Singh v Attorney General of Fiji [2008] FJHC 393; HBC0221.1998 (13 November 2008)

IN THE HIGH COURT OF FIJI ISLANDS
AT SUVA
CIVIL JURISDICTION

Action No. HBC0221 of 1998

BETWEEN:

SUNITA SINGH
(Administratrix in the Estate of VIJAY SINGH)
(Plaintiff)

AND:

THE ATTORNEY-GENERAL OF FIJI
(1^st Defendant)

BLUE SHIELD (PACIFIC) INSURANCE LIMITED
(2^nd Defendant)

Coram: Hickie, J

Dates of Hearing: 31 July and 1 August 2008
Dates of Submissions: 18 August 2008 (Plaintiff)
29 August 2008 (2^nd Defendant)
No Submissions filed by 1^st Defendant
Liberty to Plaintiff to file Reply not exercised

Counsel: Mr R P Singh for the Plaintiff
Mr N Karan for the 1^st Defendant
Mr C B Young for the 2^nd Defendant

Date of Decision: 13 November 2008

JUDGMENT

A. BACKGROUND

1. A serious diagnosis and when it required certification for overseas treatment

[1] This is a matter where the original Plaintiff, VIJAY SINGH, issued a Writ of Summons and Statement of Claim for an action under the common law against the Attorney-General ("the First Defendant") on behalf of the public health service for the negligence of DR GYANESHWAR RAO, a physician in its employ. The alleged negligence is that after the Plaintiff had been diagnosed as suffering from Hodgkin's disease in March 1995, DR RAO "failed to certify that the Plaintiff could not be treated in a Hospital in Fiji and that he should be evacuated to designated hospital overseas" (as required under the policy of the Plaintiff's medical insurance with BLUE SHIELD INSURANCE COMPANY ("the Second Defendant").

[2] Soon after DR RAO commenced treatment on the Plaintiff in late March 1995, the Plaintiff and his family made their own private arrangements for the Plaintiff to be treated, at their expense, at Liverpool Hospital in Sydney, Australia, under the care of a DR JOHN GALLO, a Clinical Haematologist, and residing nearby with the support of his family and, in particular, his sister, SUNITA SINGH. This took place from mid-1995. Thereafter, the Plaintiff remained in Australia for some 70 weeks receiving treatment until late September 1996.

[3] DR RAO provided a letter on 4 April 1995 together with a pathology slide as requested by the Plaintiff's sister, BRENDA SINGH, a week earlier.

[4] On 30 August 1995, DR RAO wrote a letter in support of the treatment which VIJAY SINGH was receiving in Australia.

[5] On 23 November 1995, DR RAO wrote a letter to CHANTELLE HARMAN, an insurance broker, in support of the treatment which VIJAY SINGH was receiving in Australia.

2. An insurance claim for overseas treatment and associated expenses

[6] On 1 December 1995, CHANTELLE HARMAN wrote to the Housing Authority (the Plaintiff's employer) that although Liverpool Hospital was "not one of their preferred overseas providers", the Second Defendant "will have no objections to his treatment ... but he will have to pay for all his own expenses ... and they will reimburse him upon his return to Fiji ... strictly in accordance with the policy limits, and will be paid out at the rate which would have been payable to their preferred provider".

[7] Upon the Plaintiff's return to Fiji in late September 1996, he attempted to make a claim upon his medical insurance. The insurance company offered to make a contributory payment of $10,000 towards the medical expenses incurred in Australia upon the condition that the Plaintiff sign a deed of release protecting them against any further claim. According to the Plaintiff's sister, SUNITA SINGH, the Plaintiff refused to sign any such deed.

[8] Documents produced at the subsequent hearing of the Plaintiff's claim, reveal that the medical insurance company paid in October 1996 AU$8,312.45 (approximately one third of the Plaintiff's medical bill from Australia) for what they saw as "settlement of the insurers' portion of Mr Vijay Singh's treatment costs". This left a balance of AU$16,847.55 outstanding.

[9] The Plaintiff also claimed from the insurers a refund of AU$32,000.00 for expenses associated with the 70 weeks he resided in Australia. The insurance company has never offered to make any contribution to such reimbursement and indeed "denies that the deceased was entitled to be indemnified".

[10] Upon residing in Fiji again from late September 1996, the Plaintiff remained well for a period but then succumbed to the disease and, unfortunately, died on 22 October 1998.

3. The Statement of Claim

[11] Prior to his death, the plaintiff issued a Statement of Claim on 24 April 1998 seeking:

"(i). Judgement [sic] in the sum of $32,000.00 and $16,985.55 Australian Dollars;

(ii) General damages;

(iii) Costs of this action."

[12] Just under a year following the Plaintiff's death, an Order was made on 27 September 1999, that the Plaintiff's mother, SANTA KUMARI SINGH, as the Administratix of his Estate, be substituted as the Plaintiff in this action.

[13] After the Plaintiff's mother passed away on 17 February 2006, a further Order was made on 14 August 2006, that the Plaintiff's sister, SUNITA SINGH, as the Administratix of his Estate, be substituted as the Plaintiff in this action.

[14] In his written closing submissions dated 15 August 2008 and filed on 18 August 2008, Counsel for the Plaintiff has advised that the Plaintiff now claims:

(a) General Damages against the First Defendant - "based on the pain and suffering suffered by Vijay and his family based on Dr Rao's negligence, incompetence and refusal to give a letter to Blue Shield Insurance Company for the release of funds for overseas treatment";

(b) Exemplary Damages against the First Defendant - for the refusal of DR RAO as the employee of the First Defendant to not provide overseas referral "where it was obvious at a very early stage that Vijay Singh needed overseas referral". Further, it is claimed:

"This was held back by Dr. Rao who was not adequately qualified, did not have the right resources, and who in effect appeared to have failed to adhere to his Hippocratic Oath: he chose to err on the side of process-based caution rather than on the side of life."

(c) General Damages against the Second Defendant -

(i) Foregone earnings - $493,540.00;

(ii) Distress to mother - for the loss of her son as the breadwinner, use of her life savings to send her son overseas for treatment and the personal distress she suffered until she passed away on 17 February 2006;

(d) Special Damages against the Second Defendant - "in accordance with the breakdown of expenses prepared by Vijay Singh on 8/6/98" of $32,000.00 and tendered at trial;

(e) Exemplary Damages against the Second Defendant - for its "reluctance to fulfil its obligations in accordance with the insurance policies held by the Plaintiff" whereby it "used the process and the reluctance of Dr. Rao" to avoid such obligations. Further, "it also tried to coerce the Plaintiff and Sunita Singh, at a point when they appeared to be particularly vulnerable, into signing an undertaking that would have prevented instigation" of legal proceedings.

[15] The problem with the above "new" claim is that much of it was not pleaded nor was leave sought to amend the Plaintiff's Statement of Claim during or before the close of the Plaintiff's case. In addition, much of what was in the Plaintiff's written closing submissions was never brought out in evidence at the hearing. These are matters part of which Counsel for the Second Defendant has addressed in his written closing submissions and to which I will return later in the judgment.

B. THE DOCUMENTARY EVIDENCE

1. The diagnosis

[16] The original Plaintiff, VIJAY SINGH, was admitted to the Colonial War Memorial Hospital ("CWM") at Suva, on 28 September 1994 under the care of DR GYANESHWAR RAO.

[17] A lymph node biopsy was done on 7 October 1994. VIJAY SINGH was discharged on 11 October 1994. The surgical pathology revealed that VIJAY SINGH was suffering from "acute lymphadenitis".

[18] A second biopsy was done on 7 March 1995. The surgical pathology revealed that VIJAY SINGH was suffering from "Hodgkin's lymphoma" or "Hodgkin's disease".

[19] DR RAO continued to be the treating physician and discussed a plan of future treatment with VIJAY SINGH and his sister, BRENDA SINGH. The question of whether the patient should be treated overseas was raised by BRENDA SINGH with DR RAO. In the meantime, the first cycle of treatment began on 27 March 1995.

2. Overseas treatment

[20] The following day after treatment began, BRENDA SINGH handed a letter to DR RAO which stated as follows:

"I wish to make a request to you to take Vijay Singh overseas for medical treatment as a private patient. At the moment Vijay Singh is a private patient in the Paying Ward.

I would be most grateful if I could be given a copy of the Pathology Report, a letter from the doctor treating him and if possible the stage at which he is in i.e. whether primary or secondary."

(Exh "1". Doc "16" pg 57 - "Copy of Letter dated 28/3/95 from Brenda Singh to Medical Superintendent - CWM Hospital") (My emphasis)

[21] After receiving the above letter from BRENDA SING H on 28 March 1995, DR RAO provided a week later a pathology slide together with a written letter which reads as follows (as can best be deciphered from the poor photocopy of the original letter):

"The old records of the above-named patient has been displaced recently.

He was first admitted on September 1994 for fever, weight loss and puritus for two months. There was no significant history in the past

On examination, he had multiple lymphadenopathics on the cervical, axillary, inguinal areas and he had hepatosplenomagaly. Lymphoma was suspected clinically. A biopsy of the right cervical node was done on his first admission which showed sinus hyperplasia.

Patient continuously had the same symptoms thus a biopsy of the left axillary node was done on February 1995 which showed Hodgkin's disease, nodular sclerosing type.

He had his first cycle (Day 1 and Day 8) of CMOPP (cyclophosphamide, vincristine, procarbazine and prednisone). He was given the following doses...

His latest laboratory investigations are ...

Although the patient had chemotherapy started on him, but he is eager to go overseas for further treatment.

DR. GYANESHWAR Consultant Physician

DR ALAN GAVEZ Medical Registrar

(Exh "1". Doc "17" pg 58 - "Copy of Medical report dated 4/4/95 from Dr. G. Rao")

[22] VIJAY SINGH went to Australia sometime in mid-1995 (it was unclear as to the exact date) when he was treated by DR JOHN GALLO, a Clinical Haematologist, in the Haematology Department at Liverpool Hospital, in Sydney, Australia.

[23] DR GALLO wrote to DR RAO on 21 August 1995 as follows:

"Thank you for your letter and slides regarding Mr. Singh, who arrived here last month for continuing treatment of his Hodgkin's disease. He had shown a partial response to four courses of C-MOPP and CT and gallium scans showed persistent disease on both sides of the diaphragm. He also had bone marrow involvement, confirming stage IVB disease. CT scan also showed obstruction of the left ureter by a stone.

We have treated him with ABVD (Adriamycin, Bleomycin, Vinblastine, dacarbazine) and today he is feeling much improved, with objective signs of response. He has also had a stent placed in the left ureter and his left loin pain is relieved.

Thank you again for providing the information with Mr. Singh, and I shall let you know how he progresses."

(Exh "1". Doc "18" pg 59 - "Copy of Letter dated 21/8/95 from Dr. G John Gallo, Haematology Dept Liverpool Hospital to D.G. Rao - CWMH")

[24] Whilst receiving treatment from DR GALLO at Liverpool Hospital, VIJAY SINGH resided with his sister, SUNITA SINGH, in a rented flat at 22 Gallipoli Street, Bankstown. They ended up having to stay in Australia until the end of September 1996. At that time, DR GALLO was of the view that VIJAY SINGH was now in remission and wrote to DR RAO at the CWM Hospital on 24 September 1996 to that effect as follows:

"Vijay came to see me last week and was well prior to flying home this week. There were no clinical signs of lymphoma and, as you can see, his blood count was satisfactory. His platelet count had reached 90x10ˆ9/L following his autograft in June but this was down after a respiratory infection last month.

