TORTIOUS LIABILITY OF MEDICAL PRACTITIONERS IN NIGERIA: AN APPRAISAL
Background of Study.
This thesis entitled “Tortious Liability of Medical Practitioners in Nigeria: An Appraisal seeks to examine critically, the civil (tortuous) liability of health care providers such as, doctors, dentists, pharmacists, laboratory technologists and technicians, radiologists and radiographers, anesthetists, ward attendants, hospitals etc. In order to do this, the tortious liability of each group of personnel, is not going to be treated separately but rather as one body (medical practitioners). In Nigeria, there is very little awareness that medical professional duties carry legal implications. The conduct of professional people, in the medical field, positive or negative, does not only affect their employers but impact directly on third parties. Consequently, liability will arise both against the employer and the employee professional, in the event of a breach of duty by the latter to act with reasonable care and diligence. The Law1 is, therefore, well settled that medical men owe a duty in tort, i.e., civil wrong to their patients, whether there is a contract with the patient or not.
Unfortunately, this aspect of the law is not properly developed or again properly exploited in Nigeria especially in the Northern part of Nigeria, due to low level of awareness and cultural norms in which every mishap is attributed to God’s will2. Secondly, the cost of litigation is high and even with the undeveloped Legal Aid system in Nigeria, not everybody is eligible for legal aid. And lastly, Doctor – patients relationship; evidence has shown that family doctors are less-likely to be sued as they are more likely to have a relationship of trust with their patients. Nevertheless the law on medical malpractice has come to stay in Nigeria even though litigation is on a small scale. Victims of medical malpractice have brought actions against medical practitioners in Negligence,3 in Criminal Law,4 and in trespass in Nigerian courts, especially in Southern Nigeria.
It should be noted that this introductory chapter also discusses objective and scope of the thesis, the research methodology and the organizational layout of the research. Nigeria has been chosen to limit the scope and secondly, because the Author, is an employee of a Teaching Hospital These two circumstances present an ideal situation for the realization of the objectives envisaged by this research. 1.2
Objectives of The Thesis
The aim of this research is to identify the categories of personnel involved in the practice of medicine in Nigeria and determine their tortious (civil) liabilities for malpractices committed in the course of carrying out their duties. In Nigeria, there is very little awareness that medical professional duties carry legal implications. This accounts for the fact that in Northern Nigeria, there have been little or no litigation arising from the activities of health care providers, such as physicians, dentists, nurses, among others. The aim of this thesis, therefore, is also to create awareness not only on the part of health care providers at all levels that they must have a clear appreciation of the basic legal responsibilities of neir jobs but also, on the part of health care recipients that they have a right of redress in law against any health care provider who perpetrates professional malpractice on them. The activities of medical professionals, positive or negative, do not only affect their employers vicariously, and themselves, but impact on third parties. Consequently, liability will arise both against the employer and the employee professional, in the event of breach of duty by the latter to act with reasonable care and diligence.
The tortious liabilities of medical practitioners in Nigeria will be discussed based on negligence and trespass. This of course will depend on the act or omission leading to the injury. To achieve this objective, there shall be a detailed analysis of the necessary applicable statutory laws, restatement of legal rules and analysis of cases in both the Nigerian and other jurisdictions where the principles of law are similar. It is hoped that at the end of this research there will be rise in awareness and literacy level and therefore there will certainly be rise in litigation and the like on medical cases in Nigeria, as it happens not only in the south, but worldwide.
SCOPE OF THE THESIS
Geographically, the thesis will cover the Federal Republic of Nigeria comprising Thirty-six states. Historically and legally, the research shall cover the laws of medical malpractice in Nigeria during and after colonization, up to the present date, especially, the law of torts. The legal coverage of this thesis is centered around the inherent problems of medical malpractice in Nigeria, that is,the legal responsibilities of the health care deliverers and the rights of their patients. As it was said earlier in this chapter, this area of the law is still largely undeveloped because of illiteracy and lack of awareness on the part of health care providers and the recipients alike, as well as religious beliefs on the part of most victims of medical malpractice, especially from the Northern part of Nigeria. In order to make a considerable impact on this thesis on the tortious liability of medical personnel in Nigeria, there is need for proper analysis of the available literature and cases, restatement of legal rules and recommendations for reforms in this area.
This research is certainly not the first work on this area of the law in Nigeria, and may not prove better than the existing ones either. This thesis will, therefore, review the existing rules on the tortious liability of medical practitioners in Nigeria, with a view to making useful suggestions for reforms in this area. As the rules on medical malpractice are virtually settled, an extensive tour will be made, not to ascertain the rules, but rather to assess the extent of medical malpractices, the degree of awareness of legal responsibilities on the part of medical practitioners or again the health care deliverers and, on the other and, the degree of awareness of the legal rights of the patients in torts, and their attitudes towards litigation.
Another method to be adopted in this research will be firstly, to discuss in detail and examine rules and decided cases on the subject matter as are available in the libraries. Originality shall therefore, lie in the appraisal of the existing rules, identifications of defects in the rules and suggestion for reforms