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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
CIVIL ACTION NO. 60 OF 1993
Between:
TEVITA TABUA WAQABACA
suing by his next friend
JOSAIA M WAQABACA
Plaintiff
- and -
1. DR. ETIKA VUDINIABOLA
2. THE ATTORNEY GENERAL OF FIJI
Defendants
Mr. H. A. Shah for the Plaintiff
Mr. J. Udit for the Defendants
JUDGMENT
This is a medical negligence action instituted by TEVITA TABUA WAQABACA a minor (hereafter referred to as the "patient") suing by his next friend JOSAIA M WAQABACA (hereafter referred to as the "Plaintiff") claiming damages against the defendants for personal injuries suffered by the patient allegedly as a result of negligence before and after surgical operations performed on him between 11 April 1985 and 2 May 1985 developing post-operatively irreversible brain damage, called spastic cerebral palsy (hereafter referred to as "SCP") while a patient at the Colonial War Memorial Hospital (CWMH). It was the first defendant (D1) a consultant surgeon at the CWMH who performed the operations on the patient. The second defendant is the Attorney-General who is being sued for vicarious liability under the State Proceedings Act Cap. 24.
The Facts
Some of the essential facts surrounding this case are as follows as stated in the written submission of the defendants:-
"The patient was referred by the Senior Divisional Medical Officer Lakeba to the Consultant Surgeon, CWM Hospital via his memorandum dated 10.4.85, for an intestinal obstruction as recorded in the medical folder (tendered).
The patient, a male child, of 2 years old, attracted a cough and fever on 5th of April, 1985. From 7th of April, 1985, he started vomiting. Also since then he had his last bowel motion. He did not pass any faeces from 7th of April, 1985 and had abdominal distension from 8th of April, 1985.
He was admitted to CWM Hospital on 10.4.85 at 11.30 a.m. The operative management came on 11.4.1985.
The purpose of the operation was to remove the obstruction. Upon such surgical operation the obstruction was removed. However subsequently whilst still in the hospital on 2.5.85 the patient again attracted mild obstruction for which another operation was carried out.
It was after the first operation of 11.4.85 when the patient came out of the theatre that he showed signs of SCP as borne out by the evidence of the patient's parents to which reference will be made later in my judgment.
The Issue
It is agreed by the parties that the patient is now suffering from spastic cerebral palsy (SCP). It is further agreed that the issue of damages is to be dealt with separately later after the issue of liability is first determined by the Court.
The issue for my determination is "whether the above medical condition is attributable to the conduct of the Defendants vis-a-vis the stated operation" and also whether the doctrine of 'res ispa loquitur' applies in this case or not.
Nature of the Claim
This case concerns the liability of the defendants in medical negligence in which the Plaintiff is alleging negligence on the part of the defendants in that they:
(i) failed to exercise proper and adequate medical care expected of a surgeon in the first defendant's capacity.
(ii) failed to ensure that adequate oxygen supply was available to the patient both before, during and after the surgical operations.
(iii) failed to supervise and/or adequately supervise the treatment before, during and after the said surgical operations.
The Plaintiff also pleads the doctrine of "res ipsa loquitur".
The Plaintiff claims general damages, costs of post-operative care to date of trial, costs of future care, such further or other relief and costs of this action.
The defendants deny negligence and say that their servants and agents took all reasonable care and paid due attention in the operation and treatment of the patient. They say that the principle of res ipsa loquitur ('the matter speaks for itself') is not available to the plaintiff.
Before turning to the consideration of the issue it is necessary to state the relevant evidence adduced in this case.
The Evidence
Evidence for the Plaintiff was given by the patient's father JOSAIA LUVUEWAI MOALA WAQABACA (PWI), the mother CIRIA VUSO KOROI ADIMAIWAI WAQABACA (PW2) and general medical practitioner DR. RAMSWAMI PUNSWAMI GOUNDAR (PW3).
Testifying for the defendants, apart from the first defendant DR ETIKA VUDINIABOLA (DW1) himself there was DR. GODSWILL OKOJI (DW2).
The Plaintiff's Evidence
PW1's (father's) evidence
The patient was born on 24 January 1983 (exhibit I). Since birth he has received medical attention; first admission was on 14.4.83 at Colonial War Memorial Hospital (CWMH) when he was three months old when he underwent surgical operation of the abdomen. He was again admitted on 10.9.83 with high fever. Then on 10.4.85 he was flown from Lakeba Hospital on an emergency flight to CWMH.
He had an abdominal operation on 11.4.85. He was a healthy normal child before he went into the theatre except for some "stomach problem". PWI saw the patient after the operation at 10.10 p.m. He found that the patient could not move, there was no 'sound' and he could not recognize his parents. The patient had a second operation on 2.5.85 to the abdomen.
Today the patient cannot eat by himself and he cannot walk. He suffers from Spastic Cerebral Palsy (SPC).
PW2's (mother's) Evidence
On 10 April 1985 the patient after being admitted to CWMH was talking but could not eat. He had the abdominal pain but there was nothing wrong with his head or brain. The PW2 stayed with the child on 10th and "nothing happened" to him that night.
The patient was taken to the Theatre after 7.00 p.m. on 11 April but before that about 4.00 p.m. he collapsed in the Children's Ward. No one was present except PW2 herself. He suffered "convulsion". The PW2 had to run out and call a doctor. She said "he came running with another doctor and went to search for oxygen machine, found one and began to resuscitate child with machine. Then I saw them running off as machine not working. They got another machine." This machine was in another room 6-7 yards away. The PW2 had spoken to Dr. Jack Mudaliar (the paediatrician) and he apologised for the collapse of the child and made arrangement for the patient's operation. The PW2 does not know Dr. Etika (D1) and she had not spoken to him.
The patient had his second operation after this.
After the operation the patient was taken to the Recovery Ward. He was in the condition referred to by PW1. Although he is 11 years old he is still like a baby. Everything has to be done for him.
The PW2 says that she holds the doctor responsible for his condition but in cross-examination she said that she is "not suggesting" that there was negligence on Dr. Etika's part; when further asked "No fault on Dr. Etika's part?" she replied "No".
