Wati v Attorney General [2001] FijiLawRp 80; [2001] 1 FLR 309 (12 September 2001)

LILA WATI v ATTORNEY-GENERAL

High Court Civil Jurisdiction

23 February, 4 August, 12 September 2001

HBC 0222/98S

Damages for personal injuries – negligence – evidence - whether surgeons negligent in performing a thyroidectomy – whether staff negligence in post-operative treatment and care – onus on Plaintiff to establish positive acts of negligence – no case submission of no affirmative evidence of negligence

The Plaintiff suffered for 2 years from thyroid swelling commonly known as goitre and was referred to the CWM Hospital from a private medical practitioner. After 15 months of reviews and cancellation of initial operation, a surgeon performed a subtotal thyroidectomy. The result was a possibility of vocal cord palsy and 3 days later, another surgeon performed a fibre optic bronchoscopy. Her wheezing continued and she was prescribed medication but complained that her condition deteriorated, resulting in noisy breathing, inability to eat solid foods, her speech was barely audible, sleep was possible only in a foetal position, suffered embarrassment about eating or breathing in public, inability to fend for herself and inability to find gainful employment. A specialist testified that the Plaintiff's difficulty swallowing was a result of laryngeal nerve damage sustained during her operation, and breathing problems occurred due to nerve damage after surgery, which could be controlled with medication. The Court found that this was not a case based on the failure of surgeons to inform the Plaintiff of potential complications of undergoing surgery nor based on res ipsa locquitor that the Plaintiff felt worse after an operation due to something gone wrong during its performance. Neither was this a case of the standard of care extended to the Plaintiff pre and post operation. This case was to establish whether surgeons performed some positive acts of negligence and that the negligence caused nerve damage and vocal cord palsy, or that the surgeon negligently failed to take some precaution which would have obviated or minimized the risk of injuries occurring. The Defendant made a no-case submission that there was no affirmative evidence of negligence.

Held – to succeed, the Plaintiff must establish: 1) that there were some acts of negligence on the part of the surgeon who operated on the Plaintiff in initial surgery, and 2) that the negligence caused nerve damage and vocal cord palsy that the Plaintiff suffered. The evidence failed to positively establish any negligence (beyond misadventure) on the part of the surgeon who operated on the Plaintiff nor any negligence in the Plaintiff's care afterward, from which it may be reasonably inferred that there was negligence on the part of the staff of the hospital.

A 'No case' submission upheld. Judgment for the Defendant.

Cases referred to in Ruling

appl Jones v General Western Railway Co. [1930] 47 TLR 39
foll Roe v Ministry of Health (2) [1954] 2 All ER 131
foll Bolam v Friern Hospital Management Committee [1957] 2 All ER 118
ref Hunter v Hanley [1955] SLT 213
foll Hicks v Cole [1968] 118 New LJ 469

Ram Chand for the Plaintiff
Sunil Kumar & Yashveen Singh for the Defendant

12 September, 2001

RULING

Fatiaki, J

In this action the Plaintiff claims special and general damages for injuries she allegedly suffered as a result of the negligent performance of a thyroidectomy by surgeons at the Colonial War Memorial Hospital ('CWM') on 4th October 1993.

The Statement of Claim sets out no less than seven (7) alleged particulars of negligence both during and after the Plaintiff had been operated upon.

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 before, during and after her operation.

The background facts are not seriously disputed and are briefly as follows: The Plaintiff a 44 year old housewife was first referred to the CWM by a private medical practitioner on 23rd July 1992 with a history of thyroid swelling more commonly known as 'goitre', extending over two (2) years and which was 'increasing in size'. She had complained at the time of 'cough while eating any sort of food'. The referral letter also stated that the Plaintiff had 'a family history of goitre'. On 10th August 1992 on being reviewed at the CWM it was noted that 'she feels very lazy and doesn't feel like doing normal duties' and 'also sleeps more than before'.

The reviews continued uneventfully until 14th April 1993 when the Plaintiff complained of 'hoarseness when tries to speak loud'. On that occasion she also signed a consent to undergo a 'Subtotal Thyroidectomy' to remove the goitre but the operation was not performed owing to a shortage of compatible blood.

Finally on 3rd October 1993 a second consent form was completed by the Plaintiff and this time she was admitted in the CWM and was operated upon by Dr. Etika Vudiniabola on the morning of 4th October 1993.

