Ismail v Medical Superintendent [2000] FJHC 87; Hbc0310j.1998s (25 July 2000)

Fiji Islands - Ismail v The Medical Superintendent - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

CIVIL ACTION NO: HBC 310 OF 1998

BETWEEN:

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ABDUL HAFEEZ ISMAIL

Plaintiff

AND:

THE MEDICAL SUPERINTENDENT

1st Defendant

AND:

THE ATTORNEY-GENERAL OF FIJIn>

2nd Defendant

Counsel: Mr D. Sharma for Plaintiff

Ms S. Tabaiwalu for Defendants

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Hearing: 21st June 2000

Judgment: 25ly 2000

JUDGMENT

This is a claim brought against the Permanent Secretary for Health and the Attorney-General by thewer, executor and trustee of Rita Yashmin Singh, in respectspect of her death at the CWM Hospital on 11th October 1996.

The Plaintiff’s statement of claim, issued in the High Court on 10th June 1998, claims tita Yashmin died as a result of the negligence of the hospihospital staff who attended to her. Particulars of negligence are that the medical staff failed to properly diagnose her illness, failed to properly attend her between 9th October and 10th October 1996, failed to carry out exploratory or other surgery, failed to give her family proper reports on her condition and failed to exercise proper skill and care in her treatment.

The Plaintiff claims general damages for pain and suffering and loss of life, special damages, damages under the Compensation to Relatives Act, and the Law Reform (Miscellaneous Provisions) Act, interest and costs.

The Defendants, in their Statement of Defence deny negligence and say that all proper adequate and reasonable care was afforded to Rita Yashmin, whilst she was admitted in the CWM Hospital.

It was agreed by the parties, that the tri the matter should deal with liability and damages.

The trial commenced on 10th of May 2000, and after several delays caused principally by the civil and political unrest facing the country from May 19th, the Defendants finally closed their case on 21st June 2000. I commend all counsel involved in this trial for appearing and conducting their cases competently, despite the very trying circumstances faced by all concerned.

The Plaintiff called two witnesses, Dr Neil Sharma, and Mr Hafeez Ismail. The Defendant also called two witnessesPravin Kumar and Dr Joseva seva Nasaroa.

The facts as disclosed by their evidence, and by the medical notes tendered in the course of evidence, are that Rita Yashmin, a 38 year old married woman, started to complain of pains in the abdomen on 8th October 1996. She went to a private doctor, a Dr Goundar who prescribed medicine. Her condition did not improve overnight, and early on the 9th of October her husband took her to the Nausori Hospital. At that stage she was complaining of severe abdominal pains, and had diarrhoea. She was also vomiting foul smelling substances. She remained at the hospital from 8 a.m. to 10.30 a.m., and she was then transferred to the Wainibokasi Hospital. A memorandum from a Dr Pratima Singh at the Wainibokasi Hospital states that Rita Yashmin was distressed, and was vomiting frequently. She was slightly tachycardiac but was otherwise well. She was diagnosed as suffering from severe gastroenteritis and was given intravenous fluids. At 2.00 p.m. she was vomiting what appeared to be faecal matter, and she had not passed anything from her bowels for 1½ hours. Abdominal tenderness was localised over the infra-umbilical region, and she had developed guarding. Dr Singh made a diagnosis of a possible intestinal obstruction and referred her to the CWM Hospital for abdominal x-ray. She left Wainibokasi Hospital for the CWM at 2.30 p.m.

Rita Yashmin was admitted to the Accident and Emergency Ward by tdical Registrar. However she was not transferred to the Acute Medical Ward because of a shoa shortage of beds. A diagnosis at 5.35 p.m. by the medical registrar was that Rita Yashmin was suffering from possible “acute abdomen.” Blood, stool and vomit specimens were taken for testing. The results show that the patient (on 9th October) had fairly normal white cell count, haemoglobin levels, and that there was no growth or parasite in the stool and blood cultures.

By 2.45 p.m., Rita Yashmin was very ill with an unrecordable blood pressure. She was, at this stage, given pethidine, phernaged Vitamin K. An x-ray had bhad been conducted at the time of admission and another at 12 midday on 9th October. Although the requests for x-ray had been made by different doctors at different times, the radiologist’s reports are identical, and appear to have been written on carbon paper. The inference is that the report requested on 9th October 1996 by Dr Singh of Wainibokasi Hospital was not supplied by the radiologist until after the second x-ray was taken on 10th October. We do not know whether the x-ray findings were in fact identical on the two days, or whether the radiologist simply forgot to record the first findings. The x-rays themselves were not tendered.