PW3's Evidence
The PW3 was the expert witness for the Plaintiff. The witness qualified in medicine and surgery in 1967 and apart from being a general practitioner he is a pathologist.
The PW3 testified that he treated the patient in 1990 after his said operation. He described the condition the patient is in; he said that the patient suffers from "spastic cerebral palsy" which means that due to "damage to cerebral cortex he has gone into spasm. It is a permanent feature and remain with him till he dies." He said that "the child is not a normal child - spasticity of the limbs, had multiple dependant ulcers in back, elbows, shoulder blade, could not look after himself, completely dependent on someone who could look after him. He had difficulty in articulation - no voice pattern - no control over bowel or urine."
The witness (PW3) explained the contents of the Medical Report (exhibit 2) prepared by Dr. Lisi Vesikula Tikoduadua from the patient's file at the hospital. I shall deal with what he said in this regard later in my judgment suffice it to say at this stage that there was nothing in the Report to indicate that heart and brain functions were not normal. He said that the surgical operation performed had nothing to do with the brain.
When asked "Goes into surgery - comes out and develops cerebral palsy. What could be the single cause or causes of cerebral palsy?" He replied: "cause here could be lack of oxygen supplied to brain in which motor cells which are very sensitive and lie in third layer of cerebral cortex are damaged virtually disappear - develop cerebral palsy."
He said that in exhibit 2 there is no mention that breathing was abnormal or that there was any impediment to the brain.
The PW3 said that "it was lack of oxygen in my opinion which caused cerebral palsy in the child".
At the request of the Plaintiff the PW3 prepared a Report (exhibit C) dated 10 July 1990 on the patient which is, inter alia, as follows:-
"I have gone through the medical report and the letter written by Mr Josaia Ma Waqabaca. The following points to be noted:
Comment: A normal child with normal development, develops Spastic Cerebral Palsy post-operatively at the third admission due to hypoxia (lack of oxygen). Oxygen was not readily available in the ward."
The PW3 was asked in cross-examination if there was anything in exhibit 2 that "consultant surgeon was negligent". He replied that "it was a team effort between Paediatric Unit and Surgical Unit" and he felt that some "important information" is not given in exhibit 2. He said that he feels that there has been some "management problem of this patient - don't know on part of surgeon or paediatrician - not for me to judge."
He agreed that the surgery was successful.
The Defendants' Evidence
Defendant's (D1's) Evidence
Briefly D1's evidence is as hereunder.
The witness is a surgeon of many years' standing having graduated DSM in 1955 from the Fiji School of Medicine. He has had a distinguished career.
He outlined to Court his duties and how he is assisted by others such as doctors, registrars, nurses and anaesthetists prior to carrying out a surgical operation. His duties include: "as surgeon virtually surgical operations - involves seeing and screening patients at outpatient". The day to day care and management rests in his hands both in the theatre and post-operatively. His main task though is to take care in the operating theatre.
He said that when patient is "quite sick then examinations are carried out in the Ward. Then patient is examined - opinion is made on what he suffers - appropriate treatment will be decided. If need be my attention is drawn. Intern and Registrar will attend". The patient was first seen by Registrar Dr. Welby. Dr. Etika discussed with Dr. Welby and it was agreed that the child should be taken care of by the paediatrician.
He said that he examined the patient on 11 April 1985 after it was brought to his notice that he has become seriously sick. He came to the Ward, saw the child and discussed with paediatric staff and agreed that the child needed "active and vigorous resuscitation and that we were to perform the operation if the child improved. He made some improvement and took him to theatre".
He said that the patient was given oxygen as it is recorded in the patient's folder.
The operation was successful and the obstruction was removed. But then there was the second operation due to "obstruction due to kinking effect of the adhesions" He said that the child did not come back after that. The doctor said that at the time of the operation the child was in his care and that he (D1) was the "leader". Thereafter the patient is looked after by "resuscitating staff" and "paediatric staff".
The doctor said that he does not agree with Dr. Goundar (PW3) from what he (DI) has gathered from the file. He said that convulsion in the patient originated from disturbance in the brain.
The doctor said that "convulsion is a system of nervous disorder". When asked what effect this has on the nervous system, he said that "this is the outcome ... of changes resulting from insult sustained on the brain. That is how "big head" develops. Exerts detrimental pressure on the brain cells depending on the degree of pressure it exerts shown by the cells that suffer." He said that his view is that "convulsion originated from disturbance in brain and reflected in silent pathology that existed in central nervous system". This "silent existence" was "from the day of 3rd admission - must have been sensitive before that." He said that lack of oxygen would cause this condition but he said that according to patient's folder oxygen was supplied.
On the allegation that the oxygen bottle was not found, the doctor in cross-examination said that he "wouldn't know if they had to find a replacement cylinder." He said that it is possible that there would be damage to brain if oxygen supply is cut off for three minutes. He said that he does not know why the child became "spastic". He said that there is nothing in the file to say that the head is disproportionate to the body but when "fluid in brain head size increases". The doctor said that he "cannot disregard brain involvement in convulsion. This is not my field. I am a surgeon. Not expert in this field .... not easy to make finding neurologically in a sick child." The witness said that there is nothing in the folder to show that the patient was "neurologically not okay".
Evidence of Dr. Godswill Okoji (DW2)
The defence witness Dr. Okoji was called as an expert witness on behalf of the defendants.
His evidence, inter alia, was as follows:
He is a consultant paediatrician with 13 years' experience in this field.
The witness had neither examined nor seen the child but is testifying from what he has gathered from the patient's file. He repeated what is already contained in Dr. Tikaduadua's Report (hereafter appearing) and he referred to the salient features relevant to the issue before me.
He said that in 1983 the patient on second admission suffered from "convulsion"; he had gone through a "lumber puncture" but the results are not recorded in the folder. It was also noted that the patient was a "macro sephallic" (big head) child but the size of the head was not recorded on first admission and on second admission recorded as 49 cm and on third admission recorded 52.5 cm on 1.4.85. He said that because of excess fluid the head is large which is one of the commonest causes of large head. He said it is "difficult to say" that convulsion is due to big head. On third admission on 10.4.85 child had "herpes simplex" (viral infection). It can affect the brain and subsequently the child had series of convulsions. He said that the child was admitted on 10.4.85 and he had convulsion on 11th when at 2.00 p.m. he "fitted" for 15 minutes. The patient was very dehydrated. On 17th condition improved but on 24th and 25th there was "twitching ... had a fit - and bit lower lip - twitching, first all round convulsion". On 3rd admission there was surgery to relieve obstruction.