After the operation the Plaintiff's hospital record indicates on the afternoon of 4th October that 'inspiratory stridor with expiratory wheeze could be heard'. The reviewing doctor (Dr. Maen) assessed a possibility of: 'Vocal cord palsy'. Subsequently on 7th October a Fibre Optic Bronchoscopy conducted by Dr. Karim revealed that there was: 'oedema of the vocal cords' which were 'both mobile'.

The Plaintiff remained in CWM until her discharge on 13th October 1993. During that time her condition was continuously monitored including the inspiratory stridor (or wheezing sounds) in her chest and, occasionally, she had to be put on a nebulizer to relieve her breathing problems. The hospital record also indicates that the Plaintiff was initially unable to swallow water without coughing it out and had to be maintained on a drip feed for several days, then slowly introduced to a fluid diet and finally a soft diet just prior to her discharge from CWM. Thereafter the Plaintiff continued to attend the asthma clinic as an out-patient and was prescribed medication for her continuing medical problems.

The Plaintiff in her evidence described in some detail how her condition had deteriorated after her operation - She could no longer eat any solid food; her breathing was very noisy and painful; she suffers from permanent shortness of breath and lethargy and her speech is barely audible; sleep is only possible in a foetal position and she is often embarrassed by her noisy breathing in public and when eating, and, unlike before her operation, when she was gainfully employed as a house-girl, now she has to be cared for by a sister as she is unable to fend for herself.

In cross-examination she said: 'I feel worse now after my operation than before it' and in re-examination: 'I cannot eat solids anymore and have difficulty speaking and my breathing is noisy.' She does acknowledge however that since the operation she no longer suffers from 'goitre'.

Dr. Pradeep Kumar Narayan an ear, nose and throat (ENT) specialist testified that he had examined the Plaintiff in February 1998 at the request of her counsel and had found '... that there was palsy (paralysis) of both vocal cords. No movement at all' which accounted for her difficulty in speaking and breathing. He could not explain however, why the Plaintiff had difficulty swallowing other than as a result of laryngeal nerve damage sustained during her operation.

From having examined the Plaintiff's hospital records he formed the view that the Plaintiff's breathing problems occurred after surgery due to nerve damage. When asked in-chief: 'Is this a normal after effect of surgery?' He answered: 'Sometimes does happen but can control it through medication. But nerve damage is nowadays becoming increasingly rare but then it can happen and a patient must be routinely informed of such an event.'

He was unable to comment generally on the quality of the treatment the Plaintiff received at the CWM other than to say inspiratory stridor can be made voluntarily and that the Plaintiff's stridor (noisy breathing) was only treated 'symptomatically' during her confinement at CWM since, in his opinion, her vocal cord palsy was not diagnosed until 1998 when the Plaintiff was referred to an ENT specialist. Even then, the success rate of surgically treating the condition 'is unpredictable'.

In cross-examination Dr. Narayan accepted that 'some complications are expected in surgery but nerve injury during thyroid surgery is becoming increasingly rare'. In answer to the court's question Dr. Narayan said: 'I cannot say that there was anything negligent in the actual procedure carried out. In fact surgery carried out by very experienced surgeon. In 1993 Dr. Etika was the most eminent surgeon in this country.' He also could not say with any certainty that the Plaintiff 'was not informed of this possible complication prior to surgery' a procedure which he accepted 'is a normal treatment for goitre'.

In re-examination Dr. Narayan accepted that nerve injury can occur during surgery but 'this should be explained as a potential complication to the patient'. He also described two (2) techniques for carrying out the operation without damaging the nerve. But even then he said 'nerve damage may be caused'.

In this latter regard it should be noted that the Plaintiff's case is not one of negligence based upon a failure to inform the Plaintiff of the potential complications of undergoing the surgical procedure (i.e. thyroidectomy) nor is it pleaded on the basis of 'res ipsa locquitor' that the Plaintiff felt worse after the operation and therefore something must have gone wrong during its performance.

