Yejide Gbenga – Ogundare
The Medical Director, Excel Medical Centre, Dr Ferdinand Ejike Orji has challenged the judgement of a Lagos high court that sentenced him to one-year imprisonment, and urged the court to set it aside.
The Appellant is asking the court to determine whether he could be convicted after, the lower court found him not guilty of having intention to commit the offence in Count 1, (causing grievous harm to his patient).
Justice Adedayo Akintoye of the Lagos high court had in Charge No: LD/8963C/2019 convicted Dr. Ferdinand Ejike Orji on four (4) counts out of six (6) counts of offences he was charged with by the Lagos State Government and sentenced him to one-year imprisonment on each of the four counts. But, the court held that the sentences are to run concurrently.
Dissatisfied, the Appellant (Dr. Orji) in his Notice of Appeal, filed by his team of lawyers, led by senior counsel, Chief Bolaji Ayorinde SAN, OFR appealed against the judgements and prayed the court to discharge the Appellant from Counts 2, 3, 4 and 6 and set aside the sentences passed on him by the lower Court.
The Appellant averred that the trial Judge having found that he (Appellant) did not have the mens rea or intention to commit the offence in Count 1, (causing grievous harm to his patient), erred in law when she failed to consider the existence of mens rea and intention of the Appellant with regards committing the offences in Counts 2, 3, 4, and 6.
The Appellant stated that the ingredients of the elements of a crime and offences charged must co-exist and must be proved beyond reasonable doubt before a Defendant [Appellant] can be convicted of the offence.
He argued further that the trial judge failed to consider the evidence of DW1 on the 7th day of October 2022 that a doctor can rely on the assistance of non-doctors to convey the patient in treatment rooms and even hold down a patient, especially during an emergency.
The Appellant stated that there was no evidence from the Prosecution to establish that the Defendant had intention to cause harm or hurt PW10 by using PW1 and PW2 (untrained personnel) to manipulate PW10’s left leg thereby aggravating a simple fracture of the said left leg.
On the issue that the Appellant was negligent and reckless by applying a fibre glass cast tightly on PW10’s left leg and causing severe pain and refusing to remove same when requested to do so, the Appellant contended that the trial Judge failed to avert her mind that the Appellant upon the complaint made on the 27th of July, 2018 by PW10 and PW3, of pain and discomfort at the left knee region, opened a rectangular window at the popliteal fossa aspect of the knee, over the area where the patient complained of, and this relieved the patient.
He stated that when PW10 was taken back to his Hospital following a complaint that “water was oozing out from the popliteal aspect of the knee where the window was cut”, the cast was halved and subsequently converted to a back slab to support the knee during the patient’s journey to the United States, adding that the patient and his mother (PW3 and PW10) slept in the Appellant’s Hospital till the 28th day of July 2018 without further complaints of excruciating pain or discomfort.
The appellant submitted that the trial judge failed to avert her mind and consider the evidence of PW7, the first Orthopedic Doctor who saw PW10 and his evidence of the 18th day of March 2022 where he stated that “he saw a half cast and could not ascertain how tight the cast was before removing the entire cast”. Thus, the cast was not tight, or tightness doubtful.
He argued that Prosecution Witnesses, (PW4, PW6 and PW7) in their testimonies had told the court that even Medical Students can apply a cast, thus the Appellant is adequately qualified to apply a cast to stabilize a fractured leg.
On the decision of the lower court that the Appellant committed a breach of his professional duty as a medical practitioner when he willfully refused to promptly remove the tight fibre glass cast on PW10’s left leg despite complaints of severe pain which thereby resulted in Compartment Syndrome, the Appellant submitted that Compartment Syndrome is a process and attributed to time off when it sets in.
The Appellant stated further that it has been the argument of the Appellant and that of the Prosecution Witnesses that Compartment Syndrome sets in within 4 – 6 hours, and it is that of an emergency situation which cannot be ignored but treated immediately.
Consequently, the Appellant prayed the court to pronounce him not guilty of Counts 2, 3, 4 and 6 of the Amended Charges dated 4th day of February 2022 and also set aside part of the Judgment delivered on 20th day of January 2023 by Justice Adedayo Akintoye.
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