ABSENCE OF CODIFICATION OF MEDICAL NEGLIGENCE THE LAW

CHAPTER ONE

1.1    INTRODUCTION

The American Heritage Dictionary defines the term negligence to mean “The commission or the neglect of any reasonable precaution or act”.

In Lochgelly Iron and Coal Co. V. Mc Mullan1 Lord Wright observed as follows “In Strict legal analysis, negligence means more than a needless or careless conduct whether in omission or commission, it properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owing”

The doctrine has found its place in the medical profession, this is due to the fact that more than any other profession, great amount of care is required here since it deals with life and health

Medical negligence connotes the inability of medical professionals to meet the acceptable standard of care practiced by professional men of similar calling.2

1. (1934) A. C. Cit P.24
2. Uko E. J. “Human Right Law, Right to Health In Africa; and Aspects of Tortuous liability and Medical Negligence” (2007) Livingo Pub. At P.85

1.2    STATEMENT OF THE PROBLEM

Victims of medical negligence in Nigeria do not have an enabling environment to enforce their rights. The factors that inhibit the enabling environment include:

1. Absence of codification of medical negligence the law recognizes that it is only the medical professional body that can set acceptable standards of care and can also determine when such standards are violated or breached.3
2. The Problem of confidentiality and access to medical records, confidentiality and access to medical records, confidentiality is an ethnical imperative placed on the medical profession. Due to this to prove the case of a victim of medical negligence that is dead, will bore difficult, since the medical personnel can hide under the covering of confidentiality.4 Again a patients right to his records and not absolute

                  3. Uko E. J. Ibid, P.90

4. Professor Osagie Giwa Compendium of Medical Law under Common Wealth & United State     with treaties on Assisted Conception. (2006) Maiyati Chambers Pub. P.22

• Attitude of the Courts. In Vancouver General Hospital V. Mc Daniel5. It was observed that the courts are reluctant to attach negligence to an act of a medical practitioner if such an act conforms with the acceptable practice.

1. Illiteracy and ignorance of victims rights
2. Cost of litigation, duration of litigation and general attitude of the Courts
3. Custom and practices of the people.

1.3    THE LEGAL PROBLEM

Absence of codification of medical negligence is a legal problem of this research. The law recognition that it is only the medical professional body that can set acceptable standards of care and can also determine when such standards are violated. By this, the notion of bias cannot be far fetched from the decisions of the body, in a case of medical negligence.

5.  (1935) 152 LTR 56

It can be concluded that, medical negligence lacks precise definition and  in based solely on “what his colleagues would say..” as said by Professor Giwa Osagie.

1.4    RATIONALE AND JUSTIFICATION OF STUDY

The need to create an enabling environment for victims of medical negligence to seek remedy under the law cannot be over emphasized.

This work also bring to light how a victims right can be enforced and the measures that can be taken against the negligent medical personnel.

This work having exposed the liability and duties owed to patients by medical personnels, would encourage an increased level of care towards the patients.

This work also is in partial fulfillment of requirement for obtaining an L.L.B in the Faculty of Law, University of Uyo.

1.5    LITERATURE REVIEW 6. Poopoola A. O. & Adodo E. O. (eds) “Current Legal Development in Nigeria: Essay in     memory of Professor J. O. Ojo” (2007) Obafemi Awolowo University Press Nigeria. P.312

Jhon Ademola Yakubu in his article “The legal implication of a request for sterilization by vasectomy”, is of the view that “medical negligence is a situation where in the medical practitioner is said to have fallen below the standard required where the act or omission is such that would not have been done by a reasonable person in the position of the medical practitioner.6

In Bolam V Frien Hospital Committee,7 it was held that the true test for establishing negligence in diagnosis or treatment on the part of the doctor in whether he has been proved to be guilty of such failure as no doctor of ordinary skill will be guilty of it acting with ordinary care. 

Giwa Osagie holds that “A medical man should not be found guilty of negligence unless he has done something of which his colleagues would say; he really did mare a mistake there. He ought not to have done it”8

Lord Clyde in Hunter V Hanley9 held the view that though a medical practitioner may be liable in negligence if he deviates from the general and approved practice and injury result of such deviation. However such a deviation is not necessarily evidence of negligence that “if it were so, inducement to progress in medical science would be destroyed”.

Hewart C. J. in R. V Bateman10 summarized the law relating to the liability of medical men for negligence

“If a person holds out as possessing special skills and knowledge and he is consulted as possessing such skill… he owe a duly to use diligence, care, knowledge, skill and coalition in administering treatment. To do below this will make him guilty of negligence”.

                  7. (1957) 2 All ER 118

8. Professor Osasgie Giwa Ibid, P.22

9. (1953) SCD. 200

10. (1925) 12 WACA 56

In R. V Ezeocha”, it was held that where persons who are not qualified attempt to practice medicine, they are judged by the same stand and as qualified practitioners.

1.6    DATA COLLECTION / METHODOLOGY

The researcher intends to use both primary and secondary sources of data collection.

Primary source;

Interviews, questionnaire and visit to locus

Secondary source:

Library and internet research methods will be used

1.7    SCOPE AND LIMITATION OF STUDY

The scope of this problem will be negligence in the medical profession. To this extent, Medical Center, Ubongabasi Hospital, University of Uyo Health Care Center shall be used as a case study.