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Medical doctors in most parts of the world are fast becoming prey to some predators. Recently, almost all media houses carried the news of conviction of Dr. Ejike Ferdinand Orji of Excel Medical Centre Dolphin Estate Lagos. There are many reasons to appeal the judgment by the lower court because of much variation in the judgment.
ON THE ISSUE OF MALICE & BIAS
Remember that when the case started, the wife, a consultant Paediatrician, was also included as a suspect in a case where a patient was said to have developed a compartment syndrome due to an application of a splint. Initially they were accused of an attempted murder of their patient .
The Lagos state police unit that investigated this so-called attempted murder case was the Operatives of the Police Special Fraud Unit, PSFU, at Ikoyi, Lagos not even the Homicide unit of the State Investigative and Intelligence Department (SCIID). For those conversant with the Nigeria police force, attempted murder and murder cases are strictly handled by the Homicide unit but in this case, it seems that the petitioner knows somebody in the Special Fraud Unit of the command hence the Fraud unit was detailed to handle a purely medical matter. It is a known practice by the Nigeria police after investigations to charge the matter to a magistrate court even when the magistrate court does not have jurisdiction over the matter because the magistrate court will remand the accused then order that the matter be sent to DPP for legal advice.
We know how DPP in different states work, at times it takes a year, or more for a legal advice to be out and in such cases the accused will remain in custody till DPP‘s legal advice is out .When Dr Ejike was first arraigned , the trial magistrate, O.O. Otitoju , at the Igbosere Magistrate court showed that the court still remains the common hope of the common man by granting him bail in the sum of N200,000 with two sureties in like sum and adjourned the case till 26 September, 2017as against the prayers of the prosecuting counsel for the accused to be remanded in prison custody. From 2017 when the matter first appeared in the magistrate court, it took DPP three years to come up with the matter in High court. You can imagine if the magistrate had remanded Dr Ejike in 2017 he might be in custody till 2020 when the matter came up to the High court.
In 2020, the matter moved to a Lagos High court sitting in Igbosere which discharged and acquitted the wife, Ifenyinwa Grace Orji, who was standing trial with her husband ,Dr Ejike , over the alleged attempted murder of a 17-year-old patient.
Justice Adedayo Akintoye discharged and acquitted them following an application made by the Director of Public Production Mr. Yaqub Oshoala, that the Lagos State government wishes to discontinue Grace Orji. In an application dated February 11, 2020, Oshoala, said that the state has an amended charge, against the first defendant Dr. Ejike Orji. It is malicious and sheer act of wickedness to have accused qualified medical doctors of attempted murder in line of their professional duties but as they knew that the case would not see the light of the day, they cleverly withdrew it and amended the charges after removing the wife as co-accused and dropping the attempted murder case .
It is a known practice by Nigerian lawyers to include as many people around the main suspect as co-accused in order to cripple the accused in the course of the matter. For an instance , if Mr A is alleged to have committed a crime and the petitioner knows that when he arrests Mr A that the wife of Mr A will be on ground to run around for the release of Mr A , a Nigerian lawyer will persuade the petitioner to include the name of the wife of Mr A so that the police or any other law enforcement agent will arrest both Mr A and his wife , knowing very well that when both Mr A and his wife are in custody ,nobody will be running around for their release.
There was one such case, in my local church where one of our church members, travelled to her village and had a quarrel with a neighbor in the village over who owed a Mango tree. There was no fight or physical harm, only verbal exchange and the next day the neighbor died. The children of the deceased who were very wealthy simply put up a petition to the commissioner of police in the state, including the husband and all the children of that woman, who were not even in the state, let alone at the venue, where the verbal exchange took place. The police swung into action, travelled to the state of residence of that my church member and arrested her and her husband who was diabetic and when the children got information that police were looking for them too, they went underground and avoided their shops and working places believing that they could be arrested any day. That my church member was in custody of the police along with her husband for months and immediately the man was released he died of complications of diabetes because while in the custody his glycaemic control became so bad. Remember, this man was not even in the state where the verbal exchange took place because he was in their state of residence while the wife travelled to the village outside their state of residence.