As you know, Vijay has had a tough battle to achieve remission his long term prognosis must be guarded. However, it is good to see him able to get home and, with your permission, I would like to review him in six months time."

(Exh "1". Doc "24" pg 65 - "Copy of Letter dated 24/9/96 from Dr. John Gallo to Dr G Rao, CWMH") (My emphasis)

[25] The letter was written after VIJAY SINGH had received a bone marrow transplant in Australia. Upon his return to Fiji, VIJAY SINGH never again saw DR RAO for any review. In addition, he never attended a "review" with DR GALLO in Australia.

[26] During his stay in Australia, VIJAY SINGH was also treated for kidney stones by a DR PHILLIP BRENNER at St Vincent's Clinic in Darlinghurst, Sydney, who was of the view that suitable treatment was not available at that time in Fiji as he explained in a letter dated 8 August 1995 as follows:

"TO WHOM IT MAY CONCERN

I was consulted regarding Mr Vijay Singh who is currently undergoing chemotherapy for Hodgkin's disease.

He has a large left ureteric stone measuring 3 and a half cm x 1 cm adjacent to L3 and multiple small stones in the lower ple of the left kidney. These would be suitable for treatment with lithotripsy which is unavailable in Fiji as well as ureteroscopy and laser disintegration of stone.

He is requesting coverage for lithotripsy, which may require 3-4 treatments, in Australia while he is here for his chemotherapy."

(Exh "1". Doc "4" pg 27 - "Copy of Medial report dated 8/8/95 from Dr. Phillip Brenner")

[27] Whilst in Australia, letters were written on 4 August 1995 by DR GALLO to the Department of Immigration asking for a extension of VIJAY SINGH'S visa to enable him to continue his treatment in Australia, as well as a letter confirming that the treatment VIJAY SINGH was receiving in Australia for Hodgkin's disease was not available at that time in Fiji as follows:

"TO WHOM IT MAY CONCERN

Re: Mr Vijay SINGH d.o.b. 23.5.57

Mr Singh has transferred to my care for treatment of Hodgkin's disease.

His disease is resistant to the treatment he was receiving in Fiji, and he has travelled here to receive different chemotherapy, which is not available to him in Fiji.

The drugs he is receiving are adriamycin, bleomycin, vinblastine, dacarbazine. He has also had a CT scan, gallium scan and lung diffusion capacity study."

(Exh "1". Doc "3" pg 25 - "Copy of Medical report dated 4/8/96 from Dr. John Gallo")

[28] The issue as to the treatment which VIJAY SINGH was receiving in Australia, the unavailability of such treatment in Fiji and whether his medical insurer would cover the cost of such treatment continued to be unresolved. DR RAO wrote a letter on 30 August 1995 in support of the treatment which VIJAY SINGH was receiving in Australia as follows:

"TO WHOM IT MAY CONCERN

Re: VIJAY SINGH f/n DEVI SINGH

MALE, 37 YEARS OF TUBOU STREET

SAMABULA NORTH, SUVA

This patient suffers from Hodgkin's Disease that was diagnosed in February 1995. The condition is a cancerous condition. He was given anti cancer treatment from March 1995 to June 1995. Because he was not responding satisfactorily to treatment, the relatives decided to take him overseas for further evaluation. He went to Australia and the diagnosis based on the histology slide that we sent with the patient remained unchanged. He is currently being treated at Liverpool Hospital. A copy of the letter from Dr John Gallo is attached.

The treatment the patient is receiving at Liverpool is extensive therapy that cannot be offered here. It is expected that he would need to stay in Australia for the next six months.

(DR G. RAO)

CONSULTANT PHYSICIAN

C.W.M. HOSPITAL"

(Exh "1". Doc "5" pg 28 - "Copy of Medical report dated 30/8/95 from CWM Hospital" - Dr G Rao) (My emphasis)

3. An insurance claim and a debt

[29] On 14 November 1995, CHANTELLE HARMAN, a broker with Sedgwick (Fiji) Limited, wrote to DR RAO as follows:

"Our client, Housing Authority, has a Medical Insurance Staff Scheme placed with Blue Shield (Pacific) Insurance Limited - Fiji of which Mr Singh is a member.

You would be aware that a Mr Vijay Singh was treated at the C.W.M. Hospital from March 1995 to June 1995 for Hodgkin's Disease. He was then taken to Australia for extensive therapy which cannot be offered here.

As a result, Mr Singh is seeking compensation for his medical expenses incurred overseas at Liverpool.

It is now the Insurers;[sic] Blue Shield, requirement that his medical history and a medical diagnosis report (prior to his leaving the country) stating that Mr Singh underwent anti-cancer treatment and your professional opinion whether it was necessary from Mr Singh to be treated at Liverpool.

We would therefore appreciate that you provide us the said details in our capacity as insurance brokers for Housing Authority and Mr Singh so that we may pursue the insurance claim further with Blue Shield (Pacific) Insurance Limited and have the matter settled.

Thanking you in anticipation.

Yours sincerely

Chantelle Harman

BROKER"

(Exh "1". Doc "19" pg 60 - "Copy of Letter dated 14/11/95 from Dedgwick [sic] to Consultant Physician - CWMH" - Dr G Rao) (My emphasis)

[30] The relationship of Sedgwick to the present matter was never explained in the Statement of Claim or by the Plaintiff's Counsel in his opening address or in any oral evidence led at the hearing. In his written closing submissions, Counsel has referred to Sedgwick (Fiji) Limited as the Second Defendant's "agents". What responsibility and/or authority they had in relation to the present matter was never clarified in evidence other than what can be gleaned from the above letter wherein CHANTELLE HARMAN claimed that they were "insurance brokers for Housing Authority and Mr Singh".

[31] In any event, on 23 November 1995, DR RAO wrote a reply to CHANTELLE HARMAN of Sedgwick (Fiji) Limited in support of the treatment which VIJAY SINGH was receiving in Australia as follows:

"RE: MR VIJAY SINGH F/N DEVI SINGH

This patient was diagnosed Hodgkins Disease in March 1995. He was started on first cycle of chemotherapy on 27/3/95. The subsequent cycles were repeated at 29 days intervals. Altogether he received four cycles of chemotherapy here. At the end of four cycles he had shown some improvement. His enlarged lymph nodes in the axilla were not palpable but he still had enlarged liver and spleen. He was due for his fifth cycle on 20/7/95. Altogether a total of six cycles of chemotherapy was considered.

However, on 11/7/95 he informed me that he was leaving for Australia for further treatment.

At this stage I could not have been sure about the ultimate result at the end of six cycles of chemotherapy.

I received a letter from Dr. John Gallo, Clinical Haematologist, Liverpool Hospital, New South Wales, dated 21/7/95. He felt that the patient had responded only partially to the treatment given in Fiji ... Further the investigations done there ... showed persistent disease ... was widespread.

Because of the extensive nature of the illness, the chemotherapy regimen was changed ... this regimen consisted of drugs that would not be available in Fiji. A copy of Dr. Gallo's letter is attached.

In summary this patient suffered from Hodgkins Disease that was widespread. He only had a partial response to treatment given in Fiji. In my opinion he probably needed more extensive chemotherapy regimen as given at Liverpool Hospital."

(Exh "1". Doc "20" pg 61 - "Copy of Letter dated 23/11/95 from Dr. G Rao to Mr Chantelle Harman - Sedgwick (Fiji) Ltd) (My emphasis)

[32] On 1 December 1995 (a date not on the document but agreed between the Parties in the "Agreed Bundle of Documents"), CHANTELLE HARMAN wrote to NUSHRAT ALI at the Housing Authority in Nasinu as follows:

"RE: STAFF OF HOUSING. VIJAY SINGH - EVACUATION CLAIM

Please note that we have received some enlightening news in regards to the above claim.

Blue Shield has advised that since Liverpool Hospital is not one of their preferred overseas providers, they will have no objections to his treatment there if he prefers it, but he will have to pay for all his own expenses (including airfare) and they will reimburse him upon his return to Fiji.

This reimbursement however, will be strictly in accordance with the policy limits, and will be paid out at the rate which would have been payable to their preferred provider.

We now await your response."

(Exh "1". Doc "2" pg 23 - "Copy of Letter dated 1/12/95 from Mr. Chantelle Harman to Housing Authority) (My emphasis)

[33] There was no letter provided in the "Agreed Bundle of Documents" (or led in evidence by Counsel for the Plaintiff) as to what response, if any, was made by the Housing Authority to CHANTELLE HARMAN. Just under a year later, on the 14 October 1996, CHANTELLE HARMAN wrote to MS COLLEEN ANSEN at Liverpool Hospital as follows:

"Re: Medical Treatment - Vijay Singh

Please find attached Blue Shield insurances' Bank Draft for the sum of AUD 8,312.45 being settlement of the insurers' portion of Mr Vijay Singh's treatment costs at your hospital for Hodgkin's Disease per their fax dated 30 August 1996."

(Exh "1". Doc "6" pg 29 - "Copy of Letter dated 14/10/96 from Mr. Chantelle Harman to Liverpool Hospital) (My emphasis)

[34] Subsequently, on 18 April 1997, the South Western Sydney Area Health Service wrote to VIJAY SINGH noting the contributory payment of AU$8,312.45 made by Blue Shield Insurance in October 1996 and seeking settlement of the balance in the sum of AU$16,847.55.

[35] Just under four months later on 15 August 1997, Fortuna Mercantile Services wrote to VIJAY SINGH advising that they had been appointed as the managing agent for the recovery of the outstanding debt to Liverpool Hospital in the amount of "16,847.55". No other documents were produced (or indeed any oral evidence provided), as to any further attempt made over the past eleven years by Liverpool Hospital to recover the outstanding debt. As noted above, VIJAY SINGH passed away on 22 October 1998.

C. THE PLAINTIFF'S CASE

1. A lack of witnesses

[36] Apart from the documentary evidence which was tendered as part of the Agreed Bundle of Documents (Exhibit "1"), the Plaintiff's case rested on the oral evidence of two witnesses:

(a) The Plaintiff's Sister, SUNITA SINGH, as the Administratrix of his Estate; and

(b) The Plaintiff's treating specialist in Australia, DR JOHN GALLO.

2. The claim

[37] In paragraph 5 of the Statement of Claim, the Plaintiff claimed medical negligence on the part of the First Defendant in "that the Physician attending the Plaintiff [DR RAO] failed to certify that the Plaintiff could not be treated in a hospital in Fiji and that he should be evacuated to a designated hospital overseas."

[38] In paragraph 7 of the Statement of Claim, the Plaintiff claimed a breach of contract on the part of the Second Defendant in "that the Second Defendant breached the terms and conditions contained in the Policy of Insurance and is therefore liable for loss and damages."

