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Nair v Permanent Secretary for Health [2013] FJHC 75; HBC10.2009 (24 January 2013)

IN THE HIGH COURT OF FIJI AT LABASA
CIVIL JURISDICTION


CASE NUMBER: HBC 10 OF 2009


BETWEEN:


PERMAL NAIR
PLAINTIFF


AND:


THE PERMANENT SECRETARY OF HEALTH
1ST DEFENDANT


AND:


ATTORNEY GENERAL OF FIJI
2ND DEFENDANT


Appearances: Mr. A. Kohli for the Plaintiff.
Mr. Mainavolau for the Defendants.
Date and Place of Judgment: Thursday, 24 January, 2013 at Labasa.
Coram: The Hon. Justice Anjala Wati.
______________________________________________________________________________


JUDGMENT


CATCHWORDS:


MEDICAL PRACTITIONER- TRESPASS TO PERSON-CONSENT TO OPERATION-OPERATION ON PATIENT WITHOUT CONSENT-WHETHER LACK OF REAL CONSENT BY PATIENT FOR OPERATION-WHETHER OPERATION WITHOUT CONSENT AMOUNTS TO NEGLIGENCE.


MEDICAL PRACTITIONER- APPROPRIATE ACTION WHEN PATIENT'S CONSENT TO OPERATE IS MISSING- TRESPASS TO PERSON OR NEGLIGENCE-WHAT NEEDS TO BE PROVED FOR EACH CAUSE OF ACTION; WOULD THE QUESTION OF DAMAGE BE DIFFERENT IF BOTH CAUSES OF ACTION ESTABLISHED- WHETHER FAILURE BY MEDICAL PRACTITIONER TO ADMINISTER CORRECT TREATMENT PRIOR TO SURGERY ON PATIENT.


CASES:
Chatterton v. Gerson and Another [1981] 1 ALL ER 257.
Rogers v. Whitaker [1992] HCA 58.
Re T (adult: refusal of medical treatment) [1992] EWCA Civ 18; [1992] 4 ALL ER 649.
Bailey v. Bullock [1950] 2 All ER 1167.
______________________________________________________________________________


The Cause


  1. The plaintiff, a diabetic patient suffered injuries on his left foot. As a result of the said injuries he was admitted to the hospital on 30 September 2007. The next day on 1 October 2007, his left leg was amputated below his knees.
  2. The plaintiff claims that his left leg was amputated without his informed consent. As a result he brings an action against the defendants' for trespass to person and negligence.
  3. The plaintiff thus claims special and general damages, interests and costs. The general damages include damages for pain and suffering, loss of amenities of life, and loss of past and future earnings.
  4. The defendants refute the claim for trespass on the basis that the plaintiff had provided his consent to the amputation.
  5. On the action for negligence the defendants say that the plaintiff had presented himself to the hospital one month after the foot injury. He had a septic foot beyond salvage and the surgery was necessary in the circumstances to save his life and/ or an amputation at a higher level would have occurred.
  6. The defendants further say that the consent was secured in a manner which was the accepted practice in the hospital and that it should not be held liable in negligence for obtaining consent in the manner it did and amputating the plaintiff's leg.

The Issues


  1. Before the claim was amended to include the cause of action for trespass to person, the parties required the Court to determine certain issues, which would now be extended to require the Court to find whether an action for trespass to person has been established on a balance of probability.
  2. The issues are:

