CHAPTER ONE

GENERAL INTRODUCTION

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

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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.

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1. SCOPE OF THE THESIS

Geographically, the thesis will cover the Federal Repuplic 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 healthcare 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

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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.

1.3 Research Methodology:

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.

Questionnaires shall be prepared and administered extensively within the geographical area of this research. The aim is to assess the rate of medical

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malpractice, the level of awareness of legal responsibilities of the health care deliverers and the awareness of the health care recipients of their tortious rights and their attitudes to vindication. It is hoped that the result of the questionaire will form an essential part of the bases for suggestion for reforms in this area of the law in Nigeria.

An acute problem to be faced by the Author is that of authorities, especially Nigerian decided cases, which are very few. The reasons for the paucity of Nigerian cases in this regard are that: (1) There is fear probably by the courts that many successful actions may lead to medical malpractice crises, leading to defensive medicine. Defensive medicine is medicine practiced not for the benefit of the patient, but to protect the doctor from litigation, such as, rise in number of caesarean section births as opposed to natural births7;(2) Cost of litigation is high. In Nigeria, poverty rate is very high. Most of the victims of medical malpractice are poor people who cannot engage the services counsels to argue their briefs or even pay court charges. Although some Lawyers in Nigeria accept to work on a contingent fee system, not all patients are able to identify them. A contingent fee system is a system whereby the lawyer undertakes to handle a brief without any prior payment of fee by the client, if the client, if the client at the end of the litigation receives nothing, the lawyer receives no fee, but in a successful case, the lawyer receives an agreed percentage of the damage; (3) The legal Aid System in Nigeria is not very effective and not everybody may be eligible for Legal Aid. So the client has to fund the action himself and risk not recovering cost. There is also the Doctor – patient 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 patients8; Most patients especially in the Northern part of Nigeria, do not have compensation awareness and finally; (5) the cultural or religious norms especially in Northern Nigeria, in which every mishap is attributed to God’s Will.

However, since the general principles of law governing tortious liability of medical practitioners all over the Common Law world are similar, decided cases from other Common Law countries will be employed. It is to be noted that, whever reference is to be made to such cases or authorities, they must reflect directly on a similar point to be discussed or explained or illustrated under tortious liability of medical practitioners in Nigeria. Reference shall also be made to other legal systems whenever the need so arises. 1.5 Organizational Layout of the Thesis

Chapter one of this thesis is an introductory chapter, which discusses the objectives of the thesis, its scope, the method by which the research shall be conducted, the organizational layout of the research.

Chapter two proposes to discuss Negligence as the bases of liability-of medical practitioners. In this chapter the nature of negligence of medical practitioners shall be discussed and some instance of civil medical malpractice analyzed properly. And finally the liabilities of quacks and Native Doctos shall also be properly analyzed.

Chapter three shall discuss trespass and criminal liability of medical practitioners, as well as, the liability of hospital management.

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Chapter four proposes to deal with defences and remedies to tortious

liability of medical practitioners in Nigeria.

Finally, Chapter five shall be the summary (Conclusion) and suggestion for reforms in the area of medical malpractice law, especially the tortious aspect in Nigeria.