Singh v Attorney-General [1999] FJHC 138; Hbc0026j.95s (10 June 1999)

IN THE HIGH COURT OF FIJI
(AT SUVA)
CIVIL JURISDICTION

ACTION NO. HBC 0026 OF 1995

BETWEEN:

NAVNESH NEIL SINGH
(f/n Ram Kumar Singh)
student suing by his father
and next friend Ram Kumar Singh
(f/n Naba Singh) of Delainavesi, Lami
Plaintiff

AND

ATTORNEY-GENERAL OF FIJI
Defendant

S. Maharaj for the Plaintiff
E. Walker for the Defendant

Dates of Hearing and
Submissions: 23rd, 24th, 25th, 26th, 27th June, 3rd, 4th, 7th, 8th, 9th July 1977,
24th July, 14th August 1998

Date of Judgment: 10th June 1999

JUDGMENT

INTRODUCTION

This is a case of medical mismanagement which could and in my opinion should have been avoided had two senior surgeons and other nursing staff at the Colonial War Memorial Hospital correctly diagnosed and treated the Plaintiff for acute appendicitis in February 1992. I shall give reasons for that last statement in the course of this judgment but primarily they are, as I find, the failure by two senior surgeons at the hospital Dr. Etika Vudiniabola and Dr. Li Xieng Ding to recognise as correct a diagnosis of acute appendicitis in the Plaintiff which had been made by three other doctors at the hospital on the 24th of February 1992. Instead of operating on the Plaintiff within at the most twenty-four hours from the date of his admission the Plaintiff did not have surgery until the 26th of February and again on the 28th of February 1992. Also as a result of what I find to be inadequate nursing the Plaintiff suffered infection in the form of septicaemia and pneumonia and considerable loss of weight resulting in his evacuation to the Children's Hospital in Auckland, New Zealand on the 8th of March 1992 where he had further surgery and altogether was in hospital for some 89 days. I shall give further details about his hospitalisation both here and in New Zealand later but as a result of the negligence of the servants and agents of the Defendant representing the Colonial War Memorial Hospital the Plaintiff now claims damages for pain and suffering, loss of mobility and scarring on his stomach as well as for shock and of mental anguish. Liability is denied.

22ND - 26TH FEBRUARY 1992

The story begins on Saturday the 22nd of February 1992 when the Plaintiff developed pain in his right abdomen as a result of which his father took him to their local doctor Dr. Arun Nath, the Plaintiff complaining to Dr. Nath that he was vomiting, and had fever.

Dr. Nath thought the Plaintiff might have a viral infection and so prescribed some antibiotics and gave the Plaintiff an injection. He suggested that if the pain continued and remained severe that would indicate the Plaintiff was suffering from appendicitis.

The Plaintiff took the prescribed medication on the Saturday and Sunday but his condition did not improve and his abdominal pain became more severe. This caused his father to telephone Dr. Nath on the Sunday night and he suggested that the boy be taken to the Colonial War Memorial Hospital as soon as possible because it was likely he had developed appendicitis.

Because it was late at night the father did not take the Plaintiff to the hospital until the Monday morning the 24th of February at 8 a.m. where he was seen in the General Out-patients Department by a Dr. Vinod Lal who diagnosed the Plaintiff as suffering from acute appendicitis. He referred the Plaintiff to a Surgical Registrar named Dr. Poate who examined the Plaintiff in the presence of Dr. Lal and agreed with his diagnosis of acute appendicitis. He had the Plaintiff admitted to the New Surgical Wing of the hospital.

On the same day at 2.30 p.m. another doctor or Surgical Registrar (possibly a Dr. Siti) examined the Plaintiff in some detail and also diagnosed acute appendicitis. This Doctor made detailed notes of his examination and the Plaintiff's history and on his examination sheet Exhibit D.1 page 5 drew a diagram indicating a place on what appears to be the right side of his stomach with a note "generalised abdomen pain and tense".

On the Plaintiff's right Iliac Fossa (RIP) he wrote "guarding +" indicating the Plaintiff was very sensitive there and "Rovsing sign +" which is the medical term indicating the presence of appendicitis. The doctor ruled out urinary tract infection and as I have said diagnosed acute appendicitis. He then prescribed medication for the Plaintiff included in which was an instruction that the Plaintiff was not to eat anything.

I am also satisfied that, contrary to his evidence, Dr. Li also saw the Plaintiff on the 24th of February. Page 17 of Exhibit D.1 is a nurse's note which states that the Plaintiff was admitted to the Ward at 1.30 p.m. and was seen by Dr. Li and a Dr. S. Kumar.

