Case Review: The State Of Lagos V. Dr. Ejike Ferdinand Orji [Unreported Decision In Suit LD/8963C/2019]

by Adegoke Adedoyin and Sharon Omoregie

INTRODUCTION

In recent times, there has been a rise in cases of medical negligence in Nigeria ranging from failure of medical practitioners to promptly attend to patient in emergency situations to making wrong diagnosis, which often times, leads to the demise of the patient. On 20^th January 2023, Honourable Justice A.A Akintoye sitting at the High Court of Lagos State (“the Trial Court”) delivered judgment in respect of a criminal charge of medical negligence preferred against one Dr Ejike Ferdinand Orji (“the Defendant”). The Trial Court, in its well-reasoned judgment, found the Defendant liable for recklessness and negligence in the provision of medical care and services that unfortunately led to the deformity of the left limb/leg of his patient, one Master Somi Ezi-ashi (“Somi” or “the Patient”).

SUMMARY OF FACTS

1. Following the injury sustained by Somi on his left leg whilst playing basketball on July 26, 2018, Mr. Idorenyin Emmanuel (a police officer) and Mr. David Joy Makinde (Somi’s friend) immediately took Somi to Excel Children Medical Centre, Lagos (“the hospital” or “the facility”) for medical attention on the instruction of Somi’s mother, Ngozi Ezi-ashi.
2. Shortly after Somi arrived at the Defendant’s facility, his mother also arrived at the Whilst Somi’s mother stayed at the reception, Mr. Emmanuel and Mr. Makinde assisted in carrying Somi into the Defendant’s theatre room. The Defendant then instructed Mr. Emmanuel and Mr. Makinde to wait behind in the theater to assist him further. The Defendant gave Mr. Emmanuel and Mr. Makinde (non-medical personnels) surgical gloves to wear, which they did. The Defendant thereafter injected Somi with sedatives and thereby put him to sleep. Thereafter, the Defendant instructed Mr. Emmanuel and Mr. Makinde to pull Somi’s leg from the upper thigh and the lower part of the leg respectively to enable him to reset Somi’s leg.
3. Whilst Somi’s left leg was being pulled, the Defendant wrapped Somi’s leg with a fiber glass cast. Somi’s mother rushed to the theatre where she found Somi in deep sleep with his leg completely wrapped in a fiber glass cast. She was surprised why Somi’s leg was completely encased in a cast, even before an x-ray was carried out to determine the nature and severity of the
4. Shortly after, Somi woke up complaining of excruciating pains and burning sensations caused by the tightness of the cast on his leg. After the x-ray was done, Somi and his mother returned to the Defendant’s facility, but the Defendant was not available at the hospital. Somi kept complaining of the tightness of the cast. Somi’s mother complained to the Defendant on the phone that Somi was going through excruciating pain and The Defendant dismissed her concerns stating that the tightness of the cast will reduce in two days and that Somi should return to the hospital in two (2) weeks’ time.
5. On the night of 26^th July 2018, Somi was unable to sleep and was most Somi complained throughout the night that the cast was too tight and that he was in excruciating pain.
6. On the morning of Friday, July 27, 2018, Somi and his mother returned to the Defendant’s facility where they met the Defendant. Somi’s mother reiterated that Somi was experiencing excruciating pains and had in fact not slept throughout the night because the cast was too tight. The Defendant examined Somi and indeed confirmed that there was too much pressure on his left leg. However, rather than completely remove the tight cast on Somi’s leg, the Defendant, cut a square patch off the cast at the back of Somi’s upper thigh, which he said would relieve the
7. On arriving home, Somi called his mother’s attention to a smelly and sticky liquid oozing from the square/window which the Defendant had Somi’s mother immediately took Somi back to the Defendant’s facility to be examined. Somi, now accompanied by both parents, returned to the Defendant’s facility. After much persuasion, the Defendant reluctantly removed the tight cast on Somi’s leg and covered the leg with bandage. By the time the cast was removed, Somi’s leg was about twice or thrice the size of his regular leg before the cast was applied.
8. On July 28, 2018, Somi was discharged and went home with his mother but the pain in his leg continued unabated. On July 29, 2018, Somi’s mother noticed that there was substantial liquid accumulating on Somi’s left leg above the bandage which was wrapped around part of his By this time, Somi had begun to run a high temperature and felt extremely uncomfortable.
9. On July 30, 2018, Somi was rushed to another hospital and after series of tests, Somi was found to have developed compartment syndrome caused by the tight cast. Blood supply and oxygen had been cut off from Somi’s leg. The leg was now in danger being Somi had to undergo surgery to stand any chance of saving his leg. Between 2^nd -10^th August, Somi had six (6) surgeries performed on his left leg to correct the damage caused by the tight cast. During this period, the Defendant never contacted Somi’s parents to ask about Somi’s wellbeing.
10. On 10^th August 2018, Somi was flown to the United States for further medical Somi was admitted and hospitalized for about three weeks at the Hospital where he had six (6) additional surgeries, bringing the total number of surgeries he on the left leg to twelve (12). He was discharged on the 5^th of September 2018, and he left the hospital in a wheelchair.
11. By an Amended Charge dated 4^th February 2022, the Attorney General of Lagos State preferred a 6 (six) count charge against the The charges include- causing grievous bodily harm, endangering human life through reckless and negligent acts, breach of duty of person doing dangerous acts and endangering human life through reckless and dangerous acts contrary the Criminal Law of Lagos State, 2015.