On the aspect of 'oxygen' about which so much has been said he said that "child was given oxygen when child had a convulsion" and that he has gathered this from the nurse's notes. He said "it will be difficult to detect the exact time the child developed cerebral palsy". He said commenting on Dr. Goundar's Report that "I couldn't really say it was due to lack of oxygen" that the child was in the present condition. As I mentioned big-head on its own could not cause cerebral palsy. He said that there are "many causes of cerebral palsy". In this case "many things could cause - pressure of intestinal obstruction could reduce blood flow to the brain; prolonged convulsions could reduce blood flow to the brain". In examination in chief in answer to a question put to him he said: "my approach would have been a little different if referred to me as a paediatrician". He said that he would have tried to find out if there was any associated illness "in addition to obstruction" and "if I found that I would treat him and I would then invite surgeon to relieve obstruction." He told the Court that "here child sent direct to surgeon. Child had convulsions ... If I asked not to operate he wouldn't operate". In cross-examination he said that he had great difficulty in pointing a finger at any one cause. Finally, when asked by Court he said "I would have recommended surgery earlier than when it was done before the child had convulsions. I would have removed blockage from intestine" and "would have recommended surgery immediately".
In examination in chief the witness when asked "what could be the cause child suffering from now?" he replied "very difficult question" and as paediatrician could be, inter alia, "due to events before child born", "lack of oxygen at birth" and "lack of blood flow at time of birth to brain."
Plaintiff's Submission
The learned counsel for the Plaintiff submits that there are two issues to be determined by the Court, namely, whether the defendants have breached their duty of care in preserving the well being of the patient and whether the patient's injuries flow from the said breach.
He says that at all material times the patient was under the care and management of the Defendants.
He submits that the Ds have breached their duty of care towards the patient in two respects. Firstly, by not carrying out the operation immediately upon admission on 10 April 1985 at 11.30 a.m. to alleviate the intestinal obstruction, the Defendants created a substantial risk of secondary infection from the existing intestinal obstruction.
Mr. Shah submits that the first defendant's conduct fell far below the ordinary skill of an ordinary competent man exercising his qualification as a surgeon.
The test to be applied is on a balance of probabilities.
The second breach, he says, arises out of the Ds' failure to have available oxygen where so required. It is in evidence that oxygen was not readily available in the Ward. This evidence has not seriously been challenged by the Ds. In fact the patient's mother's testimony that a "replacement oxygen bottle was found after three minutes" was unchallenged altogether.
Mr. Shah submits that "the urgency to obtain a replacement bottle was done with the knowledge that deprivation of oxygen to the patient's respiratory system and in particular the brain would lead to brain damage. It is agreed by all parties, even the expert witness of the Ds that "lack of oxygen supply to the brain would cause irreversible brain damage."
Mr. Shah says that the Plaintiff has on a balance of probabilities discharged his burden of proof to a sufficient degree to convince the Court that there was a breach of duty of care by the Ds which directly caused the patient's injuries, namely, permanent brain damage.
Mr. Shah is asking the Court to dismiss the Defendants' assertion to the following being the possible causes of the patient's permanent brain damage: (a) macro cephalic child (b) infection from toximia emanating from intestinal obstruction and (c) herpes simplex infection. Instead, he says that deprivation of oxygen supply to the brain is the most probable cause based on admitted facts and expert testimony.
The Plaintiff had also pleaded the doctrine of "res ipsa loquitur". Mr. Shah says that the evidential burden of disproving negligence shifts to the Ds. which they have failed to do.
In conclusion Mr. Shah submits that the Court "should at all times in its deliberation keep first and foremost in its mind that the Plaintiff had normal growth mile stone prior to his last admission. This normal growth mile stone includes the earlier admissions and the subsequent recovery without any adverse effect to the Plaintiff's nervous system. This Court must on a balance of probabilities hold that the Defendants were negligent in their treatment of the Plaintiff after his admission on the 10th day of April 1985."
Defendants' Submission
Mr. Udit for the Defendants (Ds) has made a very lengthy and comprehensive submission.
He submits that to succeed the Plaintiff has to show that (a) there was a duty owed to the patient by the defendants, (b) there was a breach of that duty and (c) damage flowed from it. He elaborates on these in his submission.
Mr. Udit submits that D1 owed no duty of care to the patient for the "present disease", so he should not be held liable for any negligence. He says that:
"In the present case, the patient was referred to the First Defendant for intestinal obstruction. This, it logically follows that his duty was only limited to the treatment of the obstruction or any disease just surrounding the obstruction. On the other hand the child now is suffering from cerebral palsy. This is far from the initial complain. It would have been another matter if the patient came with this complain, but the doctors either failed to treat or aggravated the problem."
He says that if it is held that the duty of care does exist then it has not been breached. Then he deals with the standard of care expected of a medical practitioner with reference to test laid down in BOLAM v FRIERN HOSPITAL MANAGEMENT COMMITTEE (1957) 2 AER 118 at 121-122.
The doctor (D1), he submits, did what he did with all prudence and care that is expected of any medical practitioner in Fiji.
On the applicability of the doctrine of res ipsa loquitur, Mr. Udit submits that it has no application to this case and he gives reasons for his views.
Determination of the issues
The submissions in writing have been clearly and succinctly put by both counsel and I found them very useful.
This is a tragic case indeed, certain profound questions require to be answered regarding the events which led ultimately to the patient being struck with spastic cerebral palsy (SCP).
Most of the facts are not in dispute. There are certain areas of disagreement particularly whether oxygen was available or not in time. The patient's medical history and his present condition have already been described hereabove.
Central to the case are events of 11 April 1985 before D1 performed the operation on the patient. In determining the issue before me, it will be necessary to examine very carefully the evidence adduced and to make findings of fact. I have already canvassed in sufficient detail evidence adduced before me. I have given very careful consideration to the arguments put forward by both counsel.