Dr. Li was cross-examined at length on this and kept denying that he saw the Plaintiff on the 24th of February in the face of the written record of the nurse's notes. When Dr. Etika gave evidence for the Defendant he said that he would not expect the nurses to make such notation if it had not happened. Given the fact of all Dr. Li's vigorous denials that he had erred in not operating on the Plaintiff immediately I am forced to regard his denial of seeing the Plaintiff on the 24th as an attempt to distance himself from the Plaintiff on that day so as to avoid being held responsible for not performing an appendectomy on the Plaintiff that day or at the latest the next day when in my opinion immediate surgery was required.

The Plaintiff remained on antibiotics for another two days having been seen on the 25th of February by Dr. Etika. The Plaintiff remained on an intravenous drip until the 25th of February with his condition gradually becoming worse. He was eventually operated on by Dr. Li on the 26th of February for the removal of perforated appendix. During this procedure or laparotomy I find that the Plaintiff suffered a small bowel fistula which developed into a leakage of the bowel.

28TH FEBRUARY TO 8TH MARCH 1992

FURTHER SURGERY AND TRANSFER OF PLAINTIFF TO AUCKLAND

Unfortunately the Plaintiff's condition did not improve after this operation and so as a result of drastic deterioration in his condition the Defendant's doctors and surgeons, in this case Dr. Etika and Dr. Li, performed a further laparotomy on the Plaintiff and found the small bowel fistula and leakage which I previously mentioned and which I am satisfied was caused during the first operation. Following this further surgery the Plaintiff developed right sided pneumonia and a leaking small bowel fistula in his abdomen.

The Defendant's doctors tried it first to manage this fistula by a period of bowel rest but the Plaintiff's condition continued to deteriorate.

His parents were told by Dr. Pinder, an English doctor in-charge of the Plaintiff's post-operative condition, that because of his serious loss of weight he needed to receive a nutrient called parental nutrition which was not available at the hospital, evidence being given later that the preparation was too expensive. Dr. Etika said that it has been available for over 10 to 15 years and cost not more than $200.00 per litre. Dr. Etika agreed that the preparation was needed in Fiji and had recommended to the Drug Committee that it be purchased; his recommendation was rejected.

THE PLAINTIFF'S TREATMENT IN NEW ZEALAND

Fortunately the Plaintiff's parents were able to afford to fly him to Auckland where he was admitted to the Auckland Children's Hospital on the 8th of March 1992. He remained there as an in-patient until the 26th of March during which he was managed with nasogastric feeding and fistula stomach medication. He was discharged home to a relative in Auckland to continue the stomach medication on the 26th of March.

Later on the 6th of April 1992 he was re-admitted with worsening fistula losses and excoriation of the surrounding skin and was generally unwell. He was managed as an in-patient with "nil by mouth" and an insertion of central line and total parental nutrition for six weeks. On 18th May 1992 the laparotomy resection of his small bowel fistula and primary anastomosis was performed requiring a transfusion of one unit of blood. The Plaintiff was discharged on the 27th of May 1992 and visited the hospital for review during the next two weeks after which he was certified fit to return to Fiji.

THE MEDICAL EVIDENCE CALLED BY THE PLAINTIFF

The Plaintiff called Dr. Vinod Lal and Dr. Ram Swamy Goundar. Dr. Lal's evidence was that when he examined the Plaintiff in the Out-patients Department there were no complications in his condition which would preclude the Plaintiff being operated on the 24th of February. I am satisfied that Dr. Poate also found no complications as did the doctor who examined the Plaintiff at 2.30 p.m. that day. I am satisfied that they regarded the Plaintiff as having a straight-forward acute appendicitis for which immediate surgery was indicated.

The next medical witness called for the Plaintiff was Dr. Ram Swamy Goundar who is currently practising at the Bayly Clinic in Lautoka. He graduated at the University of Madras in 1967 with the Degree of Bachelor of Medicine and Bachelor of Surgery and after one year's Internship he returned to Fiji in June 1968 and joined the Colonial War Memorial Hospital where he did a further six months Internship from July to January. He then was posted to Taveuni Hospital where he performed general out-patient duties as well as surgical duties. From April 1970 to March 1971 he was Senior Clinical Tutor in Anatomy and Histology. He then seems to have specialised in Pathology having received a Post Graduate Diploma in Clinical Pathology at the University of Otago Medical School in Dunedin, New Zealand.