SYNOPSIS OF THE JUDGMENT OF THE TRIAL COURT

1. ON THE CHARGE OF CAUSING GRIEVOUS BODILY HARM

12. From case law analysis, the Trial Court identified the elements of grievous bodily harm which are (1) that the accused person by act caused bodily pain, disease or infirmity to the complainant, and (2) that he did so intentionally with the knowledge that it was likely to cause the harm or
13. On the first element as to whether the Defendant caused bodily pain, disease or infirmity on Somi, the court analysed the testimony of Somi (PW10) and his mother (PW3) who both testified that Somi was in excruciating pain and was crying due to the tightness of the The Court also analysed the expert opinion of orthopaedic surgeons (PW4, PW6, PW7 and PW8) who testified that the Defendant should have yanked off the cast as soon as Somi complained of the tightness of the cast. The Trial Court therefore found that the action of the Defendant in applying a cast tightly did cause bodily pain and infirmity to Somi.
14. On the second requirement of establishing intention to cause harm or hurt, the Trial Court found that it was not satisfied that the Defendant acted intentionally or with the knowledge that it was likely to cause harm/hurt to Having failed to prove the elements of grievous bodily harm, the Trial Court found the Defendant NOT GUILTY of the offence of causing grievous bodily harm to Somi.
15. ON THE CHARGE OF ENDANGERING HUMAN LIFE THROUGH RECKLESS AND DANGEROUS ACT

15. The Trial Court analysed the testimony of Mr. Emmanuel (PW1) and Mr. Makinde (PW2) who both testified that the Defendant instructed them to pull Somi’s leg so that he can reset it. The Court found that, neither Emmanuel nor Makinde was trained personnel of the hospital. In fact, they were police officer and basketball coach respectively who were present when Somi sustained the injury. The court found that the Defendant was reckless and negligent in using untrained and non- medical personnel in administering treatment on
16. In providing expert opinion, PW8, an orthopaedic surgeon from LASUTH testified that a fracture cannot be manipulated unless there is a diagnosis to ascertain the configuration and amount of displacement. The evidence before the Trial Court according to PW4, PW6, PW7 and PW8 (all orthopaedic surgeons) is that the cast should not have been placed on Somi’s leg in the first place before the Defendant had done an x-ray to ascertain the nature of Somi’s injury. The Trial Court also referred to the statements of the medical doctors in the panel of Medical and Dental Investigative Panel Report dated 15^th March All the medical doctors, in that investigative report, questioned the urgency that necessitated the Defendant to apply cast without carrying out a scan or x-ray on the injury.
17. On the question of the tightness of the cast, the Trial Court relied on the uncontroverted testimony of Somi (PW10) who testified that the tightness of the cast caused him excruciating Somi’s testimony was confirmed by the testimony of his parents who asked the Defendant to remove the tight cast. The Court also relied on the expert testimony of PW4, PW6, PW7 and PW8 (all orthopaedic surgeons), who testified that the cast should have been removed when Somi complained about the tightness of the cast and of being in pain.
18. On the question of consent, Somi’s mother (PW3) testified that the Defendant failed to seek her consent before treating her son, PW8, an orthopaedic surgeon, testified that – “Before any procedure is carried out, we obtain what werefer to as informed consent which requires explaining in details to whoeverimmediately is concerned, what the procedure is, the pros and cons, the possibleimplications and at the end of the day they have to sign of f on a sheet of paperstating that they give us express permission to perform the procedure” In its final analysis, the court found that there was no iota of evidence before it showing that the Defendant obtained the informed consent of Somi’s mother (PW3) before applying a cast on Somi’s leg.
19. The Trial Court held that the Defendant’s acts were negligent and reckless and that his negligent and reckless acts did cause great harm and endangered the life of The Trial Court found the Defendant GUILTY.
20. ON THE CHARGE OF BREACH OF DUTY BY APERSON DOING DANGEROUS ACT AND ENDANGERINGHUMAN LIFE THROUGH RECKLESS AND DANGEROUS ACTS

