Dr. Obioma Azubuike Okezie V. Chairman, Medical & Dental Practitioner Disciplinary Tribunal (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PAUL ADAMU GALINJE, J.C.A. (Delivering the Leading Judgment)

The Appellant herein, Dr. Obioma Okezie, a registered Specialist Obstetrician and Gynaecologist, and a lecturer at the University of Nigeria Teaching Hospital (UNTH) Enugu, owned and operated a hospital called Christian Miracle Hospital at 11B John Nwodo Close, G.R.A. Enugu. Sometimes in September 1998, he successfully carried out fibroid surgery on Mrs. Nwiru Obiekwe (now deceased) with the consent of her husband, Dr. Ifeanyi Obiekwe, who is also a Medical Doctor. Before this surgery, Mrs. Obiekwe had complained of infertility and miscarriage and had had a myomectomy in England in 1996. Two years after the surgery, Mrs. Obiekwe became pregnant and approached the Appellant in his private clinic to be her doctor for the purpose of antenatal care. During the antenatal care, the Appellant found that the deceased could only be delivered through caesarian operation and this was fixed for 23rd February, 2001. The operation commenced at 12.11 noon on the day in question with the husband of the deceased in attendance. Dr. Obiekwe photographed the proceedings during the surgery. The operation was completed at about 1.45 pm and the patient was moved to the ward. However at about 4.20 pm the condition of the deceased changed for the worse. The Appellant who was recalled from his house within the same vicinity where he went to have his lunch in turn called Dr. Obiekwe, the husband of the deceased to report immediately with all that he had for the resuscitation of the life of his wife.

The Appellant set in motion measures to save the life of the deceased by introducing blood transfusion and other measures to no avail. By 8.00 pm. The Appellant pronounced the deceased dead. Dr. Obiekwe the deceased’s husband asked for autopsy to be performed on the deceased and this was done accordingly. However, Mrs. Cecilia Chukwuogor, and Mr. Nnemeka Chukwukelu Chukwuogor, the deceased’s mother and brother respectively suspected foul play in the death of the deceased and therefore petitioned the Medical and Dental Practitioner Disciplinary Tribunal. After preliminary investigations, the Appellant was then arraigned before the said Tribunal on the following charges: –

“That you Dr. Obioma Azubike Okezie a registered specialist obstetrician and gynaecologist engaged as such at an unregistered institution known as Christian Miracle Hospital, 11B John Nwodo Close GRA Enugu was negligent in the manner you attended to one Mrs. Nwiru Obiekwe (deceased) on or about 23 February, 2001 in that:

1. Before, during and after the obstetric operation of caesarean section which you performed on the said Nwiru Obiekwe, you failed to secure the professional services of an anaesthetist and also of qualified registered nurses to provide necessary professional care as required during the period for the patient;
2. In the preoperative, intra-operative and Postoperative management of the said Mrs. Nwiru Obiekwe, you ignored the high risk factors in the said patient, who being an elderly primigravida with a history of a previous abdominal scar, from myomectomy, low lying placenta and transveae lie of foetus by not providing intra-operative and postoperative care for her in an institution with requisite facilities terms of professional and paraprofessional personnel, equipment and consumables for resuscitative measures to the detriment of good care for the said patient;
3. At the time of the operation and immediate postoperative period, you failed to provide cross-matched blood and oxygen which would have been used to resuscitate the patient at the time of impending respiratory failure which eventually set in postoperatively;
4. In the immediate postoperative period, there was no qualified professional nurse or medical practitioner to monitor the vital signs and provide care even whilst the patient was still unconscious.
5. And in the alternative, you failed to make yourself available to provide requisite postoperative care, including monitoring of the respiration, cardiovascular action and level of consciousness to the unconscious patient”.

The Appellant pleaded not guilty to the charges. During the trial, two witnesses were called for the prosecution, while the Appellant gave evidence in his own defence. Thereafter, counsel on both sides filed written addresses, which they subsequently adopted.

In a reserved and considered judgment the seven members Tribunal chaired by Dr. S.S. Gyoh found the Appellant guilty of infamous conduct with respect to the element of the charges and was suspended from practice for six months.

It is against this decision that the appellant has appealed to this court. His notice of appeal at page 165 of the record of appeal contains five grounds of appeal, which I reproduce herein below without their particulars as follows:-

“1. The Honourable Tribunal erred in law when in the absence of the expert testimony in rebuttal, it queried and rejected in its entirety, the professional testimonies of the Defendant Doctor’s autopsy reports and ultra sound report.

2. The Honourable Tribunal erred in law when it based its judgment against the Defendant Doctor in part on his comportment.
3. The Honourable Tribunal misdirected itself when it ignored Exhibit ‘4’ which was evidence that use of Ketamine anaesthesia dispensed with the need for an obstetric anaesthetist at the operating theatre and went on to hold that absence of an obstetric anaesthetist was evidence of negligence on the part of the Defendant doctor.
4. The Honourable Tribunal misdirected itself when it held that at the time of the operation and in the immediate post-operative period the accused doctor failed to provide cross matched blood and oxygen which would have been used to resuscitate the patient at the time of impending respiratory failure which set in post operatively.
5. The Honourable Tribunal misdirected itself when it held that in the immediate post-operative period, there was no qualified nurse or medical practitioner to monitor the vital signs and to provide care even whilst the patient was still unconscious; and in the alternative, that the Defendant doctor failed to make himself available to provide required post operative care.”

Learned counsel for both parties filed and exchanged briefs of argument. The Appellant formulated four issues for the determination of this appeal at page 5 of his brief of argument. These issues read as follows:-

“(a) Although the tribunal was composed of fully registered medical practitioners and the professional competence of the appellant was in question, whether the Honourable Tribunal was right when it substituted or replaced evidence which was required in proof of the charges against the appellant with the opinion of its members borne of their professional knowledge experience, skill or expertise?

(b) Did the Honourable Tribunal pronounce on all material issues before it. And if it did not, whether this did not occasion a miscarriage of justice?

(c) As a corollary, did the Tribunal comply with the rules of fair hearing and trial as required of a quasi-criminal trial, when it ignored in its entirety, Exhibit ’10’ which was a book by a leading gynaecologist and obstetrician in Nigeria, Dr. Kayode Obembe without any evidence whatsoever to the contrary; and whether, this did not occasion a miscarriage as (sic) justice.

(d) Was the Honourable Tribunal below right, and not biased when it based its decision, in part on the Appellant’s looks carriage (sic), comportment and physiognomy during trial as well as prayer session for patient during emergency: and whether this did not create bias in the mind of the tribunal and thus a miscarriage of justice.

For the Respondent the following issues were formulated at page 2 of the Respondent’s brief as follows:-