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Duty of a medical practitioner in clinical management of religious adherents

Mrs. Florence Abatan (now deceased), a 37-year-old housewife was admitted on February 13, 2004 into the Maitama General Hospital and was subsequently delivered of a baby girl on February 14, 2004 by 4:26am through a caesarian section and Bilateral Tubal Ligation (BTL).

Scale of Justice

Duty of a medical practitioner in clinical management of religious adherents

ADEBAYO v. CHAIRMAN, MEDICAL & DENTAL PRACTITIONERS INVESTIGATION PANEL & ORS (2018) LPELR-45537 (CA)

In the Court of Appeal
In the Lagos Judicial Division
Holden at Lagos
ON FRIDAY, 11TH MAY, 2018
Suit No: CA/L/66/2008

Before Their Lordships:

TIJJANI ABUBAKAR, JCA
BIOBELE ABRAHAM GEORGEWILL, JCA
UGOCHUKWU ANTHONY OGAKWU, JCA

Between
DR. AMOS ADEBAYO
Appellant
And
1. CHAIRMAN, MEDICAL AND DENTAL PRACTITIONERS INVESTIGATION PANEL
2. DR. GODIT MILAM
3. DR. TAREK FOM-DOM
Respondent(s)

LEAD JUDGMENT DELIVERED BY TIJJANI ABUBAKAR, J.C.A.
FACTS OF THE CASE

Mrs. Florence Abatan (now deceased), a 37-year-old housewife was admitted on February 13, 2004 into the Maitama General Hospital and was subsequently delivered of a baby girl on February 14, 2004 by 4:26am through a caesarian section and Bilateral Tubal Ligation (BTL). The deceased was stable until the early hours of the next morning, February 15, 2004 when the situation took a different turn for the worse and she began to lose blood. It is the case of the appellant that the 2nd and 3rd respondents, who undertook the surgeries respectively requested the deceased’s husband Mr. Gabriel Abatan to arrange for blood for the purpose of surgery to be carried out on the wife, but no blood was made available in theatre before the Doctors proceeded with the surgeries. The post-operative directives outlined and signed by the 3rd respondent included that the patient was to be “transfused with 1 unit of “O” blood by doctor on call when blood is available.” Still, no blood was provided by the deceased’s husband before and after the operation because he claimed it was against his faith as a Jehovah’s Witness. ​Subsequently on the said February 15, 2004, the appellant, who is the Consultant Obstetrician Gynecologiest and Head of Department, was called upon to review the patient, whereupon it was ordered that the deceased be transfused with two pints of packed cells of blood, but same was declined by the deceased’s husband. It is the case of the appellant that with the condition of the deceased, there was no alternative to blood transfusion at the critical stage of excessive blood loss even though the deceased’s husband stated that he had procured alternative drugs to blood transfusion with the help of his fellow Jehovah witnesses.

Due to the foregoing, the appellant was arraigned before the Medical and Dental Practitioners Disciplinary Tribunal following investigation by the Medical and Dental Practitioners Investigating Panel in respect of the complaint received for the negligent handling of the deceased who died in the care of the appellant. In the judgment delivered by the Medical and Dental Practitioners Disciplinary Tribunal, sitting in Lagos on September 26, 2007, the appellant (Dr. Amos Adebayo) was found culpable of allowing the surgical operation of Mrs. Florence Abatan (now deceased) to be done by sub-consultant staff under the appellant’s training, and failure to devise an alternative line of management of the deceased. Being aggrieved with the judgment, the appellant exercised his right of appeal by filing a Notice of Appeal at the Court of Appeal.

ISSUES FOR DETERMINATION
The Court considered the appeal on the following issues:
1. Whether the Lower Tribunal has jurisdiction over the trial of the appellant when the subject matter was not properly initiated before it by the appropriate body or persons with juristic personality. 2. Whether the Medical Practitioner can be held liable for the decision of a competent adult patient and spouse/guardian to refuse blood transfusion as a form of medical treatment. 3. Whether a Medical Practitioner can be held liable for refusing to devise an alternative line of management where an adult patient and spouse/guardian refused blood transfusion.

4. Whether the Lower Tribunal erred in law when it found the appellant guilty of a count not brought against him at the Tribunal and as a result the appellant was denied his right of fair hearing. 5. Whether having regard to the entire circumstances of this case, the Lower Trial Tribunal erred in law when it gave directions striking out the appellant’s name from the register of Medical Practitioners when it held the appellant vicariously liable for the misconduct of other persons.

