Makapa v Tsiperau [2017] PGNC 6; N6590 (11 January 2017)

N6590

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 605 OF 2013

SHEPPARD MAKAPA, RAYMOND MAKAPA, PATAN MAKAPA & DOUGLAS MAKAPA ON BEHALF OF THEMSELVES &
OTHER BENEFICIARIES OF THE ESTATE OF
WAMBEA MAKAPA (DECEASED)
Plaintiffs

V

DR JOHN TSIPERAU
First Defendant

PORT MORESBY GENERAL HOSPITAL BOARD
Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Madang : Cannings J
2015: 17 June, 10, 11 August, 7 September, 22 October
2017: 11 January

NEGLIGENCE – Medical negligence – death of patient 19 hours after discharge from accident and emergency department of hospital – whether doctor who ordered discharge of patient was negligent – whether medical negligence caused death of patient.

The plaintiffs claimed that their relative, the deceased (a man more than 50 years old), was given inadequate medical care and attention by a doctor (the first defendant) at a hospital (the second defendant), culminating in the first defendant ordering, against the wishes of the deceased and his carers, that the deceased be discharged, and that 19 hours after being discharged, the deceased died. The plaintiffs sued the first defendant, claiming damages for negligence. They also sued the second defendant and the State (the third defendant), arguing that they were vicariously liable for the negligence of the first defendant. The defendants denied liability. A trial was conducted on the issue of liability.

Held:

(1) In a case of multiple defendants, in which one or more defendants is alleged to be vicariously liable for the conduct of others, the task of the Court is to first determine whether liability is established against the primary defendant and if liability is established, to then determine the question of liability of other defendants.

(2) Here, the first defendant was the primary defendant, so the first question was whether the plaintiffs had established a cause of action in negligence against him.

(3) To establish a cause of action in negligence a plaintiff must prove the elements of the tort: (a) the defendant owed a duty of care to the plaintiff, (b) the defendant breached that duty (acted negligently), (c) the breach of duty caused damage to the plaintiff, and (d) the type of damage was not too remote.

(4) Here, elements (a) and (d) were non-contentious, so the primary issues were (b) whether the first defendant was negligent and, if he was, (c) whether the first defendant’s negligent acts or omissions caused the death of the deceased.

(5) As to (b): the plaintiffs failed to prove that the first defendant was negligent, as: upon admission to the emergency department (to which the patient had been referred by another hospital) the deceased was properly regarded as not requiring critical care and during the 25-hour period that he was in the emergency department he was managed appropriately and assessed as hemodynamically stable, his vital signs were satisfactory and he was recovering well and was prescribed conventional medication for the conditions of which he had symptoms and there was no good reason the first defendant should have decided to retain the deceased in the emergency department or refer him to another part of the hospital for treatment. For that reason alone, the plaintiffs failed to establish a cause of action against the first defendant and the case against all defendants was dismissed.

(6) As to (c): if it had been proven that the first defendant was negligent, there was insufficient evidence to prove that the treatment of the deceased in the emergency department or his premature discharge led to his death, as there was no post-mortem report or other acceptable evidence of the cause of death and no evidence to rule out the possibility that death was caused by some other condition or event unrelated to his admission to the emergency department.

(7) It was unnecessary to determine the question of vicarious liability. The case against all defendants was dismissed and the parties were ordered to bear their own costs.

Case cited

The following case is cited in the judgment.

Kembo Tirima v Angau Memorial Hospital Board & The State (2005) N2779

Abbreviations

The following abbreviations appear in the judgment:

AE – Accident & Emergency
Dr – Doctor
ED – Emergency Department
GB – gall bladder
MCHC – mean cell haemoglobin concentration
MCV – mean cell volume
N – National Court judgment
No – number
PIH – Pacific International Hospital
PMGH – Port Moresby General Hospital
PNG – Papua New Guinea
RDW – red-cell distribution width
RFT – renal (kidney) function tests
WS – Writ of Summons

Dates

Unless otherwise indicated, the events referred to occurred in 2013.

