Damages and Compensation
A. Types of damages available in medical malpractice cases
The damages suffered by patients in most of the medical negligence cases can be classified into two main categories: Economic or Pecuniary Loss and Non-Economic or Non –Pecuniary Loss. The Pecuniary loss is the damage that is capable of being directly calculated in monetary terms. Non pecuniary losses are immeasurable matters such as pain and suffering which means discomfort and physical pain, but also emotional distress, anxiety, and stress that is linked to the injuries and loss of amenity attributable to such injury. The nonpecuniary damages also cover the damages for loss of consortium.
The “loss of consortium‟ generally means deprivation of the benefits of family relationship. Loss of consortium damages seeks to compensate the non-injured spouse for the injury’s effects on previously existing spousal functions.
B. Calculation of damages and compensation
Lord Blackburn in Livingstone v. Rawyards Coal Co. case observed that; “where any injury is to be compensated by damages in settling the sum of money to be given…you should as nearly as possible get the sum of money which will put the person who has been injured…in the same position as he would have been in if he had not sustained the wrong‟. Thus the fundamental principle applied for the assessment of damages is that the claimant should be fully compensated for his loss. He is entitled to be restored to the position that he would have been in, had the tort not been committed, insofar as this can be done by the payment of money
Alternative Dispute Resolution
A. Mediation and arbitration in medical malpractice disputes
Experience has shown that in medical negligence cases, alternative dispute resolution, in particular, mediation is often helpful in resolving medical negligence cases. It is cost efficient, gives the victims/families of the victim closure, encourages the doctor or the health care facility to be more careful to prevent circumstances that will lead to a lawsuit, shows compassion/empathy and improves healthcare. In most cases, matters that go to mediation or arbitration are usually settled either during mediation or following mediation for reasonable sums; an explanation for the course of treatment that was administered; an apology by the defendants or a simple expression of empathy. Mediation and arbitration are effective for both the doctor and patient because it moves the parties away from “guilt and punishment” to “empathy and reconciliation”.
B. Advantages and challenges of alternative dispute resolution methods
Advantages
- It is faster
- It fosters healthy relationship
- Decisions makers are mostly experts
- It bridges the gap of poor communication and mistrust between parties.
Challenges
- Arbitration is too rigid and adversarial
- It can be expensive
- It needs the court to enforce the outcome of the arbitration and mediation.
- It may be time wasting if the desire outcome is not achieved.
C. Enforceability of settlement agreements
A mediated settlement agreement’s obligations must be enforceable in order to be binding. Several factors can lead to the annulment of mediated settlements, including the lack of contractual certainty to bind the disputing parties, rescission due to an unjust factor, undue influence, duress and coercion, unconscionability, incompetence or incapacity, a lack of authority, fraud, and mistake.
Medical Professional Liability Insurance
A. Importance of medical malpractice insurance for healthcare providers
A professional indemnity insurance policy aims to shield the professional’s assets in the event of a claim, ensuring that he or she can carry on their business.
Insurance coverage and claims process
Professional indemnity insurance provides the necessary financial protection for professionals in such a precarious situation as a result of alleged neglect, error, or omission, whenever and wherever committed or communicated in the course of the insured’s business in their professional capacity. This policy covers the cost of defending claims and any resulting damages.
The claims process is as follows:
- determine your losses,
- notify the insurance company,
- assess insurance coverage,
- and then pay and approve the claim.
A claim is either approved or denied by the insurance company. Once approved for payment, the claims move on to the stage where the insurer makes an offer to the insured and then settles with them.
Challenges
The challenges in pursuing medical malpractice claims in Nigeria are as follows:
- Difficuty in getting autopsy.
- Another legal hurdle is the Public Officers Protection Act (POPA), which states that if you have any complaint against a public officer over anything he did in the course of his official duty and you want to take legal action, you must do so within three months of the occurrence of that particular grievance.
- Our justice system is slow and time changes evidence, which can lead to the medical records be tweaked. Medical negligence cases can take a long time. First, you file a case in court. Then, the other party has about thirty days to respond if they are a resident of the state in which the case was filed, or forty-two days to respond if they are not. After responding, the other party will brief their lawyer, and then they will ask for time in order to put in their defence. All of these steps take place before trial even begins.
ARTICLE WAS WRITTEN BY OLUFE POPOOLA. OLUFE POPOOLA IS AN ASSOCIATE AT THE CONFLICT MANAGEMENT AND DISPUTE MANAGEMENT RESOLUTION.
The Trusted Advisors is a leading Nigerian full-service law firm, providing cutting-edge and timely legal solutions and services to its clients.
Disclaimer: This article provides general information and does not constitute legal advice. For specific legal advice, readers are advised to ∙contact us on [email protected]
