Luana v Fleming [2022] PGNC 412; N9819 (6 May 2022)

N9819

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 275 OF 2006

BETWEEN:
BRADLEY LUANA, an Infant By His Next of Friend Eric Luana
Plaintiff

AND:
SISTER NANCY FLEMING
First Defendant

AND:
DR LAKI
Second Defendant

AND:
GOOD SAMARITAN MEDICAL CENTER
Third Defendant

Lae: Batari J
2010: 13^th October
2021: 26^th November
2022: 6^th May

CIVIL – Hospital – negligence of nursing sister – injection – administration of – injection applied at incorrect site resulting in permanent injuries – liability – whether nursing sister wrongly injected sick infant – damages – trauma, pain and suffering reduced efficient use of right leg.

Cases Cited:
Papua New Guinean Cases

Andrew Daiva & Anor v Lawrence Pukali & Anor (2002) N2289
Kaunke Kemsi & Aundik Kupil v The State & Ors [1983] PNGLR 30
Kembo Tirima v Angau Memorial Hospital Board & Anor (2006) N3106
Kuk Kuli v The State (2004) N2592
More v The State [1998] PNGLR 290
Roka Coffee Estate Pty Ltd v Gerebi [1973] PNGLR 486
The State v David Wari Kofowei and Ors [1987] PNGLR 5
Wango v Andakundi and The State [1992] PNGLR 45

Overseas Cases

R v Bateman [1925] 94 LJKB 791

Counsel:

R. Uware, for the Plaintiff
S. Toggo, for the Defendants

26^th November, 2021

1. BATARI J: The plaintiff’s claim is for personal injuries alleged to have been caused him by medical negligence of Sister Nancy Fleming, Dr Laki, and the Good Samaritan Medical Centre. The plaintiff claims that the defendants failed to properly diagnose his complaint, and safely administer quinine injection. He further claims the defendants omitted to properly keep records of the medical history of treatment of the plaintiff at the Medical Centre.
2. The defendants have all along denied liability. So trial was conducted on both liability and damages on the issues set out in the Pleading Book as follows:
   1. Whether the plaintiff received medical treatment from Good Samaritan Centre at 9.30am of 3 July 2003.
   2. Whether the injection of quinine on Bradley Luana was administered by Sr Nancy Fleming.
   100. Whether the quinine injection administered by Sr Fleming on Bradley’s buttock caused injury to the nerve around the buttock area.
   4. Whether the second defendant Dr Laki was/is liable for the acts and omissions of Sr Fleming.
   5. Whether the third defendant Good Samaritan Medical Centre is a legal entity capable of suing and being sued.
   6. Whether Dr Laki and Sr Fleming are personally liable for the acts and omission done in their cause of employment.
   7. What is the extent of damages and loss and other relief sought by the plaintiff if negligence is established.

Background

3. The history of this claim which also formed the common facts is that the child plaintiff Bradley Luana was born on 22/6/2000. At three years old, he was experiencing fever ailment. His parents took him to the Good Samaritan Medical Centre on 3/7/2003 for treatment. He was diagnosed to have malaria and was given a three-day dose of quinine injection.
4. A short while later the plaintiff sustained leg deformity, evidenced by a clear visual limp in his right foot. The deformity was said to have been a result of injury to a nerve around Bradley’s buttock area caused by the first syringe injection on 3/7/2003. It is also common grounds that the plaintiff and his family had previously been treated at the Good Samaritan Medical Centre.
5. After the treatment of the plaintiff for malaria, his medical records kept at the Medical Centre were misplaced and could not be located.
6. At the time of trial, Bradley has been diagnosed to have sustained functional loss of the efficient use of his right leg.

Evidence

7. The evidence before the court consisted of both oral and documentary evidence adduced from both sides. I have read and re-read the whole of the trial evidence. In deliberating the evidence, I have also had regard to and gained invaluable assistance from both the oral and written submissions from counsel.