STATEMENT OF CLAIM

This was a trial on liability for negligence.

Counsel:

B Lakakit, for the Plaintiffs
S Maliaki, for the Defendant

11^th January 2017

1. CANNINGS J: The plaintiffs, Sheppard Makapa and 31 others are members of the family of the late Wambea Makapa, a mature-aged man who died at Erima in the National Capital District on Wednesday 13 February 2013. The plaintiffs assert that the deceased’s death was due to medical negligence. They commenced proceedings against the doctor, Dr Tsiperau (the first defendant), who they claim negligently treated the deceased and prematurely discharged him from the emergency department at Port Moresby General Hospital, and against the doctor’s employers, the Port Moresby General Hospital Board (second defendant) and the State (third defendant), who they claim are vicariously liable for the first defendant’s negligence. They seek damages in the form of a dependency claim against all defendants.
   

UNDISPUTED FACTS

2. A number of undisputed facts have emerged from the evidence:
   

• The deceased was aged in his 50s, from Enga, with business interests in Enga and Madang (which explains why these proceedings were commenced in Madang, and the defendants did not object to the trial being in Madang). He had four wives and multiple children and grandchildren. He moved to Port Moresby to live in 2011 to pursue his business interests there. His home was at Erima.
  
• On Monday 11 February 2013 the deceased felt unwell. His relatives took him to Pacific International Hospital. He was admitted into the emergency ward at 11.00 am. At 4.00 pm he was discharged and referred to the emergency department at Port Moresby General Hospital. At 5.00 pm he was admitted into the emergency department at Port Moresby General Hospital.
  
• The deceased remained in the emergency department overnight. Dr Tsiperau discharged him at 6.00 pm on Tuesday 12 February 2013, having formed the opinion that his condition had improved and that there was no good reason for him to remain in hospital. Relatives took the deceased back to Erima.
  
• The deceased died at his home at 1.30 pm on Wednesday 13 February 2013.
  

ISSUES

3. In a case of multiple defendants, in which one or more defendants is alleged to be vicariously liable for the conduct of others, the task of the Court is to first determine, whether liability is established against the primary defendant and if liability is established, to then determine the question of liability of other defendants.
   
4. Here, Dr Tsiperau is the primary defendant, so the first question is whether, the plaintiffs have established a cause of action in negligence against him. To do so, the plaintiffs must prove the elements of the tort of negligence: (a) the defendant owed a duty of care to the plaintiff (or in this case, the deceased); (b) the defendant breached that duty (acted negligently); (c) the breach of duty caused damage to the plaintiff; and (d) the type of damage was not too remote.
   
5. In some cases, I have said that there are five elements, the fifth being that the plaintiff rebut any defences such as contributory negligence and voluntary assumption of risk (e.g Kembo Tirima v Angau Memorial Hospital Board and The State (2005) N2779). On reflection I think it is better to treat such defences separately and not regard them as giving rise to an element that must be proven by the plaintiff. Here, no such defences were raised so it is not necessary to address the question of their rebuttal.
   
6. Elements (a) and (d) are non-contentious. A doctor owes a duty of care to his patient and it is reasonably foreseeable that a doctor’s negligent treatment of a patient can cause personal injury or death. The contentious elements are (b) whether Dr Tsiperau was negligent and, if he was, (c) whether the doctor’s negligent acts or omissions caused the death of the deceased. If those issues are determined in the plaintiffs’ favour, the question of vicarious liability will be addressed
   

WAS DR TSIPERAU NEGLIGENT?

7. This is the critical issue. It will be dealt with in the following way: first, the competing evidence will be outlined; secondly the evidence will be set out in detail; thirdly, the issue of the appropriate standard of care will be addressed; finally a determination will be made of the critical question of law: was Dr Tsiperau negligent?
   

