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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION
Civil Action No: HBC 52 of 2001L
BETWEEN:
KANIAPPA NAICKER by his executrix and trustee JANKI NAICKER
Plaintiff
AND:
DR LOUISE WILLIAM
1st Defendant
AND:
THE ATTORNEY GENERAL OF FIJI
2nd Defendant
FINAL JUDGMENT
Of: Inoke J.
Counsel Appearing: Mr A Patel for the Plaintiff
Mr R Green for the Defendants
Solicitors: S B Patel & Co for the Plaintiff
Solicitor General’s Office for the Defendants
Date of Hearing: 5 October 2009
Date of Judgment: 12 January 2010 delivered on 18 January 2010
INTRODUCTION
[1] This is a medical negligence case. The Plaintiff, Kaniappa Naicker, who is now deceased, had his right eye operated on by the First Defendant, Dr Louise William, at the Lautoka Hospital to remove a cataract on 17 January 2000.
[2] Mr Naicker alleges that Dr William was negligent and as a result his eye had to be completely removed two weeks later. This is his claim for compensation.
THE STATEMENT OF CLAIM AND DEFENCE
[3] The Statement of Claim pleads the particulars of negligence as follows:
- In the month of April 1999 the first defendant failed to properly diagnose the medical condition suffered by the plaintiff;
- Failed to sterilise the apparatus used in the operation;
- Failed to check whether there was clear running water in the theatre on the day of the operation.
[4] The Defendants deny liability and allege that the Mr Naicker’s pre-existing diabetic condition was the cause of the eye infection that eventually led to the removal of his eye.
SUBMISSIONS
[5] After the hearing on 5 October 2009, Counsel were given time to file written submissions and judgment delivered on notice thereafter. Counsel for the Defendants filed his submissions on 15 October 2009. This Judgment is being delivered without the submissions for the Plaintiff.
THE TRIAL
[6] At the commencement of the hearing Mr Patel informed the Court that he was withdrawing his reservation to the report of Dr T Oo in pages 63 to 65 of the Agreed Bundle of Documents ("ABOD"). Dr Oo was the Consultant Ophthalmologist at the Lautoka Hospital at the time but has left Fiji and was not being called as a witness. Mr Patel however objected to several medical articles in pages 69 to 83 of the ABOD. I allowed the documents into evidence subject to the expertise of the author being proven and the contents of the documents being open to contradiction by expert witnesses. As it turned out, it was not necessary for me to rely on these articles.
[7] The first witness called for the Plaintiff was Dr Ramswamy Ponnu Goundar, who is a Consultant Pathologist and is the Director of the Fiji Police Forensic Sciences. His evidence is based on examination of the Plaintiff and the inpatient medical reports and two reports by Dr Oo. Dr Goundar produced a report[1] dated 13 November 2000 which concluded:
This is a good case for medical negligence. Dr Oo admits in his report prei-operative (sic) infection more likely and this is due to one improper sterilisation procedures and two – there was not running water in the theatre the morning of the surgery, and could in subsequent dirty water in the system. This dirty water could have been used in washing of surgical equipment, preparation for surgery and washing of hands.
[8] Dr Goundar explained the meaning of "peri-operative" as "during the operation". Dr Goundar was referred to the two medical reports by Dr Oo, the first dated 26 January 2000[2] and the second dated 29 March 2000[3]. The first of Dr Oo’s report stated:
SUMMARY OF THE CASE
Patient’s name: KANIAPPA NAICKER
Date of Admission: 16th January 2000
Date of Discharge: 8th February 2000
Medical History: Patient was a known NIDDM for two years duration and taking Tablet Daonil 7.5mg Bid. No know history of Hypertension, chest pain. History of taking yagona and occasional smoker. History of allergic to penicillin was detected.
Patient present himself to the eye department on the 14th April 1999 for blurring of vision for more than five months duration. Lens opacities were detected. Right lens opacity was more than the left. Right lenses opacity gradually increase in size and could see fingers counting one meter on the 8th July 1999. Patient was seen again on the 30th November 1999 and decided to do cataract operation because of the hypermature in nature and to prevent complications to the eyes.
