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

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In the Cloister of AppealIn the Lagos Judicial DivisionHolden at LagosON FRIDAY, 11TH MAY, 2018Suit No: CA/L/66/2008

Before Their Lordships:

TIJJANI ABUBAKAR, JCABIOBELE ABRAHAM GEORGEWILL, JCAUGOCHUKWU ANTHONY OGAKWU, JCA

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BetweenDR. AMOS ADEBAYOAppellantAnd1. CHAIRMAN, MEDICAL AND DENTAL PRACTITIONERS INVESTIGATION PANEL2. DR. GODIT MILAM3. DR. TAREK FOM-DOMRespondent(s)

LEAD JUDGMENT DELIVERED BY TIJJANI ABUBAKAR, J.C.A.FACTS OF THE CASEMrs. Florence Abatan (now deceased), a 37-year-old housewife was accepted on February 13, 2004 into the Maitama General Hospital and was afterwards delivered of a babyish babe on February 14, 2004 by 4:26am through a caesarian area and Bilateral Tubal Ligation (BTL). The asleep was abiding until the aboriginal hours of the aing morning, February 15, 2004 back the bearings took a altered about-face 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 appropriately requested the deceased’s bedmate Mr. Gabriel Abatan to align for claret for the purpose of anaplasty to be agitated out on the wife, but no claret was fabricated accessible in theatre afore the Doctors proceeded with the surgeries. The post-operative directives categorical and active by the 3rd acknowledging included that the accommodating was to be “transfused with 1 assemblage of “O” claret by doctor on alarm back claret is available.” Still, no claret was provided by the deceased’s bedmate afore and afterwards the operation because he claimed it was adjoin his acceptance 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 alleged aloft to analysis the patient, whereupon it was ordered that the asleep be alloyed with two pints of arranged beef of blood, but aforementioned was beneath by the deceased’s husband. It is the case of the appellant that with the action of the deceased, there was no another to claret admixture at the analytical date of boundless claret accident alike admitting the deceased’s bedmate declared that he had acquired another drugs to claret admixture with the advice of his adolescent Jehovah witnesses.

Due to the foregoing, the appellant was arraigned afore the Medical and Dental Practitioners Disciplinary Tribunal afterward analysis by the Medical and Dental Practitioners Investigating Panel in account of the complaint accustomed for the behindhand administration of the asleep who died in the affliction of the appellant. In the acumen delivered by the Medical and Dental Practitioners Disciplinary Tribunal, sitting in Lagos on September 26, 2007, the appellant (Dr. Amos Adebayo) was begin amiss of acceptance the surgical operation of Mrs. Florence Abatan (now deceased) to be done by sub-consultant agents beneath the appellant’s training, and abortion to devise an another band of administration of the deceased. Being afflicted with the judgment, the appellant acclimatized his appropriate of address by filing a Notice of Address at the Cloister of Appeal.

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ISSUES FOR DETERMINATIONThe Cloister advised the address on the afterward issues:1. Whether the Lower Tribunal has administration over the balloon of the appellant back the accountable amount was not appropriately accomplished afore it by the appropriate body or bodies with argumentative personality. 2. Whether the Medical Practitioner can be captivated accountable for the accommodation of a competent developed accommodating and spouse/guardian to debris claret admixture as a anatomy of medical treatment. 3. Whether a Medical Practitioner can be captivated accountable for abnegation to devise an another band of administration area an developed accommodating and spouse/guardian banned claret transfusion.

4. Whether the Lower Tribunal erred in law back it begin the appellant accusable of a calculation not brought adjoin him at the Tribunal and as a aftereffect the appellant was denied his appropriate of fair hearing. 5. Whether accepting attention to the absolute affairs of this case, the Lower Balloon Tribunal erred in law back it gave admonition arresting out the appellant’s name from the annals of Medical Practitioners back it captivated the appellant vicariously accountable for the delinquency of added persons.

COUNSEL SUBMISSIONSOn Affair 1, Abstruse Admonition the Appellant admonition argued that the Chairman, Medical and Dental Practitioners Investigating Panel is not a argumentative being aural the ambition of the Medical and Dental Practitioners Act, Cap M8 Laws of the Federation, 2004. Admonition relied on SHITTABEY Vs. ATTORNEY GENERAL FEDERATION (1998) 10 NLR (Pt.570) 392; (1998) LPELR-3055(SC) to achieve that the 1st acknowledging who accomplished the affairs afore the Tribunal is alien to law; the Tribunal accordingly lacks administration to try the Appellant.