The Evidence


  1. The plaintiff's first witness was the plaintiff himself. On his injuries and amputation he testified that he has been an asthmatic and a diabetic patient for a while. Despite the conditions, he was employed. He used to attend diabetic clinic. He presented himself to the hospital one month before the amputation. He was given medication. He was admitted on 30 September 2007 and his left leg was amputated on 1 October 2007. He had a wound on his left foot. Before going to the hospital on 30 September, the plaintiff said that his wife called one Dr. Kiran. They used to seek his advice. His wife had worked for Dr. Kiran for some 4 years. They used to visit each other's place before. When Dr. Kiran saw his foot, she called Dr. Abhay Choudhari ('Dr. AC'). Both then saw his foot. Dr. AC stated that it was a Sunday and he could not do much. He said the following day was a Monday and the plaintiff would be taken to the theatre to clean his wounds. Dr. AC said that the wound was not bad and so he was thus admitted on 30 September.
  2. Came 1 October, 8.30am. Dr. AC came and greeted the plaintiff. He said to the plaintiff that the plaintiff would be taken to the theatre to have his wounds cleaned. Followed by that, an i-taukei lady came in. She gave him a form to sign and stated that he was going to be taken to the theatre to clean his wounds. He signed the form. He signed believing that he was consenting to have his wounds cleaned because he was told that all the time. When he signed the form, he was alone, his wife was told to go out and wait when the doctors did their routine rounds. Only he signed the form. He did not see anyone else sign it. However in the consent form, there are two signatures. He does not know whose signatures those are and when it was made. He was put to change and taken to the theatre where he got an injection. He fell unconscious. When he woke up, he was in the recovery ward.
  3. In the recovery ward, he saw his wife and two sons standing beside him and crying. At the time he did not know or feel anything because of the numbness. He thought they were emotional and so crying. He told them not to cry. His bed was then taken to the surgical ward. From one bed he was lifted and out on the other. When he was lifted, he felt the pain in his leg. He then saw the amputation. He was shocked and speechless. Tears ran in his eyes. His family comforted him. His son who was a police officer talked to him and went out of the ward.
  4. He was put in men's surgical ward for a week and then discharged. Dr. AC did not even talk to him after that. He did not see him after that. However he came to the ward. He checked other 5 patients and never attended him or went near his bed.
  5. Dr. Kiran visited him in the hospital. He said that he was shocked to see the amputation. He enquired why he was not told of the amputation. How could he tell, as he was himself unaware? If he knew, he would have talked to Dr. Kiran or Dr. Pradeep whom he has previously worked for in his shop. He was in very good terms with Dr. Kiran and Dr. Pradeep both. Losing a leg would have been a great concern to him as he was the sole breadwinner in the family. He had a daughter and a son in secondary school that time. His father was bedridden too. He would have sought the doctor's advice and gone for some alternative treatment like cleaning the wounds. If he was told of the amputation, he would not have signed the consent form.
  6. Once before he has had his infected toe amputated. That time he signed a similar form. That time they had explained to him of the amputation and so he had agreed. They had at the time also given him an option for an alternative treatment.
  7. Before the amputation, no other doctor talked to him. After the amputation. Dr. Jaoji started attending to him.
  8. On his earnings, the plaintiff testified that before his leg was amputated, he was a tradesman, welder, and carpenter. After leaving secondary school, he started work as a casual labour. He then worked in a garage for about 5 years. He left and worked for Dr. Pradeep Singh as a salesman and driver for 6 years. He was subsequently self-employed. He used to do flower and vegetable gardening too.
  9. On his loss of amenities, the plaintiff testified that he cannot drive now. He used to walk in town and villages. Now he cannot walk for long distances. He can only walk for 10 minutes now and the pain starts. When he does not walk for long, there is no pain. He used to play soccer too. He used to play for "Lions Sports Club". It was a village team. He used to be a goal keeper. He used to play in school bazaar, village soccer tournaments and casually as well. The plaintiff stated that the amputation has affected his sex life. Things have become different now. His body is not normal. He now has problems in balancing himself. He used to drink grog and alcohol. He still drinks grog but no liquor now. Before amputation, he used to drink grog in groups. He used to sit for 2 to 3 hours per day for once or twice a week for grog sessions. Now he just drinks few bowls. If he sits, he has to find a support to sit.
  10. On special damages the plaintiff stated that he spent on his artificial leg and he paid a sum of $775.00. He also had to go to Tamavua to get his artificial leg done and the return airfare cost him $280. He also stayed in Suva for four months and he would have spent about $50.00 a month on himself totaling to $200 for 4 months. He stated that he applied for withdrawal of monies from his Fiji National Provident Fund account to have his artificial leg made.
  11. On his loss of past and future wages, the plaintiff testified that after his leg was amputated, he left work. Prior to the amputation, he used to earn $100-150 a week. He applied for social welfare benefits. If he worked, his FNPF would be deducted and he would earn interest as well. He is still at pain mentally and emotionally. He wants damages.
  12. Under cross-examination, the plaintiff stated that he was self employed before amputation and not unemployed. He refuted being recommended by the doctor's to be laid off as a driver due to his diabetic condition. He stated that he had stepped on a nail which caused his foot injury. The injury happened a month before 30 September, 2007. After he received injuries, he went to diabetic clinic and was given medication. He was never informed by anyone regarding the amputation, but informed that his wounds would be cleaned. The doctors did not tell him that his would was severe. He stated that he did not read the consent form. He trusted Dr. AC. He did not consider it necessary to read the document. Even when he had gone for the toe operation, he signed a similar form. He did not read at the time too but was explained. After his first operation he never felt that he may have another operation although there is always a possibility of a future operation. He does not remember being given prescription drugs on 30 September. Dr. AC never informed him that if an amputation was not done, there was a risk to his life or that he could lose more portion of his body.
  13. Under cross examination on his loss of amenities of life, the plaintiff testified that he can only drive automatic cars. Manual cars need clutch monitoring and it is difficult for him to manage the clutch. He does not have an automatic car. He also stated that sexual performance can be affected by diabetic condition. When a lot of people come, they sit outside on the floor to drink grog. He played soccer 2 weeks before the amputation. By that time he had the foot injury already. Now he still does vegetable and flower gardening but that is at a smaller scale. He cannot sit idle. He cannot do business from the crops. He cannot sell in market. Now his children help him when he needs some money. His wife also works in Labasa hospital canteen. She earns $70.00 per week. He was also getting $70.00 per month from August, 2011 from social welfare department. He lives in his father's house so he does not have to pay rent. He only has to pay for the land lease in the sum of $200.00 per annum. In the morning, he gets up and does his own chores.