[39] In her evidence-in-chief, SUNITA SINGH, clarified the claim under questioning from her Counsel as follows:

"Q: The claim is against two parties - the Attorney-General and Blue Shield

A: Yes

Q: Why the Attorney-General?

A: For negligence of DR RAO - so much pain and suffering and not giving the letter to take Vijay overseas.

Q: And Insurance company?

A: The insurance company - for not releasing funds - I didn't understand why they accepted DR RAO instead of DR GALLO - from a trained haematologist - why else acting on DR RAO's advice?

Q: The claim against Blue Shield is under the contract of insurance?

A: I'm not a lawyer - that's what you told me"

[40] The question of negligence for "so much pain and suffering" was something which was never pleaded in the Statement of Claim nor was there any oral application made at the hearing seeking Leave to Amend the Claim.

3. The negligence claim

[41] The evidence of SUNITA SINGH in support of the negligence claim was (in summary) as follows:

(a) That in 1994, Vijay "was very sick, in intense pain and lost weight";

(b) That she lived in Melbourne at the time but visited her brother in Fiji during the 1994 Christmas holidays and when she "saw that he was not getting any better", she "took him to hospital" and "to DR RAO's clinic and others doctors around Suva";

(c) That the treatment from DR RAO was "Panadol", while "others doctors said 'something is wrong - we won't say it - one might suspect - need to check Vijay' ";

(d) That she "talked with DR RAO to take another biopsy as I think something serious is happening" and that biopsy was done "after six months";

(e) That the outcome of the biopsy was "Hodgkin's disease - cancer of lymphatic system" and that "I begged DR RAO - 'Doctor, we don't want a delay in Vijay's medical insurance. Please give a letter to take him to Australia for treatment' " as required by his medical insurer and that "the only way to release funds was for DR RAO to certify that he needs overseas treatment";

(f) That DR RAO said: "I'm not going to give a letter. I am going to treat him here" and "it is Hodgkin's disease. I'm doing the treatment";

(g) That she continually asked DR RAO for a certificate: "Everyday until I got tired of it. Vijay tried. My sister-in-law tried. Mum tried. Always the response was no";

(h) That DR RAO's view was: "I'm qualified. I will handle him" and that when SUNITA SINGH said: "You're not a specialist", DR RAO said: "No. I will treat him";

(i) That after returning to Australia, SUNITA SINGH "was talking with a nurse at Bankstown Hospital for a consultant taking over the treatment" and the family then arranged for a DR JOHN GALLO based at Liverpool Hospital to treat VIJAY SINGH;

(k) That for DR GALLO to treat VIJAY SINGH in Australia, the family obtained a report from DR RAO, (not a certificate as required by the insurance company), as SUNITA SINGH explained: "We'd given up on getting a certificate. To put it bluntly, DR RAO wouldn't budge."

[42] During cross-examination by Counsel for the First Defendant the following exchange took place:

Q: You took 6 months to get a second opinion from a doctor?

A: Vijay saw about five or six doctors, he was so much in pain and suffering

Q: What was the opinion?

A: They said look we believe - DR MITCHELL said something is drastically wrong - DR RAO has not diagnosed properly - needs further tests"

[43] Dr MITCHELL was never called by the Plaintiff, nor was any other of the alleged "five or six doctors" based in Suva at that time who saw VIJAY SINGH.

[44] During cross-examination by Counsel for the Second Defendant, the following exchange took place:

'Q: I think that you actually saw 3 or 4 other Doctors?

A: Not 3 or 4, we saw many at the hospital at night when we used to go - different Doctors to day time. When he used to be in intense pain and visited private doctors took him around from here to Nausori to Doctors who may be able to diagnose him.

Q: Those other Doctors were not the Doctors which Blue Shield would not accept - they wouldn't accept DR RAO?

A: The problem was DR RAO at that time had said he didn't have a disease. Upon the 1^st biopsy being done, DR RAO had cleared him, so at the time when I took him around to all the other Doctors, Hodgkin's wasn't diagnosed.

Q: But as far as you understood Colonial was insisting that only DR RAO was the only person who could give the certification?

A: That is after he was diagnosed - we didn't know he had Hodgkin's disease then so Colonial didn't come into picture then.

Q: Are you saying that DR RAO did not know there was Hodgkin's disease or that he had cancer before you sent him to Australia?

A: What I'm saying is 6 months DR RAO had treated him and had biopsy done and had diagnosed him clear of any cancer."

[45] This was the first mention of "Colonial." In the "Agreed Bundle of Documents" (Exh "1", Doc. "1" - "Copy of Contract between Blue Shield and its customer" - 16 June 1997), on the cover the words "Blue Shield (Pacific) Insurance Limited" and Colonial" appear. In addition, at the bottom of the covering letter, it says "A Subsidiary of" and the word "Colonial" can barely be made out. Further, in the "Agreed Bundle of Documents" (Exh "1", Doc. "12" - "Copy of Blue Shield Medical Policy") it says "Blue Shield (Pacific) Insurance Limited" is "A Subsidiary of Colonial Mutual".

[46] As for the evidence from SUNITA SINGH concerning the "many" doctors who allegedly saw VIJAY SINGH at the hospital as well as the "private doctors" from "around from here to Nausori" who had seen VIJAY SINGH during the Christmas 1994 holidays and beyond until March 1995, not one was called by the Plaintiff at the final hearing.

[47] Further, no evidence was led from the Plaintiff's expert, DR GALLO, as to whether one biopsy in six months was, in the circumstances, appropriate. Indeed, this was not part of their Statement of Claim.

[48] In addition, during cross-examination by Counsel for the First Defendant, SUNITA SINGH revealed that she had very limited knowledge as to what occurred in Fiji and, in particular, with DR RAO, as the following exchange highlighted:

Q: Did you all contact Blue Shield?

A: Blue Shield said DR RAO

Q: Anything written?

A: Not after 15 years

Q: Did you see a qualified physician or doctor?

A: I am not a qualified medical expert...

Q: Saw DR RAO at CWM - 1994/1995?

A: Yes - long treatment by DR RAO

Q: Treatment for Hodgkin's disease?

A: Yes - started with chemotherapy which he wasn't qualified to do - specialist disease

Q: Your brother was treated by DR RAO and taken overseas?

A: Probably a couple of months while could arrange medical visit and get reports - I got leave and arranged a flat

Q: Please look at Doc. 76 - (Exh "1". Doc "16" pg 57 - "Copy of Letter dated 28/3/95 from Brenda Singh to Medical Superintendent - CWM Hospital)

A: [Looks at it]

Q: You agree it is by your sister?

A: Yes my sister Brenda

Q: Please read line 3?

A: Reads: "... as a private patient. At the moment Vijay Singh is an in-patient in the Paying Ward."

Q: He was a private patient?

A: DR RAO said he would take him as a private patient only.

Q: DR RAO requested?

A: As a private patient.

Q: Please look at Doc. 17 - (Exh '1'. Doc "17" pg 58 - "Copy of Medical Report dated 4/4/95 from Dr. C Rao")

A: [Looks at it]

Q: Do you agree that your sister wrote to DR RAO and a letter was provided on 4/4/1995?

A: Have to agree. I didn't know

Q: You say there was a delay in providing it?

A: Yes a long delay

Q: From 28/3/1995 to 4/4/1995?

A: The letter says admitted in 1994. DR RAO misdiagnosed - here speaking through history

Q: After the insurance company wrote, he did reply?

A: All I know is that DR GALLO took over - for Fiji I can only say what he was involved in"

[49] Apart from SUNITA SINGH's very limited knowledge of what took place in Fiji and the fact that DR RAO had provided a medical report on 4 April 1995 within a week of his so being requested to do so by BRENDA SINGH on 28 March 1995, again the issue of whether or not DR RAO was qualified to be giving chemotherapy was never part of any alleged negligence in the Plaintiff's Statement of Claim.

4. The breach of contract

[50] The evidence of SUNITA SINGH in support of the breach of contract claim was that part of the claim concerned the medical expenses and the "gap" between what was owed to Liverpool Hospital and what the Third Defendant was prepared to pay as SUNITA SINGH explained in her evidence-in-chief:

Q: Please look at Doc. 8 - (Exh "1", Doc "8" – "Copy of Letter dated

18/4/97 from South Western Sydney Area Health Service to Vijay

Singh ").

A: [Looks at it]

Q: Can you remember it?

A: Yes

Q: It is for Liverpool Hospital. What does it say about the difference?

A: Yes - they wanted $ 16,847.55. I didn't have any more money to pay. Blue Shield back in Fiji said if sign release we can pay them - give you $10,000 - you sign document which will say no action YOU sign document which will say no action against Blue Shield any further. It was peanuts - I'm not going to sign that.

Q: You found out later they paid $8,312.45

A: I didn't know

Q: So you went to insurance company to make claim?

A: Wanted full amount - came back two days later

Q: And they offered amount of $10,000?

A: $10,000 and to forfeit all claims against Blue Shield

Q: What did they say about requesting from DR RAO - what did Blue Shield say?

A: Go back to DR RAO and request again

Q: And what did DR RAO say?

A: DR RAO SAID: "I'm not giving you any letter"

Q: He did write a letter to insurance company?

A: No - I don't know if he wrote a letter to insurance company

Q: Please look at Doc. 20 - (Exh '1'. Doc '20' pg 61 - "Copy of Letter dated 23/11/95 from Dr G. Rao to Mr Chantelle Harman - Sedgwick (Fiji) Ltd").

A: [Looks at it] [No response]

Q: When walked away from insurance company - why?

A: Mr brother said: "I'm not giving away my rights and not accepting $10,000.

Q: Your brother went to see solicitors?

A: I used to go in and out - I went to Blue Shield - I took him to make a claim - they may have agreed - I'm not sure"

[51] Again, this evidence (given to her own Counsel in evidence-in-chief) highlighted SUNITA SINGH's limited knowledge in relation to this Claim. In addition, she had to concede that "he may have agreed" that is, there may have been a settlement between the Plaintiff and the Second Defendant. Indeed, in paragraph 6 of the "Statement of Defence of the Second Defendant", filed on 30 November 1999, it was pleaded:

"THAT the Second Defendant admits that a claim was lodged with it for reimbursement of the expenses by the deceased as alleged in ... the Statement of Claim but it denies that the deceased was entitled to be indemnified therefor. The Second Defendant admits that it paid a sum of A $8312.45 and says the same was paid to and accepted by the deceased by way of full and final settlement and satisfaction of the deceased's claim (within the limits of the cover in force)." (My emphasis)

[52] A further claim in support of the breach of contract was for expenses of $32,000.00 associated with the living costs of the Plaintiff residing in Australia for some 70 weeks from mid-1995 until late September 1996 whilst under the care of DR GALLO at Liverpool Hospital. The evidence of SUNITA SINGH in support of this claim was as follows:

"Q: Rent?

A: $250 per week

Q: How many weeks?

A: About 70 weeks

Q: What was other expenses?

A: Food - approximately $120 per week

Telephone - $300 per week

Electricity - $400 per month

Taxi fares - major cost - $25 - $50 return - four times a week for 70 weeks

Q: Other?

A: Other major expenses - medicine - cancer tablets, injections - and also had to take lung tests - x-rays - other specialist treatment he needed while there - kidney stones - St Vincent's Hospital - kidney specialist - laser treatment - many medicines

Q: How much?

