Medical Negligence and the Nigerian National Health Insurance Scheme: Civil Liability, No-Fault or a Hybrid Model?
Author | Ireh Iyioha |
Published date | 01 March 2010 |
DOI | 10.3366/E0954889009000504 |
Pages | 46-77 |
Date | 01 March 2010 |
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:
M. A. Jones,
Jones,
In an attempt to improve the state of healthcare delivery in the country, the Nigerian federal government launched the National Health Insurance Scheme (NHIS)
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 areaIn 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.
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.
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.
See, generally, the Nigerian Health Insurance Scheme, available at
R. J. Vogel, ‘An...
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