  14. The second witness for the plaintiff was his wife, Mrs. Nair. She stated that she works in Labasa hospital canteen. Before she used to work at hotel North Pole. Prior to working there, she used to work for doctor Kiran. Dr. Kiran is from India. She worked for him for about 8 ½ years. She knows him very well. He is more or less like her real brother. They used to visit each other at each other's place. Her husband sustained injuries and on 30 September he was admitted. She called Dr. Kiran and he came and saw her husband's leg. He rang Dr. AC. Dr. AC arrived at the outpatient clinic. Dr. Kiran explained that she was his maid and for Dr. AC to see her husband. Dr. AC said that because it was Sunday, he could not do anything but that he would admit her husband in the surgical ward and clean the wound the next morning. The husband got admitted. She stayed with him until 5.30pm and then went home. Her son came to stay with the father the night in the hospital. Next morning she went to the hospital at 7.00am. She went to the ward and talked to her husband. After sometime, the doctors came, Dr. AC and other doctors, altogether 5 of them. It was about 8.30am. Dr. AC talked to her husband and told him that he would take her husband to the theatre and clean the wounds. She was then told by Dr. AC to go out of the ward. On her way out, she saw one i-taukei lady coming in with a piece of paper. The lady said "Permal now sign here". The husband said okay. The lady said for her to wait outside the theatre. She was not told that her husband's leg would be amputated. If she was told, she would have called Dr. Manisha and Dr. Kiran. She knew Dr. Kiran's mobile number too. The husband was taken to the theatre. After theatre, he was taken to recovery ward. His cousin had come to see him. He went inside the recovery ward to see her husband and when he came out, he told her that the husband's leg was amputated. She cried. The cousin was a student nurse. She tried to contact her to give evidence but she works for the ministry of health and she cannot come. She called her son who is a police officer. He also came to see the father. She was blank as she never expected an amputation. After amputation, the husband has stopped work and he has not received any social welfare allowance from the last three months. After amputation, Dr. AC never came to see her husband or went to Dr. Kiran's place when he used to visit Dr. Kiran before.
  15. Under cross examination, Mrs. Nair maintained that until she was with the husband, Dr. AC never talked about amputating the husband's leg. He only said that the wounds would be cleaned. Her husband is able to read, write and speak English well. When an i-taukei lady came with the form, her husband did not read the form but just signed the same. She does not know whether the husband was awake when the amputation was carried out. After the amputation, she spoke to Dr. Kiran at 7.30 pm. She said she cried and told Dr. Kiran of the amputation. Dr. Kiran said he was coming to the hospital. He came and saw the husband and asked her whether she knew that the husband's leg would be amputated and she replied that she did not know. She stated that she told Dr. Kiran that she only knew about the cleaning of the wound. Dr. Kiran then asked her to allow her husband to rest and he went away.
  16. The wife further testified under cross examination that the husband drinks kava at times with friends. The husband is not fit physically. His body is weak. He does not have power in his legs so her sexual life is affected. He gets depressed and sugar level goes down but he has not seen a specialist for his depression. She has a sugar check machine at home and when he gets depressed, she checks the sugar level, it goes down to 1.2 or 2.0.
  17. The first witness for the defendants was Dr. Negzen Mlunkh Baiyar ('Dr. NMB'). In examination in chief, Dr. NMB testified that he first saw the plaintiff in the surgical ward. He cannot remember who all were there but on the Monday morning the surgical team of doctors making the rounds discussed the plaintiff's diabetic foot sepsis. He said that diabetic foot sepsis is a dangerous problem. Dr. AC explained to the patient in English and Hindi that he was going to carry out the operation. Dr. AC had told the patient that the operation was needed and if it did not take place, he was going to die. The patient then agreed to go through the operation. He gave his consent in the folder to undergo the operation. He does not recall whether the patient's wife was present but the practice is to have the relatives present. There were the relatives but he does not know who all were there. All the doctors were present too and the patient was given the consent form. Dr. AC explained the form and signed. After that the patient was taken to the surgery. The witness said that he did the operation with Dr. Manisha. Dr. AC was being consulted and he oversaw the operation in case of complications. After the patient was operated, they checked and investigated on his condition, sugar level, management of surgery, and likewise.
  18. The doctor further testified that the patient was operated and he had "under spinal anesthesia" which means that the patient's memory is still normal but he will not feel anything, the patient will see what is happening to him. If the patients refuse operation on the operation theatre, the surgery would not continue or take place.
  19. Under cross-examination the doctor stated that he joined Labasa Hospital in July 2007. Before coming to Fiji, he had knowledge in Hindi. He stated that he cannot understand Hindi. He stated that Dr. AC first spoke to the patient in English and then he spoke in Hindi. It is not written anywhere in the folder that he explained in English and Hindi. After the patient signed the consent form, there is no note in the folder stating that the patient was explained about the amputation. He only came to know on the day of the trial that he had to give evidence. He does not remember names of any other patient he has operated but he has done a lot of operations. On the day of the operation 7 people were there, Dr. Jaoji. Dr. AC, Dr. Manisha, Dr. Alipate, 2 inturns, and himself. The form was signed between 9am to 10am. He has not written the time of operation so he could not comment on that but definitely it takes 30 minutes to prepare a patient to be taken to the theatre.
  20. He does not know whether Dr. AC and he visited the patient after surgery. It was a big operation from a patient's point of view and if their lives are saved, patients are happy. There was no reason to wait for the operation to take place. If operation did not take place on 1 October, the patient would have died. It was an emergency operation. His body organs would have been damaged as there would have been more sepsis. The patient was not given a chance to speak to any other doctors before amputation. When asked whether the patient had a choice to consult other doctors, the witness did not answer. He stated that he understood the patient's language. He did not write what and how he was explained before the amputation. He does not know that the patient wanted to talk to another doctor or see another doctor.
  21. In examination in chief the witness stated that he communicates with his patient's in English and there have not been any complaints thus far.
  22. I must say that this witness did not even understand simple English. Questions had to be repeated so many times and broken down for him to understand. The witness could not even express himself in English and this Court had immense difficulty in understanding and recording his evidence.
  23. The second witness for the defendants was Dr. AC. He stated in his evidence in chief that the plaintiff was admitted on 30 September, 2007 for left foot sepsis for diabetics. The patient was referred through on call doctor from Accidents and Emergency Department. The patient, simply stating, had infected foot because of the presence of bacteria that could possibly spread up the legs and have a life threatening condition. The patient was seen during ward rounds on 1 October 2007. All the surgical team saw the patient. He is accompanied by ward nurses and interns. It is the practice of Labasa Hospital that the patient's relatives are asked to go out and wait. In his surgical team, this trip to the patient, he was accompanied by Dr. Manisha, Dr. Alipate, Dr. MNB, and an intern. Ward staffs usually accompany the doctors but he cannot recall who accompanied this time. The nurses are always present with the doctors. When the patient is seen by them, they look at the condition of the patient, the condition is explained to the patient, and the treatment to be provided is also explained to the patient. He does not remember how the patient appeared to him. The patient was explained his condition and the consequences with and without the treatment.
  24. Dr. AC testified that he usually communicates in Hindi but he explained to the patient in English as well but his Hindi is not as good as local Hindi. To Fijian patients, he gets the message translated. He explained the patient of his sickness and treatment. He cannot recall his feeling and treatment. He explained this when he did his ward rounds. The next procedure was to secure a consent form and the patient did sign a consent form. In the consent form, there are 3 signatures. His is the last signature. He cannot identify the signature above his but it could be of one person from the surgical team. The consent form does not have his handwriting. It can be filled by any doctor from the surgical team. The probable time the consent was obtained was 10.15am. The time of the surgery is not noted on the hospital records.
