but not limited to the following:
a) Failure to attend and give prompt attention to a patient;
b) Leaving behind in a patient's abdomen an item(s) used for surgery;
c) Incompetent assessment of a patient;
d) Improper administration of injection;
e) Incorrect diagnosis;
f) Mistake in treatment;
g) Failure of communicating necessary information to the patient.
Also, where through the doctor's action, the patient incurred loss or injury which may have negative consequences, would such patent keep quiet and accept his or her fate?
In our medical jurisprudence in Nigeria, there is no provision(s) in which without any technically any injured patients(s) without engaging the services of legal practitioners can approach the civil or
criminal court to challenges action or inaction of a medical doctor. Another thing is our Evidence Law, most especially Evidence Act, 2011 where an injured patient is expelled to prove the existence or occurrence of any offence, the question is, How would a dying patient knows when his doctor makes mistake in the course of treatment? The available law which is the criminal code provides for stringent conditions even where ones claim would be entertained. This paper is of the opinion that if the trend of unavailability of medical reformation continues, sooner or later the interest of the injured party to make claim for loss of life or any of other medical negligence would be killed. This paper has however undertaken to provide answers to many questions which this paper has raised and went further to distinguish one type of care from others and analysed various types and levels of compensation applicable where medical negligence is recoded.
The paper concluded on a strong notion that there is need to have regulation in medical profession in Nigeria and specialized medical law so that there would be clear or distinct medical regulation put in place by the health care providers and the government where applicable.
Keywords: Analysis, Compensation, Medical, Negligence and Nigeria.
Introduction
Medical negligence is all about medical errors which occurred in the course of administering medical cares unto a patient. Basically, negligence in medical world, means analyzing a doctors course of diagnosis, or advise or treatment by a reasonable standard of his professional colleague [1], it may well be that a proof is itself a verdict of some forms of not having the required professional skills, or moral blame worthiness on the doctor's part.
In exercising of his professional skills, doctors while discharging his duty owes a duty of care to his patient generally from the point of admission for treatment to the point of discharge.
For instance, where a doctor holds himself out as someone who possess special or professional skills and knowledge and he is approached for medical solution for his or her medical challenges, such a doctor owes a duty to the patient to use due caution in undertaking the treatment [2]. If doctor in that circumstances accepts to admit any patient for treatment and doctor undertakes to treat the patient and the patient submits to his discretion and treatment accordingly, such doctor owes a duty to the patient to use due diligence, care, knowledge, skill and caution in administering the treatment in a situation like this,
no contractual relationship is required neither will it be necessary that the medical service by rendered for reward [3].
The question then is, at what period will doctor or any health personnel be required to exercise professionalism? Doctor or any health personnel is required by law to exercise the care and skill of a reasonable professional.
Nature of Negligence in Medical Profession The required standard of a reasonable professional under this context is the same as it would be required for other professionals like an accountant, legal practitioners, architects, engineers, surveyors. In the same manner, as the aforementioned professionals hold themselves to have possessed personnel or required skills, doctors or health personnel or professionals are presumed to possess the skill of a reasonable professional to treat any patient with health challenges [4].
Furthermore, negligence in its orthodox way is a failure to reach the expected standard [4]. For instance, an act of giving meaning to medical negligence, it includes but not limited to:
a) Failure to attend and give prompt attention to a patient either on admission or in any other prescribed place.
b) Leaving behind in a patient's abdomen or any other part of the body an item(s) used for surgical operation;
c) Incompetent assessment of injection or drugs;
d) Incorrect diagnosis;
e) Mistake in treatment;
f) Failure of communication;
g) Damage of any part or organ of the body of patient while carrying out investigation or administering drugs or treatment or other medical instrument [5].
However, worthy of mention is the doctor's liability which may come either contractual and or delictual of all liabilities; negligence remains the most common basis of liability in medical malpractice or negligence, whether the claim lies in contract or delict but limited to only award of damages flowing from professional negligence. In occasions it can include other causes, such as breach of medical confidentiality, for instance, revealing vital information about a patient's medical condition which a particular patient is suffering from, or failure to carry out surgical operation or giving of specified drugs already agreed upon by the doctor [6].
