Elizabeth Smaranda Olarinde* and Clement Chigbo**
ABSTRACT
A member of any profession, it is supposed, possesses the skills, which her/his training asserts. As such, the person is liable for the exercise of duty within their trained capacity and culpable for negligence in its practice. In Nigeria, cases of negligence are under-reported; consequently marginal compensations are made out. If the standard of measure suitable to the Court is that the professional should act within the generally accepted practice, what becomes of the practitioner who is aware of better measures that the exercise of due care would demand? To what extent is the patient’s consent informed, valid and real? What of specific cases where a patient is not in the position to grant consent? Using the Bolam criteria, this paper argues that standard of care is relative. Arguably, a professional having specialised skill should exercise discernment concomitant with their speciality and better judgement than the general skill level. Furthermore, a doctor has the obligation to inform the patient of the risks, however small, otherwise (s) he dispossesses the patient of an informed choice and that such explanation must be within the limits of the practice among colleagues. Such cases may transcend from the domain of contract into torts. For example the promise of an operation different from the promise of success, lies within the field of tort. In specific cases where it is impossible for the patient to give consent, the doctor retains the duty to do what is in the best interest of the patient. The Bolam test is a valid threshold in determining whether the doctor has acted within prescribed and expected standards to avoid negligence and whether such doctor is liable or not for damages.
Keywords: Medical, liability, negligence, Bolam, standard of care
* E. Smaranda OLARINDE, Associate Professor and Provost College of Law, Afe Babalola University Ado-Ekiti, Solicitor and Advocate of Supreme Court of Nigeria, E: esolarinde@ abuad.edu.ng/ smarandao@yahoo.com.
** Clement CHIGBO, Solicitor of England and Wales, Senior Lecturer, Department of Private and Business Law, College of Law, Afe Babalola University Ado-Ekiti, Ekiti, Nigeria.