A: $10-$20 - I never kept a diary - all the time making casual payments

Q: What was the main hospital?

A: Liverpool Hospital where tests done

Q: What tests?

A: Chemotherapy - in patient - as soon as he came. Because four seasons in Australia had to bring clothing $3,000 winter/spring/summer ..."

[53] This became a matter for cross-examination by Counsel for the Second Defendant as follows:

"Q: After looking at the document which your brother wrote out?

A: I didn't see until I saw Mr Singh one day before

Q: Please see Doc. 10 - (Exh "1". Doc "10" pg 33 - "Copy of Self Explanatory letter dated 8/6/98 from Vijay Singh")

A: [Looks at it] Yes.

Q: You relied for help upon the estate's own costs?

A: I had sent my lawyer a list of costs I had calculated - in process it got lost about two years ago.

Q: You paid expenses?

A: That's correct

Q: Who paid?

A: I and my mum

Q: You paid 50%?

A: We all contributed - some funds withdrawn provident fund...

Q: Who?

A: My sister Brenda withdrew provident fund

Q: Who else?

A: Bulk of it my mother, sister and brother ... I did casual teaching.

Q: You paid most of it?

A: I had funds in my bank

Q: Other relatives?

A: [No response]"

[54] The claim which VIJAY SINGH wrote out and signed on 8 June 1998 (Exh "1". Doc "10" pg 33 - "Copy of Self Explanatory letter dated 8/6/98 from Vijay Singh") was a handwritten one page claim for $32,000.00 without any supporting documentation claimed in relation to "various expenses incurred whilst I was undergoing treatment at Liverpool Hospital, Sydney, Australia from July 1995 till October 1996".

[55] As for the requirement of the insurance provider to have the certification from DR. RAO, the following exchange took place between Counsel for the Second Defendant and SUNITA SINGH:

Q: Why important to get certification from DR RAO?

A: Because my brother needed specialised treatment overseas and we need release of funds from the insurance company and as we all know cancer patients need to treated immediately.

Q: It was your understanding then that without that certification the insurance company was not going to reimburse you with any medical expenses is that correct?

A: Why we wanted the letter from DR RAO so that the insurance company and arrangements could be made immediately as is the usual process to take him overseas for treatment.

Q: Was there a need for a certification of the physician so that eventually you would get reimbursement of medical expenses?

A: Not eventually needed immediately - that is why people are paying insurance for overseas treatment.

Q: But you understand or it was your understanding that without the certification the insurance company wouldn't have reimbursed you?

A: The insurance company made it quite clear that only DOCTOR RAO's certification. On DR RAO's certification would the funds be released.

Q: And you also understood therefore, so, DR RAO according to the terms of policy was the designated physician so to speak for Colonial, is that correct?

A: That's right."

[56] As to the eventual certification provided by DR RAO, the evidence of SUNITA SINGH during further cross-examination by Counsel for the Second Defendant was as follows:

"Q: When was it DR RAO gave him his certification, can you recall?

A: I wasn't here, my sister picked it up.

Q: Would it be fair to say that the medical certificate that you were referring to is the certificate of DR RAO on - please see Doc. 5 - (Exh "1". Doc "5" pg 28 -"Copy of Medical report dated 30/8/95 from CWM Hospital" - DR G. RAO)

A: [Looks at it] Yes - Written afterwards 30/8/1995

Q: When was the document given by DR RAO?

A: I'm not sure

Q: This is not the document?

A: Must have been sent to Australian High Commission

Q: This is not the document?

A: ... [no answer]

Q: You don't know any other document?

A: I wasn't here

Q: You didn't see any other document?

A: DR RAO sent to Liverpool Hospital

Q: What other document? Did you see?

A: I didn't see it

Q: Did you see any other document?

A: I couldn't have seen because I was in Australia

Q: You can't remember because it was quite a long time ago?

A: I'm doing an estimate"

[57] As to the debt outstanding to Liverpool Hospital, the evidence of SUNITA SINGH during cross-examination by Counsel for the Second Defendant was:

(a) That the debt to Liverpool Hospital as outlined in the letter dated 18 April 1997 (Exh "1 ". Doc "8" pg 31 - ,"Copy of Letter dated 18/4/97 from South Western Sydney Area Health Service to Vijay Singh") "is still outstanding";

(b) That she is not aware of any subsequent letters since 18 April 1997 from the South Western Sydney Area Health Service to her or VIJAY SINGH; and

(c) That she is not aware of any court proceedings instituted by South West Sydney Area Health Service against VIJAY SINGH.

[58] In relation to her being aware that Liverpool Hospital was not a "preferred hospital", the evidence of SUNITA SINGH during cross-examination by Counsel for the Second Defendant was:

"Q: Now Madam when you sent your brother or arranged for your brother to go to the Liverpool Hospital in Sydney you had realised that as far as Blue Shield was concerned Liverpool was not one of the preferred hospitals of Blue Shield is that correct?

A: All I know is that we asked Blue Shield to release funding and they flatly refused. I am not aware which are the preferred hospitals for Blue Shield.

Q: And you certainly don't know that Liverpool is a preferred Hospital of Blue Shield?

A: Unless the Blue Shield had agreed, what I'm saying I'm not aware of what are the preferred hospitals for Blue Shield."

[59] As to what policy the Plaintiff was relying upon to make the claim against the second Defendant, the evidence of SUNITA SIGN during further cross-examination by Counsel for the Second Defendant was:

Q: You are relying upon an insurance policy to make a claim for medical expenses?

A: That's right

Q: Please look at Doc. "1" - (Exh "1". Doc "1" pgs 1-20 - "Copy of contract between Blue Shield and its customer")

A: [Looks at it] Yes

Q: That is the document which you are relying upon for a refund of medical expenses?

A: Relying upon insurance policy. I haven't looked at it. I didn't know. He paid for treatment overseas.

Q: Please look at Doc. 12 - (Exh "1". Doc "12" pgs 35-36 - "Copy of Blue Shield (Pacific) Insurance Medical Policy")

A: [Looks at it] Yes

Q: That is the document which you are relying upon for a refund of medical expenses?

A: I don't know."

5. The oral expert evidence

[60] According to the evidence given by telephone by DR JOHN GALLO from Australia when he wrote on 4 August 1995 in relation to VIJAY SINGH that "His disease is resistant to the treatment he was receiving in FIJI" (Exh "1", "Doc. 3", pg 25), "what I meant was the disease was getting worse despite treatment". He recalled that upon his arrival from Fiji, VIJAY SINGH was "Quite sick. From memory - he had a fever - lost a lot of weight. Quite unwell" and that the treatment VIJAY SINGH had received in Fiji was "chemotherapy for Hodgkin's disease - I believe did respond for a period of time but only temporarily".

[61] On the crucial issue as to whether VIJAY SINGH should have been brought earlier to Australia from Fiji for treatment, his responses were as follows:

(a) In examination-in-chief:

Q: Should he have been brought earlier for the treatment?

A: That is a difficult question to answer. If he had been treated earlier he may have had a better outcome"

(b) Cross-examination by Counsel for the Second Defendant:

Q: You agree Vijay Singh was treated for' Hodgkin's disease?

A: Yes

Q: He was responding to treatment for a period of time but left?

A: I believe so

Q: He didn't complete a couple of treatments?

A: I'm not so sure of course when Vijay left Fiji

Q: Whether treatment was finished in Fiji?

A: I believe Vijay received three courses in Fiji - normally not full treatment"

[62] On the issue of insurance, under cross-examination by Counsel for the Second Defendant, he advised:

"Q: Doctor at anytime was there certification for overseas treatment from Blue Shield insurance?

A: No I haven't had any contact with Blue Shield Insurance"

D. THE FIRST DEFENDANT'S CASE

1. The First Defendant's evidence

[63] As noted above, in the Statement of Claim, the Plaintiff claimed medical negligence on the part of the First Defendant in that DR RAO "failed to certify that the Plaintiff could not be treated in a hospital in Fiji" and should have been "evacuated to a designated hospital overseas." In her evidence, SUNITA SINGH claimed that it was for the negligence of DR RAO in causing "so much pain and suffering" presumably (though never articulated) by his initial misdiagnosis and then "not giving the letter to take Vijay overseas". The issue of misdiagnosis was never part of the negligence pleaded in the Plaintiff's Statement of Claim.

[64] DR GYANESHWAR RAO's preliminary evidence was to his qualifications and how VIJAY SINGH came to be under his care, as follows:

(a) That he holds a MB BS and FRACP (Fellow of the Royal Australasian College of Physicians);

(b) That he is a Consultant Physician at the CWM Hospital where he has been working since 1990 and before that he was a Medical Registrar there;

(c) That VIJAY SINGH was admitted under his care on 28 September 1994 "and the reason he was admitted was because he had been unwell for seven months and the main symptoms he had was fever and weight loss".

[65] As to the results of the initial investigations, DR RAO's evidence was:

"Q: DR RAO what was your finding on the investigation done on Mr Vijay Singh?

A: When we examined him we found out that he had some enlarged lymph nodes in the left axillary area and his liver was enlarged and his spleen was enlarged and putting together somebody who had been having fever and weight loss with enlarged lymph nodes in my experience the most likely diagnosis was some form of lymphoma. Lymphoma is a malignant condition or cancerous condition of a system in our body called lymphoid system but to prove the diagnosis we had to do a lymph node biopsy.

Q: When was this lymph node biopsy done on Mr Singh?

A: The first lymph node biopsy was done on 7/10/1994.

Q: Would you be able to tell this Court what was the result of that biopsy?

A: My expectation was that probably it would turn out to be a lymphoma but it was reported as acute lymphadenitis which meant that just an inflammation of the lymph node. So it did not confirm the diagnosis of lymphoma.

Q: Can you tell this Court what happened after you diagnosed the patient with acute lymphadenitis?

A: After the diagnosis I followed him up in my clinic and generally was feeling better but I was not very comfortable with ongoing enlarged lymph nodes and it is known that sometimes in lymphoma the initial histology can be non-cancerous but can turn out to be cancerous later therefore I asked for another lymph node biopsy later.

Q: DR RAO after you have reviewed him and what was the next step that you took in regards to Vijay Singh's condition?

A: So the next was to repeat the lymph node biopsy because my suspicion was that it could be lymphoma.

Q: Can you tell this Court when was the next biopsy done on Vijay Singh?

A: The next biopsy was done on 7/3/1995

Q: And would you be able to tell this Court what was your finding on Vijay Singh after that biopsy?

A: This biopsy did reveal that it was a case of lymphoma and lymphomas are divided into two types and this turned out to be one of the types called Hodgkin's lymphoma or Hodgkin's disease."

[66] After the diagnosis of Hodgkin's disease, DR RAO's evidence was that he was the only doctor looking after VIJAY SINGH, "the diagnosis and the line of treatment to be given" was discussed with VIJAY SINGH and his sister, BRENDA SINGH, and it was BRENDA SINGH who then raised the question of overseas treatment:

"A: After discussing with them the sister did raise the issue whether he should be taken overseas but the standard practice is now there are certain types of cancers which we consider as treatable in Fiji. And lymphoma or Hodgkin's disease is one of those cancers that we treat in Fiji at the moment but it remains unclear before you start treatment which patient would respond to treatment and which patient will not. The assessment is usually made after giving three cycles of drip treatment. So I started the first cycle on 27/3/95 soon after discussing with the family and Mr Singh.

