An appraisal of contemporary issues in proof of medical negligence in Nigeria

Abstract

Medical negligence as a tort is not materially different in law from other forms of negligence. However, an oft-overlooked proposition holds that the process of proving medical negligence is the most difficult of all proves in the law of tort. Indeed, in medical practice, the existence of a legal duty of care is of the very essence and presents no difficulty. Also, that there has been a breach of that duty, may be presumed or inferred from the plaintiff injury or harm. What is however considered extremely difficult is the process of proving that the injury or harm suffered was a direct consequence of the breach of the duty owed to a patient. Litigants and their lawyers are suddenly confronted by a mirage of challenges, described as "fortress of Jericho walls" and which they must overcome if their case is to succeed. This research therefore examines issues relating to the difficulties experienced in the process of proving medical negligence in Nigeria and the mitigating options. The study adopts a doctrinal method of study. The primary and secondary sources of the material relied on were analysed through a descriptive and analytical method. The study observes that the fault-based litigating system appears to be unduly protective of the medical practitioners, to the detriment of the injured patients. Consequently, it is recommended that Nigeria should adopt approaches that can help ease the burden of proof placed on an already burden-laden patient.