  25. The surgery was conducted by Dr. MNB. The patient underwent spinal block which means that a needle is inserted in the lower part of the spine and the lower half becomes numb. The patient is not fully sleeping. Only the lower half becomes numb. In this case, the patient was discharged on 8 October 2007. Before that he was on routine care. He only makes visits to wards on grand rounds on Mondays and Fridays or when he is requested. He did not know the plaintiff or his wife personally. He is not at all acquainted to the plaintiff.
  26. When Dr. AC was asked that he only told the patient that his wound would be cleaned and nothing about the surgery was told, he replied that a foot X-Ray on 30 September clearly demonstrated the presence of gas in soft tissues. This is not only a limb but a life threatening condition and to anybody with such condition, he will definitely not advise anything lesser than below knee amputation. The operation had to be conducted soon because there was presence of gas. It was better to do surgery as soon as possible otherwise it will spread and lead to higher level amputation or be a threat to the patient's life.
  27. Dr. AC stated that if a patient wants to seek alternative medical advice, then he is at liberty to do so. They cannot stop the patient from doing so. When asked whether the patient asked for alternative medical advice Dr. AC testified that if a decision is taken by the surgical team of the hospital, the medical team cannot get involved. The patient can seek advice from his own doctor not working in the hospital. The patient will then have to take leave from the hospital but as long as he is in the ward, he is under the care of the hospital. If he wants to go, he will have to sign a removal and leave. When consent is obtained, the procedure for removal is also explained. This applies even if patient has a life threatening condition. When explanation is provided for the treatment, notes are not kept on how the explanation was provided. The consent form is relied on to secure the consent. He did not write that he explained in Hindustani language. That is the practice in Labasa. He does not know whether that is the practice nationwide.
  28. There is also consent form for blood transfusion. He knows Dr. Kiran. He is a medical doctor. He is not a personal friend. He was not a personal friend before amputation either. Medical officers look at the medical disease. He cannot comment whether the patient and his wife were acquainted to Dr. Kiran.
  29. Dr. Kiran confronted him regarding the procedures that were undertaken on the patient. Dr. Kiran argued with him as to why a below knee amputation was carried out as in his opinion no operation was required. That was the only incident he has had with Dr. Kiran. There were no other cases of argument.
  30. Diabetes causes nerve damage and that can affect sexual performance. He cannot say whether that would have caused the problem with the plaintiff. Only an urologist can say that. A diabetic patient should avoid bare walking, they must always wear socks and shoes, they must wash feet daily and all care is recommended. After seeing the patient Dr. AC stated that he cannot remember the patient or recognize him.
  31. Under cross examination Dr. AC testified that Dr. Kiran is not a qualified surgeon. Dr. Kiran did not expect the leg of the plaintiff to be amputated. He does not know that the patient's wife was his maid. He denied being called by Dr. Kiran on 30 September 2007 to go and check the plaintiff even though he was not on call duty. He denied that the patient's wife had spoken to him on the same day. He did not see the patient on 30 September 2007. He neither recommended admission nor did he say that he would see them on Monday. He did not see the patient on 30 September so he could not have said that his wound would be cleaned on Monday. The admission notes of 30 September are not his but may be an inturn's note. The patient was admitted by Dr. Robert and Dr. Muggi as it appears from the folder. They are medical doctors. The patient was a known diabetic person. Foot sepsis is referred to surgical team to make a decision. Dr. Kiran did confront him but he does not know why. Surgery is his area. Dr. Kiran cannot challenge his decision. He handled the confrontation in a professional manner. Dr. Kiran cannot challenge him professionally. He denied that the reason why Dr. Kiran confronted him was because he had promised to clean the wound and not amputation. He cannot say how much time he spent with the patient on 1 October. Surgery is a major procedure. Removal of a foot could be traumatic to a patient but the procedure is explained and only when the patient understands and agrees that his consent is secured.
  32. The doctor admitted that the hospital folder notes of 6 April 1998 does state "For O.T tomorrow". He stated that "O.T" meant operation theatre. He stated that the hospital notes on 30 September says for "O.T" tomorrow and notes of 1 October, 2007 states "below knee amputation". The Dr. then said that if he did not see the patient at all on 30 September, there would not be any decision regarding the amputation. It was thus put to the doctor that the only reason why "O.T" was written was that it meant that the patient was going to go for a wound cleaning, Dr. AC stated that the patient was to go nil by mouth because the Registrar could not decide on surgery. There is no documentation to show that there was any indication on 30 September that the patient would go for surgery. If it was contemplated, notation would be made. The decision for surgery was made on 1 October 2007 and not 30 September 2007. There is nothing on the folder to say that the patient was to be taken to the theatre for cleaning of the wounds. If a person is taken to OT, he will be given a reason.
  33. On asked why there are two signatures on the consent form and not the others, Dr. AC stated that other surgeries were minor ones. This was a major surgery and because he was present at the time he countersigned as unit chief. He was not required to obtain opinion of someone else in deciding the surgery for the patient. Even if two signatures were not there, they could still proceed with the surgery. He would not have signed if he was not there. The plaintiff was properly explained. He was there as well and so he signed too. If he is involved in a decision making, he puts his signature. The doctor stated that it is prudent to have the surgery consent form the same as the consent for transfusion of blood. If the patient wanted to contact someone, he could use a telephone. It is available in each ward. He did not defer the process of securing consent and give the patient an opportunity to contact his relatives because the patient was not forced to sign; he agreed to sign so it was signed immediately. If the patient expressed a desire to consult someone, the signing of the consent would have been deferred. If there were reasons to believe that the patient was not in a state to give consent, then they would have taken consent from the relatives. A patient gets confused when his sugar is low. On the day the patient's sugar was not low. He was not concerned or worried after amputation and confrontation. He did not avoid visiting the patient after amputation. He makes the rounds on Mondays and Fridays and on request. There is no record that he visited the patient after the amputation. It is not the custom to record everything. The patient was discharged on 8 October 2007. When asked that the folders indicate the doctors visiting the patient but his name is not there, Dr. AC replied that documentation is not proper. He stated that the folder notes of 1 October, 2007 has writings on top right hand corner which reads that plaintiff had a left foot sepsis; the issue was discussed with the patient and the patient had agreed to the amputation. The doctor stated that he did not put that note on the top right hand corner after being confronted but it may be that he inserted it later on. It was put in the corner to indicate that he was present. He does not remember when he wrote that note. Dr. AC stated that the plaintiff could not see what procedure was being carried out on him and he also cannot feel what is happening to him. The doctor stated that GWR in the folder meant Grand Ward Rounds. He also testified that if the surgery waited a day, it was unlikely that the patient would have died.
  34. The third witness for the defendants 'was one Seini Lewatonga, a social welfare officer. She testified that the plaintiff was on social welfare benefit. His situation has changed now in that his children are not going to school. His case is being reassessed.

