DUTY OF CARE: ITS IMPLICATIONS TO THE MEDICAL PROFESSION IN NIGERIA

By

Author

Presented To

Department of Law

UTY OF CARE: ITS IMPLICATIONS TO THE  MEDICAL PROFESSION IN NIGERIA

CHAPTER 1

GENERAL INTRODUCTION

1.0.0: INTRODUCTION

Medical practice has attained sufficient status to the extent that principles of law that are relevant to Medical Practice can now be examined under the concept of Medical Law. Medical law can therefore be described as the branch

of law dealing with Medical Practice or the Medical Profession.1

The functions of Medical Law therefore relates to identification of  issues

relating to or regulating the practice of Medicine 2. The essence of Medical Law or the kind of conduct required of a Medical Practitioner can be determined from the Oath of Hippocrates. This is a simple and modern declaration which a Medical practitioner makes and which he must adhere to in practice. It is meant to enable Medical and Dental Practitioners maintain a universally acceptable professional standards of practice as well as meet the

1 Yakubu J.A, Medical Law in Nigeria, (Demyaxs Press Ltd),2002, Pg 1.

2 (Ibid)

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demands of the Medical and Dental Council of Nigeria with regards to ethics

of a professional practice 3.

It is of importance to note that prior to the advent of the British to Nigeria, the traditional method of healing was the predominant practice. However, with the advent of the British as Nigeria’s colonial over lord, came the missionaries who not only took care of the spiritual well-being of Nigerians but also took interest in the health of the people. Maternity homes and dispensaries were

established 4.

It should be pointed out that our traditional medicine is becoming more recognized in Nigeria. There is no specific law regulating traditional medicine beyond the general principles relating to liability in Criminal law, the law of

Torts and the law of Contract 5.

The earliest indigenous medical practitioners were trained in British. Subsequently several other indigenous people travelled to various countries in

the world for the purpose of acquiring education relating to medical practice 6

3 (Ibid)@ p.3

4 Ibid @ p.3

5 Ibid @ p.3

6 Ibid @ pg 4.

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For a person to practice medicine, he must be professionally qualified through the process of University education and in accordance with the requirements of minimum standard requisite for attainment of this status. The process must be

universally recognized & accepted 7. The predominant Statute regulating

medical practice in Nigeria is the Medical and Dental practitioner Act 8 which provides all the necessary framework for the establishment of the Medical and Dental Council of Nigeria for the purpose of registration of medical practitioners and Dental Surgeons and to provide for a disciplinary tribunal for the discipline of members.

The functions and establishment of the Dental and Medical Council of Nigeria will be discussed in the course of this Essay.

Apart from the Medical and Dental Practitioners Act, a Medical Practitioner may also be liable criminally and may be asked to pay damages by way of civil remedy where it is discovered that the act or omission of the medical practitioner falls below expectation. Indeed in DENLOYE V MEDICAL

PRACTITIONERS DISCIPLINARY COMMITTEE9.

7 Ibid pg 5

8 Cap M8 Laws of Federation of Nigeria 2004.

9 (1968) ALL N.L.R 308

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The court in this case pointed out the fact that where the nature of the act or omission of a medical practitioner amount to a crime, the regular law court must determine the criminal aspect of it before liability is determined under the Medical and Dental practitioners Act with respect to misconduct or infamous conduct. Civil liability is Negligence.

Negligence occurs when a person is said to omit to do something which a reasonable man would do when he is guided by the factors which originally regulate human conduct or when he does something which a prudent and a

reasonable man would not do 10. It can also be defined as the breach of legal

duty to take care which leads to damages 11.

Liability for Medical Negligence may arise in Contract or in Tort. While the duty in Contract arises from agreement between the parties, that in Tort is independent of agreement and imposed upon the parties by the Law. The duty in Tort may also be covered by that in Contract. In most cases of Negligence against Professionals and other skilled workers, the cause of action centres

mainly on breach of Contract. In some instances, one may also sue in tort. 12.