Findings
I find as fact and it is not disputed that after his birth on 24 January 1983 the patient had to be admitted to hospital on 14 April 1983 for an abdominal complaint. The operation was successful and he was discharged on 26 April 1983. Then on 10 September 1983 he was admitted for the second time with high fever but there was no operation and he was discharged on 12 September 1983. The last time when he was admitted on 10 April 1985 and operated upon on 11 April 1985, he suffered the said tragic consequences from which he is never likely to recover.
I find as fact on the evidence before me that this normal healthy child came to hospital with a stomach problem. There was no complaint about his head or brain. There is no entry in the patient's folder that there is anything wrong with his head size or brain which could be contributory factors giving rise to the patient's present condition.
It is pertinent to state at some depth the patient's history, at the risk of the judgment being somewhat lengthy and the facts repetitive, as contained in a Report, disclosed from the patient's file kept at CWMH prepared by Dr. Lesi Vesikula Tikoduadua, Chief Medical Officer, Paediatric Unit CWM Hospital. This Report which was prepared at the request of the patient's father (PW1) has been accepted as exhibit 2 and is as follows:
"This child was first admitted to the CWM Hospital on 14.4.83 at age approximately three months with signs of intestinal obstruction. This was investigated and turned out to be intussusception which required reduction by laparotomy. He recovered well from the operation and was discharged on 26.4.83.
Tevita was admitted a second time to CWM Hospital on 10.9.83 with convulsions due to fever brought on by chest infection. He was discharged on antibiotics on 12.9.83. On this admission it was noted that he was breastfed and was developing normally, creeping on tummy at seven months of age, and his immunisation was up to date. He weighed 12.06 kg and his head circumference was 49 cm. Both these measurements were on the 97th percentile for age so he was a child big for his age.
Tevita's third admission to CWM Hospital was on 10.4.85 at 11.30 a.m. in the morning. This time he was flown from Lakeba Hospital. His presenting complaints were:
Vomiting and Constipation for 3 days
Abdominal distension for 2 days
Fever for 2/7
He had also vomited out a worm approximately nine inches in length.
His milestone development as recorded on this admission was normal. He stood at age one year and walked alone at age one year three months. He could say a few words.
His immunisation had all been given and he was still breastfed and on family diet.
Examination on admission revealed a pale, mild to moderately dehydrated child sleeping comfortably.
Temp 38 C Pulse 132/mm regular
Resp rate 28/min
Pupils = RTL. There was no lymphadenopathy.
His pulmonary and cardiovascular systems were found normal and neurologically he had no signs of meningitis and his power was normal.
Abdomen - Moderately distended
Scar over the right iliac fossa
Tender on palpation
No organ enlargement
Bowel sounds scarce
Rectal Exam - Good and/tone
Empty rectum
No blood on examining finger
He passed urine while being examined. A provisional diagnosis of intestinal obstruction was made.
His initial investigations included a
FBC Hb 9.46%
Urea + Electrolytes U30 Na 148 K4.5
CXR
Abdo X-ray
He was put on a drip and such regime and was stated on IV Benzyl Penicillin.
The next morning on 11.4.85 his antibiotic was changed to ampicillin and he was given a Dulcolax suppository.
At 2.00 p.m. the same day the child had convulsions lasting fifteen minutes. Child was noted to be very dehydrated.
The fits were controlled with diazepam and child was rehydrated and transferred to the Recovery Ward for closer observation.
Neurologically he was semi-comatosed and his pupils were reacting sluggishly. Fundi normal. His muscle tone was increased on the left side.
Reflexes were present and normal.
Gentamicin was added to Ampicillin.
He went into surgery at 7.50 p.m. the same evening. The main findings on laparotomy were adhesions. There was an adhesion band obstructing the terminal ileum with dilated proximal gut right upto the duodena-jejunal junction. There was also marked enlargement of the mesenteric nodes. The adhesions were freed and perforation at loop closed. Wound was closed and a corrugated drain left in situ.
Post-operatively the child continued to have problems of electrolyte imbalance and fever.
He had infection of the incision wound which grew E. Coli so antibiotic was changed to Septrin and Gentamicin.
He had a few short episodes of convulsions, 12 days and 14 days after operation. He started to vomit also and this led to a second laparotomy on 2.5.85. More adhesion were freed. There was no pus collection seen.
He recovered slowly and was started on feeds on 6.5.85.
He was only able to feed by spoon and he needed intensive physiotherapy.
He went home on 17.5.85 and was seen in clinic on 28.5.85 where it was noted that he failed to open his mouth on 21.5.85. He was seen again in clinic and was reported to have had Convulsions and was seen by a General Practitioner who started him on Phenobarb.
Later on Dilantin was added to Phenobarb to bring fits under control. He was now recorded to have spastic cerebral palsy.
His last clinic was on 27.9.85. His father had a job in Lautoka and the whole family was moving there.
(Sgd) Dr. Lisi Vesikula Tikoduadua
Chief Medical Officer,
Paediatric Unit, CWM Hospital"
I further find as fact that upon admission to CWMH he was attended to by nurses, Dr. Welby and a paediatrician Dr. Mudaliar; it was the paediatrician and his staff in the Childrens' Ward who were responsible for getting the patient ready for operation. The first Defendant was to do the operation and he was made aware of the patient's condition after the patient suffered from convulsion prior to the first operation. Dr. Etika (D1) told Dr. Welby that he will perform the operation once the patient's condition improves.
The patient was operated upon. However, at the time of convulsion before the first operation the patient needed oxygen. It is not in dispute, and I find as fact, and it is also abundantly clear from the evidence of patient's mother which I accept, that there was no oxygen available in the ward the patient was in, and those attending him had to frantically rush around in an attempt to find an oxygen cylinder with oxygen which they found in about three minutes. It is now evident from all the evidence particularly the evidence of the doctors and I so find as fact that the non-availability of oxygen at the crucial moment led to the onset of damage to the brain before the patient was taken to the theatre. No doubt a grave calamity befell the patient. It does raise an evidentiary inference to explain the disaster that it was the negligence of the staff in the paediatric section in treating the patient.
The Law - Negligence
Duty of Care
I have stated hereabove the evidence adduced, my findings of fact and the arguments put forward by both counsel.