Needless to say the Plaintiff herself accepted that she had signed both consent to undergo operation forms and she testified that: '... the operation was explained to me that they would remove the goitre and I would be ok'. Furthermore she agreed that before the operation '(the medical staff) changed my clothes. They checked my vital signs thoroughly. They checked whole body and dressed me up' and rendered her unconscious before the operation. At the end of her cross-examination, the Plaintiff agreed that the doctors had given her all the care they could provide and had tried their best to cure her. Certainly no specific complaint was made in her evidence regarding the post-operative treatment or care she received at the hands of the hospital staff at CWM.

Given the nature of the evidence led by the Plaintiff, State Counsel made a 'no-case' submission to the Court on the basis that there was no affirmative evidence of negligence either in the operative procedures carried out or in the post operative treatment given to the Plaintiff at the CWM nor, Counsel submits, ought an inference of negligence be drawn from the evidence produced since the Plaintiff's claim was pleaded as one of positive negligence i.e. 'not by omission but by commission'.

In this latter regard I remind myself of what Viscount Hailsham said in Jones v General Western Railway Co. [1930] 47 T.L.R.39 at p.41:

'It is not enough that the evidence affords material for conjecturing that (the injury) may have been caused by the Defendant's negligence unless it furnishes data from which an inference can reasonably be drawn that, as a matter of fact, it was so occasioned.'

In dealing with the submission I remind myself that in order to succeed in her claim the Plaintiff must establish two (2) things, firstly that there was some act(s) of negligence on the part of the surgeon who operated on the Plaintiff at the CWM on 4th October 1993, and secondly, that that negligence caused the nerve damage and vocal cord palsy that the Plaintiff suffered, or at least that the surgeon negligently failed to take some precaution which would have obviated or minimised the risk of those injuries occurring.

Having said that it is well to bear in mind the salutary observations of Denning L.J. in Roe v Ministry of Health (2) [1954] 2 All ER 131 where he said at p.139:

'... we should be doing a disservice to the community at large if we were to impose liability on hospitals and doctors for everything that happens to go wrong. Doctors would be led to think more of their own safety than of the good of their patients. Initiative would be stifled and confidence shaken. A proper sense of proportion requires us to have regard to the conditions in which hospitals and doctors have to work. We must insist on due care for the patient at every point, but we must not condemn as negligence that which is only a misadventure.'

Earlier at p.137 his lordship said:

'Every surgical operation is attended by risks. We cannot take the benefits without taking the risks. Every advance in technique is also attended by risks.'

The 'locus classicus' of the test for the standard of care required of a doctor is to be found in the oft-cited direction given to the jury by McNair J. in Bolam v Friern Hospital Management Committee [1957] 2 All ER 118 where he said at p.121:

'... where you get a situation which involves the use of some special skill or competence, then the test whether there has been negligence or not is not the test of the (ordinary) man ... 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.'

Then, after referring to the dictum of Lord Clyde in Hunter v Hanley [1955] S.L.T.213 at 217 McNair J. said (ibid at p.122):

'A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.'

With the above in mind I have carefully considered the evidence led in the case before me and although I confess to entertaining some considerable sympathy for the Plaintiff's condition, I have reluctantly come to the conclusion that the evidence fails to positively establish any negligence (beyond misadventure) on the part of the surgeon who operated on the Plaintiff on 4th October 1993, or, in her care and treatment thereafter, nor is the evidence of a nature and quality from which it may be reasonably inferred that there was negligence on the part of any of the staff of CWM.

As was said by Lord Denning M.R. in Hicks v Cole [1968] 118 New L.J. 469:

'A charge of professional negligence against a medical man was serious. It stood on a different footing to a charge of negligence against the driver of a motor car. The consequences are far more serious. It affected his professional status and reputation. The burden of proof was correspondingly greater. As the charge was so grave, so should the proof be clear. With the best will in the world, things sometimes went amiss in surgical operations or medical treatment. A doctor was not to be held negligent simply because something went wrong. He was not liable for mischance or misadventure; or for an error of judgment. He was not liable for taking one choice out of two or for favouring one school rather than another. He was only liable when he fell below the standard of a reasonably competent practitioner in his field so much so that his conduct might be deserving of censure or inexcusable.'

The Plaintiff having failed to establish any negligence on the part of the operating surgeon or in her post-operative aftercare, I am constrained to uphold the 'no-case' submission and accordingly judgment will be entered for the Defendant and I order accordingly. The question of costs is reserved.

Action dismissed.

Marie Chan