Outline of evidence

8. The plaintiffs’ case was based on the oral testimony of four witnesses, who were cross-examined on their affidavits. One of the witnesses was a doctor, Dr Mondia. The other three are friends or relatives of the deceased. The defence case was based on the oral testimony of Dr Kibob, who was cross-examined on an affidavit prepared for the trial. The first defendant, Dr Tsiperau, did not give evidence. Affidavits of the two doctors who gave evidence included medical reports and records pertaining to the deceased.
   

Evidence for the plaintiffs

No	Witness	Description
1	Dr Paul Mondia	Consultant physician, Pacific International Hospital
Evidence
In his affidavit and an annexed formal opinion, dated July 2014, Dr Mondia stated that he was on duty on the day that the deceased was brought to the PIH emergency ward, at about 11.00 am – the deceased was initially attended to by another doctor – Dr Mondia examined the deceased later in the day and made the decision to refer him to PMGH due to financial constraints (the deceased and his relatives did not have the money to keep the patient at PIH). Dr Mondia stated that he based his opinion as to the condition of the deceased when the deceased was at PIH and the standard of care given to the deceased when he was at PMGH on copies of blood tests and clinical notes provided to him by the plaintiffs’ lawyers. He had to do this as the medical chart of the deceased was misplaced when PIH moved from Four Mile to Korobosea: all clinical notes from PIH are missing. Specifically Dr Mondia considered: a biochemistry and haematology coulter report, dated 11/2/13, time-stamped as 7.06 pm, signed by Dr J Morewaya, consultant pathologist, of PIH; [This one-page report was annexed to the affidavits of other witnesses. Under biochemistry, the following values were within normal range: sodium, potassium and chloride; the following values were outside the normal range: blood urea 8.3 (normal range, 2.21 – 7.7) and “s creatinine” 217.3 (normal range, 53 – 123). Under haematology coulter, the following values were within normal range: white cell count, total red cell count, haemoglobin, MCHC, mean platelet volume, neutrophils, lymphocytes, monocytes and basophils; the following values were outside the normal range: haematocrit 38 (normal range, 40 – 50), MCV 74 (normal range, 76 – 96), RDW 19.5 (normal range, 10 – 15), platelet count 103 (normal range, 150 – 450) and eosinophils 00 (normal range, 1 – 6).]; and a Department of Imaging Sciences report, headed “Investigation: USG – Whole Abdomen”, dated 11/2/13, not time-stamped, signed by Dr P Umo, consultant radiologist, of PIH. [This one-page report was annexed to the affidavits of other witnesses. Clinical details were noted as “Fever with abdominal pains, RFT – elevated creatinine 217.3”. The report noted, with particulars, the following organs as being in normal size and condition: kidneys, pancreas, liver and spleen, and noted that “The adrenal glands, gall bladder, biliary channels, abdominal aorta and bowel loops are normal. No abnormal free fluid collections or masses are seen. The urinary bladder is empty.” Specifically under the subject “IHD and gall bladder” the report noted: “The gall bladder is dilated with mild wall thickening and presence of pericholecystic fluid. There are coils of worm seen in the lower body and neck of the gall bladder. No calculi are seen. Marked focal tenderness is elicited though. The common bile duct and intrahepatic biliary channels are normal in calibre and patency.” The report concluded: “The sonographic findings and features are suggestive of GB Worm Infestation with Cholecystitis. The rest of the abdominal findings are otherwise normal.”] Dr Mondia summarised the results of those two reports in the following terms: “Complete blood count – abnormal blood slide malaria – positive Widal (typhoid) – negative blood urea (kidney) – normal serum creatinine – abnormal electrolytes (endocrine) – normal abdomen ultra sound – abnormal”. As to the standard of care given to the deceased when he was at PMGH, Dr Mondia stated: “Mr Wambea Makapa ... was apparently admitted to the A & E of PMGH on 11/02/2013 at 11.15 pm [sic: the deceased was, in fact, admitted at approximately 5.00 pm], with 4 days history of joint pains, loose stools and abdominal discomfort. His vitals were CGS 15/15, blood pressure was 64/37 mmHg, 02 saturation 92% on room air, he had mild tenderness over the right upper quadrant of his abdomen. The subject was managed appropriately with 1 litre normal saline fast and 1 litre every 6 hours with Chloramphenicol, Flagyl, Albendazole and ... Artemether. Review (12/02/13), he was still having loose stools, tachycardia (rapid heart rate) and moderately dehydrated. Still feeling unwell. Review by morning staff (12/02/13): Abdomen discomfort decreased Loose bowel motion only 1 episode No fever Eating and drinking well His vital signs stable, however actual recordings were not done. The patient was discharged with prescription and was instructed to come back (13/02/13) for review. Late Mr Wambea Makapa’s life expired 1.30 pm on 13/02/13. Comments and opinion The medical certificate of death showed: The subject life expired on 13/02/13. The deceased died at 11.00 am [sic, in fact, the time of death was 1.30 pm] The place of death was at the Emergency Department of PMGH [sic, in fact, the place of death was Erima] The primary doctor did not view the body till 14/02/13 There was insufficient evidence to show cholecystitis as a condition directly causing death and malaria as a morbid condition. From my observation of clinical notes of ED of PMGH there was insufficient information or documentation as to the aggressiveness of fluid management of a shocked and very sick patient. On the surface one would be led to believe that after reading through the notes that the subject was not gravely sick. The deceased patient’s blood pressure was 64/37 mmHg. That low blood pressure will cause acute tubular necrosis leading to pre-renal renal failure. There was no mention of the state of urine production. My opinion: There was a discrepancy on the preparation and issuing of the medical certificate of death, particularly the place and time of death. The clinical notes or documentation of events was grossly insufficient, particularly concerning a critically sick patient. A critically and hypotensive patient waiting for prompt attention for 4 hours even without vital signs observation is worth noting. The death of the late Mr Wambea Makapa could be avoided if extra effort given.” In examination-in-chief Dr Mondia further remarked on the very low blood pressure of the deceased, of 64/34 mmHg, and the ongoing signs of kidney failure. The patient was very sick when the decision was made, for financial reasons, to transfer him from PIH to PMGH. It was a medical emergency requiring vigorous intervention and management, but that did not happen. The patient should have been treated as a category 1 emergency so that everything necessary to sustain his life would be done. He should not have been left unattended for four hours. A post-mortem examination should have been conducted and a post-mortem report prepared and the failure to follow those standard procedures reflects poorly on adherence to the medical code of ethics by the medical personnel of PMGH who had the deceased in their care. Basic procedures such as fluid replacement were not adhered to. Management of symptoms was not sufficiently aggressive and there was no indication of proper blood pressure management. In cross-examination Dr Mondia was asked if he knew that the deceased had malaria and whether he had been treated for malaria – Dr Mondia replied ‘yes’, he knew the deceased had malaria and ‘probably, he was treated for that, but I have no records to verify it’. Dr Mondia denied any failure on PIH’s part to treat the deceased appropriately. It was put to Dr Mondia that the deceased could not have been in a really serious condition as he (Dr Mondia) allowed him to be discharged and the deceased was able to walk out the door. Dr Mondia replied that the decision to refer him to PMGH was necessitated by financial reasons. He could not recall whether the deceased was mobile when he left PIH.