The law of negligence is applicable to medical cases.
The ingredients of negligence are a duty to take care which is owed in a particular situation by the defendants to the Plaintiff (the "patient" in this case), a failure to discharge the standard of care required by that duty and thirdly, a loss occurred thereby to the patient.
The learned counsel for the defendants submits that D1 owed no duty of care to the patient as mainly because the patient came with abdominal complaint but suffered later from SCP which does not arise from that complaint.
The counsel talks of D1 who is the surgeon, but what of D2. What is the duty cast on them, namely, the CWMH staff in the Childrens' Ward. The authorities to which I will refer hereafter in my view do not support this argument advanced by Mr. Udit. Subject to what I say hereafter about D1, I find that in this case a duty of care was owed by the Defendants.
What is the duty of care cast upon the defendants in this case.
On 'duty of care' BUTLER-SLOSS L.J. in AIREDALE N.H.S. TRUST v BLAND 1993 AC(HL) 789 at 818 said:
"A doctor owes a duty of care towards his patient and in the case of a patient unable to give instructions or consent to treatment, a duty to treat him in the patient's best interests: see In re F. [1991] UKHL 1; [1990] 2 A.C. 1. The general duty of a doctor is to act in accordance with a responsible and competent body of relevant professional opinion based upon the principles laid down in Bolam v. Friern Hospital Management Committee [1957] 1 W.L.R. 582: ("the Bolam test"). In carrying out his duty towards his patient a doctor is faced all the time with a series of decisions each of which requires choices - a choice whether to operate, whether to initiate other invasive treatment such as chemotherapy, whether to give antibiotics. As his care of the patient progresses he may have to decide whether to discontinue a process conscious that such a choice marks not only the cessation of effective treatment but also brings closer the end of his patient's life. Medical ethics draw no distinction between the withholding of treatment and the withdrawing of treatment." (emphasis added)
In the case before me a number of people were involved in receiving and caring for the patient which included apart from D1, nurses and the paediatrician in charge (a doctor). They all owed a duty of care to the patient.
Just to give an instance of a situation where a duty of care was owed by a nurse I quote below from 1995 C.L. (CURRENT LAW JUNE 1995) with reference to a Scottish case of G's CURATOR BONIS v GRAMPIAN HEALTH BOARD (O.H.) 1995 S.L.T. 652
"A woman with a history of depressive illness, including a suicide attempt, was admitted to a psychiatric hospital for treatment. She was being kept under "close observation" but not under "special observation". Special observation involved the necessity for visual contact by staff at close range at all times. Close observation required that staff knew at all times where the patient was. The patient was seen to be going towards the toilets and showers and was assumed to be going to the toilets, although no one accompanies her there. On checking shortly afterwards, a nurse found her hanging from a shower fitment. She was rescued and resuscitated but had suffered severe brain damage as a result of hypoxia. The curator sought damages for her injuries and argued that the nursing staff were at fault for not having known, at all times, where the patient was.
Held, that, the nurse not having known but only assumed where the patient was, negligence was established; and decree pronounced in favour of the pursuer."
In the present case there was no one present in the ward, except the patient's mother, when the patient "fitted". He needed oxygen but none was available. A clear cut case of dereliction of duty on the part of the staff and the paediatrician in charge. A duty of care was certainly owed.
The 'duty to act' "vis-à-vis a person who presented himself at the casualty department", arises "notwithstanding that the patient" had not yet been received into the hospital in any way. The failure to act "when he so presented himself was negligent" it was so held by NIELD J in BARNETT v CHELSEA and KENSINGTON HOSPITAL MANAGEMENT COMMITTEE (1969) 1 Q.B. 428 (quoting from book MEDICAL NEGLIGENCE by Charles Lewis at p.181). He goes on to say:
"Once he has started the activity of treatment and care, by examinations in the first instance, it is his duty to take all reasonable steps, which in this particular case would have required the admission of the caller to the works." (p181, ibid)
In relation to professional negligence and the standard of care, in BOLAM (supra) McNair J said at p121:
"The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art."
The following passage from the judgment of DENNING L.J in CASSIDY v MINISTRY OF HEALTH (1951) 2 K.B. 343 at 359 on the exercise of reasonable care on the part of the doctor and duty of care vested on the hospital is apt:
If a man goes to a doctor because he is ill, no one doubts that the doctor must exercise reasonable care and skill in his treatment of him: and that is so whether the doctor is paid for his services or not. But if the doctor is unable to treat the man himself and sends him to hospital, are not the hospital authorities then under a duty of care in their treatment of him? I think they are. Clearly, if he is a paying patient, paying them directly for their treatment of him, they must take reasonable care of him; and why should it make any difference if he does not pay them directly, but only indirectly through the rates which he pays to the local authority or through insurance contributions, which he makes in order to get the treatment? I see no difference at all. Even if he is so poor that he can pay nothing, and the hospital treats him out of charity, still the hospital authorities are under a duty to take reasonable care of him just as the doctor is who treats him without asking a fee. In my opinion authorities who run a hospital, be they local authorities, government boards, or any other corporation, are in law under the selfsame duty as the humblest doctor; whenever they accept a patient for treatment, they must use reasonable care and skill to cure him of his ailment." (emphasis added)
The issue, as already stated hereabove, is whether this condition (SCP) of the patient is attributable to the conduct of the defendants vis-à-vis the two operations of between April - May 1985 performed on him.
It is not necessary for me to state what is meant by 'SCP' as it has already been explained hereabove but the most important thing to note is that it is accepted by all including the expert witness that lack of oxygen in the brain will definitely lead to SCP. This is one of the causes of it.
At this juncture I would like to refer to and quote from the case of PAGE v SMITH (1995)(Feb 1995) 2 Lloyd's L.R (H.L) 95 on the subject of negligence. It was a case of negligence in which the Plaintiff suffered no bodily injury at the time of a collision between two cars. He had been suffering for a long time from a condition described as "myalgic encephalomyelitis (ME)" and later suffered a particularly severe attack. He brought action against the defendant claiming damages for personal injuries caused by the defendant's negligence arguing that his condition had as a result of the accident become chronic and permanent so that he would never work again.