Pre-operative preparation: Patient was put on pre-operative (preventative) antibiotic eye drops (chloramphenicol E/D). General examination revealed within the normal limits. Health education for the personal hygiene and the precaution for the control of the diabetes were made. RB’s on the admission was 14.3m.mole and the early pre-operative Blood sugar level was 6.4m mole.
Operative procedure: Dr Louise William and the Assisting Nurse:
No peri-operative complications were noted. Routine preventive antibiotic (S/C Gentamycin 20 mg) was given.
Post–operative finding: No abnormal discharge suggestive of eye infection was detected on the eye patch on the first post-operative day. But there was evidence of intra-ocular infection was detected on the second post-operative day. Urgent intensive medical treatment including intra-vitreal vancomycin and later erythromycin (according to culture and sensitivity result) was given. Intensities of the intra-ocular infection were remarkably reduced but the hypopyon still remain and the whole ocular media’s were opaque. Patient was under the care of the physician at the hospital and the control of diabetes was also monitored intensively.
Evisceration of the right eye was done on the 31st January 2000 with the due consent given by the patient. Indication of the operation were: secondary glaucomas, opaque ocular media’s, high risks to the patient’s life due to unstable diabetes and to prevent further infection to the other eye.
Highlights to the important issues.
SUMMARY
First operative case of the first day of the new millennium received post-operative infection.
[9] Dr Oo’s second report of 29 March 2000 was as follows:
TO WHOM IT MAY CONCERN
MEDICAL REPORT
RE: Kaniappa Naicker f/n Sadian
Medical History:
Patient is a known case of type II Diabetes for more than 2 years duration since 1999.
Ocular History:
Patient was seen at the eye department Lautoka Hospital on the 14th April 1999 for blurring of vision for five month duration. Visual acuity on the right eye was 6/18 and left 6/12. Dense lens opacity was detected on the right eye.
Patient was seen again on the 8th July 1999. Visual acuity on the right eye is finger counting one meter and the left 6/12. Patient was given date for right cataract operation due to the severity and nature of cataract on his right eye.
Patient was seen again on the 19th November 1999. Visual acuity on the right eye is hand movement and the left 6/18. Due to the severity and nature of the cataract, cataract operation was organised.
Diabetes History:
On the 19th November 1999, random blood sugar level on routine medical check-up revealed 28.5 mmoL (very high) patient was referred to the medical department to control the diabetes.
Patient was reviewed again on the 30th November 1999. Blood sugar level went down to 13 mmoL. Patent was admitted on the 16th January 2000. With the satisfactory blood sugar control.
Indication for Surgery:
Hypermature cataract (with history of rapid maturity rate of cataract) and to prevent complication.
Pre-operative preparation:
Patient’s blood sugar level was 6.4 mmoL before the operation. General physical condition were satisfactory.
Detail explanation about the risks and benefit and nature of the cataract operation was given to the patient by the medical doctor and Indian Nurse by Hindi language. Patient understand the explanation given by the doctors and nurse and give his due consent.
Operative History:
Extracapsular cataract operation with intra oculars lens implant was done under local anaesthesia on the 17th January 2000. Prophylatic antibiotic were given. No surgical complication during or after the operation. Operation was successful.
Post–operative History:
Evidence of intra-ocular infection was detected on the second post-operative day. Urgent intensive medical treatment including intra-vitreal vancomycin and later erythromycin (according to the culture and sensitivity result) were given. Intra-ocular infection were remarkable controlled, but hypopyon (pus in the eye) remained persistent and ocular media were opaque (visual out-come unfavourable). Patient was under the care of physician to control the diabetes. Inspite of the intensive medical treatment for 10 days, hypopyon (pus in the eyes) and opaque ocular media did not improve. Evidence of secondary glaucoma, risk of infection to the patient’s other eye and underlying diabetes threatened the patient general condition as well as his life.
