Mauritius is working towards an ambitious project of becoming a medical hub for the African region in the coming years. While huge emphasis is being made upon re-engineering the medical profession by setting the standards for qualifications, experience and training, it is imperative for medical practitioners to abide by the duty of care which is expected of them. In this light, this research paper aims to analyse the duty of medical care from a Mauritius law perspective and thereafter assess the various remedies available to victims of medical negligence arising from a breach of duty of care. To achieve this research objective, the black letter method is adopted by analysing the corresponding laws on medical negligence in Mauritius and the relevant case laws. Additionally, this study has adopted a comparative approach that is, the UK tribunals' approach to clinical negligence is examined and some recommendations have been suggested to enhance the existing framework on medical negligence in Mauritius.
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This paper on comparative legal analysis of the medical negligence landscape: the Ghanaian and commonwealth criminal jurisprudence provides a comprehensive analysis of medical negligence and assault in various countries. The case of gross medical negligence is a serious issue that requires immediate attention. Through the analysis of various authorities it becomes evident that there are three main areas contributing to this problem: inaccurate diagnosis and delayed treatment, failure to communicate effectively with patients, and lack of proper supervision and training. The impact of gross medical negligence on patients is profound and far-reaching. It not only causes physical harm but also inflicts emotional and psychological trauma on those affected. In Ghanaian criminal jurisprudence, it is crucial to address this issue to restore public trust in the healthcare system and ensure justice for victims. By implementing stringent legal measures, including vicarious liability, we can uphold professional standards, deter future negligence, and provide recourse for those who have suffered as a result of gross medical negligence. One strength of this article is its extensive coverage of different jurisdictions. By comparing Ghana, the US, UK, Canada, and Australia, the authors provide a global perspective on the issue. This allows readers to understand how different legal systems handle cases of medical negligence and assault. Additionally, the inclusion of multiple studies conducted by different researchers adds credibility to the findings. The authors have effectively synthesized these studies to present a cohesive analysis. Overall, this article serves as a valuable resource for anyone interested in understanding how different countries approach cases of gross medical negligence and assault.
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Scholars International Journal of Law, Crime and Justice
Medical law and health law are the subject matter of this study. Medical negligence is a branch of medical law and covers all medical activity on the view of carelessness and rashness. In Frimpong V Nyarko [1998-99] SC GLR 734, where the Supreme Court was confronted with a problem whereby applying the law would have severe consequences on the party, Wiredu JSC(as he then was) said at page 742: " The justice to be dispensed is justice within the law and not one of sympathy. Judicial sympathy, however plausible can never be elevated to become a principle of law. The appellants are out of court, and their case would deservedly be put out of court in accordance with law". Again taking a cue, in my respectful opinion, no matter how strong the sympathies I may feel for the Plaintiffs that cannot override the principles of law that I have applied. Is the principle of law as applied in medical negligence against patients? Maybe, Prof. Justice Date-Bah has the answer, "Medicine and the Law is a battle area and we need to bring the rule of law into that area. In Ghana, it is said that health professionals never testify against themselves and therefore there is a real hurdle to litigation of medical malpractice cases. It is important that health professionals should put the public interest first. On the other hand, we do not want to go the other way such as in America where doctors may fear to touch patients for fear of malpractice. There has to be a middle way somewhere". In recent times, there has been a surge in allegations of medical negligence cases against medical professionals in Ghana in the media. This has become worrisome, resulting in some media houses waging a war on medical negligence. This paper therefore aims to conduct extensive review on medical negligence and the legal principles applied. It also aims to create awareness on medical negligence, provides futuristic policies in medical law direction in Ghana. The author recommends a specialized healthcare court and legislative instrument for a clear legal pathway for patients to curb the cases of alleged medical negligence.
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AROWOLO, Yahaya Ibrahim
This paper contributes to the existing Literature on the 'Medical Negligence and the Applicability of the Doctrine of "Res Ipsa Loquitur' in Nigeria.
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American International Journal of Contemporary Research
It is established law that physicians owe a medical duty of care to their patients. This duty is sacrosanct and must be discharged with such degree of skill and competence the average practitioner of the profession under similar circumstances would use. Medical negligence arises where this degree of care is not observed. However it is not easily determinable when negligence is said to have arisen in view of certain extenuating circumstances as instanced in a scenario where a medical personnel decides not to attend to a dying man by the street. It becomes apposite to closely consider certain germane questions: what constitutes negligence? Can negligence be grounded in the case of a patient whose previous health condition predisposes him to certain unforeseen vulnerabilities? By what standard is the medical standard of care observed? This work situates these occasions in a vivid medico-legal analyses, while highlighting the defenses to medical negligence as availed by the law.