Q DR RAO after you had started treatment on the patient what happened?

A: After starting the first cycle it was on the second day (28/3/95) the sister came to me and she gave me a letter stating that the family was interested to take him as a private patient overseas.

Q: DR RAO if I may take you to the agreed bundles can you please tell us which letter you are referring to? Please look at page 57 Doc. 16 (Exh "1". Doc "16" pg 57 - "Copy of Letter dated 28/3/95 from Brenda Singh to Medical Superintendent - CWM Hospital") Was this the letter given to you by Ms Brenda Singh?

A: Yes.

Q: After receiving this letter DR RAO what did you know?

A: After receiving the Letter then we gave them a report because if they were interested to take him overseas then we should assist them as much as possible so a letter was given with a pathology slide so that the Doctor overseas would also look at the slide and agree or disagree with our diagnosis.

Q: DR RAO can you tell this Court on which day you wrote the letter to the patient's sister?

A: The letter was written on 4 April 1995 [Exh "1" Doc "17" pg 58 - "Copy of medical report dated 4/4/95 from Dr. G. Rao"]

Q: DR RAO can you explain to this Court in that letter what are you trying to tell?

A: This letter was mainly written stating the diagnosis of the patient and what stage of anti-cancer treatment we were."

[67] As for the treatment from 28 March 1995 which VIJAY SINGH received under DR RAO's supervision until MR SINGH left for overseas, DR RAO's evidence was:

"A: Once we received from the family that they wanted to take him overseas it was I was waiting that he would be leaving at any stage however while I was waiting I continued with the treatment which was appropriate and that is giving the anti-cancer drugs in cycles and by the time he left Fiji I had completed three cycles and each cycle had an interval of one month.

Q: DR RAO whilst you were treating Vijay Singh and before he left for Sydney what was his condition like?

A: Overall he did seem to have had some response to treatment as he was feeling better as the enlarged lymph nodes was getting smaller and my impression was that he could be responding to treatment. So at this stage whilst still waiting for his overseas evacuation I decided I would give another two cycles."

[68] This was clarified in re-examination as follows:

"Q: In this case in Vijay Singh's case did he complete all cycles of chemotherapy available in Fiji?

A: No he only completed I think 4 cycles - the handwritten letter that I wrote he completed the cycles and which date the cycles given.

Q: DR RAO in this case he never completed all the cycles before he left for Sydney?

A: The standard protocol is to give 6 - 8 cycles."

[69] In relation to the alleged request from the family of VIJAY SINGH for certification Blue Shield Insurance, DR RAO's evidence was:

"Q: DR RAO while you were treating Vijay Singh were there requests made by the relatives for any certification for his treatment overseas for Blue Shield?

A: At the beginning of treatment the family did discuss with me about overseas treatment but because this cancer is one that we treat in Fiji it was too early at this stage to decide whether he needed overseas treatment or not. That decision would have come after treating him with three to four cycles.

Q: DR RAO once you were informed that Mr Vijay Singh is leaving for Sydney on 11/7/1995 what did you do in response to that?

A: Suddenly I was told on 11 July 1995 that he was leaving for Sydney and I gave them a handwritten letter because I didn't have the time to get it typed and I again supplied them with a biopsy slide for the Doctors again to have a look at it.

Q: DR RAO would you be able to tell this court from the agreed bundle of documents on which page you are referring to?

A: Page 42

(Exh "1". Doc "15" pg 42 - "Bundle of Medical Notes and copies of surgical Pathology reports II and I" - letter 11 July 1995 from Dr G. Rao)

Q: Was this the letter you wrote on 11 July 1995?

A: Yes.

Q: DR RAO would you be able to explain to this Court what have you written in this letter?

A: Again this letter clearly stated at what stage of Chemotherapy I was so that the doctor overseas would know how many cycles I had given what drugs I had given and at what stage of treatment I was."

[70] As to the certification he eventually provided to Blue Shield Insurance, DR RAO's evidence was:

Q: DR RAO would you be able to tell this Court whether at any time you received any letter from an insurance company regarding explanation for Mr Vijay Singh's condition?

A. Yes, Sir, there was a letter written to me on 14 November 1995 - p.60 [Exh "1". Doc "19" pg 60 - "Copy of Letter dated 14/11/95 from Dedgwick to Consultant Physician - CWMH"]

I was asked in this letter whether the treatment Mr Singh had received in Sydney was appropriate or not. This letter was written in retrospect because by this time I was also clear in my mind whether he was responding to my initial treatment or not so I suggested that the treatment that he was getting there was appropriate.

Q: DR RAO would you be able to tell this Court in 1995 were you in the list of panel of doctors for Blue Shield Insurance?

A: No I was not with them at that time."

[71] This was further clarified under questioning by Counsel for the Second Defendant:

(a) "I've never worked for Blue Shield";

(b) "No I was not working for them at that time";

(c) "I was not in the panel I know only that Colonial had asked me to look at ... which came afterwards";

(d) That he was not a "designated or preferred physician" for Blue Shield or for any insurance company;

(e) That Blue Shield never came and asked him for certification for VIJAY SINGH.

[72] As for the procedure for providing certification that treatment was not available in Fiji, DR RAO clarified this under questioning by Counsel for the Second Defendant as follows:

Q: And at the time in Fiji at the time in Suva were you personally in a professional capacity aware of any Doctors who Blue Shield would refer to for certification that treatment was not available in Fiji?

A: I think, they usually the standard practice is they would get a letter from a Government Doctor but seek opinion from other doctors.

Q: Do you know about the other doctors which they seek opinion to?

A: We are not involved with that to whom they refer.

Q: Then you don't know whom they refer to?

A: No, we don't know.

Q: But in this case over here in 1995 can you safely in your own personal knowledge that you were not a designated physician for Blue Shield?

A: Yes Sir for any insurance company.

Q: Just to use a phrase from the insurance service you were not a "preferred physician" whatever that means?

A: No, I wasn't.

Q: During that time in 1995 have you had the occasion to liaise with other patients with Blue Shield with regard to referral of any other patients by Blue Shield to a Doctor in Australia - to a hospital in Australia?

A: I can't remember but when it comes to insurance companies we usually don't know to whom which insurance company is looking after that patient. We generally give a straight forward medical report "to whom it may concern".

Q: So you have no knowledge?

A: We don't have any knowledge which insurance company is covering the patient. And in this case a letter was given right in the beginning - it was between the patient's relative and the insurance company to decide what to do with that letter.

Q: When you say what letter you referring to?

A: The letter the relatives requested us to give.

Q: That letter by Brenda Singh?

A: Yes."

[73] As to the treatment which VIJAY SINGH received in Australia, DR RAO's evidence was:

"Q: DR RAO after you've given this letter to Vijay Singh were you in touch with the Doctors in Australia regarding his conditions?

A: The Doctor himself wrote to me his letter dated 21 August 1995 saying that Mr Singh had partial response and as the standard practice in the treatment of lymphoma he changed it to another combination of anti-cancer drugs called ABVD. At this point of time this was not available in Fiji. Then he also stated that in spite of this second line of drug therapy Mr Singh's response was poor therefore in his opinion it was a refractory case of Hodgkin's - Disease means a difficult case of Hodgkin's Disease.

Q: Would you be able to tell this Court did the doctors in Australia inform you what line of treatment they were giving to Mr Vijay Singh?

A: Yes, as I've stated he was given the ABVD treatment initially combined with what I was giving here so they alternated the two regimens but they found him very refractory to this drugs so they suggested then bone marrow transplant.

Q: DR RAO if I may ask you to refer to the letter dated 24 September 1996 - pg. 65 (Exh "1". Doc "24" pg 65 - "Copy of Letter dated 24/9/96 from Dr. John Gallo to Dr G Rao, CWMH")

Would you be able to explain to this Court what DR GALLO is trying to explain you in this letter?

A: In that letter DR GALLO stated that he had a tough battle to get Mr Singh into remission that means to bring his lymphoma under control and his long term prognosis must be guarded that means it would be uncertain whether he would do well or he would get worse and he suggested that he would like to see him in six months time and this was written after he had received the bone marrow treatment.

Q: DR RAO after Mr Vijay Singh has received a bone marrow transplant he may have returned to Fiji, did he at any time came to see you regarding his condition?

A: I wasn't aware he was in Fiji but I wasn't contacted so I didn't have the opportunity to see him after he had returned.

Q: So there was no communication for his condition after he returned from Australia?

A: No."

[74] This was further clarified under questioning by Counsel for the Second Defendant as follows:

"Q: In a situation of cancer like Hodgkin's Disease what is the normal standard, international event treatment - do the doctors prescribe going to the bone marrow transplant immediately or they start from to a earlier or a more or less aggressive type of treatment?

A: The treatment is dependent upon whether it's "early disease" that means might be confined to one area what we call as "early disease" or "late disease" where it has spread and we also look at certain prognostic markers. If we find that it is a favourable disease that means early with good prognostic markers then a few cycles of chemotherapy is adequate and of course the latest is to give them radiotherapy which was not the practice in the past but if they have "late disease" then they have full cycles of chemotherapy that is 6 - 8 cycles. If they are resistant after this then only bone marrow treatment comes, so it is not an initial treatment.

Q: And at that stage in 1995 before he left for Australia what was the prognosis of his cancer?

A: I think the prognosis could only be judged after giving 3-4 cycles of drugs.

Q: And that is standard?

A: That is standard - you give them 3 cycles and assess the response if the response is not good then think of alternative treatment.

Q: And would it be fair to say that it takes a while for the results to come out?

A: It takes almost 3 months because each cycle has an interval of 1 month so by the time you give 3 cycles it is almost 3-4 months gone.

Q: Now when you began your 1^st cycle when was this when you actually started?

A: It was started in March on 27 March 1995 ... He had partial response ... Left Fiji after 3^rd cycle."

[75] The issue of leaving for overseas and the treatment cycles was further clarified under questioning by Counsel for the Second Defendant as follows:

"A: The problem here was that the family had approached me after I had started the 1^st cycle that they were taking him overseas so what I was doing was just treating him while they were making the arrangements ...

... there are 4 drugs in each cycle and the drugs are given over a period of 14 days and constitute 1 cycle.

Q: From what you heard from Doctor Gallo and what you've read so far DR GALLO when he first saw Mr Vijay Singh continued with the same cycle of treatment that you were doing?

A: DR GALLO said he combined the same drugs what I was giving but alternating with another group of drugs - which is another way of treating Hodgkin's lymphoma."

[76] As to the "success rate of Hodgkin's disease treatments" in Fiji compared with internationally, DR RAO advised that it was it was a 60 - 80% success rate internationally and "at least 50 - 60% " in Fiji "with the limited resources and manpower we have got" and such successful cases would be where "they had completed six cycles" and that "the standard practice is to give them 6 - 8 cycles."

