Legal imperatives of medical negligence and medical malpractice

Abstract

Medical negligence and malpractice are becoming a growing concern in Nigeria; even though many victims do not know how to go about seeking redress or demand justice, medical practitioners, too, do not understand the legal implications of their actions. Medical negligence and malpractice are tortious liabilities that can also result in criminal liabilities. It is a fact that health-care practice will occasionally result in circumstances where health seekers suffer some distress or permanent injury in the course of handling by medical practitioners. This distress or injury can be a result of either commission or omission due to the actions or inactions of the medical practitioner. This review was embarked upon using thoroughly studied recent and older literature concentrating on research indications resulting from the fields of medicine and law within and without Nigeria. Common acts that could give rise to lawsuits on medical negligence and medical malpractice include doctor's illegible handwriting, prescription and medication errors, misdiagnosis or failure to diagnose, improper medical treatment, leaving surgical instruments in patients after surgery, lack of informed consent, failure to refer a patient to a specialist, breach of confidentiality, extortion, and deception among others. For liability to come up in negligence, it is imperative that the three main fundamentals of negligence, which include that a duty of care is owed, there was a breach of the duty of care, and injury or permanent disability suffered as a direct consequence of a breach of the duty of care must be well established and proved beyond a reasonable doubt. The inability of a victim to successfully prove a case of negligence against a medical practitioner does not totally absolve a practitioner from charges related to other offences under other aspects of the law, hence the fact that negligence is difficult to prove does not leave a patient deprived of other legal opportunities as may be considered appropriate. Even though the law protects the medical practitioner to the level that liability for medical negligence and medical malpractice has to be proved beyond a reasonable doubt, much more legal protection is needed to allow medical practitioners to discharge their duties of saving lives. Medical practitioners need to be aware of their limits as well as the legal implications of their work; this can be achieved by incorporating medicolegal principles into medical education for medical students, as well as periodic medicolegal lectures for medical practitioners.