Medical Negligence and the Nigerian National Health Insurance Scheme: Civil Liability, No-Fault or a Hybrid Model?

AuthorIreh Iyioha
Publication Date01 March 2010
DOI10.3366/E0954889009000504
Pages46-77
Date01 March 2010
INTRODUCTION

The claim that it is the law that is positively detrimental to the practice of medicine … cannot be accepted. When the rhetoric is stripped away, it is the tort of negligence that provides the bottom line: minimum standard of acceptable professional conduct. In practice, medical negligence is a failure to live up to proper medical standards, and those standards are set, not by lawyers, but by doctors.

 – M. A. Jones, Medical Negligence1

M. A. Jones, Medical Negligence, Sweet and Maxwell (2003). See also Sidaway v. Board of Governors of the Bethlem Royal Hospital [1985] AC 871, where Lord Scarman, while referring to the problematic Bolam principle (Bolam v. Friern Hospital Management Committee [1957] 1 WLR 582), stated (at 881): The law imposes the duty of care: but the standard of care is a matter of medical judgement.

Medical negligence is a common term, and in many African countries where the medico-legal expression itself may not be in common usage, the outcomes of the expression are a household story. Although there are statistics on the number of medical errors in some Western nations, such as the United Kingdom and the United States, where there have been reports of a ‘malpractice crisis’,2

Jones, Medical Negligence, ibid, at p. 8.

there are no systematic records of medical casualties in many sub-Saharan African nations. Yet, the crisis of medical negligence is only one of several systemic problems that have besieged the healthcare systems of these nations. The narrative has not been different in Nigeria, where inequitable distribution of health facilities, inflationary cost of healthcare services and inaccessibility to existing facilities continue to impede patient access to healthcare. These cases may be sited within the class of systemic factors that often contribute to medical error. These factors differ from individual errors on the part of healthcare providers

In an attempt to improve the state of healthcare delivery in the country, the Nigerian federal government launched the National Health Insurance Scheme (NHIS)3

Hereinafter the ‘Scheme’.

in 2005. Notably, academic writings on the Scheme are very few. In spite of this limitation, it is important to examine the provisions of the Scheme, evaluate the available evidence to assess whether the Scheme is sustainable, and appraise how the Scheme addresses some of the key problems within the Nigerian healthcare system. In this paper, the critical task is to evaluate how the Scheme deals with medical error. The choice of this issue is founded on the dearth of legal literature addressing the spate of adverse outcomes of medical intervention in the country. Although there are spasmodic reports of such outcomes, it has not yet become a dominant discourse. Given the pervasiveness of the problem in a country of about 140 million people, the continuous peripheral discourse of a profound medico-legal problem such as medical malpractice and the associated problem of medical paternalism needs to be addressed by writings in this area

In the light of this, this paper addresses the debate on malpractice regulation with a comparative review of the tort system (which is one of several regulatory approaches adopted by the Nigerian NHIS) on the one hand, and the system of no-fault compensation, which operates in jurisdictions such as New Zealand and Sweden, on the other. The academic debate on the most expedient method for dealing with medical malpractice has often veered between a reform of the tort system of medical negligence or an adoption of the no-fault compensation scheme. The structure of the law of negligence is centred on interpersonal liability for injury, which is essentially built on the presence of fault on the part of the defendant. Its objectives are directed towards deterring the defendant's reprehensible conduct and compensating the victim. Critics of the tort system have often focused on the lapses of the system in these areas. The contention has been that the tort system has failed to meet its objectives of fair compensation for injured patients and deterring negligent conduct or averting medical error on the part of healthcare providers. The no-fault system has increasingly become the other alternative against which the tort system is measured. The no-fault system for medical accident compensation involves the payment of compensation to certain eligible medical injury victims without the requirement of proving the healthcare provider's fault.4

As will be argued later, it is debatable whether the no-fault system truly eliminates the requirement of proving causation or fault.

