First medical practitioner incarcerated for criminal negligence and professional misconduct
The Oxford Textbook of Medicine describes Medicine as the science and practice of caring for patients, managing the diagnosis, prognosis, prevention, treatment, palliation of their injury or disease, and promoting their health. Medicine encompasses a variety of practices intended to maintain and restore health by prevention and treatment of disease.
Medicine is an essential part of human experience. This is so because the doctor of or one of his several aides is usually present at some point in the life of a person from the womb to the deathbed. Medicine ensures that the birth process is safe, makes living easier and more pleasurable, and death bearable. It provides relief from pain and suffering, and healing of physical and mental illness. The profession of Medicine evolves as humankind evolves and advances. Advances in the biological and physical sciences have been applied to medicine leading to great improvements in the longevity and quality of life of people on Earth.
In the course of providing care to their patients, doctors carry out delicate and dangerous procedures that could very easily go awry. They prescribe medication that could produce a plethora of potentially dangerous side effects. Mistakes could cause death and life changing consequences. Unqualified practitioners commonly referred to as quacks, cause great harm to hapless persons who access their service. They maim, dispossess and even cause death of these unsuspecting members of the public.
Medicine has been subject of some form of regulation or the other from antiquity. The Hippocratic Oath of antiquity, Avicenna’s Canon of Medicine of the medieval period, and Thomas Parcival’s Medical Ethics of 1803 are attempts at the regulation of the medical profession conduct for practitioners of the profession. Aside from the purely professional provisions, the State also makes laws to deal with persons who practice Medicine illegally or in a manner that is careless, reckless and causes harm to members of the public.
In Nigeria, the Medical and Dental Practitioners’ Act (MDPA) is the main piece of legislation for the regulation of Medicine. It was first enacted by the Federal Parliament in 1963. It was repealed and re-enacted in 1988, and amended in 1992. The MDPA established the Medical and Dental Council of Nigeria (MDCN) and vested it with the authority to regulate medical education, registration and licensing of medical doctors, and promulgation of a code of conduct for the practice of the profession in Nigeria. The MDPA also criminalizes the practice of Medicine in Nigeria by persons who are not registered as medical practitioners
The MDPA also established two other bodies for the purpose of the professional discipline of person registered to practice medicine in Nigeria. They are the Medical and Dental Practitioners’ Investigation Panel and the Medical and Dental Practitioners’ Disciplinary Tribunal. The Investigation Panel is vested with the mandate of conducting an interim investigation into any case where it is alleged that a doctor has misbehaved in a professional respect, or should for any other reason be subject of proceedings before the Medical and Dental Practitioners’ Disciplinary Tribunal. The Panel is composed of 15 doctors who are persons of good standing and repute in the medical profession in Nigeria. They review allegations of misconduct against doctors that are not criminal in nature, and arise from their pursuit of the profession, to determine if the evidence suggests that the doctor actually acted in a manner that violates the code of conduct for doctors. If they make the determination that there is such evidence against a doctor, the doctor is referred to the Disciplinary Tribunal for trial. The Panel, may make an order of interim suspension of a doctor they have investigated if they are convinced that allowing such a doctor to continue practising poses danger to the public.
The Disciplinary Tribunal is a quasi-judicial administrative body. It conducts quasi- criminal trial of doctors referred to it by the Investigation Panel to determine whether they are guilty of infamous conduct in a professional respect. Where the Disciplinary Tribunal gives a guilty verdict it could mete out three possible sanctions: admonishment, suspension from the profession and outright erasure from the Medical Register.
The verdict of the Disciplinary Tribunal are subject to appeal before the Court of Appeal and ultimately the Supreme Court. Doctors who have been sanctioned by the Disciplinary Tribunal have severally taken advantage of the right of appeal from as early as 1959 when Dr. Alakija had the order of the Disciplinary Tribunal for the erasure of his name from the Medical Register upturned by the Supreme Court to 2001 when Dr. Okonkwo had a similar order against him upturned. These cases and several other similar cases have helped to expand jurisprudence in professional discipline in Nigeria. However, the quest for justice by persons who are aggrieved by doctors’ malpractice have remained mostly unfulfilled especially in criminal justice.
The Laws of the Federation of Nigeria have had the Criminal Code Act since 1916 and the Penal Code Act since 1960. Both statutes have provisions against the careless and reckless practice of Medicine in the sections dealing with criminal negligence. Nigeria’s sociopolitical history has advanced significantly from what it was in the colonial and early post independence days and Nigeria is now a federation of 36 states and a Federal Capital territory. In pursuance of the provisions of the Constitution of the Federal Republic of Nigeria 1999, the state Houses of Assembly have passed versions of the Criminal Code Act or Penal Code Act as state laws. Very prominent among these is the Criminal Law of Lagos State 2015.