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The paucity of case law in Cameroon where medical practitioners are punished may probably be a result of the technicality required to establish their liability. From this premise, this paper aims to examine why the obligation of liability applied to the medical doctor is different from other professionals. It founds out that in their relationship with patients, doctors are exempted from liability and payment of compensation if the means used to treat or save the life of the patient were the best they could have afforded to take despite the tragic end of their intervention. More so, even the recourse to medical expertise does not facilitate the attainment of this objective due to the moral duty owed by the expert to his accused colleague. This paper shows that medical doctors where recognized liable only in case of Res Ipsa Loquitur, when the situation speaks for itself. The author recommends the overturn of the burden of proof as applicable in France since the Hedreul case where it was held that the doctor had to bring evidence that he administered what should be considered as the best treatment at the moment just like the ''reasonable man'' he is supposed to be.
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In a land mark historical judgment the Hon,ble Supreme Court has ruled that doctors should not be held criminally responsible unless there is prime facie evidence before the Court in the form of a credible opinion from another competent doctor, preferably a Government doctor in the same field of medicine supporting the charges of a rash and negligent act. It is a laudable judgment in the light of criminal procedures filed against the medical professionals in trivial cases under Section 304-A and even 304 IPC where prima-facie there seems to be no neglect in these medical treatments.
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This article dealt with the criminal jurisprudential questions of: 1) whether multiple/concurrent action in medical negligence are actionable in the Ghanaian Criminal Jurisprudence? 2) whether vicarious liability lie for the employer of the medical or surgical practitioners who commit negligence in medical or surgical treatment? The legal analysis found that the Ghanaian Criminal Jurisprudence accommodate the concurrent or multiple actions in crime and tort for the same act of the defendant. Even though the double jeopardy principle explicitly expounded in the criminal jurisprudence and the Constitution of Ghana bars action on the same offence. The position of the criminal law indicated that while the same defendant cannot be punished twice for the same offence it is actionable in law for the same act to be punished with multiple or concurrent actions. The analysis further found that the criminal law imputed intent for both juristic person/body corporate and natural person and thus both can be found liable in crimes such as manslaughter and tort act of gross negligence at law. It is concluded that the Ghanaian Criminal Jurisprudence allows the same act to be met with concurrent actions and thus employers of health facilities are not absolved from the gross negligent treatment in medical or surgical procedures of their medical employees. The employer shall be held vicariously liable while multiple suits could be filed against the medical or surgical practitioners for the same act of gross or general negligence in medical or surgical treatments.
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The Arbitrability of Medical Negligence Claims in Nigeria
This long essay argues against using the conventional courts as a vehicle for settling medical negligence claims and suggests arbitration as a better means of settlement. A case of meningitis broke out in Kano State in 1966 and Pfizer, a pharmaceutical company sent its team to test the efficacy of its new drug Trovan. Tests were carried out on about 200 children aged between 2 and 18 months, several of whom died as a result thereof. Several clams brought up in both American and Nigerian courts dragged on for over 8 years with very little progress until the intervention of an out-of-court settlement to the tune of $75 million for the families of the victims. This is one among a long line of other cases, some of which never see the light of day, where victims and their families go without redress for compensable medical malpractices in the country. Several factors inherent in our conventional courts have worked to put justice very far away from the reach of such victims. These reasons include the extremely high burden of proof placed on claimants, the difficulty of obtaining expert witnesses, the high cost of litigation, the distress, frustration, and the long amount of time it takes to finally settle cases. The courts have reduced the standards of liability to such an extent that even if a medical provider makes an error, he may not be held liable for malpractice on the basis of his lack of skill alone. But the relevant question is: will justice be done if medical errors which result in the death or permanent incapacitation of a patient go entirely uncompensated for the failure of not violating the standard of care placed by the courts? This leads to the conclusion that seeking relief for medical negligence from the conventional courts does not solve the core issues of medical malpractice because it stifles the relationship between the doctor and the patient without improving the standard of medical service delivery in the country. This long essay advocates for the adoption of arbitration for the settlement of these claims including those involving criminal liability due to reasons such as cost-effectiveness, speed, the increased chances of getting proper compensation, and also preserving the doctor/patient relationship. The research draws from primary sources such as statutes, case law, and international human rights instruments. The work also relies on secondary sources such as journal articles, textbooks, and the opinions of experts. The research methodology is doctrinal whilst the approach is analytical and comparative.
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