On negligence, in SMITH (supra) at 97 LORD KEITH OF KINKEL has said:
"Liability for negligence depends upon proof both that it was reasonably foreseeable that injury would result from the act or omission called in question and that a relationship of proximity existed between plaintiff and defendant."
Proof of proximity presents no problem in the case before me as it clearly existed here. Furthermore, it was clearly reasonably foreseeable that the patient must suffer from SCP because of lack of oxygen. The doctors are all agreed that lack of oxygen for a few minutes is one of the causes of SCP and it has been so stated in evidence At page 98 in PAGE (supra) LORD KEITH said that one had to look at the circumstances when he stated:
"it is necessary to look at the circumstances as they actually occurred and consider whether the hypothetical reasonable man, when directing his mind to the act or omission which is called in question, would have foreseen those circumstances, including that some person in the position of the plaintiff might as a result of what happened suffer nervous shock leading to an identifiable illness. Lord Wilberforce, at p.422 in McLoughlin v. O'Brian mentioned that one of the factors in the light of which the claim had to be judged was the nature of the accident."
In PAGE (supra) at p.106 LORD BROWNE-WILKINSON went so far as to say:
"In the present case the defendant could not foresee the exact type of psychiatric damage in fact suffered by the plaintiff who, due to his ME, was "an eggshell personality." But that is of no significance since the defendant did owe a duty of care to prevent foreseeable damage, including psychiatric damage. Once such duty of care is established, the defendant must take the plaintiff as he finds him." (emphasis added)
And in BOURHILL v YOUNG [1942] UKHL 5; (1943) A.C. 92 LORD MACMILLAN said at p.103:
"The crude view that the law should take cognisance only of physical injury resulting from actual impact has been discarded, and it is now well recognised that an action will lie for injury by shock sustained through the medium of the eye or ear without direct contact. The distinction between mental shock and bodily injury was never a scientific one, for mental shock is presumably in all cases the result of, or at least accompanied by some physical disturbance in the sufferer's system. And a mental shock may have consequences more serious than those resulting from physical impact."
Again in PAGE (supra) at p.109 LORD LLOYD OF BERWICK expressed the view:
"In an age when medical knowledge is expanding fast, and psychiatric knowledge with it, it would not be sensible to commit the law to a distinction between physical and psychiatric injury, which may already seem somewhat artificial, and may soon be altogether outmoded. Nothing will be gained by treating them as different "kinds" of personal injury, so as to require the application of different tests in law."
He concludes his judgment, inter alia, with the following propositions:
"Subject to the above qualifications the approach in all cases should be the same, namely, whether the defendant can reasonably foresee that his conduct will expose the plaintiff to the risk of personal injury, whether physical or psychiatric. If the answer is yes, then the duty of care is established, even though physical injury does not, in fact, occur. There is no justification for regarding physical and psychiatric injury as different "kinds of damage".
A defendant who is under a duty of care to the plaintiff, whether as primary or secondary victim, is not liable for damages for nervous shock unless the shock results in some recognized psychiatric illness. It is no answer that the plaintiff was predisposed to psychiatric illness. Nor is it relevant that the illness takes a rare form or is of unusual severity. The defendant must take his victim as he finds him."
Based on the above excerpts from judgments and on the facts of this case, I have no doubt whatsoever that subject to what I state hereafter the defendants did owe a duty of care to the patient who was in their care and control from the moment he came to CWMH.
Was there a breach of duty of care?
Having found as above on the duty of care, the question now is "Was there a breach of that duty?" On the facts before me I find that the answer is in the affirmative.
The burden of proof that the defendants have been negligent and that the negligence caused damage to the patient, lies with the Plaintiff.
Once the patient was received in the care of the paediatrician Dr. Mudaliar and his staff he was directly under their care and control. They prepared him for the operation and attended to him when he "convulsed" some hours prior to being taken to the theatre but before the operation he had to be administered oxygen which it is clear from evidence was not available in time.
I find that as far as the surgeon Dr. Etika (D1) is concerned he was mainly concerned with performing the operation. He admitted he was part of the team and when his attention was drawn to the patient's condition resulting from the convulsion he advised the staff that he will operate when the patient's condition improves. Once he was notified that he had improved he proceeded to operate. Unfortunately though, he was not made aware that oxygen was not available in time when it was needed to administer to the patient.
The consequences of not having oxygen available at the right time is now obvious like being wise after the event. The paediatrician and his staff ought to have known what could happen if oxygen is not available. How D1 would have reacted to this incident it is difficult to say but he does agree that lack of oxygen could lead to brain damage. As already stated Dr. Okoji would have handled the case differently and thereby more likely avoided the onset of convulsion and the need for oxygen.
At this stage while on the subject of breach of duty and liability for breach I would like to mention in passing, with the intention of coming back to it later in my judgment, in regard to liability of the two defendants in this case, by quoting the following passage from the textbook MEDICAL NEGLIGENCE by Michael Jones (1991) at 96 that it has been held:
"In any event, where a defendant health authority is vicariously liable for the negligence of all potential defendants (surgeon, anaesthetic, nurses etc) the plaintiff does not have to prove which particular defendant caused the harm." (CASSIDY v MINISTRY OF HEALTH (1951) 2 K.B. 343).
At this point I would like to refer to the following passage which is apt from the judgment of MASON J (with whom STEPHEN and AICKIN JJ agreed) in WYONG SHIRE COUNCIL v SHIRT [1980] HCA 12; (1980) 146 CLR 40 at 47-48 on the matters which ought to be taken into consideration in deciding whether there has been a breach of the duty of care:-
"In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard response to be ascribed to the reasonable man placed in the defendant's position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors."
In this case I hold that reasonable persons in the position of the paediatrician and his staff should have foreseen the consequences of delay in administering oxygen to the patient in the circumstances of this case. To use the words of KING CJ in FR (1983) 33 SASR 189 at 194 "the ultimate question, however, is not whether the defendant's conduct accords with the practices of his profession or some part of it, but whether it conforms to the standard of reasonable care demanded by the law. That is a question for the court and the duty of deciding it cannot be delegated to any profession or group in the community."