On the background of all the foregoing it is very difficult to find any record of a successful conviction of a registered medical practitioner in Nigeria for a criminal offence arising from their practice of the profession. One of the reasons for this is not far from the fact that Medicine is a very highly technical profession which is extremely difficult for non-doctors to comprehend to the extent of being opaque. This necessarily makes it a largely self-regulated profession in most parts of the world. It also means that the determination of wrongdoing against a doctor depends on the professional evidence of his peers. This was amply demonstrated in the trial of Michael Jackson’s doctor, Dr. Conrad Murray. In June 2009 Dr. Conrad Murray, a cardiologist, administered an anaesthetic agent, propofol, as a drip to Michael at his home to help him sleep and left him without proper monitoring. Propofol is supposed to be administered by anaesthesiologists and critical care specialist, Dr. Murray’s specialty, cardiology did not confer such specialist skills on him. He was charged with involuntary manslaughter. To convict him the prosecution had to bring doctors who are specialists in anaesthesiology and critical care Medicine to testify in Court on what the accepted practice was in the United States. After a drawn out trial Dr. Conrad Murray was convicted and sentenced to four years in jail. His license to practice Medicine was revoked by the Texas Medical Board.
It had been quite difficult to get such evidence in Nigeria until recently in the case of Lagos State vs. Dr. Ferdinand Ejike Orji.
The case emanated from a criminal complaint in 2018, against Dr. Orji by the parents of one Somtochukwu Ezi-Ashi, a 16 year old boy who was a high school student in the United States of America at the time. He was on holiday at the time. On the 26th of July 2018, while playing basketball he fell and sustained injury to his left leg, leading to what was later discovered to be a fracture of one of the bones in his left knee joint. He was rushed to Excel C Medical Centre in Ikoyi where Dr. Ejike Orji, the Medical Director, sedated him, had a police orderly and a basketball coach who accompanied him to pull the limb in opposite directions, and applied fiberglass on the left leg from the thigh to the toe. He did not bother to get his mother’s informed consent neither did he do an x-ray of the leg to determine the nature of the fracture before manipulating the limb and applying the cast. The doctor only sent the patient for x-ray at another facility in Surulere after he had applied the cast. As the effect of the sedative he administered before applying the cast wore off, the patient started to complain of pain and tightness on the leg where the cast was applied. The patient’s mother called Dr. Orji, who had left the hospital before she returned from the X-ray facility with the patient and complained of the experience but he told her that the pain would stop within 2 days. On the strength of this assurance she went home with the patient only to return to the hospital next morning with the patient because he could not sleep during the night due to pain. She requested that the cast be removed but Dr. Orji only cut open a square hole in the back of the knee and asked them to go home. At home the patient’s mother noticed fluid oozing out from the opened space at the back of the knee and she took him back to the hospital the following day, 28th July 2018 with the patient. He was admitted for one day and Dr. Orji removed part of the cast but there was no improvement as the limb remained swollen and at that time the patient had lost sensation in the limb. The father of the victim contacted two orthopedic surgeons to seek their opinion on what to do for the patient
It turned out that Somtochukwu had developed compartment syndrome which was the result of occlusion of blood supply to the limb for more than 48 hours, by the tight cast. Six surgical interventions had to be carried out on Somtochukwu at a Reddington Hospital Lagos before he was flown out to the USA where he had several other operations to save the limb. The limb was saved but he developed Foot Drop. The Police conducted an investigation and submitted the Lagos State Director of Public Prosecution (DPP) who filed charges against Dr. Ejike Orji in the Lagos State High Court.
Aside from the criminal complaint to the Police, the patient’s mother also lodged a complaint to the Medical and Dental Practitioners’ Investigation Panel in March 2019 against Dr. Orji. She alleged that the conduct of Dr. Ferdinand Ejike Orji in the management of her son’s condition was negligent.
The Panel conducted an investigation of the complaint from March 2019 through November 2020. The investigation involved four other doctors at Excel C Medical Centre including Dr. Ifeyinwa Grace, the paediatrician who had hitherto attended to the patient from his childhood, and five doctors at Reddinton Hospital who attended to the patient including Dr. Ike Nwachukwu who performed the six surgical operations on him at Reddington Hospital.