• Aliyu V Aturu (1999) 7 NWLR pt 612 536

• Okin Biscuit ltd V Osho (2004) FWLR (pt 188) 1094

12Olusoga Olapade, Law & medical practice in Nigeria, 2008 pg 107

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1.1.0: BACKGROUND TO THE STUDY

Duty of care can only occur when a relationship has been established with someone. In this case a doctor-patient relationship. When there is a breach of this duty, it means there is an injury which a person might have sustained at the hands of another who should have taken reasonable care not to inflict pain on the person.

The writer has taken into cognizance that many Nigerians are affected one way or the other and legal steps are not taken to correct the wrongs, the violators of these wrongs escape liability unlike countries like America where the violators would be punished for their negligent acts. This is why the writer believes the concept of duty of care should be over-emphasized among the Medical practitioners. The effect of the breach of duty most times has stigmatized many Nigerian patients making them depressed for rest of their lives. As a result of this, this work seeks to bring an end to this attitude because so many have found themselves in this un desiring circumstances just as a result of the breach of duty from the medical practitioners.

The liability of a Medical Practitioner covers both Criminal and Civil liability which come to play as the burden of proof. Both the Criminal and the Penal

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codes which apply in the Southern & Northern states of Nigeria respectively in relation to the culpability of offenders contains elaborate provisions under which cases of Medical Negligence can be prosecuted.

However, it is obvious that the Medical practitioners owe their patients a duty of care, it is therefore expected of them to exercise that standard of care in the course of their duty.

This work explains the nature of professional responsibility, the consequences of breach of duty, the remedies available to the victims of the breach. The work also includes the duties conferred on the patient and also the defenses available to the breach of duty.

1.2.0: OBJECTIVES OF THE STUDY

The general position is there is an increased rate of the breach of duty in the medical profession in our country and the objective and aim of this work is to see that the medical professionals who have defaulted in carrying out their duties to their patients must be strictly liable. Also, Nigerians should be enlightened of their rights and the need for them to seek redress once these rights have been infringed upon. It’s obvious that Negligence suits against Medical Practitioners are rare in this country compared to America & Britain.

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Phenomenal success will soon be achieved with the current rate of literacy, the improvement of our economic sector and also the availability of legal aid. This work also seeks to identify the reason why there is a breach of duty on the part of the medical professionals and also to examine the defences available to them after the breach.

1.3.0: FOCUS OF THE STUDY

The focus and the limitation of the study is to examine the various Laws and Statute regulating the Ethics and the relationship between a medical practitioner and the patient.

Also, it shall be within the focus of this project work to examine the liability of Negligence of Medical Practitioners, either they are liable in civil wrong and criminal liability.

The main or principal Act which shall be examined in this project work is the Medical and Dental Practitioner Act cap M8 of Laws of Federation of Nigeria 2004.

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1.4.0: SCOPE OF THE STUDY

This long essay focuses mainly on Duty of Care. An extensive writing will be made on the topic Duty of Care and Negligence and the consequences of breach of this duty. It also deals with the implication of the breach in the medical profession. It also calls attention to salient arrears of our law that regulates the practice of medicine in Nigeria.

1.5.0:METHODOLOGY

In regards to this study, materials will be drawn from sources which has been classified to primary sources and secondary sources.

Under the primary sources, reference will be made to various textbooks on medical negligence, case books, journal and statutory enactment. Whereas, the secondary source includes the views of various scholars and articles on the concept of medical negligence.

1.6.0: LITERATURE REVIEW

This Long Essay undertakes a fresh and contemporary study of a long existing issue and for a proper establishment of this essay a plethora of authorities have been referred to. It has been noted that various authors have echoed the need

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for Law to intervene whenever a breach has occurred so as to meet the needs and aspirations of the people.