2	Tony Lucas	Family friend, male aged 24
Evidence
Mr Lucas stated in his affidavit that he received a phone call from a friend on the afternoon of 11 February who told him that Wambea Makapa was in the emergency ward at PMGH so he made his way there and arrived at 5.30 pm – the deceased was lying on a wooden bench and none of the medical staff made any attempt to attend to him – this continued for several hours – he (the witness) became frustrated as the ward was not busy – he got a message to a wantok, who is a nurse at PMGH – so he came to see what was happening and brought a wheelchair – eventually the medical staff took some interest in the deceased: he was given an IV solution and oxygen at 1.30 am; the oxygen was removed – he stayed with the deceased throughout the night – the deceased was not given any medication. In the morning the deceased was still unwell and not eating properly – no doctors came to check on him – a female nurse removed the IV solution at 11.00 am – at 3.00 pm a doctor came in and told them to get ready to go home – at 4.00 pm the first defendant, Dr Tsiperau, came in and talked to the deceased and told him he was not very sick – he just had malaria, typhoid and diarrhoea – the doctor said that he would give us a prescription, so ‘we just had to get the medicine from the dispensary and go home’ – the deceased protested and asked that he be allowed to stay for one more night, as he was facing transport difficulties – the doctor insisted that the patient did not have a “big sick” and that it was an emergency ward, so the patient had to go home. After collecting the prescribed medication he (the witness) did his best, with the assistance of a relative of the deceased, and with great difficulty got him in a vehicle and took him to Erima – the deceased remained unwell during the night – he died at the house at Erima at 1.30 pm on 13 February. In cross-examination the witness denied that the deceased was given medication during the time that he was in the emergency department – there were long periods when the deceased was not seen by a doctor.
3	Manda Mapya	Family friend, male aged 45
Evidence
Mr Mapya stated that he was staying in the house at Erima with the deceased when the deceased complained on 11 February of feeling unwell – he stayed at home while other family members took the deceased to hospital – late on the afternoon of 12 February he drove a vehicle from Erima to PMGH to collect the deceased – the deceased was in a wheelchair and looked weak and unwell – with difficulty the deceased was put into the vehicle and he drove him to Erima - the deceased did not sleep well – people in the house kept asking why he had been discharged when he was weak and sick – the deceased died at 1.30 pm on 13 February.
4	Sheppard Makapa	Lead plaintiff, deceased’s eldest son, adult
Evidence
Mr Makapa stated that he was not in Port Moresby when his father died – his evidence was restricted to details of the deceased’s family and the number of dependants the deceased had and to the steps he took, after his father’s death to inquire into the circumstances of his death – he was very concerned at the reports from the guardians who were looking after his father at the hospital that his father was forced out of the emergency ward without the doctors properly looking into the actual sickness that he had – he managed to get clinical notes and other documents from PIH (the reports referred to by Dr Mondia) and PMGH (a medical certificate of death and clinical notes from the emergency ward) – he also engaged a private doctor (Dr Mondia) to give an opinion on his father’s cause of death.