The complainant and the respondents appeared before the Panel where they had the opportunity to clarify affidavit depositions and other documentary evidence including the patient’s case notes, they had submitted to the Panel. The record of proceedings of the investigation obtained by the complainant from the Panel, shows that members of the Panel questioned the doctors extensively on the propriety of their actions in the treatment of the patient. Dr. Ike Nwachukwu was grilled on a letter he authored titled “To Whom it May Concern”. In the letter he made disparaging remarks about Dr. Orji including referring to him as a quack. His management of the patient did not appear to have elicited the disapproval of members of the Panel. Dr. Orji was asked several questions like what informed his decision to manipulate the limb without first doing an x-ray to determine the nature of the fracture? Why did he apply fibreglass cast instead of a Plaster of Paris (P.O.P) cast? Why did he not remove the cast when the patient was returned with complaint or pain and tightness? What did he hope to achieve by the square cut in the cast at the back of the knee? Why did he not refer the patient to an orthopaedic surgeon as it went clearly outside his competence as a general surgeon? Did he get informed consent from the patient’s mother before he commenced the manipulation and application of cast? His answers were not deemed satisfactory by the constituted professional brethren of good repute and competency as a copy of the report of the investigation obtained by the complainant shows that they made the following findings:
i. Dr. Ejike Orji is a General and Paediatric Surgeon. He is not an orthopaedic surgeon.
ii. Dr. Ejike Orji applied fiberglass cast on the patient at Excel C Medical Centre before he was sent for X-Ray elsewhere.
iii. There is no evidence that appropriate consent was sought and obtained from the patient or his parents by Dr. Ejike Orji.
iv. The patient developed swelling and pain on the left leg after the application of the fiberglass cast and when Dr. Ejike Orji was informed, and he only made a square opening in the popliteal area to relieve the pain and ultimately converted the cast to back slab after the father of the patient requested him to remove the cast.
v. The patient was discharged from Excel C Medical Centre in a worse condition before his parents took him to other hospitals for treatment.
vi. Dr. Ike Nwachukwu attended to the patient as an Orthopaedic Surgeon at Reddington Hospital and made a diagnosis of compartment syndrome. He treated the patient until he was airlifted for further treatment in the United States of America.
Dr. Ike Nwachukwu made comments in the medical report he issued to the patient and his affidavit that were disparaging of his professional colleague who attended to the patient first.
The Panel determined that there is evidence of misconduct in a professional respect against Dr. Ejike Orji and Dr. Ike Nwachukwu and referred each of them to the Disciplinary Tribunal for adjudication.
At the Disciplinary Tribunal the Panel proferred five counts charge against Dr. Ejike Orji. These bothered on gross negligence leading to compartment syndrome and foot drop, manifestation of incompetence in the assessment of the patient, failure to correctly diagnose his condition, failure to obtain appropriate informed consent before carrying out a surgical procedure on the patient and causing detriment to the patient by failing to refer him to an orthopaedic surgeon when it was necessary to do so.
He was to be arraigned and tried before the Disciplinary Tribunal in 2021 however, three attempts were stalled by his absence on a claim of ill health. He further stalled the case by filing an enforcement of fundamental right suit against the Tribunal at the High Court of the Federal Capital Territory.
While the professional case stalled at the Medical and Dental Practitioners’ Disciplinary Tribunal, the DPP Lagos State continued with the prosecution of the criminal charge against Dr. Orji at the Lagos State High Court. He was re-arraingned in February 2022 on one count of causing grievous bodily harm to Somtochukwu Ezi-Ashi, two counts of endangering human life through reckless and negligent acts and three counts of breach of duty of person doing dangerous acts and endangering human life through reckless and dangerous acts in violation of sections 245, 251(1)(e), 209, 211 and 251(1)(e) respectively of the Criminal Law of Lagos State Cap C17 Laws of Lagos State 2015.
The judgement shows that the prosecution made copious use of the records of the case they were able to obtain by subpoena from the Medical and Dental Practitioners Investigation Panel in marshaling the medical evidence against the defendant. They called as witnesses orthopaedic surgeons who participated in the treatment of the victim after he had developed the complication of compartment syndrome.
On 20th January 2023 the Court entered a verdict and convicted Dr. Ferdinand Ejike Orji on four of the six counts. He was sentence to one year in prison on each of the four counts.
The conviction of Dr. Ferdinand Ejike Orji for criminal negligence arising from his reckless and dangerous practice of Medicine is arguably the first time a registered medical practitioner would be so convicted in Nigeria. It is a watershed in medical jurisprudence in Nigeria and hopefully opens the floodgate for many more successful prosecutions of reckless and negligent doctors who had hitherto carried on with impunity.