The Law and Analysis


  1. Certain issues that the parties require the court to determine can be amalgamated as follows:-

(a) (2) to (6) and (10);

(a) (1) and (7); and

(a) (8) and (9):-


  1. I will first of all answer issues (a) (8) and (9). These issues in essence require me to find whether the defendants were negligent in providing proper care and treatment to the plaintiff when he presented himself to the hospital with a left foot injury prior to amputation.
  2. The plaintiff's evidence is that he used to attend the hospital for diabetic clinic. When he sustained injuries on his left foot, he went to the hospital a month before the amputation. He was given medication. The next visit was on 30 September 2007 when he was admitted. His leg was amputated on 1 October 2007. The plaintiff's wife's evidence was that before amputation of his knees, her husband used to go to the hospital for diabetic clinic and to the outpatient to see a doctor for his left foot injury.
  3. Dr. NMB stated that the plaintiff had a left diabetic foot sepsis when he was seen on 30 September. His operation was an emergency operation and badly needed otherwise the patient would have died. His organs would have been damaged.
  4. Dr. AC stated that the patient was admitted for left foot sepsis which means that the patient had an infected foot because of bacteria that could have possibly spread up the leg. The condition is life threatening to a patient. The doctor stated that the foot X-Ray of the patient of 30 September 2007 clearly demonstrated presence of gas in the soft tissues. This is not only a limb but a life threatening condition and to anybody with such a condition, he would definitely not advise anything less than a below knee amputation. Dr. AC had stated that in these types of cases an early amputation is suggested to avoid higher amputation because the life of a person is in danger.
  5. I have analysed the evidence of the parties to answer the issue. I have also perused the medical folder and I find that the plaintiff and his wife are not correct in saying that the plaintiff had visited the hospital in respect of his left foot injury before 30 September.
  6. There is nothing in the entire medical folder to indicate that the plaintiff had sought medical attention in respect of his left foot injury prior to 30 September. The first time the plaintiff submitted himself to the hospital in respect of his left foot injury was on 30 September.
  7. The hospital notes of 30 September are pertinent. The material part reads:

"Admitting 44 year old...Left DFS (meaning Diabetic Foot Sepsis)...Patient stepped on nail 1/12 (meaning one month) ago. Stayed home all this time... came today- increased pain ... admitted"


