Duty of Care: Its Implications to the Medical Profession in Nigeria
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.
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.
MEDICINE IN PERSPECTIVE
Medicine is the Science and the art of healing. It encompasses a variety of health care practices evolved to maintain and restore health by the prevention and treatment of illness.
Contemporary Medicine applies to health Science, Medical technology to diagnose and treat injury and disease, typically through medication, Surgery, or some other form of therapy, The word Medicine is derived from the Latin word ars Medicina, meaning the art of healing.
This chapter focuses on the Evolution of medicine in Nigeria, an overview of the Medical and Dental Practitioners Act, the scope of medical ethics, and the nature of professional responsibility.
EVOLUTION OF MEDICINE IN NIGERIA
Western medicine was not formally introduced into Nigeria until the 1860s when the sacred Heart hospital was established by Roman Catholic Missionaries in Abeokuta. Throughout the ensuing colonial period ,the religious missions played a major role in the supply of modern health care facilities in Nigeria. The Roman Catholic mission predominated, accounting for about 40 percent of the total number of mission based hospital beds by 1960.By that time, the mission hospitals somewhat exceeded government hospitals in number;118 mission hospitals compared with 101 government hospitals.
By 1954 almost all the hospitals in the Midwestern part of the country were operated by Roman Catholic Missions. The next largest sponsors of missions hospitals were, respectively, the Sudan United Mission, which concentrated on middle belt areas, and the Sudan interior mission, which worked in the Islamic North. Together they operated twenty-five hospitals or other facilities in the Northern half of the country. Many of the mission hospitals remained important components of the health care network in the North in 1990.
The Missions also played an important role in medical training and education, providing training for nurses and paramedical personnel and sponsoring basic education as well as advanced medical training, often in Europe, for many of the first generation of western-educated Nigerian doctors. In addition, the general education provided by the Mission for many Nigerians helped to lay the groundwork for a wider distribution and acceptance of modern medical care.
The British colonial government began providing formal medical services with the construction of several clinics and hospitals in Lagos, Calabar and other coastal trading centers in the 1870s. Unlike the Missionary facilities, these were, at least initially, solely for the use of Europeans. Government hospitals and clinics expanded to other areas of the country as European activity there increased. The hospital in Jos, for example, was founded in 1912 after the initiation of tin mining.
World War 1 had a strong detrimental effect on medical services in Nigeria because of the large number of medical personnel, both European and African, who pulled out to serve in Europe. After the war, medical facilities were expanded substantially, and a number of government-sponsored schools for the training of Nigerian medical assistants were established. Nigerian physicians, even if trained in Europe, were, however, generally prohibited from practicing in Government hospitals unless they were serving African patients.
After World War II, partly in response to Nationalist agitation ,the colonial Government tried to extend modern health and education facilities because of the Nigerian population. A ten-year health development plan was announced in 1946;it included the country’s first full faculty of medicine and University hospital, still known as University College Hospital. A number of Nursing schools were established, as were two schools of Pharmacy; by 1960 there were sixty-five Government Nursing or Midwifery training schools. The 1946 health plan established the Ministry of Health to coordinate health services throughout the country, including those provided by the government, by private companies, and by the Missions. The plan also budgeted funds for hospitals and clinics, most of which were concentrated in the main cities; little funding was allocated for rural health centers.
NEGLIGENCE & DUTY OF CARE
Negligence is one of the most common and most important tort in law, its origin is to be found in trespass, the action was developed and formulated in the 19th century and now exists in its own rights as a separate and independent tort. Negligence can be said to be, the failure to exercise that care which the circumstances demand or absence of care or as fluid principle, which has to be applied to the most diverse conditions and problems of human life.
DEFENCES TO BREACH OF DUTY
Defense is defined to be that which is alleged by a party proceeded against in an action or suit as a reason why the plaintiff should not recover or establish that which he seeks by his complaint or petition that is, a defendants answer, denial or plea. Apart from a denial of the actual occurrence of Negligence, even where the fact of damage is proved, there are five other defences which a defendant may raise in Negligence action.