J.A Dada, in his book,13 a Nigerian author is of the view that the Legal aspects of Medical Practice in Nigeria and Medical Negligence cannot be left out. The writer of this long essay observed in his book:

‘That a Medical Practitioner owes a duty to exercise reasonable skill and care in the treatment of his patients. This duty is independent of any Contract between the Practitioner and his patient and therefore subsists regardless of whether the treatment was performed gratuitously, voluntarily or for a fee’

From this quote the writer is made to understand that a Medical Practitioner owes a duty to exercise reasonable care regardless of whether the treatment was performed gratuitously, or for a fee. This statement is in contrast as to what a Contract means as regards a doctor-patient relationship because it says that the duty arising from the Practitioner is independent of any Contract and so therefore, if there is a breach, the Medical Practitioner will be held liable irrespective of the fact that there was no Contract.

B.C Umerah, in his book14 is of the view that it must not be thought that a Medical Practitioner by the mere fact of the profession owes a Duty of Care to

• Legal aspects of Medical Practice in Nigeria, 2002 Pg 89

• Medical Practice and the Law in Nigeria, 1989 Pg 123

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anyone who needs Medical aid and who can be reasonably assisted. He further said that, once a doctor undertakes to treat a patient, whether or not there is an agreement between them, a Duty of Care arises. He makes us understand here that once the Medical Practitioner undertakes to treat the patient he must exercise reasonable care in dealing with the patient.

John Ademola Yakubu, in his book15,

Lord Esher in HEVEN v PENDER16 stated that:

‘Under certain circumstances one may owe a duty to another even though there is no Contract between them. If one man is near to another, or is near to the property of another, a duty lies upon him not to that which may cause personal injury to that other, or may injure his property.’

The above principle represents the general duty of Care required at least from a consideration of the fact that the Law of Torts deals with the provision of necessary and adequate remedy where an injury has been sustained by another in circumstances not justifiable or allowed by the Law. Notwithstanding the fear that it is difficult to make a general statement defining the relations between the parties and the type of duty required in all cases, the above principles provides necessary guidance.

• Medical Laws in Nigeria, 2002 Pg 33

• (1883) 11 Q.B.D 503

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Ibrahim Imam in his book17, he made us understand that Duty of Care has its Origin from the concept of foreseeability. Foreseeability here means that a person must not use Ordinary Care and shall in his own conduct with regard to those circumstances where he would cause danger or injury to another person. There is a duty on his part to avoid such danger.

Kodinlinye and Aluko in their book18, in order to establish that a person has a good cause of action in Negligence, it is not sufficient for the plaintiff to show the existence of circumstances which gives rise to a rational Duty of Care to him, and he can establish this only before showing that the harm suffered by him was the reasonably forseeable consequence of the defendants conduct.

This work provides for the Nigerian Perspective on this subject matter and its need in the system therefore, the project relied on written materials and opinions exposing the need for an urgent review of the Legal implications of the Breach of Duty in the Medical Profession.

• Synoptic Guide on the Law of Torts (A handbook), 2001 pg 33

• The Nigerian Law of Torts (Spectrum Law Publishing) 1996 Pg 42.

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1.7.0: DEFINITION OF TERMS

In definitions, we must understand that every definition is as good as any other definition and every definition is as bad as any other definition. Professor Okuniga said :

‘Nobody has been able to offer, is offering, and will be able to offer a definition that will end all definitions of Law’

However, for an average person to understand the essence of this long essay, some terms that you will come across in this essay has been defined.

ACT

An Act may denote something done by an individual, as a private citizen, or as an officer: or by a body of men as a legislature, a council , or a court of justice: including not merely physical acts, but also decrees, edicts, laws, judgments,

resolves awards, and determinations19.

19 Blacks law Dictionary Sixth Edition (1891-1991) pg 25

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AGREEMENT

In law, agreement is a concord of understanding and intention between two or more parties with respect to the effect upon their relative rights and duties, of

certain parts or future fact or performances20