  1. I find from the above notes that the plaintiff himself explained to the hospital on 30 September that he had stepped on a nail one month ago and that he had been home all the time and visited the hospital on that date.
  2. Even the plaintiff and the wife did not testify on what dates the plaintiff visited the hospital for his left foot injury, what medications he received and what was the doctors advise when he visited the hospital.
  3. The plaintiff had previously had his toe amputated and knowing that he is a known case, the hospital would have asked him to return to the hospital for a follow up if he had sought medical attention before 30 September. Moreover, the notes of 30 September would not have stated that the plaintiff was home all the time and only attended the hospital on 30 September because of increased pain.
  4. There was no way in which the hospital could have provided any care for the plaintiff's left foot when he did not present himself to the hospital prior to 30 September.
  5. I thus do not find that the hospital was negligent in providing proper treatment to the plaintiff prior to 30 September.
  6. This takes me to issues (a) (1) and (7). These issues require me to make a finding whether the plaintiff's condition was properly diagnosed and treatment provided before his leg was amputated. In other words, whether the hospital was negligent in amputating the plaintiff's leg. I think this is quite a different issue from that of whether there was a tort of trespass on the plaintiff.
  7. Was the hospital negligent in making a diagnosis of left foot sepsis and providing a treatment of amputation. There is no contrary medical evidence to challenge the evidence presented by the two doctors that the plaintiff had presented himself to the hospital with a left foot sepsis and that the condition was a life threatening condition. The only treatment available at that stage was to put the plaintiff under amputation.
  8. In absence of any contrary medical evidence, I accept the evidence of the two doctors that the condition the plaintiff presented himself with was a serious life threatening condition and the procedure undertaken by the doctors was the only life saving procedure. I accept that the plaintiff may not have been dead immediately or a day after but there was no other treatment available to stop all other organs of the plaintiff failing eventually and leading to his death.
  9. I find that there was no error in diagnosis and the treatment provided by the hospital.
  10. The third issue is those posed in (a) (2) to (6) and (10).
  11. In order to completely determine those issues I need to find out whether the plaintiff had provided his consent to have his leg amputated and if he did not whether an action for trespass to a person and negligence can be maintained.
  12. The two causes of action to my mind are distinct and a finding on each would attract different damages. To clarify my position, I can best rely on the authority of Chatterton v. Gerson and Another [1981] 1 ALL ER 27. Justice Bristow stated at pp. 264 and 265:-

"It is clear law that in any context in which consent of the injured party is a defence to what would otherwise be a crime or a civil wrong, the consent must be real. Where, for example, a woman's consent to sexual intercourse is obtained by fraud, her apparent consent is no defence to a charge of rape. It is not difficult to state the principle or to appreciate its good sense. As so often, the problem lies in its application...


In my judgment what the court has to do in each case is to look at all the circumstances and say, was there a real consent? I think that justice requires that in order to vitiate the reality of consent there must be a greater failure of communication between doctor and patient than that involved in a breach of duty if the claim is based on negligence. When the claim is based on negligence the plaintiff must prove not only the breach to inform but had the duty not been broken she would not have chosen to have the operation. Where the claim is based on trespass to the person, once it is shown that the consent is unreal, then what the patient would have decided if she had been given the information which would have prevented vitiation of the reality of her consent is irrelevant".


  1. The statement in Rogers v. Whitaker [1992] HCA 58 is also apt:

"The duty of a medical practitioner is to exercise 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. 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 or necessity, all medical treatment is preceded by the 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. 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 hold 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 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 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. 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 the information...Moreover, consent is relevant to actions framed in trespass, not negligence..."


  1. In a case of trespass, if the plaintiff shows that he did not provide his consent to the treatment, it is irrelevant to show what the plaintiff would have decided if he had been provided the information. If there is a real consent, the tort of battery cannot be established.
  2. In the case of negligence, the plaintiff would have to prove not only that the doctor breached his duty by not informing him about the amputation but that if the duty had not been broken, he would not have chosen the operation.
  3. I will first decide the question of trespass to person. Undoubtedly, the plaintiff has signed a consent form but the obligation of the Court is not to make a finding whether the written consent was obtained but whether the plaintiff's real consent was obtained.
  4. "The law requires that an adult patient who is mentally and physically capable of exercising a choice must consent if medical treatment of him is to be lawful, although the consent need not be in writing and may sometimes be inferred from the patient's conduct in the context of the surrounding circumstances. Treating him without his consent or despite a refusal of consent will constitute the civil wrong of trespass to the person and may constitute a crime. If, however, the patient has made no choice and, when the need for treatment arises, is in no position to make one, eg. the classic emergency situation with an unconscious patient, the practitioner can lawfully treat the patient in accordance with his clinical judgment of what is in the patient's best interest"

Re T (adult: refusal of medical treatment) [1992] EWCA Civ 18; [1992] 4 ALL ER 649, Per Lord Donaldson.