20. There was evidence before the court that the Defendant was not trained as an orthopaedic surgeon. In fact, by his own admission, the Defendant stated that he is a paediatric From the expert testimony of all the orthopaedic surgeons, the court found that a trained orthopaedic surgeon would know not to apply a cast without knowing what the injury was. In this case, the Defendant applied a cast not being an orthopaedic surgeon and not under the supervision of an orthopaedic surgeon.
21. The Trial Court held that the Defendant did not exercise reasonable skill or care when he applied a cast on Somi’s leg without first having an x-ray to ascertain the nature of injury sustained by The court held that the Defendant undertook to administer medical treatment which turned out to be injurious to the health of Somi and the Defendant did not exercise reasonable skill and care. The Trial Court found the Defendant GUILTY.
22. ON THE CHARGE OF BREACH OF DUTY BY UNLAWFULLY INFLICTING SEVERE INJURY ON SOMI’STOE
23. The Trial Court held that the Prosecution has not proved that the Defendant inflicted a severe wound on Somi’s toe and concealed the resultant No evidence was given to prove that the Defendant used a saw blade to lacerate Somi’s toe and then proceeded to conceal the resultant wound from anyone. The act of cutting the cast cannot be said to be a dangerous act to human life or health. Overall, the Prosecution’s evidence as to this charge is not clear. Hence, there is no evidence that Defendant carried out any unlawful act in this instance or that such act was dangerous to human life. The Trial Court found the Defendant NOT GUILTY.
24. ON THE CHARGE OF BREACH OF DUTY BY THE DEFENDANT IN REFUSING TO REMOVE THE TIGHTCAST WHICH RESULTED IN COMPARTMENT SYNDROME

23. The evidence before the Court shows that the Defendant wilfully refused to promptly remove the tight cast despite repeated complaint of pain and tightness by Somi and his
24. An orthopaedic surgeon (PW4) testified before the court that once a patient complains of pain, he would immediately remove the cast as failure to remove it could risk the patient’s life or It could lead to a blockage of the arteries which could eventually lead to amputation as potassium and calcium would have leaked out. PW4 further testified that Somi had suffered a fracture of the tibia avulsion which was compounded by the tight application of the cast leading to compartment syndrome which is a chronic pain caused by dangerous building up of pressure.
25. PW8, another orthopaedic surgeon, testified that if a tight cast is not removed timeously, the toe begins to tingle and after a while, there is no movement and may result in compartment syndrome within 4-6 He testified that, if the tight cast is not removed within 12 hours, there may be irreparable damage to muscles and tissues. The Witness for the Defence also confirmed the 4-6 hours timeline before compartment syndrome set in. The Court found that the Defendant has every opportunity to promptly remove the tight cast but failed to do so.
26. In sum, the court found the Defendant to have committed a breach of his professional duty as a medical doctor when he wilfully refused to promptly remove the tight fiber glass cast on Somi’s leg despite complaints of severe pain which therefore resulted in compartment syndrome. The Trial Court found the Defendant GUILTY.
27. The Trial Court found the Defendant guilty and accordingly convicted him in respect of Counts 2, 3, 4 and 6 of the Charge. Upon listening to the plea of leniency made by the Defendant’s Counsel, the Trial Court sentenced the Defendant to one (1) year imprisonment for each of the The sentences were to run concurrently.

KEY ETHICAL ISSUES

1. Negligence: Medical negligence refers to the failure of healthcare providers to fulfil their professional obligations¹, breaching the duty of care and not exercising reasonable degree of skill and The Medical and Dental Council of Nigeria (MDCN), pursuant to the powers conferred on it by the Medical and Dental Practitioners Act 2004² issued a Code of Medical Ethics in Nigeria 2008 (“the Code”). The Code, which codifies the rules of professional conducts for medical practitioners also regulates the conducts/activities of medical practitioners in Nigeria. For instance, the Code states that all medical practitioners and dental surgeons owe a duty of care to their patients in every professional relationship³.
   1. A careful consideration of the provision of the Code clearly shows several malpractices perpetuated by the Defendant in this For instance, the Code requires that a medical practitioner shall not delegate any exclusive professional medical responsibility to any non-medical person.⁴ In this case, the Trial Court was right when it found that Defendant was professional negligent by using a police officer and a basketball coach (non-medical personnel) to reset the patient’s leg.
   2. As lives are at stake when providing medical treatment, it is mandatory that a medical practitioner diagnose the situation by carrying out the relevant tests before attempting a line of treatment. A medical practitioner is professionally negligent, where he manifests incompetence in the assessment of a patient,⁵ as in the instant case. The findings of the court that the failure of the Defendant to carry an x-ray to ascertain the nature of the injury sustained by the patient is reckless and negligent, is therefore apt and unassailable.
      