Parties’ positions

8. The plaintiff’s contentions are that the cause of his leg deformity commonly described in medical term as ‘leg drop’, was caused by injury to the right sciatic nerve when the syringe injection was negligently applied or administered to the right buttock of the plaintiff on 3/7/2003. That the injection was given by Sr Fleming at the Good Samaritan Medical Centre.
9. The defendants’ position is that the injection was correctly administered and that the deformity in the leg may have been due to an injury from a fall the plaintiff was previously treated for at the Good Samaritan Medical Centre. The defendants contended that the treatment for malaria was consistent with good practices observed at the Medical Centre. They denied any negligence or wrongdoing in the application of the quinine injection.

Whether the Good Samaritan Medical Centre has standing.

10. This question is raised regarding the locus standi of the Third Defendant. The status of the Good Samaritan Medical Centre is explained in the affidavit of Dr Laki of the Medical Centre. Good Samaritan Medical Centre is a business name trading under Good Samaritan Medical Foundation Ltd, an incorporated entity under the Companies Act 1997. Clearly, if the Medical Centre was to be sued, the proper course and usual practice is to name the parent company, Good Samaritan Medical Foundation Ltd, trading as Good Samaritan Medical Centre. In that way, the parent company with the legal entity under the Companies Act would be the liable in civil suits against the Medical Centre as the latter has no legal entity to sue or be sued in its separate entity. So, the claim against the Third Defendant is unenforceable as it is against a non-legal person. That does not affect the competence of the proceedings. The action survives against the first and second defendants.

Whether Sr Nancy Fleming treated Bradley Luana on 3/7/2003.

11. This issue is captured from the parties’ first and second statements of issues to be tried. The plaintiff’s claim is that his parents took him to the Good Samaritan Medical Centre at 9.30am of 3/7/2003. Dr Torowa diagnosed malaria and recommended a three-day dose of quinine by injection. Sr Fleming then administered the first dose injection on his buttock on the same day.
12. The question of whether the plaintiff was treated by Sr Fleming arises because the defence case is that Dr Laki gave the plaintiff the injection. Both Dr Laki and Sr Fleming gave evidence to that effect. Their evidence is in vast contrast to the filed Defence and is confusing.
13. The plaintiff’s statement of claim alleged at paragraph 4, “the first Defendant failed to administer the quinine injection properly, carefully and safely resulting in unnecessary injuries to the plaintiff infant.” In response, the defence stated at paragraph 10 (i) of the Defence, “the first Defendant administered the quinine injection carefully in a careful and safe manner”.
14. The First Defendant is Sr Nancy Fleming. The position of the defence then was, that Sr Fleming administered the injection with due care and diligence. It can be reasonably presumed; the Defence was based on clients’ instructions to lawyers.
15. The pleading of the defence constituted facts against which the plaintiff was to prepare his case against and to clearly informed the Court of the issue for determination. At the start of trial, the Defence has not been amended. It was also clear from the statement of agreed and disputed facts, the allegation of negligence against Sr Fleming was to be tried.
16. At the time of trial, the defence shift its position on who gave the plaintiff the injection. Dr Laki testified that he administered the first dose of quinine injection on 3/7/2003. Sr Fleming said that she was not at work on 3/7/2003 and that she gave the last dose of injection on Saturday 5/7/2003.
17. Dr Laki did not pinpoint any event or produce the medical record as a point of reference in recalling the date and time he saw and treated the plaintiff some seven years earlier. My impression of the doctor’s evidence is that it lacked clarity, detail, and certainty.
18. In any case, I think it is most unusual for a medical doctor to be giving patients injections and other medical treatments. That is the role nurses and nursing-sisters are trained and engaged to perform. I am also not convinced by Sr Fleming’s denials. Her evidence that Dr Torova was not relieving Dr Laki on the material dates and that she did not treat the plaintiff withered under cross-examination when she was asked:

