Wati v Permanent Secretary of Health [2012] FJHC 1335; HBC001.2009 (19 September 2012)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

Civil Action No: HBC 001 of 2009

BETWEEN:

INDRA WATI
[Plaintiff]

AND:

THE PERMANENT SECRETARY OF HEALTH
[1st Defendant]

AND:

ATTONERY GENERAL OF FIJI
[2nd Defendant]

Counsel: Mr. A. Sen for the Plaintiff.
Mr. J Mainavolau for the defendants

Date of Judgment: 19th September, 2012

JUDGMENT

[1]. The plaintiff, by his writ of summons dated 8th January 2009, filed this action against the defendants claiming special damages, general damages, interest thereon and costs.

[2]. The plaintiff is the widow of and the administratrix of the estate of her late husband Prem Chand (deceased) who died on 20.01.2008 at the Labasa Hospital.

[3]. The suit was founded on negligence against the 1st defendant alleging that the 1st defendant through his servants and agents failed to exercise all reasonable care, skill and diligence in providing proper health care which resulted in the death of the plaintiff’s husband.

[4]. On 13.01.2008, the deceased suffered injuries to his knees while he was at work. Subsequently, he was admitted to the Labasa hospital where he was treated and while receiving treatments, the deceased died on 20.01.2008.

[5]. The plaintiff alleged that the defendants failed to exercise all reasonable standard of care and duty and diligence in attending the deceased, and acted negligently in the care and the management of the deceased.

[6]. The statement of defence whilst admitting that a duty of care was owed to the plaintiff nevertheless denies that there was any breach of that duty by the surgeons and doctors who attended to the plaintiff during his stay in the hospital. It is further stated in the statement of defence that the deceased had a pre-existing condition and his untimely death was beyond hospital’s control

[7]. The following facts were agreed to by both parties at the Pre-trial conference:

1. The plaintiff is the widow and administratrix in the estate of Prem Chand who died intestate on 20th January 2008. The letters of administration was granted to the plaintiff on 19th November 2008.
   
2. At the time of the death, the deceased was :
   
   1. Aged 43 years and was born on 28th May 1965.
   2. Married to Indra Wati and had following children:-
      
      1. Deepna Chand born on 03.12.2006
      2. Kunal Krishneel Chand born on 18.05.1989
      3. No previous adverse medical condition
         
3. The plaintiff brings this action for the benefit of the deceased’s estate under the Law Reform (miscellaneous provision), Death and Interests Act and for the benefit of the dependents of the deceased pursuant to Compensation to Relatives Act.
   
4. At all material times the 1st defendant owned, managed and administered Labasa hospital and provided medical, specialist and other health services.
   
5. The 2nd defendant is the representative of Government of the Republic of Fiji Islands.
   
6. The 1st defendant owed a duty of care to the deceased in relation to his treatment and/or advice and /or information provided in relation thereto without limiting the generality of his duty, the duty of care comprising the following:
   
   1. A direct, non-delegable duty of care to ensure that reasonable care was at all times taken in relation to the medical, nursing and other care with which the deceased was provided by or on behalf of the hospital, including the provision of advice and/ or information; and
      
   2. A duty at all times to take reasonable care to ensure that there was a safe system of health care provided at the hospital. This duty included a duty to ensure that there were proper and effective means of communication in place including communication of risks and/or information to patients such as the deceased.
      
7. The 1st defendant employed and/or engaged the medical, surgical, nursing and other staff who worked in Labasa Hospital and, accordingly, the 1st defendant is also liable in respect of any breach of duty or negligence on their part.
8. On the 13th of January 2008, the deceased suffered injuries to his knees and other parts of his body whilst he was at work and was taken to Labasa Hospital to be diagnosed and treated.
   
9. On the 20th January 2008, the deceased died at Labasa Hospital.
   
10. That the deceased was the sole supporter of the plaintiff and his children and by his death they have lost means of support and they have suffered loss and damages.
    