This paper examines these two systems of malpractice regulation in relation to the demands of patients for information and accountability within the Nigerian healthcare system. The issues examined are twofold. One, it assesses whether the no-fault system or a similar administrative construct can cater to the demands of accountability or resolve the perennial problem of medical paternalism in Nigeria. Two, it appraises the objectives of the tort of medical negligence and questions the critique of the tort system on terms alien to its nature. Essentially, the paper questions the critique of the tort system through the theoretically different system of no-fault compensation, a system constructed on a different structure and agenda.

Proceeding from this discussion, the paper analyses the prescriptions of the Nigerian National Health Insurance Scheme and the enabling Act on this debate. While the approaches adopted by the Nigerian Scheme are ostensibly not revolutionary, yet the combination of approaches introduces the prospect of a progression from the limitations in the tort system to a nonlitigious and amicable approach to resolving malpractice disputes. Ultimately, the injured patient is given a choice among alternatives, ranging from amicable out-of-court settlement of malpractice disputes through negotiation, mediation and arbitration procedures to administrative structures designed to obviate errors, and to the right to litigate through the tort of medical negligence.

This paper contends that beyond providing a creditable range of proposals to reduce the incidence of systemic and individual errors, the system has also carved out its own approach to the problem of medical error given limited resources rather than simply adopting international proposals for a no-fault scheme or administrative structures parallel to the no-fault system. The paper contends that the debate on the most expedient method for malpractice regulation should be contextually situated and proposals for reform must comprehensively address both systemic and individual errors. The debate regarding which method best suits a particular healthcare system is not one that should or can be argued outside the specific socio-economic and socio-demographic actualities of a healthcare state. While the no-fault system may function relatively well in a country such as Sweden, the narratives of its success in Sweden cannot be extrapolated to reach definitive conclusions about its prospect in other countries. The potential of the system must be evaluated against the socio-economic realities in specific countries.

By implication, the peculiar terrain of the Nigerian healthcare state as an emerging system with a nascent health insurance scheme, and with public sector workers saddled with a list of institutionalised deductions, warrants a multiplicity of measures that can be tried simultaneously in the enormous task towards reducing the incidence of medical errors in the country. Remarkably, the Health Insurance Scheme Act has instituted a hybrid of different systems, which can work in combination to transcend any one monolithic system. It is submitted that, while the Nigerian state must build upon the present initiatives, the range of mechanisms chart a different course in a debate that sometimes has a bifurcated `either/or’ scholastic axis. In setting out these claims, examples and anecdotes of the operation of these two systems are drawn from New Zealand and Sweden and the results of studies conducted in other Western jurisdictions.

The contentions and proposals in this paper are set out in four sections. Section II provides an overview of the NHIS, specifically discussing its conception, inauguration and shortcomings regarding patient safety and medical error. Section III discusses the tort system as a regulatory method for medical malpractice in comparison with the administrative framework of the no-fault system. It evaluates the strengths and weaknesses of each of these systems in the light of the objectives of the systems, and emphasises the need for accountability and communication between providers and patients. While noting that a significant section of the academic and policy discourse on malpractice reform has primarily emphasised the impact of litigation on physician practice and the need for economic caps on damages, the section argues that the interest and well-being of patients should primarily dictate the trend of proposals. Section IV, the concluding section, sets out the case for an integrated approach that caters to both individualised and systemic errors. The section iterates the need for a hybrid system that combines different approaches, offsetting the strengths and lapses of one against the other.

THE NHIS: NARRATIVES, NEGATIVES AND NECESSITIES

The Nigerian National Health Insurance Scheme was first conceived in 1962, when the importance of such a formal initiative for the growing Nigerian populace became evident.5

See, generally, the Nigerian Health Insurance Scheme, available at http://www.nhis.gov.ng/about.asp (accessed 27 April 2008).

Between 1984 and 1989, there were discussions between the National Council of Health and the Federal Government on the need for a NHIS. A number of national committees were set up to ascertain the feasibility of the Scheme.6

R. J. Vogel, ‘An...

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