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

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Medical Negligence Litigation in Nigeria: Identifying the Challenges and Proposing a Model Law Reform Act Medical Negligence Litigation in Nigeria: Identifying the Challenges and Proposing a Model Law Reform Act A Thesis submitted to the Trinity College, Dublin in fulfilment of the requirement of the award of the Degree of Doctor of Philosophy Komolafe Akinlabi Richard Obafemi 2017 School of Law Trinity College, Dublin i DECLARATION I declare that this thesis is entirely my own work and has never been submitted for any degree or examination in any university. DATED: SIGNED: ______________________________ Komolafe Akinlabi Richard Obafemi ii 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. iii 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. Acknowledgments iv First and foremost, the credit of my research goes to my supervisor, Prof. William Binchy who is worthy of commendation. As a result, I thank him sincerely for his continued support and contribution to my achievements generally. I am also grateful to Prof. Neville Cox, the Dean of Graduate Studies, Trinity College Dublin for his magnanimous assistance and support for the completion of the thesis. I thank Prof. Alex Schuller and other academic staff through whom I passed in postgraduate studies for their brilliant and high scholarship. My gratitude also go to the non-academic staff, particularly Catherine Finnegan, Kelly McCabe, Mairead Morrissey and Anne Burke whom I hold in high esteem for their kindness and approach at all material times. At family level, I am grateful to Ambassador Olu Otunla who first advised me to pursue a postgraduate studies in Trinity College Dublin, which it came to pass with a huge success today. I acknowledge my loving father, Pa Johnson Akinola Komolafe, my mother of blessed memory, Mrs Abigael Olabanji Komolafe, Prof. Isaac Olakanmi Abimbola & Mrs Comfort Nihinlola Abimbola, Pastor Kehinde Fadipe & Mrs Rebecca Fehintola Fadipe, Mr Robert Olatunbosun & Mrs Rachael Oluremi Olatunbosun and the entire family of Gabriel Adejuwon for their best wishes, contributions and prayers. I am indebted to Prof. Yemi Kayode-Adedeji, Prof. (Mrs) C. A. Agbebaku, Funmi Gloria Adeyemi, Audrey Thomas and Dr. Bolanle Omoniyi for their professional advice and encouragements. I thank my friends generally, and in particular; Bayo Famofo, Sunday Oluborode (aka Shadowman), Niyi Adekanle, Banji Famurewa, Grace Adetutu, Shammeh Hammed, Bolanle Adeleke and Taiwo Ajayi who have been supportive in different ways. I owe great thanks to my children for their endurance and wishing them a successful life in their chosen career. I would also thank Olukemi Susuana v Komolafe, Esther Ayoni Komolafe, and Dr. Tina Ehis Ehighalua for their dedication and prayers. Lastly, I give all the glory to almighty God who made everything possible and through Him I succeeded. Dedication This thesis is dedicated to my supervisor as a mark of respect for his contribution to the development of law. vi List of Cases African Commission on Human and Peoples’ Rights Malawi African Association & Ors v Mauritanian (2000) AHRLR 149 Purohit & Anor v The Gambia (2003) AHRLR 96 vii Free Legal Assistance Group & Ors v Zaire (Comm. Nos.25/89, 47/90, 56/91, 100/93) 1995 International Pen & Ors v Nigeria (1998) Comm. Nos.137/94, 139/94, 154/96 and 161/97 SERAC v Nigeria (2001) AHRLR 60 Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v The Sudan (Comm. Nos.279/03 & 296/05) 2009 Australia Astley v Austrust Ltd (1999) 197 CLR 1 Bryan v Maloney (1995) 182 CLR 609 Cattanach v Melchior (2003) 215 CLR 1 Courtney v Medtel Pty Ltd [2003] FCA 36 F v R (1983) 33 SASR 189 John Pfeiffer Pty Ltd v Rogerson (2002) 203 CLR 503 McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 Minister of State for