In Hiske v. Cole [7], the court was of the opinion that in order to find out whether a doctor is liable for negligence or not, his conduct should be one deserving of censure or be inexcusable in the circumstance. The legal implication of this is that the court should be circumspect to find or rarely should find negligence against a doctor. The decision followed the dictate laid by Tinda CJ where he stated that: any person who enters into a skillful profession undertakes to discharge a reasonable degree of care and skills. He does not undertake, if he is an attorney, that at all situations you shall gain your case, nor does a surgeon undertake that he will perform a cure to a disease or aliment, nor does he undertake to use the highest possible degree of skill.
There may be person(s) who have higher education and greater advantages than he has, but he undertakes to discharge a fair, reasonable and competent degree of skill or knowledge and one will say
whether in this case, the injury was occasioned by the want of such skill in the defendant [8].
Similar position was reached by the court in Nigeria in the case of Okonkwo v. MDPRT [9] where it was submitted that the standard for fixing doctor's liability, that is the practical difficulty in linking of patient's injury to treatment received from doctor, couple with a jurisprudence that judges doctor's conduct against that of his professional colleagues and the expense of litigation, all operate to inhibit medical negligence instigation in a manner that the American system with its contingency fees and its sympathetic jurists does not [10].
Also, medical negligence is the failure to do what a reasonable man will call exercise of reasonable degree of skill and care in a particular circumstance or situation. It is the failure to exercise the standard of care or apply minimum measure of care in a particular situation or circumstance. It is a failure to exercise a standard of care or apply minimum measure of care in a particular situation. Negligence is a failure to exercise a reasonable degree of skill and care expected of an average medical doctor. In a similar situation, tort of negligence was recognized in the case of De-noghue v. Stevenson [11].
An act of negligent of a medical doctor can expose him or her to a civil or criminal action. For instance, if a doctor's negligence results in death of a patient; such a doctor may in addition to discipline from Nigerian Medical and Dental Council of Nigeria be charged for murder (culpable homicide punishable by death) [12] or manslaughter. Charges for murder are however likely to be rare. But a charge for manslaughter is more plausible going by the nature of doctor's work. For a negligence that leads to death (manslaughter) to attract conviction, it must be higher than that which required for a civil actionable negligence.
Thus, Privy Council in R v. Akerele [13] was of the opinion that the statement court made in R v. Bateman [14] was in line with the doctrine of necessity in the case of criminal negligence and Court went further by adding that the degree of negligence required in
criminal cases must go beyond that of civil liability and it requires showing what is called 'such disregard for the life and safety of others' to amount to manslaughter. In R v. Akerele [14] it was established before the court that 10 (ten) out of 47 (forty-seven) children the doctor administered injection to died, others sustained varying degrees of minor injuries. The prosecution revealed to the court that the drugs given to them were mixture of powder suite in sterile water which was overdosed.
After closed look at the facts of the case and evidence adduced before the Court of law, the court held that the case of negligence was not established against defendant because prosecutor failed to establish before the court that consequence of overdose of the drugs administered to the patients (children) led to the death of the 10 (ten) children and that the consequence of the acclaimed mixture only took place at a later date.
The court went further by saying that if the change however, was for rash or negligent act not resulting in death, the degree of negligence would have been slightly lower (Section 243 of the criminal code state that any person who give medicine or medical and surgical treatment in a rash or negligent manner as to endanger life or is such as likely to cause harm to a person shall be guilty of misdemeanor).
In Dabholkar v. King, when considering Section 234 of the Criminal code applicable in Southern Nigeria, in comparison with Section 222 of Tanganyika (Tanzania) Penal code, the privy council was of the opinion that although the negligence which constituted offence under the above cited Section 222 of Tanganyika (Tanzania) Penal code is higher than what constituted civil actionable wrong under Section 234 of the criminal code applicable in Southern Nigeria, but nonetheless, is not as high as that for manslaughter. Flowing from this, three (3) degrees of negligence can be constructed, namely:
i. The highest degree required for prosecution of manslaughter;
ii. The intermediate degree;
iii. The lowest degree required for civil liability.