Apart from the staff's laxity in administering oxygen, the doctor in charge had been in breach of his duty in not properly diagnosing the patient's illness thoroughly by studying his folder. They did not exercise that degree of care expected of them. Even DW2 Dr. Okoji expressed the view that the patient ought to have been operated upon immediately upon admission and this is what he would have done if he was handling the case.
It was the breach of the duty that, on a balance of probabilities, led to the damage which has been caused to the patient. I find that on the evidence it was after admission but before the operation that damage to the brain took place which gave rise to SCP.
I conclude this topic with the following passage from Medical Negligence (supra) 96-97 which is appropriate for consideration in all the circumstances of this case:
"Of course, to say that the Plaintiff has the burden of proof does not necessarily mean that he must provide direct evidence that the defendant has fallen below the requisite standard of care. He may rely upon any legitimate inferences that can be drawn from the proved facts, and in the absence of evidence to the contrary the inference may well be that the defendant has been negligent. ... An inference is a deduction from the evidence, which, if it is a reasonable deduction, may have the validity of legal proof, as opposed to conjecture which, even though plausible, has no value, "for its essence is that it is a mere guess." (JONES v GREAT WESTERN RAILWAY CO (1930) 47 TLR 39, 45 per LORD MACMILLAN. (emphasis added).
Damage and causation
Even given a duty of care and a breach of it, the Plaintiff has to show that he has suffered some actual damage. This the Plaintiff has done in this case and it is accepted that post-operative result was that the patient ended up suffering from spastic cerebral palsy ("SCP").
The patient was not suffering from "SCP" when he was admitted on 10 April 1985. It was while he was under the care and control of the Defendants that "convulsion" came about and he was belatedly given oxygen to resuscitate him.
Shortly after that when he came out of the theatre he showed signs of onset of SCP.
There was the dire need to give him oxygen. It has come out in evidence and it is accepted by all the doctors that lack of oxygen invariably leads to brain damage. I find that this is what has happened in this case. The brain has been damaged. On a balance of probabilities one can only conclude that lack of oxygen was the cause of it in all the circumstances of this case. There clearly was negligence on the part of the paediatric section not to have oxygen readily available when they owed a duty of care to the patient. (ROBINSON v POST OFFICE (1974) 1 WLR 1176). To decide on causation the court has to rely on expert evidence on this which I have done. (BOLITHO v CITY AND HACKNEY HEALTH AUTHORITY (1993) 4 Med LR 381 C.A.
In law the Plaintiff has to show that as a result of the defendants' negligence, i.e. breach of duty of care owed to him, he has suffered damage. (MEDICAL NEGLIGENCE by Lewis p.199). The issue of causation I find has been proved on the facts and in all the circumstances of this case. In YORKSHIRE DALE SS Co. v MINISTER OF TRANSPORT (1942) AC 691, 706 LORD WRIGHT defines causation thus:
"Causation is to be understood as the man in the street, and not as either the scientist or the metaphysician would understand it. Cause here means what a .... man would take to be the cause without too microscopic analysis but on a broad view."
This was not a case of a person who would have suffered SCP in any case because of the accepted fact that 'SCP' is brought about because of lack of oxygen in the brain. Here oxygen was not available when it was needed most. The Plaintiff has proved that it was the negligence of the paediatrician and his staff which caused and materially contributed to the patient suffering from SCP.
The liability of the first defendant
Dr. Etika is an eminent and experienced surgeon and is regarded as the "father of surgeons" in Fiji.
It is an accepted fact that in determining whether a medical practitioner exercised due skill and care, regard must be had to his particular qualifications, his experience and his status within the medical profession.
It is also accepted that a great deal of medical treatment, even if administered with all due skill and care, involve some degree of risk. Mishaps will therefore occur for which the patient will attempt to claim a remedy. Damages inherent in an operation have always been recognized by the courts.
Upon a careful analysis of the evidence adduced in this case, I find that D1 exercised due skill and care in performing the operations. The operations were successful. Unfortunately though, the patient's brain suffered a jolt with the earlier lack of oxygen in the brain at the time of convulsion of which D1 was not aware, culminating in the patient suffering from SCP.
The D'1 actions do not in any way suggest that there was negligence on his part. Even the patient's mother (PWI) while testifying as a lay person said that although she has not spoken to D1 she does not attach any blame on the D1 for this incident but she is very critical of the non-availability of oxygen at the time when the patient needed it most and there was no one there to attend to the patient. Dr. Goundar also did not consider Dr. Etika to be in any way negligent.
As far as Dr. Etika is concerned I apply the BOLAM (supra) principle on the facts and circumstances of this case. It established that a doctor who acted according to practices accepted by a responsible body of doctors was not negligent.
Before I part with this aspect of the matter I would like to refer to the judgment of SCOTT J in JAI NARAYAN (f/n Shiu Pal) as Executor and Trustee of the Estate of Hazra Bibi and DR. MARY SCHRAMM and THE ATTORNEY-GENERAL (Civ. Action No. 611/93, 12.4.95) wherein his Lordship made some pertinent remarks and I echo the same sentiments in this case. There, as I am here, he was satisfied that Dr. Schramm the first defendant "was in no way whatever responsible for what occurred". The passage from the judgment which I wish to refer and which should be borne in mind in future cases of this nature is as follows:-
"The liability of the 2nd Defendant for torts committed by servants of the State arises from section 3 (i)(a) and 12 (ii) of the Crown (State) Proceedings Act Cap. 24. Mr. Maharaj advised me that the only reason that Dr. Schramm had been joined was because she was in overall charge of the hospital ward in which Hazra Bibi was treated. In my view this is an insufficient ground on its own for joining a person in authority in the position of Dr Schramm. Unless actual negligence as opposed to vicarious liability is being alleged against the Consultant, the Consultant should not be joined. By Regulation 4 of the Public Hospitals and Dispensaries Regulations (Cap. 110) the Permanent Secretary for Health exercises general control and supervision over the organisation and management of all public hospitals. I suggest that in cases of this kind the better practice would be for the Permanent Secretary to be named as 1st Defendant.
I therefore find that the first Defendant is not in any way liable for the injury (SCP) suffered by the patient.
