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

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

The Medical field is one of the most referred and reverenced profession in that it deals with the lives of human beings and in the course of their dealings with patients, these patients go through tests, operations, diagnosis to mention but a few. The Medical professionals in the course of discharging their duties are sometimes Negligent as regards adhering strictly to their professional Code of Conduct. For instance where a doctor leaves operating instruments in the abdomen of a patient. In Nigeria there exists a countless catalogue of Negligent cases in which the involved Medical Personnel go scot free because their victims are ignorant of their rights let alone enforcements of such rights. The peculiarities imposed on the practice of Medicine in Nigeria by our Culture and Environment have been examined. The laxity or absence of policing of drugs and food in Nigeria has been highlighted. It is clear from this that some Nigerian laws which relate to many aspects of Medicine are outmoded and inadequate. This particular point is emphasized especially in matters of abortion an mental illness. This Negligent act can be described as the breach of duties, standard, care and diligence required by the Medical Profession. The main focus of this long Essay is to discuss the Legal Implications of the breach of Duty in the Medical Profession. As regards this, solutions would be proferred to curb all acts which might later occur in the nearest future. This work is divided into five chapters, chapter one deals basically with the general introduction. Chapter two gives us an insight into Medicine as a whole, how it evolved in Nigeria and how we received it. Chapter three gives us a proper understanding of the concept, Duty of Care and Medical Negligence, Chapter four avails a Medical Practitioner the opportunity to be free from liability in essence, they have defences they can rely on. Lastly, Chapter five deals with the general conclusion.

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 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 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 civilremedy where it is discovered that the act or omission of the medical practitioner falls below expectation. Indeed in DENLOYE V MEDICAL PRACTITIONERS DISCIPLINARY COMMITTEE9.

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.

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 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.

Department: Law
Format: Microsoft Word

Chapters: 1 - 5, Preliminary Pages, Abstract,  Bibliography.
Delivery: Email

No. of Pages: 106

Price: 3000 NGN

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