Evidence for the defendants

No	Witness	Description
1	Dr Sonny Kibob	Clinical coordinator, consultant emergency physician, emergency department, Port Moresby General Hospital
Evidence
In his affidavit Dr Kibob stated that the emergency department is burdened with a high daily patient load, about 120 cases are admitted each day – when the deceased was admitted to the emergency ward, he was triaged and determined to be a category 4 patient – the categories applied are 1 = immediate, life threatening, needs to be attended to straightaway; 2 = critically ill but not immediately life threatening, should be seen within the next 30 to 60 minutes; 3 = critically ill but stable, should be seen in the next 3 to 4 hours; 4 = ill but stable, can be attended to in the next 3 to 4 hours. Dr Kibob stated that he was not involved in the initial management of the deceased or in his discharge from the hospital – but he is able to give an opinion on the treatment given to the deceased and the decision to discharge the deceased, based on the clinical notes prepared in the emergency department and the results of laboratory investigations done at PIH: “On the morning of 12 March 2013 late Wambea Makapa was reviewed by emergency physician and consultant in emergency medicine, Dr John Tsiperau. They have reviewed the patient and noted that he was hemodynamically stable and was recovering well ... and therefore have decided to discharge the patient home on conventional anti-malarial and antibiotics and further advised the patient to be reviewed the next day in the morning. Late Wambea Makapa’s medical condition was appropriately managed. He was treated with anti-malaria and worm treatment. On the 12th of March during the review, the abdominal discomfort and diarrhoea have subsided, there was no fever and patient was eating and drinking well, therefore he was discharged home on oral medication. All the laboratory investigations done on the patient at PIH were within normal range. There was no raised white blood count [indicating] ongoing infection and body electrolytes were all within normal limits. The only abnormal investigative findings were positive blood slide from malaria and worm infestation in the gall bladder. He was referred to PMGH for continuum of care most likely because of high expense in continuum of care at PIH.” In examination-in-chief Dr Kibob stated that he prepared the medical certificate of death, after viewing the body. He was authorised to do so. He confirmed that he completed the pro-forma certificate by stating that the disease or condition directly leading to death was “CHOLECYSTITIS – WORM INFESTATION OF GALL BLADDER” and that the morbid condition, giving rise to the above, was “MALARIA”. Dr Kibob stated that he completed the certificate on 14 February 2013, having examined the body of the deceased that morning. In his view, it was a “coroner’s case” and a full post-mortem examination and report should have been done. However, a decision was made that that was not necessary. That was not his decision. If a post-mortem report had been prepared the real cause of the deceased’s sudden death would be known. There are possible causes of death – other than the conditions for which there were symptoms when the deceased was in the emergency department – that would have been explored, if a post-mortem examination had been conducted. In cross-examination Dr Kibob was asked how he could say that the deceased was properly managed in the emergency department and given a category 4 rating, if the deceased had not been seen by a doctor for five hours after his admission. Dr Kibob responded that it was clear that the patient had been assessed by the triage nurse in accordance with normal procedures. It is not ideal for a patient to be left for four or five hours without being seen by a doctor – but the emergency department at PMGH is subject to capacity constraints and unfortunately has become a dumping ground for private patients – that is why a triage system is in place – there are only 24 beds in the emergency department, it is very crowded and busy – a 100% occupancy rate is the norm – they have to prioritise. Dr Kibob conceded that record-keeping was not perfect in this case – some records are missing – but the basic records are in place and show that the patient was given proper medical care and attention. Asked about the circumstances in which he prepared the death certificate, Dr Kibob stated that he was fully authorised to prepare the certificate – he recalls the case: the relatives of the deceased did not directly request a certificate – the request came from a nurse at the hospital who told him that the relatives wanted a death certificate – so he obliged – Dr Kibob conceded that the certificate erroneously states that the deceased died at the hospital – that was his understanding at the time, he did not know that the deceased died at home. Dr Kibob reiterated that it was his opinion that the decision to discharge the patient was properly made as his condition had stabilised – the clinical notes showed that the patient had no symptoms suggesting the need for urgent intervention or special treatment – what happened when the patient went home is unknown – anything could have happened. Asked to comment on Dr Mondia’s concern about the failure to address the patient’s low blood pressure, Dr Kibob stated that blood pressure, considered alone, is not an accurate medical parameter by which to assess the necessary treatment. Other factors also have to be considered, including pulse rate, urine output and the clinical appearance of the patient.

What standard of care was required?

9. A doctor is required to exercise reasonable skill and judgment, taking into account all the circumstances in which the doctor is working. In the present case, doctors were working in an emergency situation in a public hospital. They were required to do all that was reasonable in that particular setting. They were not expected to perform miracles. But on the other hand they were not expected to be reckless or lackadaisical or to disregard standard and accepted medical practices (Kembo Tirima v Angau Memorial Hospital Board and The State (2005) N2779).
   

Was Dr Tsiperau negligent?

10. I have concluded, after assessment of the evidence and submissions of counsel, that this issue must be determined in the negative for the following reasons:
    
1. Upon admission to the PMGH emergency department (to which the patient had been referred by PIH) the deceased was properly regarded as not requiring critical care, as he had been assessed at triage to be a category 4 patient.
   
