Accountability of medical practitioners and Nigerian legal jurisprudence

By Gbenga Ogunfunmi Medicine is present in the life of every person, from the womb to the deathbed. It makes birth safe, relieves pain and suffering, heals illness and renders death bearable. Yet in caring for their patients, doctors carry out delicate and dangerous procedures that can easily go awry, and prescribe medicines capable of serious harm.

Mistakes can cause death or life-changing injury. For that reason, medicine has been regulated in one form or another since antiquity, from the Hippocratic Oath to Thomas Percival’s Medical Ethics of 1803. In the modern era, the State has taken over that role by statute: it controls the training and registration of doctors, prescribes a code of conduct for them, and legislates against those who practise medicine illegally or so carelessly that the public is harmed.

The Nigerian Framework In Nigeria, the principal statute is the Medical and Dental Practitioners Act (MDPA). It established the Medical and Dental Council of Nigeria, with authority over medical education, the registration of practitioners and the code of conduct of the profession. It also established two bodies for professional discipline: the Medical and Dental Practitioners Investigation Panel and the Medical and Dental Practitioners Disciplinary Tribunal.

The Investigation Panel conducts a preliminary investigation into allegations that a doctor has misbehaved in a professional respect. Where it finds a prima facie case, it refers the doctor to the Disciplinary Tribunal for trial, and it may suspend a doctor in the interim where continued practice would endanger the public. The Tribunal, a quasi-judicial body, determines whether the doctor is guilty of infamous conduct in a professional respect, and may admonish, suspend or erase the practitioner’s name from the Register.

Its decisions lie on appeal to the Court of Appeal and the Supreme Court, and sanctioned doctors have used that right, from Alakija in 1959 to Okonkwo in 2001. These cases enriched the jurisprudence of professional discipline. The quest of patients harmed by medical malpractice for justice in the criminal courts, however, has remained largely unfulfilled.

The Elusiveness of Criminal Accountability Nigerian criminal law has long contained provisions against the careless and reckless practice of medicine, first in the Criminal Code and the Penal Code, and now in State laws such as the Criminal Law of Lagos State 2015. Yet it is remarkably difficult to find any record of a registered medical practitioner in Nigeria convicted of a criminal offence arising from professional practice.

One reason is not far-fetched. Medicine is a highly technical discipline, opaque to non-doctors, so proof of wrongdoing by a doctor depends on the professional evidence of his peers. The trial of Michael Jackson’s physician, Dr Conrad Murray, illustrates the point. Dr Murray, a cardiologist, infused the anaesthetic propofol into his patient at home to help him sleep and left him without proper monitoring.

To secure his conviction for involuntary manslaughter, the prosecution had to call specialists in anaesthesiology and critical care to establish the accepted standard of practice. Such evidence has proved difficult to obtain in Nigeria until The State of Lagos v Dr Ejike Ferdinand Orji. The Facts The account that follows is drawn from the evidence before the trial court and the record of the Investigation Panel, which was subpoenaed by the court.

Because the conviction is on appeal, the findings it reflects remain open to appellate review. On 26 July 2018, Somtochukwu Ezi-Ashi, a sixteen-year-old high school student home from the United States on holiday, fell while playing basketball and fractured a bone in the left knee joint. He was taken to Excel C Medical Centre, Ikoyi, Lagos, where the Medical Director, Dr Ejike Orji, sedated him, had a police orderly and a basketball coach pull the limb in opposite directions, and applied a very tight fibreglass cast from the top of the thigh to cover the whole of the left foot.

He did so without first obtaining an X-ray or the informed consent of the boy’s mother. The X-ray was taken at another facility only after the cast was on. As the sedative wore off, the boy complained of excruciating pain and tightness in the leg. Dr Orji assured the mother by telephone that the pain would stop within two days. The boy could not sleep for pain, and she brought him back the next morning.

On examination, Dr Ifeyinwa Grace Orji, the paediatrician who had attended to him from childhood, found that he could not move the toes of the left foot. The mother asked for the cast to be removed, but Dr Orji merely cut a square opening at the back of the knee and sent them home. Fluid soon oozed from the opening, and on 28 July the boy was readmitted.

Dr Orji removed part of the cast, but the leg was massively swollen and had lost sensation. When the cast came off, about two days after it had been applied, first-degree burns were found o