THE TORT OF MEDICAL NEGLIGENCE; A CASE STUDY OF NIGERIAN MEDICAL PRACTITIONERS


We do not wish to denigrate the efforts of Nigerian clinicians or medical practitioners as to emphasis their errors and undoings. However, it has become pertinent to ring an alarm on the thriving rate of medical negligence, leading to a spike in mortality rate, and undue terminal illnesses on patients who approach them for help.

Negligence as a tort, consists of the breach of a legal duty to take care. This often results in damage, undesired by the defendant to the plaintiff(victim). This legal obligation flows from the duty man owes to another. This is both a divine obligation and a legal duty. This has gotten a legal backing following the principle in the case of “Donogue V Stevenson” expounded in the ‘Neighbor principle’.

The tort of negligence is both a commission and an omission. Suffice is to say that, failure to do a thing leading to harm on another can also be construed as negligence of some sort. Also, Any careless and unreasonable action, which causes damage is actionable in Law.  This commission and omission leads to liability for the tort of negligence.

INGREDIENTS TO PROOF NEGLIGENCE

For an action to succeed for negligence, it must be established that:
1. The defendant owes a legal duty to take care to the party towards a complaining party.

2. The defendant breached that duty.

3. The plaintiff suffered undesirable, and consequential damage due to the breach of that duty

4. The damage which was reasonably foreseeable resulted from the breach of such duty to take care (proximity).

The principle enunciated in the case of “Donugue v Stevenson,” brings us to a confluence between a legal and a moral obligation which one man, owes another. This principle posit it that “you must love your neighbor and must not do anything that causes injury to your neighbor.” Here, it was established that my neighbor is any person who is closely or directly affected by my actions that I ought to have in my contemplations. This treats negligence to mean an act or omission causing injury or harm to a person regardless of intentions or the state of mind.

MEDICAL NEGLIGENCE.
The categories of negligence are countless. There are a lot of duty situations in practice ranging from employer to employees and vis a versa; duty of road users to one another and pedestrians, lawyers and solicitors to clients etc. However, this piece focuses on Negligence carried out by professionals in the medical sector. Medical practitioners such as doctors, Pharmacists, Laboratory Scientists, doctors et al., owe their patients a duty to care.

Everyone in the medical profession undertakes to exercise a reasonable level of care and skill. This therefore, assures patients that reasonable care and caution will be taken in the dispensation of the professionals’ duty.


This seeming assurance doesn’t mean that the practitioner determines the result or outcome of an operation, but that such professional has the requisite training and skill in the profession that commands the trust of the patient. This is an undertaking that such professional will carry out his\her duty with utmost care and skill. 
 
Medical negligence has wide coverage ranging from misdiagnosis, wrong decisions and treatment method, abandonment of hpatients, prescription errors, drug dosage errors or surgical errors which may lead to increased morbidity, permanent injury or death.

DUTIES CLINICIANS OWE TO PATIENTS

Medical practitioners owe the following duties to the patients:

1. A duty of care in deciding whether to undertake the case.

2. A duty of care in deciding what treatment to administer.

3. A duty of care in the administration of treatment in a proper manner and magnitude.

It is generally expected of such a professional to show a fair, reasonable and competent degree of skill. It is not required that he should use the highest degree of skill, for there may be persons who have higher education and greater advantages than he has, nor will he be held to have a guaranteed a cure.

INGREDIENTS TO PROOF MEDICAL NEGLIGENCE

medical professionals will be held liable for medical negligence on two findings by the court on professional standard viz:

1. That such professional is not possess of the requisite skill or knowledge which he\she professed to have possessed.This is an error by a medical professional traceable to ignorance on technical matters that any one of that profession ought to be familiar with.

2. That such professional did not exercise reasonable competence and skill in the given case which he did posses. A degree of prudence and caution should be traceable in the manner a practitioner carried out his duties. 

The recent spike in the rate of deaths caused by gross medical negligence is alarming and calls for caution. This caution is a threefold; first to the medical practitioners; secondly, the patients and thirdly, law makers/government respectively.

This is to ring an alarm and draw the attention of Nigerian Legislators to the growing number of cases of medical negligence to take proactive measures to save humanity before it is wiped off.
It is understandable and globally accepted that death is the fate of every man, conversely, the life of one should not be cut short, because of the negligence of another or human errors that could have been avoided.

It is both a professional duty by law and a moral obligation. Nigeria is a very religious country that we largely let serious issues slide due to the religious connotations we have attached to the flaws of man.
The plight of Patients/victims is largely of ignorance of their fundamental rights. While some are genuinely ignorant of their rights, a larger percentage of the educated Nigerians may be aware of their rights and duties owed them by law but will rather ‘leave things in the hands of god,’ than to institute legal action in the face of glaring negligence or harm. It either that, “it is the will of God, or it is fate or Gods time.”

Failure to administer optimal care to a patient is a breach of their fundamental right and it is actionable in the Court of Law. Aggrieved persons should thereby approach the Court for re-dress. In like manner, the government should ensure they provide recent technologies and medical equipment for efficient medical service delivery. On a whole, Medical practitioners should step up!

1 Comment

  1. This is a great alert!.
    Government should ensure that the proper machines/tools and resource required for attending to patients are available.
    I stand against Medical Negligence
    #LetThePatientLive. #PromptCareForThePatient

    Like

Leave a Comment

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s