      Hence it is this writer’s recommendation that all medical professionals comply with the strictest standards of the profession, due process must always be followed to avoid further complicating health situations. To try and avoid negligence and the liability that comes with it, some policies that can help may include, documentation of all related information with patient’s care, informed consent, open communication, seeking second opinion, if need be, amongst others.
2. Informed Consent: Before performing any invasive test or providing medical treatment, doctors must obtain permission from a competent patient in a manner that is informed and voluntary. The process is known as informed consent. People have the right to information about risks, benefits, and alternative treatments when making decisions about medical care and the freedom to choose.⁶ Informed consent to treatment is fundamental to ethics and law.
   
   Competence to give informed consent usually connotes mental capacity and age of majority recognized in that jurisdiction to make medical decisions. As in the instant case, where the patient (Somi) was 16 years old, at the time, the Code of Medical Ethics in Nigeria, 2008 permits the next-of-kin to provide such consent. The Code requires that practitioners involved in procedures requiring the consent of thepatient, his relation or appropriate public authority must ensure that the appropriateconsent is obtained before such procedures, either for surgery or diagnostic purposes, are done, be they invasive or non-invasive⁷.
   
   In the case under review, the evidence before the court reveals that the Defendant failed to obtain the consent of the patient’s mother (PW3) before applying a fiber glass cast on the patient’s leg. The argument of the Defence that informed consent is unnecessary where the medical intervention is non-invasive (such as, in cast application), was discountenanced by the court in the face of the clear provision of Rule 19 of the Code that mandates the obtaining of informed consent in both invasive and non-invasive medical treatment.
3. Specialist Assistance and Referral: It is important that a medical practitioner or physician who does not believe they have a requisite skill for a certain ailment either refer a patient to another physician or seek another colleague’s opinion to help pin- point diagnosis and line of treatment. In the instant case, where the Defendant was not a trained or qualified Orthopaedic specialist, he is obligated to refer the patient (Somi) to an orthopaedic surgeon for proper treatment. This act of the Defendant contravenes Rule 28(G) of the Code. If the Defendant in this case had referred the patient before starting treatment, the patient’s injuries might not have escalated as it did.
4. Standardized Due Process and Ethical Standards: It is preferable to medical professionals to follow accepted standards of medical practice which are based on credible evidence published in peer-reviewed medical literature generally recognized by the relevant medical community, physician specialty society recommendations, and/or the view of physicians practicing in relevant clinical areas and any other relevant ⁸ These may include, clinical policy statements, standards of practice, standard operating procedures, clinical practice protocols, clinical procedures, amongst others.⁹ It is clear that the Defendant in this case did not follow the accepted Standards of Medical Practice, as all other doctors in their oral testimony agreed that an X-ray must be done before any line of treatment carried out and that the Defendant should have suspected something wrong such as compartment syndrome when the patient complained of pain and tightness of the cast. Following accepted medical standards and guidelines help prevent injury to a patient and whatever liability that might follow.

CONCLUSION

The above case analysis therefore provides an overview of certain concepts in medical practice and how they may give rise to culpability. In the context of the decision of the Trial Court, it is instructive to mention that medical practitioners, like any other professional, are not immune from criminal prosecution for reckless or negligent conducts. Medical professionals can be prosecuted for obvious misconducts committed while carrying out their professional duties. It is expected that the decision of the court in this case will not only operate as deterrent to professionals generally but will also sensitize the public on their rights as a patient visiting an hospital.

Footnotes

1. Forbes Advisor, “Medical Negligence: Legal Definition & Examples”

https://www.forbes.com/advisor/legal/medical-malpractice/medical-negligence/ accessed 17th February 2023

2. Cap M8, Laws of the Federation of Nigeria, 2004

3. Rule 28 of the Code of Medical Ethics in Nigeria, 2008

4. Rule 9(L) of the Code of Medical Ethics in Nigeria, 2008

5. Rule 28(B) of the Code of Medical Ethics in Nigeria, 2008.

6. Charles Sabatino, “Informed Consent” https://www.msdmanuals.com/home/fundamentals/legal-and-ethical-issues/informed-consent accessed 22nd February 2023

7. Rule 19 of the Code of Medical Ethics in Nigeria, 2008

8. Law Insider, “Accepted Standards of Medical Practice” https://www.lawinsider.com/dictionary/accepted-standards-of-medical-practice accessed 17th February 2023

9. Science Direct, “Standard of Practice” https://www.sciencedirect.com/topics/nursing-and-health-professions/standard-of-practice accessed 17th February 2023

Credit:Mondaq