Coming to our current case, the petitioner intentionally added the name of the wife of Dr Ejike in order to cripple them psychologically, emotionally and financially because when both of them would be in custody nobody would run around for the case and the hospital run by Dr Ejike would become moribund. DPP on seeing that retaining the wife in the matter would spoil their matter where they claimed that Dr Ejike applied the cast with non- medical staff , the defense counsel should have asked was the wife also a non-medical staff ,either yes or no to that question would spoil their case so they quickly dropped all charges against her and also dropped the charge of attempted murder against the husband ? Look at the number of television and radio stations that aired the news on the day the doctor was arraigned and the day he was sentenced to one year imprisonment and the way this matter was handled , it is clear that there are some unseen forces interested in seeing that the owners of Excel Medical Consultant were being behind bars in order to cripple their hospital during the period of their incarceration, and colleagues who own hospitals in the neighbourhood may not be innocent of this .
Look at the reportage, today they will tell us that the patient was 17 years and tomorrow they will tell us that the patient was 16 years. Their aim is to maintain that the patient was a minor hence could not have given a consent without the parents ,unbeknown to them that the Code of Medical Ethics clearly exonerates Dr Ejike once the patient is 16 years and above as we are going to see in the course of this discourse.
ON THE ISSUE OF PROFESSIONAL JURISDICTION
I am aware that section 6(1) of the Nigerian constitution, as amended, states that the judicial powers of the Federation shall be vested in the courts and I am also aware that our constitution as it is currently arranged, gives jurisdiction to the Lagos State High court sitting at Tafawa Balewa Square to handle the matter but no constitution in the world is perfect and that calls for an amendment from time to time. What I am going to say will call for an amendment of section 6 of our constitution so that there will be introduction of special medical courts manned by medical personnel if the current Medical and Dental Investigation Panel and the Medical and Dental Disciplinary Tribunal are no longer recognized to handle such professional cases . This is also a wake-up call for the Nigerian Medical Association and the Medical and Dental Council of Nigeria to participate fully in the next amendment of the Nigerian constitution so that Medical and Dental Investigation Panel becomes the court of first instance, with original jurisdiction to investigate and hear all medical related matters, in this country not our conventional courts where the presiding judge might have managed to get a credit in Elementary Biology at SSCE level not to talk of having a sound medical knowledge to adjudicate over such sensitive matter.
When a law-enforcement officer is alleged to have committed a crime in the course of his his professional duty, the authorities of the law-enforcement agency will be allowed to first carry out what is called ‘’ Orderly Room Trial’’ ,which involves investigation of the alleged offence ,to ascertain if the law-enforcement officer has acted against his professional code of conducts or not . It is the outcome of the Orderly Room Trial that will determine if the embattled officer will be suspended, dismissed or charged to our regular law-court for the continuation of his trial. The essence of Orderly Room Trial is to allow professionals in their field to decide the fate of a member who has been alleged to have bridged the codes of the professional ethics.
Section 15(1) of the Medical and Dental Practitioners Act, an Act of the Parliament duly signed into law , states that there shall be established a tribunal to be known as the Medical and Dental Practitioners Disciplinary Tribunal , which shall be charged with the duty of considering and determining any case referred to it by the Panel established under subsection (3) of this section and any other case of which the Disciplinary Tribunal has cognizance under the following provisions of this Act.It has to be noted that this Medical and Dental Practitioners Disciplinary Tribunal does not just start sitting on a matter unless that matter has been properly investigated by the Medical and Dental Investigation Panel as contained in section 15 (3) which states thus: There shall be established a body to be known as the Medical and Dental Practitioners Investigation Panel.
It can be seen that a doctor that is accused has to pass through the Investigation panel first and then to the Disciplinary Tribunal if the doctor is found culpable of the alleged professional misconduct.This is to prevent a scenario where a judicial officer who has no background of medical knowledge will preside over a matter that is purely a medical matter. If a law-enforcement officer is not taken to court immediately he is alleged to have committed a crime without an Orderly Room Trial by his fellow professionals,I wonder why a qualified medical doctor can easily be taken to our regular law-court without passing through the statutorily established Medical and Dental Investigation panel first and later to the Medical and Dental Disciplinary Tribunal manned by medical professional from different specialties and sub-specialties of the profession . Such discrimination negates the principles of section 42 of the Nigerian constitution, where what is good for essential service providers like the law-enforcement agents are no longer good for other essential service providers like the medical doctors. I write this because I have rattled many courts where I appeared to give professional evidence in different matters, most times some lawyers will want to collect my contacts at the end of each appearance but such thing cannot happen in either the Medical Panel or Medical Tribunal because the members of the Panel and Tribunal know, most times more than, what you know, hence you can never rattle them with your oratory prowess. In fact before the panel begins they will tell you that everything you are saying is being recorded, and in subsequent adjournments when you want to derail from what you had said earlier, the members of the panel will replay what you said before, for you to be well guided.