The findings read: “Heart is not enlarged. No ABD. Diluted loops of small bowel with bowel wall thickening seen on current film, muscosascosal edema. Multiple air fluid levels seen on erect view, suggesting distal bowel obstruction.”

ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> It is not clear whether this report was read, relied upon or used in the treatment of Rita Yashmin. It is clear from the nurses’ notes that her condition continued to deteriorate. Several attempts were made to contact the Consultant Surgeon. She was on “nil by mouth” while she was at the hospital. By 12.00 noon on 10th October, the medical registrar recorded a need for an urgent surgical referral.

The Consultant Surgeon, did not see Rita Yashmin until 4.10 p.m. The very sparse nof his visit are recorded by another doctor. He made no reco recommendation for surgery, exploratory or otherwise. He simply said that the treatment given thus far, of pain killers, intravenous fluids, and antibiotics with Vitamin K, should continue, and that the patient should be sedated. The Consultant Surgeon made no diagnosis of her condition.

At 4.45 p.m., she was transferred to the Intensive Care Unit. At that time the doctor’s notes record a diagnosis oistal bowel obstruction.

By 6.15 p.m., Rita Yashmin was critically ill. Dr o who treated her, tried to contact the consultant surgeon, Dr Etika again. He was not avai available. At 4.50 p.m. the doctor’s notes suggest that the cause of the patient’s condition was gastroenteritis. There was no reference to the x-ray report. The medication given to her was morphine, midazolan, digoxin, and sodium bicarbonate. It is not in dispute, that the medication prescribed was intended to sedate, contain pain, re-hydrate and supplement with vitamins.

At 1.50 a.m. on 11th October 1996, she was certified dead at the Intensive Care Unit.

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A Post-Mortem was conducted on the same day by Dr Raghwa Sharma. The report, dated 6th December 1996 states that the gintestinal tract showed thad that there was erosive gastritis and prepylorus, and hemorrhagic infarction of the whole of the small intestine commencing from jejunum up to the ileocaecal junction. The cause of death is recorded as being:

“1. Hemorrhagic infarction, small bowel;

> 2. Erosive gastritis, stomach, prepylorus;

3. Pulmonary congestion.”

The post-mortem report does not tell us what caused the hemorrhagicrction of the small bowel.

It is for the Plaintiff to prove on a balance ofabilities, that the way in which medical care given to Rita Yashmin was negligent, and fail failed to conform to the standards expected of reasonably skilled medical personnel. The Plaintiff must also prove that the Defendants’ negligence caused the death of Rita Yashmin.

There is no dispute that the medical staff at the CWM Hospital Rita Yashmin a duty of care. However the Defendants dispute that the acts of the medical stal staff at the hospital fell below the required standard of care in accordance with a practice accepted as proper by a responsible body of medical personnel skilled in that field (Bolam -v- Friern Hospital Management Committee (1957) 1 WLR 582.

The medical staff at the CWM Hospital are judged by the standards of the ordinary, competent practitioner in the ant field of medicine. The The court may take into account the unique circumstances in which the doctors worked, such as the limited resources and facilities of the CWM Hospital. However a specialist is expected to exercise the standard of care of a reasonably competent specialist, and a registrar the standard of care of a reasonably competent registrar.

Diagnosis and Treatment

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The evidence of the Plaintiff’s expert witness, Dr Neil Sharma, was that a study of the medical notes in the case showed that the patient was suffering from an intestinal obstruction, which because it was not resolved, caused infarction. The symptoms of small bowel obstruction are vomiting, abdominal distension and pain. The vomiting would eventually include faecal material and if left untreated, infarction would lead to septicaemia and death. The treatment recommended would be a firm diagnosis and aspiration of gastric contents, the use of intravenous fluids, antibiotics and surgery. He said that observation of the patient over 4-6 hours, x-ray and surgery were mandatory in the treatment of bowel obstructions.

ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> He said that Rita Yashmin was admitted to the CWM with the initial diagnosis of bowel obstruction. She was not seen by a surgeon for 18½ hours after admission. She was given medication for pain, dehydration and discomfort. The cause of her illness was never treated. Medication was not given until 10 a.m. on the morning after her admission.

Dr Sharma said that the x-ray confirmed the working diagnosis of distal bowel obstruction. This diagnosis was confirmed by Dr Nasaroa’s attempts to get a surgical opinion, and by the fact that there were attempts to admit Rita into the surgical ward.

He said that the notes made of Dr Etika’s examination did not explain why a conservative non-surgiourse of action was followed, when the patient’s position wion was clearly deteriorating. Dr Sharma said that the patient should have received more fluids intravenously, an intra-gastric tube should have been inserted immediately on receipt of the x-ray report, she should have been placed on antibiotics on receipt of the report and surgery should have been conducted within 6 hours of the report confirming the diagnosis.

He said that the hospital had a duty to treat Rita Yashmin for a surgical problem, a duty to ensure that she was properly and adequately monitored, that there was review of the working diagnosis, that she was given enough fluids, that she was reviewed by a surgeon, and that she received surgery for the bowel obstruction. He said that with proper treatment Rita would in all likelihood, have survived.

In cross-examination Dr Sharma agreed that his experience in surgery was limited to the gynaecologicald, and that his area of specialisation is gynaecology and and obstetrics. However he has 24 years of experience as a general practitioner.

The two doctors called by the Defendants were Dr Pravin Kumar, Const Surgeon at the CWM Hospital and Dr Nasaroa. Of the two, Dr Kumar never saw the patient, ant, and like Dr Sharma, gave evidence on the basis of the medical notes. Dr Kumar is a Fellow of the Royal Association of Clinical Surgeons and is specialised in gastro and breast surgery.

He gave his opinion that the cause of the bowel obstructn the case of Rita Yashmin was a blood clot in the artery feeding the small intestine. He s He said that this was an extremely rare condition and could not be properly diagnosed with Fiji’s limited hospital facilities. He said he came to this conclusion after reading the Post-Mortem Report which states that the whole of the small bowel was infarcted.

p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> He said that the working diagnosis at the hospital was gastro-enteritis which is inoperable, and which was conf by profuse and bloody diar diarrhoea. He agreed that a bowel obstruction was a common problem. However in the case of Rita Yashmin, he said surgery was not indicated because an operation would have exposed her to death during surgery. He said with the best of treatment Rita Yashmin would have died anyway. He gave his opinion that the patient was properly monitored and reviewed. He agreed that the failure to get an early surgical opinion was reprehensible, as was the identical radiologist’s reports over the space of two days.

Under cross-examination Dr Kumar said that the initial diagnof bowel obstruction was made by a doctor of no surgical experience, and that gastroenteritteritis was a more realistic diagnosis given the patient’s condition. He agreed that Rita Yashmin had been given inadequate care according to the charts, and that she was being inadequately monitored. He said that the mere fact that she was admitted to a “holding ward” did not suggest inadequate care, although the care given could have been more “profound.” He agreed that the documentation of the surgical referral was poor, that it contained no diagnosis and no strategy. He said however, that since her condition was caused by a blood clot in the artery, Rita Yashmin would have died anyway.

In response to questions by the court, Dr Kumar agreed that the infarction could also have been caused by a twist in the small intestine, by a scar from a previous operation or by an “ordinary” bowel obstruction. He agreed that failure to operate in these cases would cause infarction, and that although a blood clot was a possible cause for the infarction of the whole of the small bowel, a twist in the intestine or, cancer of the bowel would also have the same result.

Dr Nasaroa holds a Diploma in Surgery and Medicine from the Fiji School of Medicine and is currently Consultant Physician at the CWM Hospital. He said that he was one of the doctors taking care of Rita Yashmin, and that he considered her condition to be that of an acute abdomen which was a surgical problem. He agreed that no tests were conducted to eliminate acute abdomen as a condition. He agreed that if he had been her sole doctor he would have conducted half hourly tests to monitor her condition. He said that he thought that surgery might be necessary but that it was difficult to get a surgical opinion. He said he did not see the x-ray reports until the 11th of October but maintained that Rita Yashmin got the best treatment available.