Nevertheless, Nigeria criminal code (Section 230 criminal code applicable in southern part of Nigeria) prescribed certain requirements for any doctor who in the course of performing his duties as medical personnel or doctors must possess reasonable skills and use reasonable care in acting except in a case of necessity. What the provision of section 230 of criminal code is saying is that any person who holds himself out as medical doctor must possess the requisite knowledge or skill and when administering care, treatment or surgical operation unto any patient he or she must do so with reasonable care.
The basis for imposing on the doctor the duty to possess requisite skill or knowledge and when performing his duty he must do so with reasonable care is founded on the ground that the public put certain trust on them and therefore doctor is expected to discharge degree of skill and care. The question whether or not a doctor is negligent will depend on the facts of each case and to succeed in the case of medical negligent, the parties must be able to establish the following three (3) requirements.
(h) That the doctor owes a duty of care to the patient;
(i) That the duty is breached; (j) The result is damage.
In establishing the case of medical negligence, medical Negligence as to the duty of care, medical negligence as to the standard of care and causation, medical negligence as to damage and legal defense shall be considered at great length to be able to come to a conclusion on how compensations in medical negligence are applied.
1. Medical negligence as to the duty of care: Where a medical doctor admits any patient with a medical challenge to treatment, such a medical doctor must have presumed to have had requisite skill and knowledge and while discharging his/her duty he/she must do so with reasonable care or else he/she shall be guilty ofnegligence. At any point in time, doctor's duty may include any or combination of all the following: a) Diagnosis;
b) Medical advice;
c) Treatment.
In performing his functions of diagnosis and treatment, the standard by which the law expects the doctor's duty of care to his patient is not open to doubt.
The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A doctor would not be considered to be incompetent based on the outcome of the test which is different from what other professional would get but where it is established that through doctor's omission or where such doctor has failed to discharge his duty as professional who possess the requisite skill and knowledge and has also failed to exercise care while performing his duty, such a doctor would be found guilty of negligence or where the true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care [15].
It has been justifiably argued that a medical doctor or personnel should not be found guilty of negligence unless he has done something of which other people in the same profession would say "He really did make a mistake while discharging his duty, he ought not to have done it that way". Where a medical doctor admits a patient to be treated, there is always some risks, no matter what care is used. Every surgical operation involves risks. It would be wrong and, indeed bad law, to say that simply because a surgical operation is unsuccessful or there is a mishap at the end of the operation that the hospital and the doctors who carried out the operation are thereby liable. Also, it would be dangerous to the community, if it were so and mean that a doctor examining a patient, or a surgeon operating at a table, instead of getting on with his work. And it would be forever looking over his shoulder to see ifsomeone was coming up with a dagger, for an action for negligence against a doctor is for him like unto a dagger. His professional reputation is as dear to him as his body, perhaps more so and an action for negligence can wound his reputation as severely as a dagger can to his body. One
must not therefore find him negligent simply because something happens to go wrong, if for instance, one of the risks inherent in operation actually takes place, or some complications ensure or if he makes an error of judgement. Such a doctor must not only be found guilty ofnegligence when he falls short of the standard of a reasonably skillful medical doctor or personnel, but be compelled to pay damages to the injured party [16].
However, where for instance a doctor, has admitted to treating a patient suffering from communicable or contagious disease, it is imperative that such physician gives his or her patient the proper advice about preventing the spread of the disease. Thus, the duty of a physician in such circumstance extends to those "within the foreseeable orbit of risk of harm' if a third person who is likely to be infected are in that environment and if erroneous advice is given to that patient to the ultimate detriment of the third person the third person shall have a cause of action against the physician [17] where a doctor is expected to identify genetic conditions which can be inherited, doctor must do all he could to prevent re-generation of that disease in the life of the person likely to suffer. Where doctor fails to do the necessary or prevent it, such doctor may be sued for breach of duty [18].
Above all, authorities who run a hospital, be it local authorities, Government boards, or any other corporation, are in law under the same duty as the doctor. Whenever they accept a patient for any treatment they expected to exercise reasonable care and skill to cure such a patient's disease or ailment. The hospital authorities cannot of course, do it by themselves, they will carry out the exercise of taking care of their patient through the staff employed, and if their staff in the course of carrying out their duties are negligent in admitting treatment they are just as liable for that medical malpractice or negligence like anyone else who employs other to do his/her duties for him [19]. A health authority is under a duty to provide pregnant women with a reasonable standard of gynecological and obstetric care, in terms of provision for the safe delivery of the baby and the health of
both mother and baby [20]. Hospital management also owes duty to employ commitment staff in the treatment of patients [21]. Since doctor does not operate in vacuum a hospital is vicariously liable for the negligence of its employee including the doctors and consultants working in the hospital [22].
