Medical Negligence Litigation in Nigeria: Identifying the Challenges and Proposing a Model Law Reform Act

Abstract

This thesis examines the present law and practice of Nigeria in relation to medical negligence litigation and makes proposals for reform. The present position is highly problematic. There are major shortages in medical resources in hospitals. There has been a “brain drain” of doctors and nurses from Nigeria to richer countries. The cultural and religious attitudes in parts of Nigeria tend to weaken the assertion by patients of their rights. A further difficulty is the absence of reported case law and the very limited academic analysis of the subject. As a matter of both international human rights law and constitutional law, it is necessary that Nigerian law on medical negligence should be reconstituted and codified. For this reason, the thesis contains a Model Act, designed to reflect the best insights of lawyers throughout the world but, more particularly, to take account of the indigenous factors in Nigeria – resource limitations, religious beliefs, cultural attitudes to gender and autonomy, for example – so that the legislation will represent best practice for Nigeria rather than some theoretical model for reform.

The thesis thus examines in considerable detail the constitutional and international human rights aspects of the protection of the right to health, as many of the deficiencies in the delivery of healthcare in Nigeria are attributable to failures at governmental level.

The thesis seeks to provide a solution to the limits of private law claims by proposing a hybrid model whereby courts in medical negligence litigation should have some role in providing a remedy for egregious governmental failure to vindicate patients’ right to health. Under the law in every common law jurisdiction, including Nigeria, the concept of the duty of care in negligence does not extend to matters falling within the proper remit of democratic resolution through the political process. Thus, it is not possible to sue the Minister of Health in negligence for having provided inadequate resources to healthcare. That is essentially a political question. Yet international human rights law and the Nigerian Constitution (less clearly) impose binding obligations in regard to the protection of the right to health. The Model Act proposes that courts in negligence litigation should be permitted to have some regard to this public law dimension and to award compensation to injured patients, in cases of neglect of the minimum core obligations to protect the patient’s right to health, exercising that jurisdiction in a restrained manner, respectful of the separation of powers.