  1. To decide the issues of trespass I have the evidence of the plaintiff and his wife, the two doctors and the medical folder of the patient.
  2. Let me deal with the question of trespass to person first.
  3. Out of all the evidences, the evidence of Dr. MNB is plainly hard to believe. He stated that he saw Dr. AC explaining the procedure to the patient in Hindi and English. This doctor does not understand Hindi and so he clearly cannot comment what was explained and the nature of the explanation. I also find that Dr. MNB is unable to speak and comprehend basic English. In Fiji's standard, comparatively, the pre-scholars are in a better position to speak and comprehend English. Dr. MNB had immense difficulty in understanding simple questions and so much time was spent in explaining to him each question and answering the same. Mr. Kohli basically had to speak in caretaker's language to extract answers from Dr. MNB.
  4. Moreover, Dr. MNB remembers nothing about the patient. From the examination of the folder he did recall that he carried out the surgery on the patient. With his standard of English I find that Dr. MNB himself did not see and understand what was being told to the patient. Moreover, I find it hard to believe that Dr. MNB is able to recall exactly the situation of how the procedure was explained when he remembers nothing else about the patient. There is not even a single note of his in the consent form and the medical folder to say that he was present at the time the explanation was provided to him.
  5. I am now left with the evidence of the plaintiff, his wife and that of Dr. AC. The defendants' counsel has asked me to treat the evidence of the wife carefully as her evidence is likely to be biased.
  6. I accept that when assessing credibility I must be weary of the element of bias and it is most likely where a party has an interest in the matter, directly or indirectly, that the probability exists. Having said that, I find the plaintiff and his wife's evidence credible and supported by documentary evidence as well. I believe the evidence of the plaintiff and his wife over that of Dr. AC.
  7. In my finding Dr. AC is concocting the evidence that he explained to the patient that a below knee amputation was provided and that the patient accepted the procedure to be performed on him.
  8. The medical notes of 30 September 2007 indicate that the patient was booked for "O.T" (the operation theatre) the next day. If Dr. AC did not see the patient on 30 September, there was no reason to book the patient for O.T as according to Dr. AC only the surgical team could decide about the operation. Dr. AC also stated that the Registrars can book patient for provisional procedures. There is no indication that the plaintiff was booked by the Registrar for provisional procedures. What were the provisional procedures that could be carried out on the plaintiff is not explained by Dr. AC. The only possible explanation is that which is provided by the plaintiff and his wife and I accept that Dr. AC saw the patient on 30 September upon request of Dr. Kiran and Dr. AC informed the plaintiff, his wife and Dr. Kiran that the plaintiff would be taken to the theatre for cleaning of the wound and that he was therefore booked for O.T.
  9. I do not find any reason why the plaintiff would pick on Dr. AC and accuse him of seeing him on 30 September and promising that his wound would be cleaned. There was in my finding no mention on 30 September 2007, a mention of any amputation. If there was, the folder notes would definitely not have omitted such an important event that was to be performed on the plaintiff.
  10. Dr. AC has admitted that Dr. Kiran confronted him after the surgery and that it was the first time that a confrontation of any nature had occurred between him and Dr. AC. I find that the only reason the confrontation occurred was because Dr. AC went beyond his words and performed on the patient a major procedure without informing the patient. I accept the plaintiff's evidence that in presence of Dr. Kiran, Dr. AC had promised the plaintiff the process of wound cleaning. There was never any mention of any amputation and that the surgery and information that amputation took place flabbergasted Dr. Kiran leading to confrontation with Dr. AC.
  11. Let me now examine the consent for. It appears as follows:-

CONSENT BY PATIENT


Labasa Hospital


I Permal Nair of ______________ hereby consent to undergo the operation of L Below Knee Amputation the nature and effect of which have been explained to me by Dr. /Mr. Dr. Abhay


I also consent to such further or alternative operative measures as may be found to be necessary during the course of the operation and to the administration of a local or other anaesthetic for any of these purposes.


No assurance has been given to me that the operation will be performed by a particular surgeon.


Date
01/10/07
(Signed)
A Signature Appears In Ink

I confirm that I have explained to the patient the nature and effect of this operation.