With regards to hospital authorities, the duty of care would arise once the hospital had accepted any patient for treatment. Acceptance implies undertaking and therefore a duty. It is necessary to note that the duty of care equally applies to emergency situations [23]. Also, hospital may be liable to a patient when he carelessly misinforms a patient ofhis or her condition or when he provides accurate information but does so in a careless way resulting in psychiatric injury to the patient or the next-of-kin.
The carelessness may arise in respect of the accuracy of the information or in the manner of disclosure (This is seen in AB v. Tameside & Glossup HA where it was alleged that the defendant had carelessly informed current and former patients that a health care worker they may have come in contact with was HIV positive, the court held that the defendant had not been negligent).
Medical Negligence as to the Standard of Care and Causation
Having established that any doctor or medical personnel who hold himself or herself out as health care professional owes duty of care to the patient admitted for treatment and where unforeseen or unimaginable outcome result is recorded due to the doctor's negligence both the doctor and the hospital are going to be held liable for such. The requirement of the law, most especially law of tort and criminal code (Section 243 of Criminal Code which provides that any person who gives medicine or treatment, or medical and surgical treatment in a rash or negligent manner as to endanger life of a patient or is such as is likely to cause harm to a person shall be liable in negligence and on conviction be guilty of a misdemeanor- R v. Akerele (1940)8: WACA 56) which operate in southern Nigeria require that the
injured party known as claimant is expected not only to establish the existence of the duty of a care, but also such a person must show that a breach of that duty of care has been breached [24].
It is important to note at this juncture that not in all situations where the case of negligence has been established that the doctor or medical personnel will be held guilty of negligence. For instance, where it has been stated or presumed that the concerned doctor has acted in accordance with the best practice accepted or known to the regulatory body like Medical and Dental Council Practitioner of Nigeria and that the concerned doctor possessed the requisite knowledge and skill, such doctor will not be disciplined and shall be exempted from being punished or be exonerated from the offence of negligence when consideration is being made [5; 7]. Also, where diagnosis and treatment are required there is ample scope for genuine difference of opinion, doctor or medical personnel should not be declared as being negligent purely as a result of his diagnosis outcome or conclusion differs from that of other professional personnel, nor because he has displayed less skill or knowledge than other would have shown. The fundamental issue is the true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if discharging his primary duty with care [25].
Furthermore, in establishing the case of negligence or medical malpractice, plaintiff needs to show that the injury sustained was as a result of the doctor performance below the prescribed standard of care as opposed to being a manifestation of the risk inherent in the operation itself. In examining the issue of cause of action in negligence case there are two (2) questions to be answered:
a) Could the breach cause the injury?
b) Did the breach cause the injury?
Thus, in Barnett v. Chelsea and Kensington Hospital Management Committee [25], it was established in that case that the deceased, had been poisoned by ar-
senic and left untreated by the casualty officer. It was stated that this was a case of 'but for" causation. If the plaintiff could show that "but for" the defendant's failure to attend to her husband he would have lived on the balance of probabilities, then the breach is the cause of death. If the husband would have died even if there had been proper treatment, then the breach was not the cause of death. The defendant hospital admitted that this was a duty but contended that the deceased would have died even if there had been no negligent behavior. The court found that based on the evidence adduced before the court, the plaintiff had failed to establish, on the grounds of probability, that the defendant's negligence caused the death of the deceased [19]. Also in Bolitho v. City and Hackney Health Authority [26], Patrick Bolitho suffered catastrophic brain damage as a result of cardiac arrest induced by respiratory failure. It was established that he had suffered three (3) episodes when he had difficulty in breathing and at none of these times did the Senior Pediatric Registrar or her deputy attend. The subsequent and the third suffering led to cardiac arrest and brain damage, and the child died. The plaintiff instituted an action in court claiming that defendant was negligent in discharging their duty. The defendant health authority in the course of trial accepted that the registrar was in breach of her duty care having failed to attend to the child upon being notified by the nurse on duty and having also failed to instruct or command her deputy to stand for her in her absence. It was argued that insertion of a tube to provide Patrick with an airway would mean that there would not have been cardiac failure. It was felt that the non-attendance at Patrick Bolitho's beside was a breach of duty, but was not a cause of the cardiac arrest. The court was of the opinion that it would have been sufficient if the plaintiffs had proved that had the doctor attended to the child when his assistance was needed and that intubations would have taken place but the doctor argued that she would not have intubated. Therefore, plaintiff also needed to show that the decision not to intubate was one which
no responsible doctor would have taken, from the foregoing, it can be inferred here that it is a little bit difficult to proof and establish the cause of action in the case of medical malpractice or negligence. An in practical terms, a defendant doctor may be willing to admit negligence but not necessarily causation.