[77] Under cross-examining by Counsel for the Plaintiff, DR RAO rebutted the following suggestions as follows:

(a) Suggestion - That during the seven months prior to 28 September 1994 when VIJAY SINGH had felt unwell, he had visited the CWM Hospital -

"A: I am unaware of that because it was not recorded in our hospital file ... He was admitted to CWM Hospital on 28/9/94 that was the first time I saw him"

(b) Suggestion - That the lymph node biopsy was carried out in January -

"A: The first biopsy was carried out in October 1994 that was not consistent with cancer and from experience we know sir that 30% of these types of biopsies can be non-cancerous initially but might turn out to be cancerous later"

(c) Suggestion - That VIJAY SINGH was experiencing symptoms when the next biopsy was carried out in March 1995 -

"A: No it was not symptom in fact he was feeling better - while my suspicion that it could be still lymphoma ... He still had lymph nodes but it was smaller than before and he still had ... an enlarged spleen"

(d) Suggestion - That when he had advised VIJAY SINGH and his sister in March 1995 in relation to VIJAY SINGH's diagnosis of Hodgkin's disease and the treatment it was "the sister sitting in Court, Sunita. Singh, [who] was there on that occasion" -

"A: I can't remember but I used to deal with only one sister"

In relation to this suggestion, the Court notes that on SUNITA SINGH'S own evidence, it was BRENDA SINGH who was present when treatment began and who handed DR RAO the letter of 28 March 1995 (See also Exh "1". Doc "16" pg 57 - "Copy of Letter dated 28/3/95 from Brenda Singh to Medical Superintendent - CWM Hospital").

(e) Suggestion - That the treatment of cancer such as Hodgkin's disease is a specialised area in medicine -

"A: It is specialised in overseas but in Fiji we do what we can do ... the Ministry of Health has decided for us to decide what sort of cancers we can treat in Fiji and which ones we can't treat and so all departments treat the ones that can be treated";

(f) Suggestion - That DR RAO is not a specialist trained for treatment of cancer -

"A: I'm not a specialist but I'm a general physician and we deal with many cases as possible;

(g) Suggestion - That DR RAO is not an Oncologist -

"A: No it is a specialised training";

(h) Suggestion - That VIJAY SINGH was continuing to complain of pain -

"A: The patient's symptoms was not pain it was fever, weight loss, itchiness, weakness".

[78] Apart from the issue of diagnosis, the other main focus of the cross-examination by Counsel for the Plaintiff was the letter of certification:

"Q: You were aware that patient had insurance cover - medical insurance cover?

A: I think I was told by the sister that they wanted to take him overseas on insurance cover but because it was cancer which could be treated here we had to initiate the treatment first and depending upon the response decide the future line of treatment. When I say the future line of treatment it also means referral overseas.

Q: So you say it could be treated here and you agreed that the sisters asked for that vital letter that treatment was not available here therefore insurance company should send him overseas?

A: The letter that we write to the insurance company it is an opinion that we have to give a professional opinion and actually in this case the treatment could be given initially so it would have been wrong for me to say that the treatment was not available.

Q: Because of treatment available in Fiji you were not willing to give that letter?

A: The letter was given - the general letter was given but a letter of recommendation for overseas treatment was difficult to give at this stage.

Q: You will agree with me that the letter for recommendation for overseas treatment was requested but you were not comfortable in giving that letter?

A: Yes Sir because our opinion is sought whether this treatment could be offered here or not and at that point of time the treatment could be offered but three or four months later the opinion would have been different.

Q: You will agree with me the patient was suffering in the meantime even after the 1^st cycle?

A: But according to our hospital records in fact he was getting better. His temperature was settling, he was feeling better and his lymph nodes were smaller than before.

Q: But your own finding was that he was only partially responding to the cycle?

A: After the 3^rd Cycle yes.

Q: Only there was partial response?

A: After the 3^rd cycle I would agree with you.

Q: Even then you were not willing to give the letter of recommendation?

A: But that letter was not requested at that point in time. The letter was only requested initially when I initiated the treatment.

If approached me at this stage after 3^rd or 4^th cycle then I would have probably agreed with them if might be you needed to go overseas.

Q: So?

A: Yes I would have probably agreed but no letter was requested at this stage.

Q: Doctor my understanding is that letter was being requested all the time and it was you?

A: The letter was only she requested initially when I started the treatment and I think what of complicated was that they said they were taking the patient privately and therefore that is where my responsibility slightly became less.

Q: Doctor my understanding is that you suggested only if they take the patient privately you willing to give that report?

A: I can't recall what transpired between me and the patient that time but the choice was to say refer him on insurance cover which would have been difficult at that time without knowing the response or to take the patient on their own. So it was possible if somebody had asked me can I take the patient overseas privately I might have said yes, possible.

Q: Bearing in mind this cycle on what date would you have been able to give that letter of recommendation?

A: That would been after 3^rd or 4^th cycle ... around July ... If the issue had been raised then I would have discussed but the issue was never raised in July.

Q: If it was raised you would have given?

A: If it was raised we would have sat down and talked about it and as possible I mean that is the standard practice that if somebody doesn't respond after 3^rd, 4^th cycle to reconsider that they are happy."

[79] A letter of certification was provided by DR RAO on 30 August 1995 and a further letter on 23 November 1995 which also became the final focus of the cross-examination of DR RAO as follows:

"Q: Document 5 page 28 dated 30/8/95

(Exh "1". Doc "5" pg 28 - "Copy of Medical report dated 30/8/95 from CWM Hospital" - DR G. RAO)

In this document you agreed that he's receiving extensive therapy that cannot be offered here? You agreed that his treatment he received in Liverpool was not being offered here?

A: That treatment came after about 3 or 4 cycles of initial therapy. So it was more or less a retrospective treatment that the Doctor who was treating him there realised that the treatment that I was giving was not working so instituted more intensive treatment which could not have been offered in Fiji. So that was the statement that I made - that the treatment at that point of time that he was receiving in Liverpool Hospital could not be offered in Fiji.

Q: You agree as Doctors from time to time you are requested for letters of recommendation that treatment is not available in Fiji and refer them to be treated in overseas. Is that being requested from you?

A: That approach is made to us all the times but as a professional it is important for me to give an honest opinion what can be treated here and what can't be treated.

Q: In fact your opinion was sought in this case after the patient had gone overseas by letter Document 19 p.60 and you responded to that letter as the next document?

(Exh "1". Doc "19" pg 60 - "Copy of Letter dated 14/11/95 from Sedgwick to Consultant Physician - CWMH"; and Doc "20" pg 61 "Copy of Letter dated 23/11/95 from Dr G, Rao to Mr Chantelle Harman - Sedgwick (Fiji) Ltd").

A: Yes.

Q: And in this letter last sentence you admit that in your opinion probably needed more extensive chemotherapy regimen as given at Liverpool Hospital.

A: Yes Sir I agree with that but again it's a retrospective opinion which was easy to make after the initial therapy. All I was stating there at that point of time he needed that intensive therapy.

Q: Retrospectively speaking this was a case which should have gone overseas for treatment?

A: It is only after gauging the response to the initial 3, 4 cycles of chemotherapy because that decision would have been difficult right at the beginning.

Q: You admit that the ABVD that DR GALLO was the scheme that DR GALLO implemented was not available in Fiji?

A: There are two types of treatment for Hodgkin's Lymphoma one is what is called as MOPP regimen and the other one is ABVD regimen. In Fiji we only have MOPP regimen - each letter stands for a drug so we used to treat MOPP regimen because that was the only regimen available in Fiji at that time. The ABVD regimen now is available so at this point of time if somebody doesn't respond to MOPP regimen we will give ABVD regimen also.

Q: In 1995 it was not available?

A: Yes at that time it was not available.

Q: You also told this court that radiotherapy was not available in Fiji?

A: I did Sir for this stage 4 widespread disease the treatment is mainly chemotherapy but in centres where the facilities are available they might consider giving radiotherapy also. Not as first line therapy but as an, what you call, as adjunctive therapy.

Q: Medical Report - My instructions are that by March 1995 the patient had lot of lymph nodes on his body and he was in severe pain?

A: From my knowledge he was not in pain it was actually my suspicion I could have left him and said you don't suffer from cancerous condition but again it was suspicion I was not happy with the initial biopsy result so I repeated the biopsy and it was because of my suspicion it was repeated not because he was in pain or his condition had advanced in any way.

Q: Even after the 1^st cycle you should have given the letter of recommendation that this is a case that required overseas treatment?

A: As I reiterated before, it's a decision which could have been made after 3^rd or 4^th cycle. It would have been a difficult decision right in the beginning."

E. THE SECOND DEFENDANT'S CASE

[80] Blue Shield (Pacific) Insurance Limited as the Second Defendant did not call any witnesses. Indeed, Counsel for the Second Defendant has argued in his written submissions that his client has no case to meet.

F. THE LAW AND THE CLAIM AGAINST THE FIRST DEFENDANT

1. Duty of care of the First Defendant

[81] It is not disputed that the First Defendant owed a duty of care to VIJAY SINGH.

2. Breach of the duty of care?

[82] The issue in this case in relation to the First Defendant became was there was a breach of that duty of care by DR RAO? In Bolam v Friern Hospital Committee [1957] 1 WLR 582 at 586-587 McNair J said ([1957] 2 All ER 118 at 121-122):

"The test is the standard of the ordinary skilled man, exercising and professing to have that special skill .... it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art

...

I myself would prefer to put it this way: A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. I do not think there is much difference in sense. It is just a different way of expressing the same thought. Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view. At the same time, that does not mean that a medical man can obstinately and pig-headedly carry on with some old technique if it has been proved to be contrary to what is really substantially the whole of informed medical opinion. Otherwise you might get men today saying: 'I do not believe in anaesthetics. I do not believe in antiseptics. I am going to continue to do my surgery in the way it was done in the eighteenth century.' That clearly would be wrong."

[83] As I have discussed recently in Saulaki v. Ministry of Health & Anor (Unreported, High Court of Fiji at Suva, Civil Action No. HBC354 of 2006, 22 August 2008, Hickie J), the "Bolam" test has continued to be applied by the High Court of Fiji over the past decade in such cases as Wati v The Attorney General for Fiji (Unreported, High Court of Fiji, Civil Action No. HBC0222 of 1998, 12 September 2001, Fatiaki J (Paclii: [2001], FJHC 68, http://www. paclii.org fj/cases/FJHC/2001/68.html); and Ismail v The Medical Superintendent and The Attorney General of Fiji (Unreported, High Court of Fiji, Civil Action No. HBC of 1998, 25 July 2000, Shameem J) (PacLII: [2000] FJHC 87, http://www.paclii.org/fj/cases/FJHC/2000/87.html). Further, as James Baledrokadroka, writing in the Journal of South Pacific Law in 2002 has noted: "The Bolam test is still applied in the region as the standard of care that is required of a doctor." (See James Baledrokadroka, 'The Interface of Law and Medicine in the South Pacific', Journal of South Pacific Law, vol. 6, 2002, page 13 (Paclii: http://www.paclii.org/journal.s/fJSPL/vol06/9.shtml)

[84] In Wati v The Attorney General for Fiji, Fatiaki J in applying the "Bolam test" found in favour of the Defendant (at pages 5-6 Paclii):

"With the above in mind I have carefully considered the evidence led in the case before me and although I confess to entertaining some considerable sympathy for the plaintiff's condition, I have reluctantly come to the conclusion that the evidence fails to positively establish any negligence (beyond misadventure) on the part of the surgeon who operated on the plaintiff ... or, in her care and treatment thereafter, nor is the evidence of a nature and quality from which it may be reasonably inferred that there was negligence on the part of any of the staff of CWM."