ON THE ISSUE OF CONSENT
Rule 21 (1) of the Code of Medical Ethics in Nigeria (COME) does not empower the parents of children between the ages of 16 and 18 years to consent for them unless in emergency situations .This rule states that those within the ages of 16 to 18 years have a statutory right of their own to consent to procedures and this takes precedence over parental objections. This fact is important because the trial judge, Justice Akintoye, stated that Dr. Orji did not obtain the consent of the mother of the patient, who was in the hospital at the time the POP was done. Apart from written consent, there are many ways to give consent for a procedure in medical setting, by paying the requested amount for the procedure there is already an implied consent. A written consent is mainly needed for procedures where a patient may be sedated or hypnotized. If we start getting written consents for everything done in the hospital then the hospital must be filled with consent papers because to see a doctor, the patient must sign a consent. For the doctor to examine the patient, ,the patient will sign a written consent . It is because of this that the idea of implied consent comes to play because when a patient pays for the hospital card; there is an implied consent that he/she wants to see the doctor. When a doctor wants to apply a cast on a patient and tells the patient to pay the bill or make a deposit, once the payment is made or the materials needed for the procedure are bought by the patient, there is already an implied consent to carry on the procedure.
In view of this, the trial judge should not have mentioned the issue of consent here because it is not the parent that had the statutory right to give consent for the procedure, but if the trial judge insists under what the lawyers called ‘ as the court pleases’ then I put it to the trial judge that an implied consent was given when the patient or the parents paid the fee required for the procedure .
ON THE ISSUE OF COMPARTMENT SYNDROME
Pain in this case might not have come from the alleged compartment syndrome alone since the injury being treated with the splint also causes pain by itself. The first question is what caused the injury to the patient. What was the extent of the injury before coming to the hospital? How many hours or days passed from the time of the injury before the patient arrived at the hospital? If there was a fracture, was it an open or closed fracture et cetera? Pain is one of the first symptoms of any injury no matter the part of the body involved. If at all there was a compartment syndrome as alleged, how long did it last before it was relieved. Did it cause any loss of limb to the patient? All that we were told by the court was that the procedure caused the grievous harm to the patient. Judges are known for their precise use of diction but in this case ,the judge’s choice of words was generalized ,as many of us are still asking what constituted grievous harm to the patient and to what degree is the grievous harm? The level and extent of the grievous harm was never revealed to us till the judgment was passed.
ON THE ISSUE OF USING NON-MEDICAL STAFF AND THE ISSUE OF NOT REQUESTING FOR X-RAY
I think the trial judge may not even know that the application of such a cast is a bedside procedure hence one needs non-medical staff to help one stabilize the limb before applying the cast. Is it only judicial officers that work in the courts, the court clerks, securities et cetera, are they judicial officers too? This is why this matter ought to have passed through the Medical and Dental investigation Panel as court of first instance and then to the Medical and Dental Disciplinary Tribunal if the doctor was found culpable of the alleged offence, before coming to the regular court manned by a non-medical personnel. I wonder what is so special in the application of a splint/cast such as a mere POP that a consultant general surgeon could not handle. The trial judge might of course not have known that every surgery resident spends quality time in orthopedics department and most of the splints (whether POP or scotch cast et cetera) are applied by junior residents. It was Dr Ejike that applied the cast so any non-medical staff in the vicinity must have been there to help him stabilize the limb for him to apply the splint. The judge never told us how many medical staff are needed to apply a POP a limb. It is like accusing a judicial officer of making use of court clerks in the court room, who I know are not LLB holders. The cleaner that will clean the place after the cast is applied should of course not be a medical staff. The hospital receptionist/cashier that will collect the money for the procedure also is not expected by any law to be a medical staff. The police officers assigned to each High court judge ,are they judicial officers too?
The court held that the convict applied a Plaster of Paris (POP) cast on the patient’s leg without carrying out an x-ray to identify the level of injury. I have not heard the doctor’s side of the story so I will not know if he actually applied the POP as a temporary splint so that the patient can go for an X-ray and return for a definitive treatment in which case most of the patients will disappear because to them you have solved their problem only for them to return when the case has gotten bad with further false claims against the doctor .