Medical negligence as to the damages and legal defenses
The general rule is that for any person to succeed in the case of medical negligence, plaintiff must establish before the court of law that his suffering or injury sustained is as a result of doctor's negligence and he thereafter had suffered a great damage. Damage in this situation connotes loss or injury which can be measured and compensated monetarily. Examples of such loss includes [27]:
a) Loss of earnings;
b) Reduction in life expectancy;
c) Expenses incurred as a result of the damage;
d) Reduction in enjoyment oflife arising from any physical or mental consequences of the negligent act;
e) Physical disability or deformity which might reduce the chances of marriage or inability to have children;
f) Pain and suffering whether physical or mental nervous shock, and;
g) Death may be actionable for the benefit of dependent children or relatives.
The burden of proving damage is upon the person who assert, that is, patient who incurred damage - loss or injury? He is under obligation to prove that the alleged malpractice or negligence was solely caused or substantially contributed to the loss or injury. He is required to establish one of the following:
a) That "but for" the negligence he would not have suffered any injury;
b) That "but for" the negligence he would not have suffered any identifiable part or particular aggravation of the injuries, or;
c) That the negligence materially contributed to the whole injury or an identifiable part or particular aggravation of the injuries [28].
However, it is well-known in negligence law generally and medical negligence in particular, that things can go wrong without there being a full or sufficient explanation for what actually happened. The recent practice is that the patient who wakes from the anesthetic with some form of paralysis for instance may never know the exact cause.
Economic Analysis of Compensation In Medical Profession
When a patient succeeds in an action for negligence he would often look up to the doctor or the health authority to pay the assessed compensation. To him, it does not matter who pays. Who pays is however of concern to the doctor, the health authorities and also the public especially in an era where public hospitals and the National Health Insurance Scheme (NHlS) bring more to the fore public health resources. Though negligence litigation is still embryonic in Nigeria, it is not unlikely to increase in the near future.
Considered from the perspective of society, the issues are two, (i) the difficult in making successful claim; (ii) the inadequate provision for compensation for injuries.
Empirically, the proportion of successful medical negligence claims is lower than those for general negligence. The reasons are obvious. It is difficult to prove medical negligence. The patient hardly knows enough ofwhat has gone wrong Doctor's conspiracy of silence and general colleague solidarity prevents the availability of relevant evidence for the patient. It is said that attempts to establish fault, cause and effect in negligence suits turns the system into a lottery for the patient. Not to be forgotten is the inadequacy of compensation regime for medical injuries. Unfortunately even though most injuries are described as cases of negligence, in truth most are not due to negligence. They properly are mere errors or accidents. It has therefore been suggested in some quarters that a no-fault compensation regime, presently run in some jurisdictions such as in Sweden and New Zealand better satisfies the competing ethics for assuaging a patient loss resulting from medical injuries.
In reaction to the flood of negligence or malpractice litigations in the United States of America (a practice that have led doctors to practice defensive medicine) many jurisdictions in the USA are now attempting to curb the success rate of such law suits and the huge compensation recoverable? Increasingly courts are restricting the application of res Ipsa Ioquitur and by moving in the direction of increased burden of proof on the plaintiff. Some jurisdictions have adopted the practice that only the evidence of a doctor who is an expert in the particular specialty in question with comparative experience in the area would be admissible evidence sufficient to raise negligence. Furthermore, the standard of care requirement is increasingly being judged in is of 'locality'. By so doing a rural doctor stands more chances of escaping liability.