[85] In Ismail v The Medical Superintendent, Shameem J also applied the "Bolam test"(at page 4 Paclii) finding the Defendants liable for the negligence of their employees at the CWM Hospital, observing:

"It is for the Plaintiff to prove on a balance of probabilities, that the way in which medical care given ... was negligent and failed to conform to the standards expected of reasonably skilled medical personnel ...

The medical staff at the CWM Hospital are judged by the standards of the ordinary, competent practitioner in the relevant field of medicine. 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."

[86] In the current case, much of Fatiaki J's statement from Wati rings true on the evidence before me. That is, although I confess to entertaining considerable sympathy for the plaintiff's condition and the trauma and upheaval this caused for both him and his family for a number of years, I have come to the conclusion that the evidence fails to positively establish any negligence on the part of the physician, DR RAO, towards the Plaintiff, nor is the evidence of a nature and quality from which it may be reasonably inferred that there was negligence on the part of the CWM Hospital.

[87] In Saulaki (supra), I also cited a recent decision of the High Court of Fiji in A v Colonial War Memorial Hospital (Unreported, High Court of Fiji, Civil Action No. 0184.2005, 8 May 2007, Coventry J) (Paclii: [2007] FJHC 121, http://www.paclii.org/fj/cases/FJHC/2007/121.html) where the "Bolam test" was again applied (see paragraphs 35-37, Paclii page 7) noting that the House of Lords in Airedale NHS Trust v. Blend [1992] UKHL 5; [1993] AC 789 at 818, continued to apply the "Bolam test" as follows:

"... 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 [sic] v. Friern Hospital Management Committee [1957] 1 WLR 582 ("The Bolam test")"

[88] Coventry J concluded in A v Colonial War Memorial Hospital citing Lord Denning in Hitcher v Black (The Times 2^nd July 1954), and which is appropriate to the present case:

"You must not, therefore find him (the doctor) negligent simply because something happens to go wrong; ... You should only find him guilty of negligence when he falls short of the standard of a reasonably skilled medical man..." (My emphasis)

[89] About a month before my decision in Saulaki (supra), Byrne J in Narayan v Ministry of Heath and Anor (Unreported, High Court of Fiji at Labasa, Civil Action No. 43 of 2004, 25 July 2008), raised the preference of using in Fiji for medical negligence cases the test espoused by the High Court of Australia in Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 (AustLII: http://www.austlii.edu.au/au/cases/cth/HCA/1992/58.html). In Rogers, the Appellant was an ophthalmic surgeon and the Respondent his patient who became almost totally blind after surgery upon her right eye. As the High Court noted:

"There is no question that the appellant conducted the operation with the required skill and care. The basis upon which the trial judge ... found the appellant liable was that he had failed to warn the respondent that, as a result of surgery on her right eye, she might develop a condition known as sympathetic ophthalmia in her left eye. The development of this condition after the operation and the consequent loss of sight in her left eye were particularly devastating for the respondent as she had been almost totally blind in her right eye since a penetrating injury to it at the age of nine ... numerous heads of negligence were alleged [which were]... rejected all save the allegation that the appellant's failure to warn of the risk of sympathetic ophthalmia was negligent and resulted in the respondent's condition. While his Honour was not satisfied that proper medical practice required that the appellant warn the respondent of the risk of sympathetic ophthalmia if she expressed no desire for information, he concluded that a warning was necessary in the light of her desire for such relevant information."

[90] As Byrne J noted in Narayan (at paragraph 51):

"In Rogers, the High Court of Australia ... held that the question is not whether the conduct accords with the practice of the medical 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."

[91] Rogers involved an examination of the issue of a patient's "right to know", that is, the provision of information by a medical practitioner so as to allow the patient to come to a decision whether to agree to a medical procedure rather than any negligent diagnosis and treatment by the practitioner, though as the High Court noted (at paragraph 14):

"Acceptance of this approach does not entail an artificial division or itemization of specific, individual duties, carved out of the overall duty of care. The duty of a medical practitioner to exercise reasonable care and skill in the provision of professional advice and treatment is a single comprehensive duty. However, the factors according to which a court determines whether a medical practitioner is in breach of the requisite standard of care will vary according to whether it is a case involving diagnosis, treatment or the provision of information or advice; the different cases raise varying difficulties which require consideration of different factors (F v. R. (1983) 33 SASR, at p 191). Examination of the nature of a doctor-patient relationship compels this conclusion. There is a fundamental difference between, on the one hand, diagnosis and treatment and, on the other hand, the provision of advice or information to a patient. In diagnosis and treatment, the patient's contribution is limited to the narration of symptoms and relevant history; the medical practitioner provides diagnosis and treatment according to his or her level of skill. However, except in cases of emergency of necessity, all medical treatment is preceded by patient's choice to undergo it. In legal terms, the patient's consent to the treatment may be valid once he or she is informed in broad terms of the nature of the procedure which is intended ((33) Chatterton v. Gerson (1981) QB 432, at p 443). But the choice is, in reality, meaningless unless it is made on the basis of relevant information and advice. Because the choice to be made calls for a decision by the patient on information known to the medical practitioner but not to the patient, it would be illogical to bold that the amount of information to be provided by the medical practitioner can be determined from the perspective of the practitioner alone or, for that matter, of the medical profession. Whether a medical practitioner carries out a particular form of treatment in accordance with the appropriate standard of care is a question in the resolution of which responsible professional opinion will have an influential, often a decisive, role to play; whether the patient has been given all the relevant information to choose between undergoing and not undergoing the treatment is a question of a different order. Generally speaking, it is not a question the answer to which depends upon medical standards or practices. Except in those cases where there is a particular danger that the provision of all relevant information will harm an unusually nervous, disturbed or volatile patient, no special medical skill is involved in disclosing the information, including the risks attending the proposed treatment (See Fleming, The Law of Torts, 7th ed. (1987), p 110). Rather, the skill is in communicating the relevant information to the patient in terms which are reasonably adequate for that purpose having regard to the patient's apprehended capacity to understand that information."

3. Applying both the "Bolam" and "appropriate standard of care" tests to the First Defendant

[92] The evidence of Dr GALLO on both the "Bolam" and "appropriate standard of care" tests revealed:

(a) That DR GALLO did not question the standard of care applied by DR RAO to the Plaintiff's illness at the CWM Hospital over the period September 1994 until mid-2005. Clearly, it was according to the standard of the ordinary competent medical practitioner or an "appropriate standard of care". Thus it follows that there was no negligent diagnosis by DR RAO and nor was it pleaded;

(b) As to whether the Plaintiff should have been transferred earlier to Australia, DR GALLO's evidence was, at best, that it was a possibility: "That is a difficult question to answer. If he had been treated earlier he may have had a better outcome." Again DR GALLO did not question that DR RAO's decision to treat initially in Fiji in March 1995 was according to the standard of the ordinary competent medical practitioner or an "appropriate standard of care". Thus, it follows, that there was no negligent treatment by DR RAO.

[93] In addition, there was NO cross-examination of DR RAO by counsel for the Plaintiff as to the appropriateness or otherwise of his care of VIJAY SINGH as evidenced by his "Medical Notes" which formed part of Doc. "15" in the "Agreed Bundle of Documents". Pathology results from the first biopsy taken on 7 October 1994, were reported later that month (the actual day partially obscured on the photocopy) as "acute lymphadenitis" not Hodgkin's disease.

[94] A sample of DR RAO's medical notes subsequent to the October 1994 pathology results reveal (from the barely decipherable handwriting) the following:

(a) "21/11" Better..." "Back to work";

(b) "19/12" "Feels ..." "Appetite good" "No night sweats" "Needs biopsy" "Wants operation after 12/1/94";

(c) "23/1/95" "On & off body pain" "No night sweats" "... lymph nodes left axilla" "Needs a biopsy of the lymph node";

(d) "20/2" "Dear J... Arrangements were made with you to see this patient for a lymph node biopsy (left axilla) in the beginning of February. Due to misunderstanding the ... did not give him earlier appt. Could you please see him".

[95] A second biopsy was taken on 7 March 1995 and the pathology results were reported later that month (the actual day partially obscured on the photocopy) as "Hodgkin's disease".

[96] As to whether a biopsy should have been performed in January or February 1995 and whether this may have affected VIJAY SINGH's long term outcome the Court will never know. Neither DR RAO nor DR GALLO were asked for their respective opinions on this issue and for the Court to make any finding would be pure speculation.

[97] In addition, as noted above, the Statement of Claim does not make any assertion or claim of in relation to this issue, that is, whether there was any negligence in the diagnosis in not performing either earlier and/or more frequent biopsies. Instead, the claim is to do with the alleged negligence of failing to certify that the Plaintiff should have been evacuated to be treated overseas as paragraphs 3 and 4 of the Statement of Claim assert:

"3. That the sickness suffered by the Plaintiff could not be treated in Fiji and as such the Physician should have certified that the Plaintiff should be taken to a Hospital overseas.

4. That the Physician attending the Plaintiff negligently failed to certify that the Plaintiff could not be treated in a Hospital in Fiji and that he should be evacuated to a designated Hospital overseas."

4. The Plaintiff's limited evidence against the First Defendant

[98] The problem for the Plaintiff's case against DR RAO and the CWM Hospital (apart from pleadings) was the lack of lay witnesses and/or limited evidence in support, noting:

(a) The Plaintiff, VIJAY SINGH, died on 22 October 1998;

(b) The original Administratrix of his Estate, his mother, SANTA KUMARI SINGH, died on 17 February 2006;

(c) The Plaintiff's sister, BRENDA SINGH, who was there when the events took place in September/October 1994 at the CWM right through until mid-1995 did not give evidence. No explanation or evidence was lead through SUNITA SINGH to explain her sister's absence. This was troubling considering not only the pivotal role she played as agreed in the evidence of both SUNITA SINGH and DR RAO, but together with the fact that she had previously sworn three affidavits in these proceedings, one on 2 August 2006 in support of the Summons to substitute SUNITA SINGH as the Plaintiff, and two on 9 May and 16 July 2008 in support of the request that DR GALLO be allowed to giving his evidence from Australia rather than having to come to Fiji and attend Court in person. Thus, this was a classic Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 type situation. That is, that an inference could be drawn that her uncalled evidence would not have assisted the Plaintiff's case against the First Defendant;

(d) The Plaintiff's other sister, SUNITA SINGH, was in Australia for much of the time when important events relevant to the case now before the Court were taking place in Fiji. In addition, as noted above, she revealed during her evidence that she had very limited knowledge as to what occurred in Fiji and, in particular, with DR RAO.

5. Causation

[99] As there is no finding that there was a breach of the duty of care by the First Defendant, it is not necessary to go further and discuss whether such breach caused or materially contributed to the Plaintiff's ongoing problems and ultimate death.