[8]. In view of the above, the crucial question of facts which the court has to determine is whether the cause of the death of the deceased, was the health authorities’ negligence in making an incorrect diagnosis and delaying treatment.

[9]. Further, it has to be determined by this court whether the defendants had conformed to the standard of reasonable care demanded by the law in treating the deceased.

[10]. In deciding the abovementioned issues, following questions are to be answered by the court:

1. Whether the deceased was accorded a proper care, treatment and attention by the defendants at the Labasa Hospital;
   
2. Whether the death of the deceased was beyond the control of the hospital authorities;
   

100. Whether the deceased had a pre-existing condition which contributed to his death; and,
     

4. If the answer to the (b) and (c) is yes, can the defendants be held liable for negligence?
   

[11]. In considering the standard of care that should have been employed by the 1st defendant, the following authorities would be of great assistance.

[12]. The accepted test currently applied in the English Law to determine the standard of care of a skilled professional, commonly known as the ‘Bolam test’, is based on the dicta of Mc Nair J in his address to the jury in Bolam v. Friern Hospital Management Committee [1957] 2 All.E.R.118.At page 121, he stated:

“But where you get a situation which involves the use of some skill or competence, then the test where there has been negligence or not is the test of the man on the top of a Calpham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill at the risk of being found negligent. It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.

[13]. In Marshall v.Lindsey County Council [1935] 1 KB 516 at 540, Morgan J stated:

‘An act cannot, in my opinion, be held to be due to a want of reasonable care if it is in accordance with the general practice of mankind. What is reasonable in a world not wholly composed of wise men and women must depend on what people presumed to be reasonable constantly do.’

[14]. In Hotson v. East Berkshire Area Health Authority[1987] 1 All E.R 210,

it was held that the crucial question of fact, which the judge had to determine, was whether the cause of the plaintiff’s 13 year old boy’s injury, was his fall or the Health Authority’s negligence in making an incorrect diagnosis and delaying treatment, since if the fall had caused the injury, the negligence of the authority was irrelevant in regard to the plaintiff’s disability. That question was to be decided on the balance of probabilities. Accordingly, since the judge had held that on the balance of probabilities, given the plaintiff’s condition when he first arrived at the hospital, even correct diagnosis and treatment would not have prevented the disability from occurring, it followed that the plaintiff had failed on the issue of causation.

[15]. Lord President Clyde in Hunter v. Hanley [1955] ScotCS CSIH_2; [1955] S.C 200 (supra)stated thus:

‘The true test for establishing negligence in negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care.’ Pp 204-205:

[16]. It is with these legal principles in mind that I considered the evidence led in the case before me.

[17]. At the trial, only the plaintiff and a doctor named Abey Chaudry were testified. The plaintiff in his evidence stated the events which led to the deceased’s admission to the Labasa Hospital. She further stated that the deceased has not had any medical condition before the admission. She admitted that the deceased died of pulmonary embolism.

[18]. In this regard, the testimony of Dr. Abey Chaudry is of paramount importance. Dr Chaudry has been working as a surgeon since 1998 and had been working in the Labasa Hospital from 2003-2010. While giving evidence, he identified the medical report of the deceased which was in page 4 of the Agreed Bundle of Documents.

[19]. According to Dr Chaudry’s evidence, the deceased, when admitted was diagnosed of fractured left patella confirmed on X-ray. Also, the deceased was found to be diabetic at the time of admission.

[20]. Dr Chaudry went on to explain the entries made in the Medical Report. The entries show that the deceased had undergone a surgery under spinal anaesthesia on 16.01.2008 and was recovering well postoperatively. On 18.01.2008, the deceased was mobilised in a wheel chair.

[21]. On 19.01.2008, the deceased had developed shortness of breath, rapid pulse and low blood pressure and was given oxygen by mask and was also given I.V. fluids. What is discernible from the medical report is that the deceased had developed some complications only on 19.01.2008 at 10.30am. At that time he was seen by a medical team and diagnosed of having sinus tachycardia and ischemic changes on ECG.