Defenses to Negligence Litigation Defenses to negligence litigation generally follow the same pattern as general tort defenses. These are as follows:
(i) Contributory Negligence. Just as the doctor is under a duty to take reasonable care in the treatment of the patient, the patient is also under certain duties to the doctor. He must be reasonable
If he is not and his unreasonableness is the factual and proximate cause ofhis injury he would be treated as having contributed and his compensation will be reduced accordingly. ln Crussman v. Stewart the British Columbia court reduced the compensation of the patient to £26, 666 of the sum of £80,000 assessed damages for injury that resulted in his blindness because it found that the patient had two-thirds of the blame. She combined the prescribed drug from an unorthodox source and used them longer than prescribed In the Quebec case of Hospital Notre-Dame dc L' Espezarice v. Laurent, damages were reduced because the patient was passive in his treatment. Though the doctor was held negligent in failing to diagnose a fracture in the head of the femur, the patient failed to get further medical treatment for over three months.
(ii) Voluntary assumption of risk
If the plaintiff agrees, expressly or impliedly to waive the duty of care owed to him, it may be relevant in determining negligence though the Court will generally be reluctant to use it as a reference considering the inequality of power relation in the doctor-patient relationship. It can even be argued with justification that the very nature of medical care underlined by public policy considerations ought to refuse voluntary assumption of risk as a defense to an action for negligence. Any such waiver should be treated as striking at the root of the essence of care and so should not be considered a defense at all, for if it were otherwise it can destroy the very soul of medical care.
(iii) Miscellaneous
The miscellaneous defense may include the defense of limitation
Conclusion
Having described the circumstances which can make doctor or any medical personnel liable for the loss or injuries their patients suffered while admitting them to treatment. Doctor(s), having held themselves bound as professional who before admitting any patient to treatment presumed to have possessed requisite prerequisite knowledge or skill owes duty of care as to the standard of care ought to have given a patient and where a doctors fall short of the required care expected of him, then the issue of malpractice, error and negligence as the case may be arise.
As not to allow an injured patient to go unremi-dized, certain steps have to be taken to make sure that an error is corrected if not to bring back to original situation but at least get some succor inform of compensation to the injured party.
The question we must ask at this juncture is, to what extent is compensation adequate for the situation where there is a loss oflife? Then, how easy is it to succeed in the claim of negligence where it is recorded ?
As earlier stated, there is no quantum of amount ofmoney ordered by the court or judicial tribunal that can bring back the dead where negligence has resulted in death, however, where it is necessary to pay compen-
sation, the quantum which the court of law will order must be reasonable enough to at least bring comfort and succor to the injured patient otherwise the purpose or motive behind ordering such compensation will not be fulfilled. To achieve this, there is need to have enabling laws that will first define the offence of negligence in medical profession and later prescribed the punishment that will attach to such offence.
Also, difficulty attached to the success of the case of medical negligence is attributed to none existence of codified medical laws at different levels. Medical issues as at present is ambiguous because, certain aspect of it are contained under exclusive legislature list of the Federal Government of Nigeria while some are also contained under the concurrent legislative list. Most people who have the reason to bring the claim of negligence do not know under what law that claims should be brought. Presently, there is confusion whether such claim should be brought under the state law or the federal law. If this is not settled, and particular matter is expected to be filed at State High Court and such matter is filed before the Federal High Court or Federal Capital Territory High Court, the issue ofjurisdiction of the court may be raised against the matter and such may lead to the end of that matter.
Moreover, difficulty as to the proof of evidence is another issue, how would a patient with an ailment be expected to know or detect the exact stage where negligence occur? For issue like this to be legally addressed, there must be reform in medical profession where each stage of action is documented. Also, there must be regulatory frame work in medical profession in Nigeria otherwise the difficulty will still continue.