Immigration & Ethics Affairs v Teoh (1995) 183 CLR 273 Mummery v Irvings Pty Ltd (1956) 96 CLR 99 Naxakis v Western General Hospital (1999) 197 CLR 269 Rogers v Whitaker (1992) 175 CLR 479 Rosenberg v Percival (2001) 205 CLR 434 Town of Port Hedland v Reece William Hodder by next friend Elaine Georgina Hodder [2012] WASCA 212 Woods v Lowns (1995) 36 NSWLR 344 Botswana Mosheti v Attorney General [1998] Botswana LR 20 Canada Arndt v Smith [1997] 2 SCR 539 Athey v Leonati [1963] 3 SCR 458 Bera v Marr (1985) 61 BCLR 195 Bovingdon Hergott (2008) 290 DLR (4th) 126 Bryan v Hicks [1995] 10 WWR 145 (BC C of A) Ciarlariello v Schacter [1993] 2 SCR 119 City of Kamloops v Nielsen [1984] 2 SCR 2 Cojocaru (Guardian Ad Litem) v British Columbia Women’s Hospital and Health Centre [2013] 2 SCR 357 Crawford v Penney (15 January 2003, ON SC) Dickie v Minett (2014) ONCA 265 viii Egedebo v Windermere District Hospital Association (1993) 78 BCLR (2d) 63 Fountain v British Columbia (Official Administrator) (1998) 156 DLR (4th) 577 Fullowka v Pinkerton’s of Canada Ltd [2010] 1 SCR 132 Heidebrecht v The Fraser-Burrard Hospital Society [1996] 15 BCLR (3d) 189 Hopp v Lepp [1980] 2 SCR 192 Law Estate v Simice (1994) 21 CCLT (2d) 259 McClintock v Alidina (2011) ONSC 137 Mowrey v Johnson & Johnson QCCA, 16 December 1996 Perry v Fried (1972) 32 DLR (3d) 589 R v McEwan [1933] 1 DLR 398 Rawlings v Lindsay (1982) 20 CCLT 301 (BC SC) Reibl v Hughes [1980] 2 SCR 880 Re Public Service Employee Relations Act (Alta) [1987] 1 SCR 313 RWDSU v Dolphin Delivery Ltd [1986] 2 SCR 573 Sam v Wilson (2008) 287 DLR (4th) 608 Sylvester v Crits et al [1956] 1 DLR (2d) 502 Ter Neuzen v Korn [1995] 3 SCR 674 Wei Estate v Dales [1998] O. J No. 1411 (QL) Wilson v Swanson [1956] SCR 804 ECOWAS Community Court of Justice SERAP v Federal Republic of Nigeria (14 December 2012) SERAP v Federal Republic of Nigeria and Universal Basic Education Commission (30 November 2010) Ugokwe v Nigeria (7 October 2005) European Court of Human Rights A, B & C v Ireland [2010] ECtHR 2032 Airey v Ireland [1979] ECtHR 3 Tysiac v Poland [2007] ECtHR 219 European Committee on Social Rights International Federation of Human Rights Leagues (FIDH) v France (Comm. No.14/2003) Ghana Asafo v Catholic Hospital of Apam [1973] 1 GLR 282 Asanteramo alias Kumah v Attorney-General [1975] 1 GLR 319 Gyan v Ashanti Goldfields Corporation [1991] 1 GLR 466 New Patriotic Party v Attorney-General [1993-94] GLR 35. SC ix Overseas Breweries Ltd v Acheampong [1973] 1 GLR 421 India Banga Khet Mazdoor Samity v State of West Bengal (1996) 4 SCC 37 Consumer Education and Research Centre v Union of India (1995) 3 SCC 42 Olga Tellis v Bombay Municipality Corporation [1985] 2 Supp SCR 51 Minerva Mills v Union of India (1980) AIR (SC) 226 Paschim Banga Khet Mazdoor Samity v State of West Bengal (1996) AIR SC 2426 The State of Madras v Srimathi Champakam (1951) SCR 525 Inter-American Commission on Human Rights Victor Rosario Congo v Ecuador (13 April 1999) Villagran-Marales et al v Guatemala (19 November 1999) Ireland Amstrong v Eastern Health Board (unreported HC, 5 October 1990) Barrett v Southern Health Board [1988] IEHC 12 Breslin v Corcoran [2003] 2 IR 203 Byrne v Ryan [2009] 4 IR 542 Carroll v Kildare County Council [1950] IR 258 Conway v INTO [1991] 2 IR 305 Cunningham v Neary [2004] IESC 43 Daniels v Heskin [1954] IR 73 DF v Garda Commissioner & Ors (No.3) [2014] IEHC 213 Doherty v Quigley [2011] IEHC 361 Dunne v National Maternity Hospital [1989] IR 91 Fitzpatrick v White [2008] 3 IR 551 Fortune v McLoughlin [2004] 1 IR 526 Geoghegan v Harris [2000] 3 IR 536 Glencar Exploration Plc v Mayor County Council [2002] IR 84 Griffin v Patton & Anor [2004] IESC 46 Heeney v Dublin Corporation (17 August 1998) SC Keegan v Owens [1953] IR 267 Kirby v Burke [1944] IR 207 Meskell v C.
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