Having heard the evidence of three doctors and having perused the medical and nursing notes in this case, I am satisfied thainitial diagnosis of small mall bowel obstruction was made at the Wainibokasi Hospital when Rita Yashmin was referred to the CWM Hospital. I am satisfied that despite this initial diagnosis, nothing was done by the medical staff at the CWM Hospital to rule out a bowel obstruction as a cause of the illness. I am satisfied that Rita Yashmin was given inadequate monitoring and review while she lay in the Accident and Emergency Ward, and that no weight was put on an x-ray which confirmed the initial diagnosis, and which indicated the need for surgery. I am satisfied that the surgical registrars and the consultant surgeon failed to properly and promptly review Rita Yashmin’s condition, and failed to recommend and conduct surgery before her condition deteriorated further.

I am satisfied that despite Dr Kumar’s assertion that the cause of the uction was a blood clot which was inoperable, the bowel obstruction was a relatively commonommon condition for which surgery is clearly indicated. I am satisfied that Dr Kumar’s assertion is based on speculation, and that the infarction of the bowel could equally have been caused by other operable forms of obstruction.

p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> I am satisfied that as a result of inadequate monitoring, inadequate care, inability to properly diagnose, haphazard and careless documentation, delay in proper treatment, observation and diagnosis, and failure to conduct surgery to clear the bowel obstruction, Rita Yashmin died. I am satisfied that with proper and prompt care, and with surgery conducted before her condition deteriorated, Rita Yashmin would have been alive today.

For these reasons I find the Defendants liabl the death of Rita Yashmin in that they failed to provide a proper standard of care to her. her. I find that the care she should have received, was achievable despite the limited medical facilities at the CWM Hospital. Lack of expensive equipment, and a low nurse/patient ratio do not explain a failure to adequately monitor, diagnose or read x-ray reports. They do not explain the failure to get an immediate surgical opinion.

The Defendants are liable accordingly, for the negligence of their employees at the CWM Hospital.

Damages

The Plaintiff gave evidence that before her death, at the age of 38, Rita Ya ran her own business selling pop corn, candy floss and swed sweets at carnivals and festivals in Fiji. Her average income at each festival was $4000.00. At the Hibiscus Festival in 1996, she made a total of $11,000, out of which she banked $4000.00. She also worked in the house and took care of her three children. After her death, her husband had to employ a housegirl for a year and a half, and then his mother-in-law. They were paid $35.00 per week. The Plaintiff himself is a cabinet maker who earns $250 per week. He had to sell the candy floss machine and the pop corn machine to help the family survive.

In 1999 he and his children went to the United States. He said that they have lost Rita Yashmin’s income of000 per year.

He claims under the Compensation to Relatives Act Cap. 29, th Reform (Miscellaneous Provisions) Act Cap. 201. He also claims general damages for pain anin and suffering and loss of life, special damages and interest.

Compensation to Relatives Act

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Section 5 of the Compensation to Relatives Act Cap. 29 provides that on an action broughthe executor or administrator of the deceased person, “the “the court may give to the parties respectively for whom and for whose benefit the action was brought such damages as are considered proportionate to the injury resulting from the death.”

Section 11 of the Act provides that damages may be awarded for funeral expenses.

I have heard the evidence of the Plaintiff and accept that his wife was in good health b her illness. His evidence was that his wife’s earnings wers were about $20,000 per annum, and that her weekly earnings were about $384.00. His claim however is for $200.00 per week or $10,400.00 per annum. Rita Yashmin’s savings bank account shows deposits in 1996 of $7996. In 1995, her total deposits were $6500.00. In 1994 the only substantial amount banked was $1200. No other documentary evidence was produced of her earnings.

I am prepared to accept, in the absence of any other evidence that her annual net income, after the payment of expenses was an average of her 1995 and 1996 deposits. This amounts to $7248.00 per annum, which is now lost to the Plaintiff and his children. I accept his evidence that her earnings were used to pay for household expenses. As cabinet maker he earned $250 per week. I accept that the Plaintiff was dependent on his wife’s earnings to the extent of $7248.00 per annum. It is not suggested by the Defendants that any proportion of her income was spent on personal requirements.

No evidence was led as to whether her earnings would have been different in the pre-trial period as opposed to the post trial period. Given her good health, I consider a multiplier of 13 to be appropriate. The total sum awarded for loss of future earnings is therefore $94,224.00.

