Oresi v Marjen [1998] PGNC 106; N1784 (5 November 1998)

Unreported National Court Decisions

N1784

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 1218 OF 1996
GIMA ORESI - PLAINTIFF
V
CHRIS MARJEN - FIRST DEFENDANT
THE STATE - SECOND DEFENDANT

Waigani

Woods J
5 October 1998
13 October 1998
5 November 1998

HOSPITAL – negligence of surgeon – foreign objects left after operation – damages – trauma, pain and suffering, cosmetic disfigurement – reduced likelihood of pregnancy.

Counsel

R Uwari for the plaintiff

R Tuva for the defendants

5 November 1998

WOODS J: This is a claim for es fors for medical negligence against the Chief Executive Officer of the Port Moresby General Hospital and the State as the ownd operator of the Hospital following carelessness in an operation whereby two surgical inst instruments were left inside the plaintiff following the operation and the plaintiff incurred pain and suffering for some months and then had to undergo a further operation and claims she is now suffering permanent disability and is unable to have any further pregnancy.

The undisputed evidence is that in August 1995 the plaintiff was admitted to the Port Moresby General Hospital for abdominal pain and was diagnosed with acute appendicitis. She was then operated on by a team of hospital staff and during the operation it was discovered that the abdominal pain was not caused by appendicitis but by an ectopic pregnancy. This condition was alleviated and the operation was concluded. The plaintiff was discharged some 18 days later. However after being discharged the plaintiff suffered persistent pain in the abdomen in the area of the operation. She attended a suburban health centre but eventually the pains and discomfort became so severe that in April 1996 she was re-admitted to Hospital and entered the operating theatre where they re-opened her abdomen, the area of the previous operation, and discovered and removed two gauze swabs which had been left in at the previous operation in August.

The Plaintiff claims to still suffer recurrent pain and discomfort. Further she complains that since the operation she and her husband have been trying to have further children but she appears unable to conceive and claims that the negligence in August 1995 and the leaving of foreign objects in her body have led to permanent damage to her reproductive organs.

There is no dispute that two gauze swabs were left inside the plaintiff at the time of the operation in August 1995 and therefore the main issue in this case is the level of damages.

It is clear that part of the damages is for the pain, suffering and trauma caused following the operation in August 1995 and the continual discomfort and then having to undergo the trauma of a further operation with a consequent larger incision and therefore larger remaining scar across the stomach.

However there is further matter complained of namely the pregnancy difficulty. The Plaintiff and her husband already have two children, two girls born in 1989 and 1990. They have been trying to have another child, wanting a boy to balance the family. However since the operation in 1995 the plaintiff has been unable to get pregnant. It is noted that the problem that arose in 1995 was an ectopic pregnancy. That is a situation where the fertilised ovary gets stuck in the fallopian tubes and requires a medical procedure. There is no doubt that once a woman has an ectopic pregnancy there has been some damage to the reproductive organs, and on the evidence it is suggested that there is a reduced ability to get pregnant. Then of course the additional operative procedure to remove the swabs would have resulted in further internal trauma and therefore damage to the organs and this could then result in a further reduction in ability to get pregnant.

So it has been put to me that quite aside from the negligence in the first operation there was already a situation where damage was done and a reduced likelihood of pregnancy. So has the negligence resulted in a further reduction or complete reduction in the chance of pregnancy for which this court should consider damages. It must be noted that between 1990 when the second child was born there was no pregnancy until the problem in 1995, which was itself, a pregnancy problem.

There can be no certainty in considering what might have happened. However it is clear that there has been some negligence which must have had some effect. I must find that there would still have been a chance of pregnancy even after the ectopic pregnancy, which led to the original operation. And the negligence in the performance of that surgical procedure must have further affected the likelihood of further pregnancy. So I will consider some damages for a reduced likelihood of pregnancy.

The damages therefore will be damages for:

the pain, suffering, discomfort and trauma caused by the negligence in the surgical procedure;

the trauma and pain of the necessary additional operation;

the cosmetic disfigurement caused by the need to make a larger incision in the second operation, which of its very nature must cause a larger scar;

the reduced likelihood of further pregnancy.

The above heads of damages are very difficult to quantify, there is no mathematical formulae appropriate. Most cases of physical injury are direct physical matters such as a broken arm or leg, or specific back injuries or head injuries, which lead to, reduced ability to do normal activities. However here the only permanent matters are the scar, and the reduced likelihood of pregnancy. The main heads are the trauma and anxiety and distress of the second operation plus the general pain and suffering of the foreign objects and from the second operation. It is necessary to come to a general figure to cover all the above matters. I was referred for the plaintiff to some overseas cases but they were cases of unsuccessful operations to stop pregnancy or cases where the negligence had a much more serious result such as the loss of a baby. I will assess a figure of K20,000 for general damages to cover all the headings referred to. Interest will be assessed at 8 percent from the date of the issue of the writ which comes to K3,042.20.

I Order judgement for the plaintiff in the sum of K23,042.20.