Patient was given thorough explanation about the risk and benefit of the further operation (eviseration) by medical doctor and nurses. Patient understand and gave the due consent to perform the eviseration of his right eye.
Eviseration of the right eye was done on the 31st January 2000 under local anaesthesia. Post operative periods were satisfactory and patient was discharged from the hospital on the 8th February 2000.
Summary:
Right cataract operation with lens implant was done successfully. Patient received post operative eye infection on the 2nd post operative day. Intensive treatment were given and post-operative infection controlled well. Due to the underlying disease diabetes and not to take unnecessary risk to his life, eviseration of right eye was done. Patient’s recovered completely and his life style is normal.
[10] In cross examination, Dr Goundar admitted that he had never conducted any cataract operation. He was merely asked to provide a report by looking at the hospital records. He relied on Dr Oo’s opinion, who was the then eye specialist. He agreed that the comment by Dr Oo in paragraph 5 under the heading: "Highlights to the important issues" in the first report was more likely that Dr Oo was still questioning the cause rather than the doctor forming his opinion. However, Dr Goundar did not agree that it was Mr Naicker’s diabetes that lead to the second operation to remove Mr Naicker’s right eye; it was the infection after the first operation that did. The infection was caused by bacteria and not a virus. Bacteria are always present in the body and if one’s immune system is not strong, one can get infection. Diabetes can affect the immune system depending on how it is managed. Dr Goundar did not agree that Mr Naicker’s immune system was down at the time of the operation because the blood count done 2 days after the operation was within the normal range. He agreed however that the infection could lead to endangerment of life and conceded that he did not conduct independent tests to prove that lack of water or dirty water caused the infection and that he did not know whether proper sterilisation was done before the cataract operation.
[11] In re-examination he said he would accept Dr Oo’s opinion on sterilisation. He gave his evidence and report based on his general experience and he has given evidence in Court before on eye cases.
[12] The second witness for the Plaintiff was Mr Naicker’s widow. She has obtained probate for her late husband’s estate. She recalls admitting her husband to the Lautoka Hospital at 4.00pm on 16 January 2000 for a cataract operation. She saw him after the operation. He had a bandage over his eye. He complained of headaches and eye pain. She said she saw him one morning and her husband’s "eye had melted, gone white". She also saw "water" coming out of his eye. She said when the bandage was removed, "his eye was not like an eye; something white and round in his eye; the main part had gone white". When they removed her husband’s eye, all she could see was the red flesh. Her husband said to her that after his eye was removed his headaches were less.
[13] The first witness for the Defendants was the First Defendant herself, Dr Louise William. She graduated from medical school with an MBBS in December 1994 and spent a 1 year internship at the Lautoka Hospital and later got transferred to the eye department. She worked till 1996 before taking up a WHO scholarship in Auckland University. She was the medical officer, ophthalmology, in 1996 under Dr Oo. She diagnosed Mr Naicker with cataract in his right eye in April 1999. She confirmed the chain of events contained in Dr Oo’s reports, the inpatient reports and the report of the Consultant Ophthalmologist, Dr Luisa Cikamatana Rauto.[4] On Mr Naicker’s first visit, his diabetes was a bit high but he agreed to comply with the set diet. He gave his consent to the operation and was given eye drops for use over the weekend to stop infections. He was admitted to control his diabetes. Mr Naicker returned on Sunday 16 January 2000 at 4.00pm for admission. He was given tablets, an injection on the morning of the operation as well as eye drops.