[22]. On the same day around 1.30pm a possibility of pulmonary embolism was considered and the medical team had advised the deceased to be transferred to recovery and anaesthetic assessment for ventilator support.

[23]. The deceased was transferred to the recovery ward but continued to have tachycardia and tachypnoca and commenced heparin at 3.50pm. Since, the deceased’s condition did not improve he was hooked on for ventilator for respiratory support. At 8.30.pm on the same day the medical team commenced the deceased on Streptokinase infusion with the intention to dissolve the clot in the lung, but he continued to deteriorate.

[24]. Despite the deceased was put on dopamine/dobutamine for hemodynamic support the deceased passed away at 8.45pm on 20.01.2008.

[25]. According to the medical report, the probable cause of death was pulmonary embolism. Therefore, to examine the nature of the pulmonary embolism, its symptoms, diagnosing, management and available treatments are of much significance to this action.

[26]. Dr. Chaudry in his evidence very clearly explained that D-dimer test, MRI scan and CT scan are the most widely used methods applied in diagnosing pulmonary embolism but none of those tests were available at Labasa Hospital in 2008. In such a situation doctors had to diagnose and confirm the possibility of pulmonary embolism by examining other clinical symptoms associated with pulmonary embolism.

[27]. Further, he commented on the nature of pulmonary embolism. Pulmonary embolism is a sudden blockage of a major blood vessel in the lung, usually by a blood clot. The most common symptoms are sudden shortness of breath and, sharp chest pain.

[28]. Pulmonary embolism is usually treated with medicines called anticoagulants. It does not dissolve clots but help prevent new clots and keep existing clots from growing. The most common drug used in cases of pulmonary embolism is Heparin.

[29]. The main contention advanced on behalf the plaintiff was that had the doctors in the Labasa hospital administered Heparin to the deceased in time, the death could have been avoided. In that context, it is pertinent to consider Dr Chaudry’s opinion on the management of the deceased after the surgery.

[30]. Dr Chaudry in his testimony explained the function of anticoagulants; in particular Heparin which is widely used in cases of pulmonary embolism. According to Dr Chaudry, Heparin being a blood thinner increases the risk of bleeding in particular in a patient who has undergone a surgery. In the instant case the evidence proved that the deceased had developed complications post operatively thus the risk of bleeding was already present in the deceased. It was Dr. Chaudry’s view that if there exists no risk factors; Heparin would not normally be administered to a patient who has undergone a surgery. From having examined the deceased’s hospital records Dr Chaudry formed the view that there were no risk factors which warrant the hospital authorities to commence Heparin on the deceased.

[31]. Therefore, in the absence of any risk factors, it is impossible to form a view that the deceased should have been given Heparin on his admission to the hospital or after the surgery. The evidence does not show that there was any reason for the doctors to anticipate that the deceased would develop pulmonary embolism after the surgery.

[32]. When it was suggested to the witness that had Heparin been administered after the surgery the deceased could not have suffered pulmonary embolism the witness did not agree with that suggestion. The witness in his expert opinion very clearly expressed the view that heparin could not dissolve existing blood clots but only prevent forming new clots.

[33]. Further, the medical report does show that the deceased had recovered fully after the surgery and had not shown any complication until 19.01.2008, which was attended by the medical team. The only questionable point is whether the doctors in the Labasa Hospital had failed to administer Heparin to the deceased without delay.

[34]. When the deceased was diagnosed as having pulmonary embolism the doctors had made every possible attempt to treat the deceased with available resources.

[35]. It is important to have some idea about the formation of clots after an injury. Normally, when an injury that causes bleeding occurs, the body sends out signals that cause the blood clot at the wound. The clot naturally breaks down as the wound heals. However, a person who is prone to abnormal clotting has an imbalance between clot formation and clot breakdown. Anticoagulants prevent the production of certain proteins that are needed for blood to clot. Although anticoagulants can prevent new clots from foaming and prevent existing clots from getting larger, they do not break up or dissolve existing blood clots. (Pulmonary embolism causes, symptoms and treatments, www.webmd.com).