Law Reform (Miscellaneous Provisions) Death and Interest Act

In his evidence the Plaintiff said he spent $1500 on funeral expenses. He is entitled to funeraenses under the Act.

In Helen Nina Work -v- Ratu Isei Turagakula

The Plaintiff claims for pain and suffering. In this case, there is no doubt that Rita Yashmin suffered a great deal of pain and suffering. Had surgery been conducted on the 10th of October, she would have been spared a day of physical and mental anguish. I also accept that the way in which she was treated by the CWM staff was unprofessional, and casual. I accept that there was a conspicuous lack of honesty about her condition, in that false assurances were made to her about her prognosis.

In the circumstances given the extreme pain she suffered, and the circumstances of her untreated illness, I award $25,000 for pad suffering.

In Parvati -v- Attorney-General & Ministry of Health/b> Civil Action No. HBC0063/94, Scott J awarded $3000 for loss of consortium in respect ofct of the death of a man who lived for 8 years after an injury which eventually caused his death. The Plaintiff has not married again. Having heard his evidence on the nature of his relationship with his deceased wife, and having witnessed his grief in the witness box, the chances of re-marriage appear to be remote. I consider the claim of $10,000 to be excessive for loss of consortium. I award $5000 under this head.

The Plaintiff claims for loss of expectation of life. In Fiji, sums awarded undes head are very moderate. In Paras Ram v. Ivamere Hote Hotchin and Others CA 0006/91 Pathik J awarded $1250 to be deducted from the claim under the Compensation to Relatives Act. Taking into account the lapse of time since that decision, and taking into account the decision of the Fiji Court of Appeal in Hari Pratap v. A-G and Om Prakash FCA 14/92 I consider an award of $2500 to be proper.

Interest and Costs

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I consider the claim for $990 paid to Dr Sharma to give evidence, a fair one, and I award cordingly.

As to interest I consider 5% from the date of the filing of the to be the acceptable rate.

In summary the award is as follows:

1.

2. &nbssp;&nnbsp;&nsp; &nsp; Law Reforscellaneous ProviProvisions)

(Death & Interest) Act:

Funeral Expenses &nnbsp;  p;&spp; &nnsp;&&nsp;; &nsp; &nbp; ;&nbpp; &&nsp;; &nbp; &nbp; ;p;&ssbsp;0.00

p =MsoN stylxt-indenindent: 1.1pt;.1pt; marg margin-lein-left: 70.9pt; margin-top: 1; margin-bottom: 1"> Pain and Suffering &nnbsp;; & &nbbp; nbsp;nbsp;&nbsp ;&nbssp; &nsp; &nbs; &nbbsp;&&;bsppspnbb.00

ass=Mmal style="text-indenindent: 1.t: 1.1pt; 1pt; margimargin-lefn-left: 70t: 70.9pt;.9pt; marg margin-top: 1; margin-bottom: 1"> Loss of consortium &nbssp;&nnbsp; &bsp; &nbbp;&nnbp;& &nbbsp; &nbp;&nbs;&nbs;  p;&nbbsp;&nsp; p;&spp; &nbssp;&n5,000.0000.00

Loss of expectation of life  p; &nsp; &nbbsp; &nbbsp; &nbp; &nbp; 2,500.00 ass=Msos=MsoNormal style="text-indent: 1.1pt; margin-left: 70.9pt; margin-top: 1; margin-bottom: 1">n lanGB>&n/span>

Medical evidence ; &nnsp;&&nsp;;&nbp; &nbp; &nnbp;& &nnbsp; &nbp; &nbp; &nnbsp;;p;bssbsp;; 990span>span>

_________

ass=Mmal style="tle="text-iext-indentndent: 1.1pt; margin-left: 70.9pt; margin-top: 1; margin-bottom: 1">

$128,714.00

+ Interest at 5% per annum from the

date of the filing of writ, for

2 years &nbbsp;& &nsp; &nsp; &nnbp;& &nnbsp; &nbp; &nbp; &nnbp;& &nnbsp; &nbp; &nbp; &n;;bspssp; ;&nbnnbsp; 25,7425,742.80

_________

TOTAL ; & bsp; $sp;,456480

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Costs are to be taxed if not agreed.

Nazhat Shameem

b>JUDGE

At Suva

25th July 2000

Hbc0310j.98s