Q. Bradley’s parents said you treated him on 3/7/2003 at 9.30am?

A. “Like I said, I treated him on Saturday when I gave him the injection. It was the last day of injection.”

Q. Is it true that Dr Torova was relieving Dr Laki and was present at the Medical Centre on 3 July, 4 July, and 5 July?

A. “Yes”

19. It was clear Sr Fleming gave guarded evidence. That reduced the weight of her evidence and makes the evidence of Dr Laki suspicious. And it has not been explained why the defence evidence differed from the filled Defence. I think it was an 11^th hour attempt to shift the blame away from Sr Fleming and to give the impression that a professional doctor with his vast experience would not get it wrong in giving an infant patient the injection.
20. On the other hand, the plaintiff’s parents Eric and Mitchell had clear recollections of the time and date they took Bradley to the Medical Centre, the doctor they saw, the diagnosis, the medical prescription for Bradley, and the nurse/sister who administered the injection. Prior to 3/7/2003, the plaintiff and his parents have consulted and treated at the Medical Centre.
21. The clinical entries of 3/7/2003 could have thrown light on the diagnosis of Bradley’s condition, his treatment, and the medical officers involved. However, the clinical records have either been misplaced or gone missing from the custody of the Good Samaritan Medical Centre.
22. The crucial point to make here from the evidence is, that the plaintiff attended at the Good Samaritan Medical Centre and was given the injection of quinine for his malaria ailment. The identity of whoever gave the injection is not as crucial as the issue of whether the person who gave the injection was negligent in the way and manner the injection was given.
23. Whether it was Dr Laki who gave the injection, or it was Sr Fleming, the crucial fact is that both worked for the Good Samaritan Medical Centre and have appropriate qualifications in the medical field as medical doctor and nurse/sister with vast experiences between them in medical practice. One of them was allegedly negligent in the performance of his/her professional duty.
24. The issue under the following sub-heading as framed by the parties presumes that Sr Fleming administered the injection on Bradley’s buttocks. That presumption has support from the whole of the evidence. So, I find that it was Sr Fleming who gave the injection on 3/7/2003.

Whether the injection caused an injury to the nerve on the buttock area.

25. The plaintiff relies on the evidence of Dr John Beaso of Masalohan Medical Services, a general medical practitioner specialising in surgery, Dr Leonard Numu Kaupa, Deputy Chief Surgeon of Goroka General Hospital and Dr Kana Eorage, Medical doctor of Goroka General Hospital in support of his contention that Sr Fleming (or whoever) administered the injection, caused injury to the sciatic nerve located below the muscles that form the buttocks. The recommended location for giving injection is up and away from the site of the sciatic nerve. The combined medical opinion was that the cause of the leg drop in the plaintiff’s right leg was due to an injury to the sciatic nerve caused possibly by an injection.
26. The defence case is that Dr Laki in his professional qualifications and experiences knows that the location of the sciatic nerve on the buttock well and because he gave the injection himself, it was well away from the sciatic nerve. Dr Laki also said the parents of Bradley Luana only complained of him developing a foot drop sometime after the injection and his condition was reviewed by Dr Torova.
27. Dr Torova was not called. I accept the evidence of Michelle Luana that on 3/7/2003 Dr Torova saw and diagnosed Bradley’s ailment and recommended three doses of quinine injection. Sr Fleming then administered the first injection. Immediately after the injection, Bradley was in pain and could not stop crying. The parents also noted swellings around the site of the injection on his buttock. The swelling extended to his right foot. They consulted Dr Torova on the same day, and he advised them that Bradley’s condition would improve.
28. The swellings which immediately followed the injection also has support from the defence evidence. In her testimony, Sr Fleming conceded seeing swelling on the side of the buttocks on 5/7/2003, being the third day of the first injection. From copies of Bradley’s clinical card attached to the affidavit of Dr Laki, the following was entered in hand-written notes:

“10/7/03 - pain over (R) buttock post injection”

“6/8/2003 - foot drop”

“4/3/04 (R) foot drop 6/12 (post injection)

sciatic nerve neuro ...”

29. The clinical notations clearly indicated that within one week, Bradley was experiencing pain over the right buttock where the injection was given. A month later, it was noted and recorded that Bradley had developed a ‘foot drop’ which some 8 months later became more prominent. It recorded that the foot drop was related to the injury to the sciatic nerve from an injection.
30. I am satisfied on the balance of probability, that the leg drop was due to an injury to the sciatic nerve from an injection and that the injection was applied by a medical officer be it Dr. Laki or Sr. Fleming of the Good Samaritan Medical Centre.
31. The common law position on duty of a medical practitioner and the degree of care owed by a medical practitioner to his patient was stated in R v Bateman [1925] 94 LJK B 791 that:

“If a man holds out as possessing special skills and knowledge and he is consulted as possessing such skill and knowledge by or on behalf of a patient, he owes a duty to the patient to use due caution in undertaking that duty and the patient submits to his direction and treatment. Accordingly, he owes a duty to the patient to use diligence, care, knowledge, skill and caution in administering the treatment.”