After returning to Fiji at the end of 1976 he was promoted as a Consultant Pathologist at the Colonial War Memorial Hospital. In March 1978 he was transferred to Lautoka Hospital as Consultant Pathologist. In 1985 he was appointed Medical Superintendent of Lautoka Hospital. In 1988 he resigned from Government Service and set up his private general practice at Bayly Clinic Lautoka. At the time of his evidence he was doing his Post Graduate Diploma course in Aviation Medicine at the University of Otago.

While he was the Senior Medical Officer at Taveuni Hospital he performed all kinds of surgery including appendectomy, hernia repairs and others I need not mention.

He said that in his practice in Lautoka he attends to patients who have appendicitis. He expressed the opinion that the Plaintiff had not been properly managed. He said that when the Plaintiff was admitted to the hospital the examining doctor was in no doubt that the boy had acute appendicitis. As a result of the delay in operating his condition deteriorated with the result that complications of appendicitis had developed.

He was asked whether these complications could have been present when the boy presented on the 24th of February. He replied, "No, looking at the clinical notes, those complications were not present because according to the doctor who examined him he just put it as acute appendicitis and the tenderness was more localised - one particular area that is where the appendix lies usually."

Referring to Dr. Etika's examination of the Plaintiff on the 24th he said "if, (that is complications) were there if Dr. Etika had seen him at 3.30 p.m. within one hour those complications had developed is difficult to buy" (meaning accept). Dr. Goundar is here referring to the examination of the Plaintiff on the 24th at 2.30 p.m. when no complications were noted. The witness then continued "if he examined and found those things he should have gone in straight-away even if there was intestine toxicity. He continued, "He has made only acute appendicitis - two of them - the referring doctor and the examining doctor - make one diagnosis as acute appendicitis and if Dr. Etika has seen the complications (the notes do not say that Dr. Etika has made those observations), it is a normal practice to write down any thing that is found on the patient or any signs and symptoms either by the examining doctor if he is a Consultant." And later, "Dr. Etika may not write what he says but it is the duty of the Registrar or the Intern to put it down on the paper that the instructions were given by the Consultant and then list those instructions". He was then asked:

Q: So it is your opinion Doctor that no complications had developed up to that point?

Dr. Goundar: Yes.

In cross-examination he said that he did not think there was any complication when the Plaintiff first presented on the 24th because the examining Doctor simply described the Plaintiff as having acute appendicitis. It is interesting to observe here that according to the Nurse's Notes Dr. Li also saw the Plaintiff on the 24th of February at 1.30 p.m. but there is no note that complications had already set in. Also Dr. Etika said that he did not see Plaintiff until the 25th of February but made no note of any complications having already set in.

In answer to some questions from me at the end of his evidence on the 9th of July 1997 Dr. Etika said that on the 25th of February he regarded the Plaintiff's condition as being "a case of acute abdomen" and that "this happens to be a complication of appendicitis". In the Oxford Concise Medical Dictionary, 4th Edition 1994 there is a definition of acute abdomen as follows:

"An emergency surgical condition caused by damage to one or more abdominal organs following injury or disease. The patient is in severe pain and often in shock. Perforation of a peptic ulcer or a severely infected appendix, or rupture of the liver or spleen following a crushing injury, all produce an acute abdomen requiring urgent treatment."

Having considered the evidence of all the medical witnesses in my judgment the urgent treatment required of the Plaintiff here was surgery. In his very fair submissions counsel for the Defendant said that the Defendant does not deny treatment for acute appendicitis is an appendicectomy and that if I determined that the Plaintiff was suffering from acute appendicitis when he was admitted to the hospital on 24th of February then the Surgical Unit should have performed the appendicectomy immediately or within twenty-four hours based on the evidence tendered in this action. By not doing so the Defendant concedes that they would have fallen below the standard expected of competent surgeons and thus acted negligently.

In my judgment Doctors Li and Etika made an error of judgment in not operating on the Plaintiff soon after he was admitted. I consider they were too cautious in a case not calling for excessive caution. As a result in my judgment the Defendant must accept responsibility for the consequences which followed. I do not propose to go into any detail about these because they are not denied by the Defendant. I am satisfied that the Plaintiff was not managed properly in the hospital, as a result of which he was forced to experience severe pain and suffering and general sickness which the hospital could have avoided if its surgeons and to a lesser extent nursing staff had treated the Plaintiff properly.