The Liability of the second defendant
Upon a very careful analysis of the evidence adduced, on a balance of probabilities, I find that the staff including the paediatrician of the Children's Ward were negligent in their handling of the patient as a result whereof the patient has suffered and is still suffering from SCP and from which he is never likely to recover. The care which the Ward provided fell deplorably short of the standard which this patient is entitled to expect from the staff including the paediatrician. The second defendant is sued because he is vicariously liable for the acts and omissions of the said staff employed at CWMH. (CASSIDY v MINISTRY OF HEALTH (1951) 2K.B. 343 C.A; ROE v MINISTER OF HEALTH [1954] EWCA Civ 7; (1954) 2 Q.B. 66).
On this aspect of vicarious liability I quote as follows from MEDICAL NEGLIGENCE (supra) at 274 and 275:
"In Cassidy v. Ministry of Health the Court of Appeal confirmed that a hospital authority will be held vicariously liable for the negligence of all staff, nurses and doctors alike, employed under a contract of service as part of the permanent staff of the hospital. Denning L.J. was clear that a hospital is in the same position as any other employer with respect to the torts of employees:
'In my opinion authorities who run a hospital, be they local authorities, government boards, or any other corporation, are in law under the selfsame duty as the humblest doctor; whenever they accept a patient for treatment, they must use reasonable care and skill to cure him of his ailment. The hospital authorities cannot, of course, do it by themselves: they have no ears to listen through the stethoscope, and no hands to hold the surgeon's knife. They must do it by the staff they employ; and if their staff are negligent in giving the treatment, they are just as liable for that negligence as is anyone else who employs others to do his duties for him."
Subsequently, in Roe v. Minister of Health the Court of Appeal considered the question of a hospital authority's responsibility in respect of a part-time anaesthetist, and concluded that there would be vicarious liability, although on the facts there had been no negligence. Denning L.J. repeated the view he had expressed in Cassidy v. Ministry of Health, apparently conflating the question of vicarious and primary liability:
'... the hospital authorities are responsible for the whole of their staff, not only for the nurses and doctors, but also for the anaesthetists and the surgeons. It does not matter whether they are permanent or temporary, resident or visiting, whole-time or part-time. The hospital authorities are responsible for all of them. The reason is because, even if they are not servants, they are the agents of the hospital to give the treatment. The only exception is the case of consultants or anaesthetists selected and employed by the patient himself."
In the present case the liability of the staff arises mainly from the fact that knowing very well the patient's condition on admission and his medical history from his medical folder, they were negligent in not being by his bedside to keep an eye on his condition. Had it not been for the mother who was by her son's side, it is anybody's guess what would have happened when oxygen was needed when no member of the staff was present. And that is what happened here, so when the patient "fitted" which lasted fifteen minutes there was no oxygen available to be administered. This I find was a great laxity on the part of the staff. One does not have to be a medical man to know how essential it is to have an oxygen cylinder filled with oxygen rather than an empty one in the Ward. This was sheer carelessness on the part of the hospital not to have an oxygen cylinder with oxygen in it readily available.
I find that the paediatrician failed to take proper professional care in verifying his diagnosis of the patient in circumstances where the clinical examination may not have discovered the true cause of the patient's illness, although in this case the patient came with an abdominal complaint which the doctors found necessitated an operation. In such a situation in BOVA v SPRING (1994) 5 Med LR 120 Sedley J held that a general practitioner was negligent.
In this case it can be said without doubt, but proof required in a civil action is on a balance of probabilities, that it was the non-availability of oxygen at the crucial moment when the patient had convulsion that brain damage occurred which subsequently resulted in SCP and accelerated at the time when pressure was put on the brain at the time of the operation. The consequence of lack of oxygen should have been foreseen by the staff with the knowledge that they possessed of the patient. Even Dr. Etika (D1) agreed that "lack of oxygen could cause this condition". Also Dr. Okoji a paediatrics expert said that the patient ought to have been operated upon immediately on admission. Why was that not done has not been explained. Much has been said on the availability and lack of oxygen, and I do not wish to dwell on this further suffice it to say and I find as fact that it was because oxygen was not administered at the proper moment resulted in this patient's present condition and in arriving at this finding of fact I have given very anxious and due consideration to the expert evidence in this connection. This case no doubt required expert knowledge and in this regard I had two doctors, namely, Dr. Goundar a general practitioner and a pathologist and Dr. Okoji. Dr. Okoji is well conversant with this area of medicine as a consultant paediatrician of many year's standing. I consider that my finding is consistent with the views of the expert as to the possible cause of the accident (SCP) and also by looking at the non-expert evidence, the sequence of events and the absence of any alternative explanation, as to the probable cause of the accident.
For the above reasons I find the second defendant was negligent and therefore liable for the damages suffered by the patient.
Res Ipsa Loquitur
The Plaintiff also pleaded the principle of the evidence known as res ipsa loquitur, that is "the matter speaks for itself".
The principle of res ipsa loquitur is in essence an evidential principle, which, in certain instances, allows the court to draw an inference of negligence (MEDICAL NEGLIGENCE - JONES p 97). The burden of proof remains with the plaintiff, but the defendant must adduce evidence to rebut the inference of negligence, in order to avoid a finding of liability.
I hold that on the facts and circumstances of this case, the principle of res ipsa loquitur does not apply as I have found that there was sufficient evidence of the facts surrounding the incident and its cause. And as LORD PORTER said in BARKWAY v SOUTH WALES TRANSPORT CO. LTD (1950) 1 AER 392 at 395:
"....if the facts are sufficiently known, the question ceases to be one where the facts speak for themselves, and the solution is to be found in determining whether on the facts as established, negligence is to be inferred or not."
To conclude, for the above reasons the answer to the first issue for my determination is that the second defendant but not the first defendant is liable in damages for the patient's medical condition, namely, spastic cerebral palsy which has been brought about as a result of negligence on its part while the patient was admitted to the Colonial War Memorial Hospital; secondly, I find that the principle of res ipsa loquitur has no application to the facts and circumstances of this case.
The plaintiff therefore succeeds in establishing liability against the second defendant but not against the first defendant. Hence the action against the first defendant is dismissed with costs to be taxed if not agreed. There will be judgment for the Plaintiff against the second defendant with damages to be assessed unless settled with costs to be taxed if not agreed.
D. Pathik
Judge
At Suva
31 January 1996
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