The primary duty of a Medical Practitioner is to take care or to find cure for the ailment of a patient that may be put in his care. This duty has been recognized from time immemorial. The duty in this regard is usually said to be Contractual. It is also one of the incidents of various provisions of the Law put in place for the purpose of achieving this objective. Much as the duty is Contractual and some of the remedies that are usually found when there is a breach of Contract can be asked for in a relationship of a Medical Practitioner and patient, it is not unusual to ask for the remedies that are usually granted in the case of a delicit or a tort, the reason being on the dichotomy of Criminal and Civil aspects of Law. Thus, while it may be said that a Medical Practitioner accepts to treat a patient who presents himself to him for advice, diagnosis or cure by reason of which a Contractual relationship is created, if however along the line, the Medical Practitioner is Negligent in the performance of the Duty of Care he owes by reason of his position as a Medical Practitioner, he becomes liable to pay damages to the patient not necessarily by reason of the Contractual nature of the duty, but by reason of the classification or characterization of the claim by the patient or his counsel, as in Tort, in consequence of which the matter is taken out of the confines of a Contract and becomes a Tort. Therefore, the same act or relationship of a Medical Practitioner and patient may be regarded not only as Contract but it may generically be called a Contractual relationship that may give rise to a Tort. As regards this Long Essay, references were made from various textbooks on Medical Negligence, Case books and Statutory Enactment. Reference was also gotten from various Scholars and Articles from the Internet as regards Medical Negligence.
Chapter One of this Long Essay deals basically with the General Introduction of Medical Negligence as seen in the Profession
Chapter Two gives us an insight as to what Medicine entails, its evolution in Nigeria, An overview of the Medical and Dental Practitioners Act, Nature and Scope of Medical Ethics and the Nature of Professional Responsibility.
In Chapter Three the Duty of Care and Negligence was dealt with extensively. Under this heading, the Writer made us understand the meaning of Professional Negligence, the Essential Elements of the Tort of Negligence, the Consequences of Breach of Duty, Damages, Criminal Liability in Negligence under this, the Writer took cognizance of Murder or Culpable homicide punishable with death and Manslaughter or Culpable homicide not punishable with death, the Burden of Proof and Vicarious Liability in Negligence.
Chapter Four gives us an insight of the Defences that may avail a Medical Practitioner once a breach of duty has been committed. These Defences includes the Defence of Accident, Emergency, Consent, Contributory Negligence and Remoteness of Damage.
In view of the above mentioned as regards the Breach of Duty as evident amongst Medical Practitioners, the Writer recommends that:
- The Medical Practitioners should adhere strictly to the Geneva Declaration which makes us understand that they must maintain a universally acceptable professional standard of practice as well as meet the demands of practice.
- Nigerians should also be aware of Medical quackery. In essence, the Nigerian Medical Council with the Courts should take strict measure in eradicating quackery in Medical Practice. The Court should discourage the act by penalizing the offenders which will in turn serve as a deterrence to other intending quacks.
- The Medical Disciplinary Tribunal should be independent. Independent in the sense that they should be free from the Court inferring with their duties. This will enable the Practitioner to ensure that their Conduct is in accordance with the stipulated standard expected of them in the practice of their Profession.
- A Law should be put in place for free Litigation Service because in Nigeria as regards Medical Care there are paucity of cases basically because Litigation fee is a mitigating factor for those who really want to express their grieviance in the Court of Law. In the United Kingdom and America there is a provision on Conditional fee arrangement of Legal Services for victims of Medical Negligence in their Court177. The Nigerian Legislature should enact a Law as regards free arrangements so that lack of money will not be a reason for not instituting an action.
- Moreso, the entire Nigerian populace should be enlightened as to the Rights they have as Citizens. It is observed that due to our cultural background, people are not readily disposed to Litigation. It is generally believed in Africa that resorts should not be heard to the Judicial process particularly against known persons. This believe is predicated on the axiom that ‘there can no longer exist friendship after Litigation’. Africans prefer to leave judgement to God rather than fight for their rights. In relation to this, a program should be organized to awaken the entire populace of their Medical Rights.
- In conclusion, Medical Practitioners should be cautious in carrying out their duties, they should act the way any reasonable person should act. They should try their possible best not to fall short of their Code of Conduct either by their acts or omission as regards the Conduct expected among Practitioners. They should not neglect or disregard professional responsibilities to patients for their care and treatment. Their behaviour should not be derogatory to the reputation of the Medical Profession such as drug abuse and they should not abuse professional priviledges and skills given to them.
- Negligence from Litigation and dispute resolution in Canada, http; //www.blakes.Ca/DBIC/guide/Dispute/html/negligence.html/>accessed on 15th November 2010.
- Negligence from Wikipedia, the free encyclopedia, http://en. Org/ Wiki /Negligence>accessed on 15th November 2010.
- Nigeria History of Modern Medicine Services http: //www. Photius. Com/Countries/ Nigeria~10005.html> accessed on 19th November 2010.
- Medicine in perspective http://en. Org/Wiki/Medicine>accessed on 15th November 2010.