[36]. Hence, it is clear that a person who has undergone a surgery cannot be immediately given anticoagulants such as Heparin which increase the risk of bleeding. It was further established that Heparin does not dissolve blood clots which are already in the circulation but prevent further clotting. Heparin is an anticoagulation drug. Anticoagulants are prescribed only when pulmonary embolism is diagnosed or strongly suspected.

[37]. In view of the above evidence, it is important to consider whether the defendants had acted with diligence and care in diagnosing the deceased's pulmonary embolism and also whether the defendants had treated it without unnecessary delay.

[38]. There is no evidence to show that the doctors were late in administering heparin on the deceased. Further, Dr. Chaudry never opined that there was a possibility of preventing pulmonary embolism had Heparin been administered much earlier. More importantly, Dr. Chaudry clearly explained the difficulty of administering Heparin to a patient after a surgery due to the risk of haemorrhage. Also, he explained the difficulty of diagnosing pulmonary embolism because the symptoms are like those of many other problems, such as a heart attack, a panic attack, or pneumonia. Further, non availability of particular tests in the Labasa hospital would have also made doctors' task of diagnosing pulmonary embolism more difficult.

[39]. The entries made in the medical report show that the likelihood of pulmonary embolism was first detected on 19.01.2008 at 1.30 pm. i.e. 3 days after the surgery. Until such time, the deceased had not shown any symptoms indicative of pulmonary embolism nor did he have any risk factors which warrant commencing Heparin.

[40]. According to Dr Chaudry, Heparin cannot prevent dislodging a clot which is already in circulation. Therefore, it cannot be stated to a certainty that the death could have been prevented had Heparin been administered without delay.

[41]. Further, Dr. Chaudry went on to explain the findings of the autopsy report of the deceased. The autopsy report shows presence of atherosclerosis with clots in the right chambers and left atrium. In addition to that the deceased had greyish colour clots in the right lung which was suggestive of a pre-existing vascular disease that was silent and presented post operatively as causing patient's death.

[42]. In view of the above, I have come to a conclusion that the evidence failed to establish any negligence on the part of the doctors who treated and attended on the deceased from 16th 01.2008 until his death which occurred on 20.01.2008.

[43]. Further, it is not enough under the present law of delict for a plaintiff to prove only that the defendants were negligent. In addition to establishing the existence of damage, the plaintiff must prove that the defendants' negligent act or omission was the actual cause of the damage which occurred. In other words the plaintiff must prove the existence of a causal connection between the damage and the alleged negligent act.

[44]. In the present case, the medical evidence when considered into clearly lead to an inevitable conclusion that the deceased had a pre-existing pathology which was silent but presented subsequent to the surgery causing pulmonary embolism which led to his demise. Thus, the evidence before this court has not established a medically accepted link between the defendants' conduct and the death of the deceased.

[45]. Though the plaintiff argued that Heparin should have been administered to the deceased after he was admitted to the hospital the plaintiff could not substantiate that argument with an expert medical opinion and also has failed to produce any evidence in contrary to Dr. Chaudry's opinion. Further, despite the questioning by the plaintiff's counsel, credibility of the evidence of Dr Chaudry remains intact.

[46]. The evidence before me does not suggest that the defendants in any manner had acted below the standards required by law nor does it prove on the balance of probability that the defendants were negligent in diagnosing and treating the deceased. More importantly, the plaintiff has failed to establish the causal connection between the conduct of the defendants and the death of the deceased.

[47]. On the above premise, I dismiss the plaintiff's claim.

[48]. Cost is assessed summarily in the sum of $ 1000.00.

Pradeep Hettiarachchi
JUDGE