There is no doubt that the Plaintiff suffered considerable loss of weight although not of the order at first suggested during the trial. It was conceded, as it happens wrongly by Mr. Walker, that there was no record of the Plaintiff's weight when he was admitted to the hospital. His father said that he weighed 55 kilograms but I am satisfied that this was a mistake and that he meant 55 pounds. When recording the Plaintiff's weight on the 26th of February before the first operation the anaesthetist stated it to be 27 kilograms which is approximately 55 pounds. When he was evacuated to Auckland his weight as recorded as 22 kilograms which would have been an enormous loss. In my judgment the Plaintiff lost at least 5 kilograms or some 11 pounds in the old terminology meaning an average loss of weight of 1 pound for every day he was in the hospital which must be regarded as serious. Here I refer to a letter written by Dr. Pinder on the 6th of March 1997 to the Plaintiff's doctor in Auckland. She says in part, "However we have no parental nutrition available here and as Navinesh is also becoming cachectic, Mr. Etika agrees that he will benefit from transfer to New Zealand for further management". Cachectic, the adverb of the noun cachexia, is defined in the Oxford Medical Dictionary as:

"A condition of abnormally low weight, weakness, and general bodily decline associated with chronic disease."

I dare venture the opinion here about the non-availability of parental nutrition in Fiji that when the health of the country's young people is at stake financial expense can not be restricted. It seems to me a false economy on the part of those responsible for the provision of drugs and medication at the various hospitals in the country not to purchase a preparation which costs at most according to the evidence in this case, $200.00 per litre; I leave this subject there.

One of the Plaintiff's complaints is that as a result of his not being operated on immediately for simple appendix surgery which would have involved only a small incision on his right iliac area, because of the laparotomy he underwent this required a much larger incision and he now has a large scar which causes him embarrassment. He said he does not take part in sports very much now whereas previously he was quite active in physical and sporting activities.

Whilst I accept this evidence I am not convinced that in the course of time the Plaintiff will not get over his present embarrassment. He is entitled to compensation for it and I include it in the award of general damages which I shall make.

It was also claimed that in all probability the Plaintiff was given too much gentamycin, an antibiotic drug. Dr. Goundar stated that further dosage of this drug could damage the inner ear and the child's parents said that since his hospitalisation he often completely ignores their calls to him at home. If this be the case, then in my judgment it does not constitute a serious handicap for the Plaintiff. When he gave evidence he had no difficulty in understanding the various questions he was asked and my impression is that this is only a minor problem for him.

Another matter of which he complains is that he may suffer from adhesions. Dr. Lal explained this by saying that since the Plaintiff had an infection the tissue will become fibrosed and adhere to the bowels so that if he required surgery later for an intra-abdominal condition the surgery would be difficult and prone to more complications and the risk of surgery will be greater.

I am not satisfied that there is a greater risk of this occurring and do not put it higher than a possibility.

Lastly the Plaintiff and particularly his parents expressed great dissatisfaction about the manner in which he was treated at the Colonial War Memorial Hospital. His parents complained that they found it almost impossible to get an opinion about their son's progress and present and future treatment and said that in this regard Dr. Li particularly was most uncommunicative as were most of the nurses. One instance was given of where the Plaintiff, having wetted his bed due I have no doubt to bowel incontinence and his weakness, was strongly criticised by some of the nurses. Given Dr. Etika's remarks about lack of discipline and supervision of nurses in the hospital I must accept this and say that it should never have occurred.

All patients in a hospital are dependent on the nurses and doctors who look after them and I have no doubt that for a twelve-year old boy to be berated for this must have caused him considerable distress. Such conduct has no place in any hospital I regard it as another fact in the sorry history of the Plaintiff's stay in the Colonial War Memorial Hospital.

The parents compared the refusal to inform them of their son's condition and to inform the Plaintiff himself with the way in which all medical staff involved in his treatment in New Zealand kept them fully informed. Nursing is a very noble profession but at times it can be very trying and requires much patience which I find was not shown always to the Plaintiff or his parents when it should have been.

This has led to the Plaintiff submitting that in addition to any award of general damages he is entitled to an award of aggravated damages which it is suggested should be $15,000.00 to punish the Defendant for its behaviour towards the Plaintiff.

In XL Petroleum (NSW) Pty Ltd v. Caltex Oil Australia Pty Ltd [1985] HCA 12; (1985) 155 CLR 448 at p.471 Brennan J. said:

"An award of exemplary damages is intended to punish the defendant for conduct showing a conscious and contumelious disregard for the plaintiff's rights and to deter him from committing like conduct again."