2. During the 25-hour period that the deceased was in the emergency department at PMGH he was managed appropriately and assessed as hemodynamically stable, vital signs satisfactory and recovering well and was prescribed conventional medication for the conditions of which he had symptoms (including cholecystitis and malaria).
   
3. I have given more weight to Dr Kibob’s evidence than to Dr Mondia’s evidence as the results of laboratory investigations at PIH, taken together with the clinical notes of medical staff at PMGH do not support Dr Mondia’s proposition that the patient’s condition was “critical”. If, in fact, the patient’s condition was critical when he was at PIH, it would appear that a real question would arise as to whether PIH and Dr Mondia in particular were in breach of their ethical responsibility to give appropriate and urgent medical care to a person in their care. Dr Mondia was in no position to be critical of the failure of PMGH to keep proper clinical records when he and PIH had misplaced all their records and not been able to find them in the two-year period between the time when they had the deceased in their care and the date of trial. At least PMGH had most of their clinical notes intact and available to be brought into evidence. Those notes showed a continuing pattern of stabilisation and improvement in the patient’s clinical condition.
   
4. I have given more weight to Dr Kibob’s evidence than to the evidence of the friends of the deceased, Tony Lucas and Manda Mapya. The doctor’s evidence was based on the clinical notes, whereas the friends’ evidence was subjective and non-scientific and so contrary to the clinical notes as to make it very questionable.
   
5. With the benefit of hindsight, it can be safely concluded that, although the deceased had a number of concomitant medical conditions – anaemia, kidney impairment, malaria, a worm infestation in the gall bladder and cholecystitis – he was not exhibiting sufficiently serious symptoms to warrant his continued treatment in an emergency department. There was no good reason Dr Tsiperau should have decided to retain the deceased in the emergency department or refer him to another part of the hospital for treatment.
   
6. The absence of a post-mortem report means that making a finding on the cause of death of the deceased is mere speculation. I am persuaded by the opinion of Dr Kibob that the Court cannot say, on the available evidence, what was the cause of death. As Dr Kibob stated in evidence: anything could have happened to the deceased once he left the hospital. The actual cause of death might be unrelated to all the ailments of which he was exhibiting symptoms at the hospital.
   
11. I conclude that Dr Tsiperau exercised reasonable skill and judgment, taking into account all the circumstances in which he was working. I find no evidence that he disregarded standard and acceptable medical practices. Dr Tsiperau was not negligent. For that reason alone, the plaintiffs have failed to establish a cause of action against the first defendant and the case against all defendants must be dismissed.
    

WAS THE DEATH OF THE DECEASED CAUSED BY NEGLIGENCE?

12. If it had been proven that the first defendant was negligent, there was insufficient evidence to prove that the treatment of the deceased in the emergency department or his premature discharge led to his death. There was no post-mortem report or other acceptable evidence of the cause of death. There was no evidence to rule out the possibility that death was caused by some other condition or event unrelated to the admission of the deceased to the emergency department. The causation element of the tort of negligence would not have been able to be proven.
    

CONCLUSION

13. The plaintiffs have not established that the first defendant was negligent and are therefore unable to establish a cause of action in negligence against him. The entire proceedings must therefore be dismissed. The issues raised by this case are significant and there is no indication that the plaintiffs commenced the proceedings for any other than genuine reasons. The first defendant has been represented by the Solicitor-General and did not appear at the trial. In these circumstances it is appropriate that the parties bear their own costs.
    

ORDER

(1) The plaintiffs have failed to establish a cause of action in negligence or liability against any of the defendants and the proceedings are entirely dismissed.

(2) The parties shall, subject to any specific costs orders made in the course of the proceedings, bear their own costs.

Judgment accordingly,
_____________________________________________________________

Lakakit & Associates Lawyers : Lawyers for the plaintiffs
Solicitor-General : Lawyer for the defendants