COUNSEL SUBMISSIONS
On Issue 1, Learned Counsel the Appellant counsel argued that the Chairman, Medical and Dental Practitioners Investigating Panel is not a juristic person within the contemplation of the Medical and Dental Practitioners Act, Cap M8 Laws of the Federation, 2004. Counsel relied on SHITTABEY Vs. ATTORNEY GENERAL FEDERATION (1998) 10 NLR (Pt.570) 392; (1998) LPELR-3055(SC) to conclude that the 1st respondent who initiated the proceedings before the Tribunal is unknown to law; the Tribunal therefore lacks jurisdiction to try the Appellant.

Responding to Issue 1, the learned Counsel for the 1st Respondent noted that the Medical and Dental Practitioners (Disciplinary Tribunal) Rules, 2004 made pursuant to particularly Sections 15(5) and Section 2 Second Schedule of the enabling Act, whereupon Rule 4(1) of the Rules thereof provides for the parties to the proceedings before the Tribunal to include the 1st respondent. That the proper parties to a proceeding at the Tribunal include the 1st respondent and the defendant Doctor citing MC INV. LTD Vs. C.I. & C.M. LTD (2012) 12 NWLR (Pt.1313) 1 at 17; (2012) LPELR-7801(SC).

Arguing Issues 2, 3, 4 and 5, Counsel for the appellant strenuously genuinely contended that he is not liable in respect of the allegation leveled against him by the 1st respondent at the Tribunal, contending that the deceased and her husband refused blood transfusion, a fact that was not disputed by the complainant and further that the appellant was not under any obligation to transfer the patient nor devise an alternative form of management, as his professional capacity was not called into question by that fact alone. Learned counsel for the appellant submitted that in order to ascertain whether the appellant’s conduct amounts to infamous conduct under Rule 28, the provisions of the Rules on the Code of Medical Ethic relating to professional negligence should be considered as it relates to the Jehovah’s Witness as a sect.

On the part of the 1st respondent, counsel submitted that there was abundant evidence before the Tribunal to find the appellant guilty of the offence charged and convicted thereon. That the care given to the deceased, resulting in her death was shoddy, reckless and below the minimum standard practice required of the person of the appellant. It was therefore the submission of counsel that the appellant contravened Section 28 of the Code of Medical Ethics in Nigeria (2004 Edition) and the Tribunal was therefore right in finding the appellant guilty as charged.

RESOLUTION OF ISSUES
In resolving Issue one, the Court considered the combined provisions of Section 15(5) of the Enabling Act; Paragraph 2 of the Second Schedule to the Act; and Rule 4(1) of the Medical and Dental Practitioners (Disciplinary Tribunal) Rules, 2004, the Court held that the 1st respondent as presently constituted as Chairman, Medical and Dental Practitioners Investigating Panel, is known to law and therefore a proper party to the proceedings before the Tribunal. The Court further held that the 1st respondent is recognized as a body under the applicable rules, its right to initiate proceedings before the Tribunal cannot be faulted. See CHAIRMAN, EFCC & ANOR Vs. LITTLE CHILD & ANOR (2015) LPELR – 25199 (CA) and ACCESS BANK Vs. AGEGE LOCAL GOVERNMENT & ANOR (2016) LPELR – 4049 (CA). The first issue is therefore resolved in favour of the 1st respondent.

In resolving Issues 2, 3, 4, and 5, the court noted that the legal issue, which seems very important is whether the appellant was rightly found culpable of infamous conduct in the circumstances of this case. The question that calls for answer as identified by the court is “whether the appellant was rightly found to have allowed his subordinates to undertake the surgical operation on the deceased and failed to devised alternative plan to manage the deceased.”

In answering the first leg of the question, the court held that it is not enough that the surgical operation was carried out by the subordinate doctors, there must be cogent evidence showing that the appellant permitted, allowed or delegated them to so do. On this, the court held that it is unable to find any evidence before the Tribunal in support of the finding that the appellant allowed less qualified and experienced colleagues to perform surgical operation on the deceased, thereby exposing her to higher risk of blood loss. Regarding the question ‘whether the Appellant failed to devise alternative means of management’, the Court held that the Tribunal was right to have found the appellant liable for failing to devise alternative line of management to save the life of the deceased. 

However, the court was unable to agree with the conclusion reached by the Tribunal that the appellant is guilty of allowing his less qualified and experienced colleagues to perform surgery on the deceased patient, this finding the court held is perverse and cannot be supported having regard to the evidence.

HELD
In the final result therefore, the appeal succeeded in respect of the decision of the Tribunal on the first leg of count 1, and failed in respect of the second leg. The conviction of the appellant on the first leg was therefore set aside while conviction of the appellant on the second leg was affirmed.

Appearances:
OLUYEMI SHOYOYE with him, EMEKA NWADIGWE – For appellant
A. I. ADEBAYO with him, O. F. AYINDE-AWE – For 1st respondent
DELE OYE with him, CHUKWUMA NJOKU – For 2nd respondent.
Compiled by Lawpavilion

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