Date
01/10/07
(Signed)
2 Signature Appears In Ink

  1. Dr. AC stated that he did not fill in the form but he signed it as he explained the procedure, he was present and that he was the unit chief. The form was filled and signed by someone he does not recollect.
  2. It appears that the person who made the second signature filled in the consent form. Either the person filling the form or the person signing the same has crossed of Dr. AC's name as having explained the procedure and its effect to the plaintiff. This in a way reinforces the plaintiffs and his wife's evidence that an i-taukei lady asked the plaintiff to sign the consent form. He signed it believing that he is taken to the theatre for cleaning of the wounds only to find after discharge from the theatre and to his astonishment that he has had a knee amputation.
  3. I accept that the second and third signatures were made in the absence of the plaintiff and him without having explained the nature and effect of the surgery that was undertaken.
  4. Dr. AC must have signed the consent form in a rush without having noticed the deletion and without seeing the plaintiff sign because he was not there at the time the consent was secured otherwise he surely would have insisted that his name not be deleted as he did explain the nature and effect of the surgery.
  5. When I peruse the notes of 1 October 2007 I find that on the top hand right hand corner Dr. AC makes an insertion. The insertion was after the days notes were made. The notes indicate that Dr. AC discussed with the patient about below knee amputation and that the patient agreed to the same. Dr. AC also agreed that he could have inserted the notes later on to indicate that he was present. If the notes were made the same time than it would have appeared consecutively like other notes and not appeared on the top right hand corner where Dr. AC found some space to insert.
  6. I find that when the commotion arose regarding the consent between Dr. AC and Dr. Kiran, Dr. AC decided to add the notes for his safety to fall back on. He actually did not do what he had written. It was all written as an afterthought to cover his inaction.
  7. After the surgery, there are no records in the plaintiff's folder that Dr. AC visited him. This is consistent with the plaintiff's version that Dr. AC used to come for grand rounds and visit other patient's but ignored him. Dr. AC stated that he used to make grand rounds and would have examined the plaintiff post amputation. Dr. AC wants me to believe that the folder notes are not in order. I find that it is not the incorrect recording of the notes but that Dr. AC did not, as the plaintiff says, examine him ever again despite the fact that he visited other patients during the grand round. The doctor was evasive after the whole incident because he consciously knew that what he did was wrong.
  8. It thus follows that the plaintiff was never told of the risk of the surgery and given an opportunity to make a decision in favour or against the process.
  9. I find that by not obtaining the plaintiff's consent, Dr. AC had trespassed on the plaintiff and that the plaintiff ought to be compensated for the tort of trespass.
  10. Let me also discuss whether the act of the Dr. constituted negligence. It is not disputed that there was a doctor patient relationship and the doctor had a duty to advise his patient of the medical treatment that he proposed to administer on his patient. It was not disputed that the doctor was under a duty to disclose to the patient the possible risks associated with the proposed treatment and give the patient an opportunity to think and decide on the procedure.
  11. The Dr. did not fulfill any one of these duties but for the action of negligence to be established I must find on a balance of probability that the plaintiff would have refused the treatment if the process was explained to him.
  12. I have already found in absence of contrary evidence that the plaintiff was with a serious life threatening condition. If he was explained that his foot was beyond salvage and that to save his life, an amputation was necessary, the plaintiff would have agreed to the treatment. I have analysed the evidence of the plaintiff. He stated that he would have consulted Dr. Kiran and Dr. Pradeep and would have refused the surgery because his leg matters a lot to him. His children were in school and he was the sole breadwinner in the family.
  13. I find that the plaintiff is a known diabetic case. For his injuries once and to save his leg, he has previously agreed for a toe amputation. Given this history and the demeanour of the plaintiff, I find that it is most probably than not that the plaintiff would have consented to the procedure if he was told of either to keep his leg or keep his life.
  14. The plaintiff was a concerned father. He would not have preferred to die leaving his children fatherless. If it was a matter of saving his life, I am positive he would have undertaken the amputation process.
  15. I also find that if the plaintiff's leg was not amputated he would have ended in a worse situation than he currently is in that he would have either had a higher amputation or lost his life as a result of all organ failure.
  16. I find that on the balance of probability, the alternative case of negligence is not established.
  17. I now have to assess the damages on trespass to the plaintiff. I bear in mind that the plaintiff had the right to know that he would be subjected to an amputation process before he underwent it but I also keep in mind that the process was a life saving process for the plaintiff and in any event the plaintiff would have suffered the loss.
  18. I therefore find that it is not proper to award special damages, damages for past and future earnings, pain and suffering, loss of amenities of life, and loss of Fiji National Provident Fund contributions. These losses would have eventually occurred, either by a higher amputation or by death of the plaintiff. It was only a matter of little time.
  19. In assessing damages, I must say that trespass to the person is actionable without proof of actual damage. Thus in all cases of trespass nominal damages at least are recoverable, and substantial damages are recoverable for discomfort and inconvenience, or injury to dignity, even where no physical injury is proved. The discomfort or inconvenience must be substantial: Bailey v. Bullock [1950] 2 All ER 1167.
  20. Damages for emotional shock which does not result in physical illness may, it seems, be recovered where there is other physical injury, and also where there is no physical injury, provided it is substantial and not too remote.
  21. I accept that the plaintiff was shocked to see his leg amputated, got depressed and had a mental outrage. It is natural upon the facts of the case but in absence of any cogent evidence I am not prepared to find that the emotional shock was substantial. There is no evidence of the extent of emotional shock and depression.
  22. The plaintiff's wife stated that her husband gets low sugar with the depression. There is no evidence that the depression is related to the incident.
  23. I find it improper to grant substantial damages for emotional shock and depression.
  24. The only appropriate damage in this case is a nominal award. None of the counsel has supported their submission with any case authorities to assist the Court in deciding a figure. Both the counsel have picked a figure they thought was correct.
  25. I find that the only proper award of damages is a sum of $5,000.
  26. I award interest on the same at a rate of 4% from the date of the writ until the date of the award (27 February 2009 until 24 January 2013) to be calculated as follows:-
  • 27/02/2007 to 29/02/2007
3 days
$1.65.00
  • 1/03/2007 to 31/12/2007
10 months
$166.70
  • 2008 to 201
5 years
$1000.00
  • 01/01/2013 to 24/01/2013
24days
$13.20
TOTAL -

$1181.55

  1. The total award of damages inclusive of interest is in the sum of $6, 181.55.
  2. In respect of costs, the trial took place for two days. The plaintiff's counsel has incurred expenses in filing the pleadings and pre-trial applications to enable the trial to proceed. Time has been utilized in preparing the pleadings, coming to court for finding trial dates and preparing the matter for trial. In total there were five witnesses and a lot of medical notes had to be studied for the purposes of the trial to be prepared. The plaintiff also filed 2 sets of submissions. Inclusive of all disbursements, it is appropriate to award the plaintiff a $3,500.

Final Orders


  1. The plaintiff has on a balance of probability proved his case for trespass to person and he succeeds in his claim for that in the sum of $6,181.55 inclusive of interest from the date of the writ until the date of judgment.
  2. The defendants must pay the costs of this proceeding in the sum of $3,500.
  3. The parties are at liberty to apply to correct the calculation of the interest, if the same has been incorrectly computed.

Anjala Wati
Judge
24.01.2013

_______________________________


To:

  1. Messrs Kohli and Singh, Solicitors, Labasa, for the Plaintiff.
  2. Office of the Attorney-General, Labasa.
  3. Labasa HBC 10 0f 2009.

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