[14] On the issue of sterilisation, Dr William said that the theatre instruments were sent for sterilisation on the Friday before the operation. When Mr Naicker was brought into the theatre he was made comfortable, eye drops were put in his eye, anaesthetised and reassured. She followed a strict protocol in washing her hands and gloving up for the operation before actually conducting the operation. After the operation, the patient was checked the next day in grand rounds with the Consultant. She noticed swelling of the right eyelid but the wound was intact. Dr Oo said to continue with antibiotics. She also saw the patient in the grand rounds of 19 January 2000 with Dr Oo and two other doctors and the nurse. The intra vitreal drug administered to Mr Naicker is a very strong antibiotic and is only done by the Consultant. It was changed on the next day. On 20 January 2000, Mr Naicker was still suffering headaches but slept well. But his diabetes was high (13.3 mmoL), well outside the normal high range (9.9 mmoL). By the 22 January 2000 puss was still in Mr Naicker’s eye. Treatment was to change the pads and continue with the diabetes treatment. On day 14 after the operation Mr Naicker’s diabetes was still on the high side and eye removal was recommended. On 30 January 200 Mr Naicker was prepared for operation. He gave his consent and the operation was done on 31 January 2000. The second operation was necessary "to prevent the patient from developing further conditions dangerous to his other eye which could spread back to his brain and eventually to his whole body." Mr Naicker’s diabetes remained uncontrolled and further treatment was undertaken until 7 February 2000 when it became normal and his general condition was good so he was discharged.
[15] Swabs on Mr Naicker’s right eye infection were sent to the pathology laboratory on 19 January 2000. The report[5] showed the bacteria that caused Mr Naicker’s infection was Group B Beta hemolytic streptococci. Samples were also sent on 19 January 200 to the Biochemistry Department for analysis. Dr William did blood tests, kidney checks and a full blood count on Mr Naicker. She said these tests were for her to see if the patient was reacting normally to the infection. The test of 19 January 2000 showed that all but one indicator was outside the normal range. According to Dr William, the antibiotic drug Vancomycin injected into Mr Naicker’s eye killed most bacteria. Its use is restricted to serious cases of infection such as Mr Naicker’s. When asked why Mr Naicker did not respond to the treatment, she answered that meant that something or some condition was stopping his body from responding to it. She could only identify Mr Naicker’s diabetes as stopping him from responding appropriately. She confirmed Dr Oo’s summary that the first operation was successful, Mr Naicker was given intensive treatment for his eye infection without success and it was his diabetes that necessitated the second operation. He recovered after the second operation.
[16] As to the allegation that there was no water in the theatre she said that she could not operate without running water. As to the issue of sterilisation, Dr William said in cross examination that she did not know about it because it was the nurses that took the instruments away for sterilisation. She said that people with diabetes were susceptible to infection. When asked: "If the Plaintiff did not have the operation, would he be infected?" Dr William answered: "We will never know in this case". She confirmed that Mr Naicker visited the hospital for his operation on 19 November 1999 but was sent back because his blood sugar level ("bsl") was too high – 28.5 mmoL. Protocol required that bsl be done before an operation. On 16 January 2000, Mr Naicker’s bsl was 23.4 but given tablets and being in hospital with a restricted diet, his bsl went down to 6.3 within the normal range so he was able to be operated on. It was put to Dr William that the infection was caused by the operation to remove the cataract. She said she could not say for sure. She did not agree that sterilisation procedures were not followed or that the operation should not have been commenced because the water did not come on stream till 8.30am. The go ahead for the operation was given by the sister in charge. If she did not operate, the cataract would "over mature" which would lead to severe inflammation then puss in the eye and poor vision. Water used in the operation was sealed in a container and not tap water. Tap water is not used except to wash the doctor’s hands before the operation.
[17] The second witness for the Defendants was Dr Luisa Cikamatana, who is now the Consultant Ophthalmologist at the Lautoka Hospital. She oversees all services of eye clinic for the whole of the Western Division. She was asked to review Mr Naicker’s medical folders and prepared a report dated 26 May 2008.[6] Dr Cikamatana reported:
Despite having antibiotic cover before surgery, during surgery and after surgery, Mr Kaniappa developed infection 2 days after cataract surgery that even intense antibiotic cover did not control the infection and as a result the eye contents were exposed that they had to be removed surgically on 31/01/00.