32. In the context of the case before this Court, the case of Kembo Tirima v Angau Memorial Hospital Board and the State (2006) N3106 proposed the following in determining the issue of liability:
    1. That defendant owed a duty of care to the Plaintiff or the person in whose stead the plaintiff is suing.
    2. That Defendant breached that duty - i.e., by act or omission the defendant’s conduct was negligent
    3. That Defendant’s negligent conduct caused injury to the person.
    4. That the person’s injuries were not too remotely connected to the defendant’s conduct.
    5. That the plaintiff had not contributed to his or her injuries, e.g., by being contributorily negligent or voluntarily assuming the risk of injury.
33. Applying the principles to the facts of this case, it is clear the defendants possessing special skills and knowledge and upon being consulted by the plaintiff for his medical condition through his parents for those skills and knowledge, they owed a duty to the plaintiff to use diligence, care, knowledge, skill, and caution in administering the treatment.
34. I am satisfied that immediately following the injection on 3/7/2003, the infant plaintiff experienced was distressed from pain and discomfort. He also developed swellings on the buttock area where the injection was administered.
35. I am further satisfied, that this was due to an injury to the sciatic nerve caused by the injection. Negligence in the administration of the injection is clearly inferred and I find that Sr Fleming was negligent and breached her professional duty towards the plaintiff to use diligence, care, knowledge, skill, and caution in giving him the injection.

Liability of Dr Laki for acts and omissions of Sr Fleming

36. This issue of vicarious liability was posed by the parties on the assumption or concession that Sr Fleming was negligent in giving the plaintiff the quinine injection. The issue also creates the impression that Dr Laki was/is the employer of Sr Fleming. I will return to this shortly.
37. It is trite principle of law and practice that for vicarious liability to attach to the State or to the employer, the plaintiff must establish on the balance of probabilities: (i) there existed an employer/employee relationship, (ii) the employee committed a tort or wrong and (iii) the tort por wrong was committed in the course of the employee’s employment. (The State v David Wari Kofowei and Ors [1987] PNGLR 5; Roka Coffee Estate Pty Ltd v Gerebi [1973] PNGLR 486; Wango v Andakundi and The State [1992] PNGLR 45; More v The State [1998] PNGLR 290; Kuk Kuli v The State (2004) N2592).
38. In the context of liability of a company, Kandakasi J in, Andrew Daiva and Ome Ome Forests Ltd v. Lawrence Pukali & Anor (2002) N2289, explained the doctrine of vicarious liability this way:

"The company can only be liable for the acts of its employees if they act in the course of their employment pursuing their employer's (the company's) interest. If they are out on a frolic and detour of their own they could become personally liable."

39. In this case, Dr Laki owns and runs the Good Samaritan Medical Centre, a business name subsidiary of Good Samaritan Medical Foundation Ltd, an incorporated company under the Companies Act. Sr Fleming was/is a registered nursing officer with PNG Nursing Council and was duty nurse who attended to the Plaintiff when he was brought in for treatment on 3/7/2003. There is strong evidence Sr. Fleming was employed as a nursing officer by Dr Laki at his Medical Centre. On the date in question, Sr. Fleming was acting in the cause of her duties when the injection she gave the Plaintiff caused him injury to his sciatic nerve thereby causing him the disability of his right foot.
40. I am satisfied Dr Laki, as owner and proprietor of Good Samaritan Medical Centre, is vicariously liable for the actions and omission of Sr. Fleming. I am also satisfied, both Dr Laki and Sr. Fleming are individually and liable for the acts and omissions of Sr. Fleming.

6 May 2022

Damages

41. There is no serious dispute and I have found on the balance of probability, the injury to the sciatic nerve has resulted in the Plaintiff’s leg drop and disability in the efficient use of his right leg. So, the main remaining issue is the level of damages the Plaintiff may be entitled to.
42. I do not have the benefit of the current prognosis of the Plaintiff’s disability. I will rely on the medical opinion of Dr Kana Eorage of 29/4/2009. In his assessment, Dr Eorage found that from the original trauma of the right sciatic nerve, the injury or the damages done to the tissues of the right leg, the right foot and its toes are permanent and will not recover. The loss of skin sensation, deformities and wasting resulting in the right foot drop is evidenced by a clear visual limp in his right foot upon walking.
43. The estimated loss of function to the right foot was/is 95% and the estimated loss of function of the right leg or limb was/is 70%.
44. It is apparent that part of the damages will be for pain, suffering, and trauma caused by the 2003 injection and the resultant injury to the right sciatic nerve and the continual discomfort. The plaintiff also claims special damages.