G. THE LAW AND THE CLAIM AGAINST THE SECOND DEFENDANT

1. The claim against the Second Defendant

[100] In relation to the Second Defendant, as noted above, at paragraph 7 of the Statement of Claim, the Plaintiff claimed a breach of contract on the part of the Second Defendant. The problems with this claim are:

(a) It was never particularised in the Statement of Claim nor at the final hearing, the specific insurance policy and its clauses which the Plaintiff claimed that the Second Defendant had breached;

(b) Unsurprisingly, in his written submissions, Counsel for the Second Defendant has argued:

"It is unclear how the particulars of loss and damages pleaded result from the breach of (what we do not know) the terms and conditions."

[101] There is little point in the Court making pronouncements on various clauses in the insurance policy and whether or not they were breached, when details of them have not been specifically pleaded nor lead in evidence.

2. The Plaintiff's limited evidence against the Second Defendant

[102] The problems highlighted above in relation to the Plaintiff's case against the First Defendant (that is, a lack of lay witnesses and/or limited evidence) was even more apparent in its case against the Second Defendant. Apart from the Plaintiff and the original Administratrix of his Estate, having both passed away, the same problems arose:

(a) The Plaintiff's sister, BRENDA SINGH, who was there when the events took place in September/October 1994 until his departure for Australia in mid-1995, did not give evidence. No evidence was provided at the hearing for her absence. As noted above in relation to the case against the First Defendant, similarly, this was a classic Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 type situation. That is, that an inference could be drawn that her uncalled evidence would not have assisted the Plaintiff's case against the Second Defendant;

(b) The Plaintiff's other sister, SUNITA SINGH, was in Australia for much of the time when important events relevant to the insurance policy were taking place in Fiji. In addition, as noted above, she revealed during her evidence that she had very limited knowledge as to what occurred in Fiji and, in particular, the terms of the insurance policy.

[103] Compounding the problem was the lack of any other witness who could clarify the actual specific details concerning the insurance policy, such as:

(a) No witness was called from the Housing Authority of Fiji (where VIJAY SINGH had been employed), such as NUSHRAT ALI (mentioned in Exh "1". Doc "2" pg 23 - "Copy of Letter dated 1/12/95 from Mr. Chantelle Harman to Housing Authority) to explain -

(i) their understanding as to the insurance held with Blue Shield (Pacific) Insurance Limited; and

(ii) the actual policy which covered VIJAY SINGH;

(b) Similarly, no witness was subpoenaed from Sedgwick (Fiji) Limited, such as CHANTELLE HARMAN, as to the actual policy which VIJAY SINGH had held with them through his employer the Housing Authority of Fiji and how and why the Second Defendant came to make a payment on 14 October 1996 for the sum of AU$8,312.45 "being settlement of the insurers' portion of Mr Vijay Singh's treatment costs" at Liverpool Hospital.

3. The payment of AU$8,312.45

[104] The Plaintiff has not pleaded in his Statement of Claim as to the legal effect, if any, of this payment. As the Second Defendant has argued in its submissions, the Plaintiff cannot now raise estoppel for the partial payment as it has not been pleaded citing Order 18 rule 18/7 of The Supreme Court Practice 1995 (the "White Book"), volume 1, Sweet & Maxwell, London, 1994, which, in turn, cites Coppinger v Norton [1902] 2 Ir. R 241).

4. The remaining claim for AU$16,895.55

[105] Unfortunately, the balance of the claim has not been properly pleaded in the Statement of Claim. The Plaintiff never sought leave to amend the Statement of Claim to plead such details. In addition, there was no evidence provided at the final hearing, providing details as to the specific clause or clauses in the insurance policy which made the Second Defendant liable for these costs.

[106] In addition, the claim has not been itemised so it is unclear whether or not it includes the treatment for kidney stones as well as the surgery performed by DR PHILLIP BRENNER on 7 February 1996. The best evidence before the Court was that from DR GALLO who, when asked whether it was also performed at Liverpool Hospital, said: "I think so".

5. The claim for AU$32,000.00

[107] As with the claim for medical expenses, there was no specific reference in the Statement of Claim, at the final hearing or in the Plaintiff's written closing submissions, providing details as to the specific clause or clauses in the insurance policy which made the Second Defendant liable for these costs associated with the Plaintiff's stay in Australia. In addition, the Plaintiff never sought leave to amend the Statement of Claim to plead such details.

[108] It was clear from the evidence of SUNITA SINGH that this was not a claim made solely by the Estate of the Late VIJAY SINGH. Rather, unsurprisingly, his family also contributed to the cost as one would have naturally expected in such a tragic situation. It means, however, that the claim should have been much further documented as to what was that which was claimed by the Plaintiff's Estate.

[109] The problems of relying upon a handwritten one page document written by VIJAY SINGH some 10 years ago should have been obvious in the preparation of this part of the claim as well as having the case ready for trial.

[110] How could it be expected that the Court could even entertain such a claim when there was not even one receipt produced or a copy of a bank statement, to verify rent, food, electricity, gas, telephone, air travel, medicine or clothing?

6. No Submissions in Reply

[111] The Plaintiff filed written submissions in support of their claim. The Second Defendant filed Submissions in Response. Liberty was granted to the Plaintiff to file any Submissions in Reply, which has not been exercised. The Court presumes, therefore, that the Plaintiff wishes to stand by the submissions already filed and does not wish to take the opportunity to respond to the Second Defendant's submissions.

H. THE FINDINGS OF THE COURT

1. The burden of proof and the Plaintiff's case

[112] As Clerk & Lindsell on Torts, 19^th edn, Sweet & Maxwell, London, 2006, have explained at paragraph 8-149, page 495: "The onus of proof, on the balance of probabilities, that the defendant has been careless falls upon the claimant." And as they note in the footnote to this statement: "Hence at the close of the claimant's case, the defendant is entitled to submit that there is no case to answer."

[113] The First Defendant sought an Order in July 2003 to strike out the claim against it which was dismissed. Whilst the Court acknowledges the difficulties of conducting a case where the original Plaintiff has died combined with a long delay between the date when the cause of action arose and preparing a matter for final hearing, presumably a review would have taken place of the Plaintiff's case soon after the ruling in July 2003 examining the problems the Plaintiff's case faced such that it may have required particularisation (perhaps seeking leave to file an Amended Statement of Claim) as well as whether there was sufficient evidence in both documentary and oral form to have the case come up to proof "on the balance of probabilities".

2. The case against the First Defendant

[114] As for the First Defendant, although it did lead the evidence of DR RAO in its defence, it is noted that they had previously attempted to strike out the Plaintiff's claim as disclosing no reasonable cause of action and, further, they have not filed any written closing submissions after the final hearing. Presumably, they are prepared to stand by their Amended Statement of Defence filed on 22 September 1999 as well as the documentary and oral evidence provided at the final hearing in seeking dismissal of the claim filed against them.

3. The case against the Second Defendant

[115] In relation to the Second Defendant, it did not lead any oral evidence at the hearing and has stood by its "Statement of Defence" filed on 30 November 1999 reinforced by its written closing submissions, that is, "it is unclear how the particulars of loss and damages pleaded result from the breach of (what we do not know) the terms and conditions."

[116] In addition, in its "Statement of Defence" it pleaded that "it paid a sum of A$8312.45 and says that the same was paid to and accepted by the deceased by way of full and final settlement and satisfaction of his claim." The evidence of SUNITA SINGH was that: "I went to Blue Shield - I took him to make a claim - they may have agreed - I'm not sure". That the Administratrix of the Plaintiff's estate felt that there may have been a settlement between the Plaintiff and the Second Defendant or was not sure, meant that the evidential burden on the issue of whether or not there had been a previous settlement was not satisfied and had not shifted to the Second Defendant. (See the majority judgment of Barwick CJ, Kitto and Taylor JJ in the High Court of Australia in Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 at pp. 167-168.) This was an issue which should have been fully clarified before legal proceedings were instituted against the Second Defendant.

4. The legal findings

[117] In view of the above, the findings of this Court are:

1. That the First Defendant owed a duty of care to VIJAY SINGH.

2. That the evidence, including the expert evidence of Dr JOHN GALLO, does not support the Plaintiff's case that there was negligence in the treatment which VIJAY SINGH received whilst a patient under the care of DR RAO at CWM Hospital from September 1994 until mid-1995, in that DR RAO should have, as part of that treatment, referred the Plaintiff earlier overseas for treatment.

3. Accordingly, in view of the above, the Plaintiff has failed to prove the case against the First Defendant, that is, to satisfy the persuasive burden that on the balance of probabilities the First Defendant was negligent.

4. That despite the Plaintiff claiming a contract with the Second Defendant, what was actually held by the Plaintiff with the Second Defendant was never established, that is, the terms and conditions of that contract and what were the breaches of such terms and conditions.

5. Accordingly, in view of the above, the Plaintiff has failed to prove the case against the Second Defendant, that is, to satisfy the persuasive burden that on the balance of probabilities the Second Defendant breached the terms and conditions of a health insurance policy which the Plaintiff held with the Second Defendant.

1. CONCLUSION

1. A moment of reflection for the First Defendant

[118] Whilst I have found against the Plaintiff, this does not mean that the First Defendant did not have a moral (apart from a legal responsibility) to the Plaintiff and his family in dealing sensitively with the problems they were facing. I would hope that when DR RAO and the staff of the First Defendant read this judgment they reflect upon whether if some clear and empathetic written communication had been provided addressed personally to the patient at the time of his diagnosis in March 1995, then it may have reduced some of the distress the patient and his family believed resulted, such that the subsequent legal proceedings may not have been instituted.

2. A moment of reflection for the Second Defendant

[119] In relation to the Second Defendant, I can only commend them in the prompt manner in which they made the financial contribution in October 1996 to VIJAY SINGH's medical expenses soon after he had returned from Australia, particularly when I note that it has not been established in these proceedings as to what legal obligation if any, they had. Be that as it may, one can only hope that 13 years on since the events of 1995, that these days the staff of the Second Defendant have in place "review procedures" so that time is spent (such as occasional "update seminars") whereby individual policy holders are reminded as to the requirements which they must meet should they fall seriously ill and seek alternative medical treatment overseas relying upon funding from their health insurance.

3. A moment to acknowledge the sacrifices made by the Plaintiff's family

[120] Finally, I believe it is important that the Court records the sacrifices made by VIJAY SINGH's family towards his care particularly from late 1994 until late 1996. I am satisfied that his late mother, SANTA. KUMARI SINGH, his sister, BRENDA SINGH, and the current Administratrix of his Estate, his sister, SUNITA SINGH, all made enormous sacrifices in terms of time, money, love and devotion in an effort to assist the restoration of the health of their son and brother and, no doubt, their enormous efforts contributed to his disease being in remission from late 1996 for a period before his premature death on 22 October 1998.

4. Orders

[121] The formal Orders of this Court are as follows:

1. Judgment is entered for the First and Second Defendants.

2. Costs to be paid by the Plaintiff as agreed or assessed.

THOMAS V. HICKIE

JUDGE

Solicitors:
Kohli and Singh, Barristers & Solicitors, Suva
Office of the Solicitor General, Suva
Young &Associates, Lautoka