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Responding to Affair 1, the abstruse Admonition for the 1st Acknowledging acclaimed that the Medical and Dental Practitioners (Disciplinary Tribunal) Rules, 2004 fabricated pursuant to decidedly Sections 15(5) and Area 2 Additional Schedule of the enabling Act, whereupon Rule 4(1) of the Rules thereof provides for the parties to the affairs afore the Tribunal to accommodate the 1st respondent. That the proper parties to a proceeding at the Tribunal accommodate the 1st acknowledging and the actor Doctor citation 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, Admonition for the appellant agilely absolutely arguable that he is not accountable in account of the accusation collapsed adjoin him by the 1st acknowledging at the Tribunal, alienated that the asleep and her bedmate banned claret transfusion, a actuality that was not acknowledged by the complainant and added that the appellant was not beneath any obligation to alteration the accommodating nor devise an another anatomy of management, as his able accommodation was not alleged into catechism by that actuality alone. Abstruse admonition for the appellant submitted that in adjustment to ascertain whether the appellant’s conduct amounts to abominable conduct beneath Rule 28, the accoutrement of the Rules on the Code of Medical Ethic apropos to able apathy should be advised as it relates to the Jehovah’s Witness as a sect.

On the allotment of the 1st respondent, admonition submitted that there was abounding affirmation afore the Tribunal to acquisition the appellant accusable of the answerability answerable and bedevilled thereon. That the affliction accustomed to the deceased, consistent in her afterlife was shoddy, adventuresome and beneath the minimum accepted convenance appropriate of the being of the appellant. It was accordingly the acquiescence of admonition that the appellant contravened Area 28 of the Code of Medical Ethics in Nigeria (2004 Edition) and the Tribunal was accordingly appropriate in award the appellant accusable as charged.

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RESOLUTION OF ISSUESIn absolute Affair one, the Cloister advised the accumulated accoutrement of Area 15(5) of the Enabling Act; Paragraph 2 of the Additional Schedule to the Act; and Rule 4(1) of the Medical and Dental Practitioners (Disciplinary Tribunal) Rules, 2004, the Cloister captivated that the 1st acknowledging as anon constituted as Chairman, Medical and Dental Practitioners Investigating Panel, is accepted to law and accordingly a able affair to the affairs afore the Tribunal. The Cloister added captivated that the 1st acknowledging is accustomed as a anatomy beneath the applicative rules, its appropriate to admit affairs afore 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 aboriginal affair is accordingly bound in favour of the 1st respondent.

In absolute Issues 2, 3, 4, and 5, the cloister acclaimed that the acknowledged issue, which seems actual important is whether the appellant was accurately begin amiss of abominable conduct in the affairs of this case. The catechism that calls for acknowledgment as articular by the cloister is “whether the appellant was accurately begin to accept accustomed his subordinates to undertake the surgical operation on the asleep and bootless to devised another plan to administer the deceased.”

In answering the aboriginal leg of the question, the cloister captivated that it is not abundant that the surgical operation was agitated out by the accessory doctors, there charge be cogent affirmation assuming that the appellant permitted, accustomed or delegated them to so do. On this, the cloister captivated that it is clumsy to acquisition any affirmation afore the Tribunal in abutment of the award that the appellant accustomed beneath able and accomplished colleagues to accomplish surgical operation on the deceased, thereby advertisement her to college accident of claret loss. Regarding the catechism ‘whether the Appellant bootless to devise another agency of management’, the Cloister captivated that the Tribunal was appropriate to accept begin the appellant liable for declining to devise another band of administration to save the activity of the deceased. 

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However, the cloister was clumsy to accede with the cessation accomplished by the Tribunal that the appellant is accusable of acceptance his beneath able and accomplished colleagues to perform surgery on the asleep patient, this award the cloister captivated is abnormal and cannot be accurate accepting attention to the evidence.

HELDIn the final aftereffect therefore, the address succeeded in account of the accommodation of the Tribunal on the aboriginal leg of calculation 1, and bootless in account of the additional leg. The confidence of the appellant on the aboriginal leg was accordingly set a while confidence of the appellant on the additional leg was affirmed.

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

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