Above all, what constitute duty of care owes by the medical doctor must be clearly defined. Level of education in medical profession, additional qualification and years of practice must also be put into consideration in determining reasonable standard of care expected from a doctor or medical personnel. Level of medical satisfaction or treatment must also be clearly defined in any suggest reformation, time within which medical doctor is expected to spend
with a patient must however, be defined to enable a patient measure value for the fees or bill he or she is going to pay for the treatment. I believe if the above
mentioned suggestions are put into consideration in Nigeria, medical doctor/patient relationship would be a robust one.
References:
1. Festus O. Emiri. Medical Law and Ethics in Nigeria (2012). Malthouse Press Limited, Lagos, - 26 p. Also Picard the liability of hospital in common law M. C. Grill L.J, (1981). Dickens' B.: The effect of legal liability on physicians services, (1960) II, i. leg med, 199.
2. R v. Bateman (1925) 94, LJKB791 (CA) as cited by Giwa Osag ie in Compendium ofMedical Law under the Common Wealth & United States Legal Systems.
3. With treatise on assisted conception, Maiyati Chamber's, 1st Edition, 2006.- 1 p. R v. Bateman (supra).
4. The Evolution of Medical Malpractice Law in South Africa, (1971) 41, Journal ofAfrican Law (175, LR Walker (et., al).
5. Bolam V. Frievn Hospital Management Committee (1957) 2 All Er 118, (1957) 1 WWLR282.
6. Brazier M. Medecine Patients and Law 2nd edition (1992) - P. 231-22 as cited by Kennedy and Grubb.
7. 1968. 11251483, also, in Okonkwo v. MDPRT (1999) 6 NMLR (pt 786).
8. Happier v. Phpps (1838) 173, ER581.
9. 1999. 6 NMLR (P786).
10. Mason & Mc Call Smith cited by Hartland W. A & Jandoo R. S. The Medical Negligence crises (1984) 24, Medicine, Science and the Law, 123.
11. 1932. AC562.
12. Section 244 of criminal code. It list six necessary intent to substantial charge for murder.
13. 1941. 8 WALA56.
14. 1925. 133LT 730 at 732.
15. See Bolam v. Friern Hospital Management Committee (1957) 2 All ER118, (1957)1WLR2823.
16. Per Lord Denning, the discipline of law, (1979) Butterworth and co, 88, Kingsway Road London, - 237 p, 242, and 243. Also see Ojo v. Gharoro (2006) 10NWLR (pt 987) 175 Sc.
17. Di Marco v. Lyncg Homes-Chester country, incorporated (1989). - 525 p 558 (sup.ch).
18. Safer v. Pack (1996). 677 A 2nd 1188(NJ) supct, APP. DNISION.
19. Barnett v. Chelsea and Kensington Hospital Management Committee (1969) 1QB428; (1968) 1 ALL ER1066 (qbd).
20. Bull v. Devon Area Health Authority (1993) 4 med. LR117.
21. Yepremian v. Scarborough General Hospital (1980) 110 DLR (3rd) 513 (Canadian case).
22. Razzel, v Snowball (1954) 1WLR1382.
23. Bernelt v. Chelsea & Kensington Hospital management committee (supra), Cassidy v. Ministry of Health (1951) 2KB343.
24. Sida way v. Board of Governors of the Bethlem Royal Hospital and the maudsley Hospital (1985) AC871.
25. See the cases of Hunter v. Hanley (1955) SC200, Bolam v. Friern Hospital Management Committee (1957)2 AIIER118.
26. 1992. PIQR334, (1997) AII ER771 (HL).
27. See Bernard Knight, Legal Aspect ofMedical Practice (1982) - New York; Church Livingstone. - P. 19-20.
28. Tahir Haringey H. A. Lloyd's Rep med 104 (CA).
29. Festus O. Emiri. Medical Law and Ethics in Nigeria, Malthous Press Limited, Lagos. 2012.
30. Giwa Osagie. Compendium ofMedical Law, Under the Commonwealth and United States Legal System with Treatise on Assisted Conception. Maiyati Chambers. 2006.
31. Parikh C. K. Medical Jurisprudence, Forensic Medicine and Toxicology, 6th edition, 2012. CBS Publishers & Distributors Prt, Ltd, New Delhi.
32. Inyang Ekwo E. Drug Laws Enforcement and Administration in Nigeria, First Edition, 2018. Princeton & Associates Publishing Co. Ltd, Ikeja, Lagos.