For any infection to occur there are many contributing factors. To name a few, the causes could be from the host (the patient), the environment, procedures including equipment and instruments, type of organism and the providers, mainly the medical personal (sic).
[18] Dr Cikamatana also provided additional notes in a letter dated 27 May 2008 that:
Adults can carry Group B, beta Hemolytic Streptococci in their bodies but are not infected and do not become sick ie they are colonized with the bacteria or microorganism. The bacteria can be carried in the gastrointestinal tract including the mouth, genital tract or urinary tract. However, it can lead to serious infections if it invades the blood stream in people with weakened immune systems for example in patients receiving cancer treatment or have chronic illness especially diabetes.
The most likely attributing factor to Mr Kaniappa’s post operative infection would be that the microorganism was virulent or it was from endogenous spread taking into consideration that he has diabetes.
[19] In cross examination Dr Cikamatana confirmed that if the patient took his tablets then his diabetes could be controlled. And if the diabetes is not controlled or there is infection then the doctor does not operate. All pre-op checks were done on Mr Naicker on 14 January 2000 as per the notes.
[20] The third witness for the Defendants was the nurse that was in the operating theatre at the time of Mr Naicker’s cataract operation. She said the equipment and instruments were sterilised on the day before the operation although she did not take part in the actual sterilisation.
[21] The fourth witness was the Acting Supervisor of Mechanical Services for the Lautoka Hospital. He has held that position for the last 9 years since 19 May 2000. He explained that the Hospital had two tanks supplied by the normal water supply. When the normal supply gets cut off, the "quick fill" system from these tanks supplies water to the Hospital. The water main line always has water and there is no chance of dirty water being supplied. A boiler supplies steam to the theatre for sterilisation of instruments by a "Steam Sterilizer". It is an auto-clean system that operates at 132 degrees centigrade and is not affected by water cuts. It is the same system that is being used in Suva. It was in place when he started work at the Lautoka Hospital.
CONSIDERATION OF THE EVIDENCE AND THE CLAIM
[22] I do not think that it is necessary for me to consider in dept to the law of medical negligence because the outcome of this case depended entirely on one point and that is, that the Plaintiff has the onus of proof. It is not in issue that the Hospital owes the Plaintiff a duty of care. The issue here is whether the standard of care has been breached. His Statement of Claim alleges that the First Defendant was negligent because:
- In the month of April 1999 the first defendant failed to properly diagnose the medical condition suffered by the plaintiff;
- Failed to sterilise the apparatus used in the operation;
- Failed to check whether there was clear running water in the theatre on the day of the operation.
[23] The evidence produced on his behalf fell far short of proving on the balance of probability those particulars of negligence as pleaded.
[24] Instead, I accept and prefer the evidence of Dr William and Dr Cikamatana to that of Dr Goundar. I find that it was necessary for Mr Naicker to undergo the cataract operation, that the operation was done according to good medical practice and successfully and that the risk of infection was heightened by his diabetes. I also find that Dr William and Dr Oo gave Mr Naicker the best medical care in the circumstances to prevent and stop the post-operative infection.
[25] Having found that there was insufficient or no evidence that the instruments were not properly sterilised or that there was no running water or that dirty water was used in the operation or that the Hospital environment was unhygienic, the inevitable conclusion is that Mr Naicker’s diabetes leading to reduced immunity was the cause of his infection.
[26] The allegation of negligence against the First Defendant is therefore not proven and the Plaintiff’s claim therefore fails.
COSTS
[27] It is left to Mr Naicker’s widow to fight this case so in the circumstances I make no order as to costs.
ORDERS
[28] The Orders are therefore as follows:
- The Plaintiff’s claim is dismissed.
- There is no order as to costs.
............................................................
Sosefo Inoke
Judge
[1] Page 3 ABOD
[2] Pages 66-8 ABOD
[3] Pages 63-5 ABOD
[4] Pages 85-9 ABOD
[5] Page 49 ABOD
[6] Page 85-89 ABOD
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