Tioti v Attorney General [2010] KIHC 8; Civil Case 19 of 2009 (14 January 2010)

IN THE HIGH COURT OF KIRIBATI
CIVIL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

High Court Civil Case 19 of 2009

Between:

NEI UA TIOTI FOR ESTATE Of TEARIA TEBURAE
Plaintiff

And:

ATTORNEY GENERAL FOR MINISTRY OF HEALTH AND MEDICAL SERVICES
Defendant

For the Plaintiff: Mr Banuera Berina
For the Defendant: Ms Ereta Bruce

Dates of Hearing: 11 & 12 January 2010

JUDGMENT

Nei Tearia Teburae, accompanied by her mother, Nei Ua Tioti, came to the TCH, Tarawa from Makin on 18 May 2008. She had been referred by the Makin Clinic. The two ladies were given accommodation in a hospital maneaba.

Nei Tearia was seen by a doctor on 23 May and had blood tests, a chest x-ray and abdominal scan. The scan shewed a “right ovarian mass” and the blood tests suggested she was anaemic. As nothing had been done Nei Ua arranged for her daughter to see another doctor which she did on 29 May. Dr Alolae Cati diagnosed an ovarian tumor and referred Nei Tearia to a gynaecologist. On 2 May she was admitted, through the Emergency Department, to the surgical ward by Dr Baranika Toromon, gynaecologist and remained under Dr Toromon’s care.

Dr Toromon had originally planned to operate on 4 June but after blood tests shewed anaemia, postponed the operation, first to 9 June but at the urging of the patient and her family, brought the operation forward to Friday 6 June. Nei Tearia died early on Monday 9 June.

Nei Ua has brought this action for the benefit of the estate of her late daughter, Nei Tearia, alleging negligence by the servants or agents of the Ministry of Health and Medical Services. She claims damages.

Liability to be decided first and damages assessed later if that should be necessary.

Only two witnesses. Dr Harry Tong for the plaintiff and Dr Baranika Toromon for the defendant. I have had the benefit of report each had made before the hearing as well as their oral evidence. [Dr Toromon signed hers with the name “Dr Baranika Temariti”.]

Dr Tong made his report (Exhibit P1) having reviewed the hospital file. Ms Bruce not opposing, I had no hesitation in accepting Dr Tong as an expert, qualified to express opinions. Dr Toromon’s report (Exhibit P3) is in the form of a letter dated 10/12/08 addressed to Dr Teraira Bangao, Acting Director of Health Services. Both reports have been helpful.

Dr Tong has made a number of criticisms of the failure of documentation and Dr Toromon has not denied there were failures. While the failures do point to weaknesses in the system of work at the hospital I doubt if any of those leading up to the operation on Friday 6 June caused or contributed to the patient’s death. It is what happened after the operation which is relevant. The only failure before the operation I mention is that Dr Toromon, having ordered a repeat haemoglobin test after the patient had been transfused with two units of blood on 4 and 5 June, went ahead to operate on the afternoon of 6 June without having had the result of the tests she had ordered. She said she was confident that the tests in any case would have shewn a result sufficiently satisfactory for her to go ahead with the operation.

The operation, Dr Toromon said, was a success. She removed a “big ovarian mass” weighing 7 kg. She told the family it could be a cancer. She sent a specimen overseas for testing. The report “highly favour(ed) a metastatic mucinous carcinoid of the ovary”. (Exhibit P3).

During the operation she had “noticed and felt a big hard mass in her large colon” and she “asked Dr Rajiv what it was but he said it was only a hard fecal matter and He told me to leave it alone”. (Exhibit P3).
[Mr Rajiv, a surgeon, was present during the operation.]

Dr Tong was highly critical of the patient’s treatment after the operation especially the failure to have another blood test which, he said, would have shewn she was anaemic. He expressed the opinion that the failures led to her death.

No doubt there were failures to document treatment. The most relevant is shewn in the “TCH Observation Chart” (Exhibit P2). The records on the chart appear to be complete up to “7/6”. The only record for “8/6” shews the pulse rate (at 2 am) and a blood pressure of 60/20. The next column is also headed “8/6” but has no entries. Something is wrong: most unsatisfactory. Probably there was a failure to take any readings of temperature, blood pressure, pulse and respiratory rates on 8/6 and the entries shewn for that day should refer to the following morning, 9/6, a few hours before the patient suddenly collapsed and died. At the least there was a failure to document whatever readings were taken. This makes it the more difficult to come to a conclusion on the patient’s condition on 8 June. Dr Toromon admits that the entries on the chart do shew warning signs but insists that when she visited the patient on 8 June she was much better. The doctor herself took her pulse and so on. She said she was not happy with her nurses:-

No tests were made on 8 June or at least no record of tests was made. Graph of temperature stops on 7 June. The nurses were negligent: record not properly kept. When I consulted the chart (P2) on 8 June that blood pressure reading was not there. I noticed no entries for 8 June so I took the pulse myself – normal – blood pressure, listened to chest. Everything normal. I’m not certain of cause of death. Only a guess that hard fetal lump was a cancer which burst and caused the bleeding which led to her death. (Examination in chief).

I didn’t record the result of my observations on 8 June. I should have made a note. So different nurses will be able to see the record. Not only oral take over but written as well ..... Tests on 4 June shewed she was anaemic: operation postponed – two units of blood given. “Safe practice” – take another test but in emergency cases operation straightaway. I didn’t get results of blood test taken before the operation. She not anaemic any more. Minimal blood loss therefore little change. ----- Even though she looked well after operation she could have been anaemic. It would have been wise to take another blood test after operation: I was going to have a blood test on third day, Monday. (Cross examination)

In her letter (Exhibit P3):

...in my opinion, she may have an acute/sudden attack of internal bleeding that Sunday night that makes her Hb dropped to 5.1g/dl, went into shock and died quickly while she was still transfused.

Dr Tong criticized failures immediately after the operation and the treatment of the patient. He said the entries on the chart were “early warning danger signals of hypovolaemia” (meaning the patient’s volume of blood was below normal). There should have been a blood test immediately post operation: it probably would have shewn she was anaemic and further action could have been immediately taken to correct the anaemia.

Hypovolaemia – decrease in blood volume – haemorrhaging or other cause. Cause in this case – blood volume through loss of blood at operation and lack of fluid intake. No accurate report kept post-operation: essential. Should have been documentation of fluid intake.

Anaemia – another blood test should have been carried out post-operation: not done until immediately prior to death. A blood test should have been done in the 24 hours post-operation. If it had been it would have shewn anaemia: she should have been transfused. Hypovolaemia would have been partially corrected. If she had been she would not have died.

I accept on the balance of probabilities Dr Tong’s opinion as to the cause of death.

Had there been a blood test immediately after the operation, had the chart (Exhibit P3) been written up for 8/6, instead of Dr Toromon relying on her observations, had the warning signs already on the chart been heeded, the patient’s life would probably have been saved.

There will be judgment for the plaintiff on liability.

Dated the 14th day of January 2010

THE HON ROBIN MILLHOUSE QC
Chief Justice