I was in a unit where the father of a patient demanded that a patient be discharged because one man of God was coming to the town from outside the state. The parent believed that taking the patient to the crusade ground would solve the problem. I was involved in the management of the patient, the father approached my then senior colleague and requested for a discharge. We refused to discharge the patient, while explaining the consequences to the father, after wasting our time in explaining to the father in all the possible languages he could understand, the father insisted that his child should be discharged and you know holding that patient any minute more, amounts to false imprisonment and holding somebody against his wish hence we gave the father what we called ‘Against Medical Advice’ form , he filled the form and took his child and left. While on the crusade ground, the child’s health condition deteriorated and the organizers of the crusade quickly used their ambulance and rushed the child back to the same tertiary hospital where the child was discharged few hours ago.
For anybody that knows how tertiary hospitals in Nigeria work, any patient admitted during a medical call by a unit becomes the patient of that unit. Unfortunately when the child was rushed back to the hospital, another unit was already on call hence the patient was admitted under another unit. There was a drama when our consultant under whom the patient was managed before the father forcefully took the patient to the crusade ground saw the parent of the child at the emergency ward and recognized him,he asked the parents why the child was no longer under his unit ,the parent lied that it was the doctors under the consultant’s unit that discharged the child after convincing him that the child was fit to go home . The consultant fumed and was ready to punish everybody under his unit for taking such an action without consulting him first, we brought the Against Medical Advice form signed by the parent but the man said that we asked him to sign the document for them to be discharged and that he did not read the contents of the document before signing it. It took us a very long time and calling more witnesses to convince the consultant that the parent was lying, now think of what would have happened if the matter had gone to the regular court, there would be lawyers eager to write petition about medical negligence but the lawyers are there when DPP in most states are where corruption is produced and managed because people’s case files disappear in broad daylight and that will of course not amount to negligence. When a lawyer advises a client to take up a case the client can never win against the Rules of Professional Conducts of the legal profession just because the lawyer needs professional fees from the client to settle his bills ,that of course will never amount to negligence .When a lawyer prepares a matter that is struck out for lack of merit ,that of course does not amount to negligence and the professional charges the client paid to them will of course not be refunded because they are special humans.
ON THE ISSUE OF CRIMINALISING A PURE CIVIL MATTER
The day I read the news about this judgment, I asked myself if this trial judge could convict a consultant general surgeon for applying a mere cast that was alleged to cause a compartment syndrome, a very common complication of any cast, and without telling us how many days the cast stayed before it was removed or the degree of the alleged grievous harm, what would have happened if the convict were a quack, would the trial judge have sentenced him to death by hanging? Does the judge know how many years it takes to produce a medical consultant in a particular specialty not to talk of a medical consultant who had an ample opportunity to learn orthopedic procedures during his rotation in different surgery specialties?
Come to think of it, why is it that nobody uses the law enforcement agents to arrest and prosecute our judicial officers when there is an alleged miscarriage of justice? The judicial officers were very wise to have protected themselves from all criminal litigations under section 31 of the criminal code which states that except as expressly provided by this Code, a judicial officer is not criminally responsible for anything done or omitted to be done by him in the exercise of his judicial functions, although the act done is in excess of his judicial authority or although he is bound to do the act omitted to be done.
Following this section, it means that if this cast was applied by a judicial officer in the course of his duty and there was an alleged compartment syndrome, the judicial officer would not be criminally responsible. What that means is that parents of the patient would not have any right to arrest the judicial officer or to prosecute him. You can see that in the same country and among different professionals, what is good for the goose is no longer good for the gander. Remember that it takes medical doctor few seconds to take a decision on the best line of management for his patient and when that doctor makes a mistake, we call for his head to be placed on a guillotine but for a judge (and other judicial officers), section 294 (1) of the Nigerian constitution, as amended, gives them 90 days for them to take their own decision and still when their decision is upturned by appellate courts nobody goes to arrest them because section 31 of the criminal code says so. For the benefit of doubt , section 294 (1) states that every court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.
I think at this point I will call for the removal of section 31 of the criminal code because some things are better experienced than imagined. If all judicial officers are not criminally responsible in the line of their duties, I wonder why medical consultants should also be liable to criminal prosecution in line of their professional duties. There is no need criminalizing an alleged medical negligence by a qualified medical doctor, such actions should be properly handled under the law of Tort which is purely a civil matter, the criminal part of negligent should be reserved for quacks.
…………….To be continued next week