Much and all as I appreciate the concern and resentment felt by the Plaintiff towards Doctors Etika and Li and the nursing staff I am not satisfied that an award of exemplary or aggravated damages is warranted here. Although serious, in my judgment I regard the conduct particularly of Dr. Li and the nurses as constituting rather a certain indifference to the Plaintiff which is to be deplored but which in my opinion is not of sufficient moment to justify the Plaintiff receiving any additional damages under this heading.

I have also received submissions from the parties on the standard of care required in medical negligence cases and have been referred to various authorities in England and Australia on this subject including Bolam v. Friern Hospital Management Committee (1957) 2 ALL E.R. 118; Sidway v. Board of Governors of Bethlem Royal Hospital & Others [1985] UKHL 1; (1985) AC 871 and the Australian cases of F. v. R. (1983) 33 SASR 189 and Rogers v. Whitaker [1992] HCA 58; (1992) 175 CLR 479.

I find it unnecessary to decide this question because as the Defendant very properly concedes the Court's determination of the Plaintiff's condition when he was first admitted on 24th February 1992 will determine negligence in this matter.

For the reasons I have given I am satisfied that when the Plaintiff was admitted to hospital on the 24th of February 1992 he was suffering from acute appendicitis requiring immediate surgery and that the failure of the Defendant to perform such surgery constitutes negligence.

This leads me finally to the question of what damages the Plaintiff should recover. There can be no doubt that he suffered serious distress and pain as a result of the neglect of the Defendant's servants and agents. He was put through an ordeal which he should never have had to endure but his complaints, although very serious, can not in my judgment be placed on a similar plane to the injuries suffered by the Plaintiff in Tevita Tabua Waqabaca v. Attorney General of Fiji Civil Action No. 60 of 1993 in which Pathik J. awarded the sum of $85,000.00 for a young Plaintiff who was virtually left a vegetable as a result of injuries sustained by him.

In the present case I consider an award of $60,000.00 for general damages is justified. This will carry interest at a rate of 6% following the recent decision of the Court of Appeal in Civil Appeal No. ABU 0001 of 1998 The Attorney-General of Fiji v. Jainendra Prasad Singh - unreported judgment of 21st May 1999 from the date the Writ was issued on the 18th of January 1995 to the date of this judgment. This amounts to $75,825.00.

Special damages have been agreed at $21,907.20 and this will run from the date on which the Plaintiff was transferred to New Zealand on 8th March 1992 until the date of judgment at a rate of 3%, namely $26,671.50.

The Plaintiff also submits that I should award costs on a solicitor-client basis but I decline to do so. It is said that the Defendant has unnecessarily denied liability when there was no evidence to justify this.

I have given this question much thought but in the end I have decided that costs should be awarded only on a normal party and party basis. This is because although I have found Doctors Etika and Li negligent in their treatment of the Plaintiff in my view this really was a serious error of clinical judgment in that they were guilty of an excess of caution when this was not warranted. In my view it would be unfair to penalise the Defendant with an award of solicitor-client costs. The amount of special damages with interest is to be paid out to the Plaintiff's solicitors to reimburse the parents of the Plaintiff within fourteen days or such other period as the parties can agree.

The award of general damages is to be paid to the Chief Registrar of this Court for investment by him until the Plaintiff turns 21 on 16th November 2000. There is therefore a total award of $102,496.50 with the Defendant paying the Plaintiff's costs.

JOHN E. BYRNE
JUDGE

Cases referred to in Judgment:

Bolam v. Friern Hospital Management Committee (1957) 2 ALL E.R. 118.
The Attorney-General of Fiji v. Jainendra Prasad Singh Civil Appeal No. ABU0001 of 1998 - unreported judgment of Court of Appeal of 21st May 1999.
F. v. R. (1983) 33 SASR 189.
Rogers v. Whitaker [1992] HCA 58; (1992) 175 CLR 479.
Tevita Tabu Waqabaca v. Attorney-General of Fiji Civil Action No. 60 of 1993 - unreported judgment of Pathik J. of 20th March 1998.
XL Petroleum (NSW) Pty Ltd v. Caltex Oil Australia Pty Ltd [1985] HCA 12; (1985) 155 CLR 448 at 471.

The following additional cases were referred to in Submissions:

Rookes v. Barnard [1964] UKHL 1; (1964) 1 ALL E.R. 367.
Civil Action No. 0468 of 1994 Westpac Banking Corporation and Another v. Dominion Insurance Limited - unreported judgment of Fatiaki J. dated 8th October 1996.
Bolitho v. City and Hackney Health Authority [1997] UKHL 46; (1997) 4 ALL E.R. 771.

HBC0026J.95S