Assessment of Damages

45. The onus remains with the plaintiff to prove the nature and extent of the loss or damages claimed: Nari Nari v The State (2004) N2769. Liability in this case has been settled following a trial. Even so, the plaintiff is still required to prove the validity and quantification of damages and losses claimed. The Court cannot just go on the talk of the plaintiff. The injury, damage or loss suffered must be corroborated. In Berham Carter v Hayden Park Hotel Ltd (1948)] 64 TLR 177 Lord Goddard, CJ stated the common law position at p.178 that:

“Plaintiff’s must understand that, if they bring action for damages, it is for them to prove their damages; it is not enough to write down particulars and, so to speak, throw them at the head of the court, saying “This is what have lost, I ask you to give me damages. They have to prove it”

46. Failure to adduce material and corroborative evidence leaves it open for the court to either dismiss the claim or reduce the proposed amount claimed. In other instances, the court will do the best it can to arrive at a probable value of the chattel claimed where the evidence permits, and justice of the case allows: Biggin vs Rermanite (1951) 1KB 314; Albert Bain v The State (1995) N1335; Jonathan Paraia v Insp. Jacob Yasuan & Ors. (1995), N1343.

General Damages – Assessment of

47. This head of the claim is for the pain, suffering and loss of amenities. Though not pleaded, inconvenience, distress, and loss of enjoyment of life are also associated with the plaintiff’s nature and extent of injury. His injury is permanent. It involved a degree of paralysis. This is not as serious as paraplegic cases which in the 80s would be attract awards in excess of K70,000.00. See, Kauke Kemsi & Aundick Kupil v The State [1983] PNGLR 30.
48. Mr Uwari submitted that K60,000 to K70,000. 00 is a fair amount given the passage of time and inflation factor. Mr Toggo for the defendants had not instructions so he made no submissions.
49. I have considered settlements in paraplegic cases. I have also considered past awards for leg injuries, some with multiple injuries or involved shortening of the leg. Awards of around K30,000.00 to K40,000.00 were common. Taking inflation into account, I will award, K60,000.00 for general damages.
50. In Andrew Moka -v- MVIL (2004) SC 729, the Supreme Court endorsed the taking into account the effect of inflation on assessment of general damages:

“We are of the opinion that in the light of high rate of inflation existing at the present time the Courts ought to consider that as a factor in considering awards for general damages for pain and suffering. We consider that due to inflation, the award for general damages for pain and suffering ought to be much higher now than what the Court was awarding in 1988 and 1998.... Accordingly, our view is that, general damages for pain and suffering should be higher than claimed in this case.”

Special Damages

51. The plaintiff claims K1870 under this head. There is evidence of a lesser amount on the court records. It is not opposed. I will award K410.70 as claimed.

Interest

52. The award of interest is a discretionary matter. The test in Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24, are; (1) whether to grant interest at all; (2) to fix the rate; (3) to grant interest on the whole or part of the debt or damages for which judgment has been given; and (4) to fix the period for which interest will run.
53. I have considered those matters. In the normal course of events, the plaintiff should receive interests. There is nothing in the circumstances of this case, that takes it out of the ordinary in that regard.
54. I will award the plaintiff interests of 2% on the judgment sum from date of filing on 20/3/2006 to the date of judgment on 6/5/2022 which amounts to K19,957.80.
55. The awarded claims in summary are:

General Damages - K60,000.00

Special Damages - K1,870.00

Interest at 2% K19,957.80

TOTAL : K81,827.80

56. I order judgment for the sum of K81,827.80.
57. Cost will follow the event to be taxed if not agreed.

Ordered accordingly
___________________________________________________________
Public Solicitor: Lawyers for the Plaintiff
Daniel & Associates Lawyers: Lawyers for the Defendant