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Dre v Ministry of Health [2009] FJHC 129; HBC020.2007 (24 June 2009)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

Action No. HBC 20 of 2007

BETWEEN:

Loraina Dre
Plaintiff

AND:

Ministry of Health
1st Defendant

Attorney General of Fiji
2nd Defendant

Cor: Inoke J.

Appearances: Mr A. Sen of Counsel for the Plaintiff
Ms Lord of Counsel for the Defendants

Plaintiff’s solicitors: Maqbool & Co, Labasa
Defendants’ solicitors: State Solicitors

Date of Hearing: 25 March 2009 at Labasa High Court.
Judgment Delivered: 24 June 2009 at the Suva High Court.

JUDGMENT

INTRODUCTION

[1] This is the sad story of a 66 year old woman who left her village and went to the Nabouwalu Hospital in October 2006 for treatment of an infection of the area behind her right ear and came home about two months later without her right arm below the elbow.

[2] This is her claim for Special and General Damages in medical negligence against a Government doctor and her employer.

[3] After a one day trial and hearing evidence from 4 witnesses, I have found that the Doctor that initially treated her was negligent and now award damages and costs to the Plaintiff.

[4] My reasons appear below.

SUBMISSIONS

[5] At the end of the hearing I ordered Counsel to file submissions. Only Counsel for the Plaintiff filed submissions and I am grateful for his industry and respect and for his efforts to assist the Court in the timely delivery of this Judgment. Counsel for the Defendants did not file her submissions and no explanation has been given. It did lead to some delay in the delivery of this Judgment. I do urge Counsel, whether they be State Counsel or members of the private bar, that they do file submissions as they assist the Court greatly in its efforts to hear cases and deliver Judgments in a well reasoned and timely manner.

THE AGREED FACTS

[6] The Agreed Facts as stated in the PTC Minutes were:

1. “The Plaintiff on 16 October 2006 was a patient at Nabouwalu Hospital and was admitted for treatment of swelling over the right mastroid region (behind the ear)”.
   
2. “The Plaintiff was treated with intravenous antibiotics (1g cloxacillin) through an IV cannula inserted over her right hand”.
   

100. “After the said treatment at the said Hospital, the Plaintiff’s right hand developed pain over the IV site and her right hand and the skin below the elbow became red and swollen and the palm, fingers and the thumb turned completely white”.
     

4. “On the same day, the Plaintiff was moved to Labasa Hospital as an inpatient and was admitted till 26 October 2006”.
   
5. “On 21 November 2006, below elbow amputation was done with primary wound closure”.
   

[7] The Plaintiff and her daughter (Ms Suliana Cagialau) gave evidence at the trial and the Nurse in Charge at Nabouwalu Hospital (Sister Suliana Batikawai) and Consultant Surgeon at the Labasa Hospital (Dr Abhay Choudhari) appeared as witnesses under subpoena by the Plaintiff.

[8] The Defendants did not call any witnesses but their Counsel indicated that she had intended to call the Consultant Surgeon who was subpoenaed by and appeared as a witness for the Plaintiff. The Surgeon had knowledge of and had been involved in the treatment of the Plaintiff at the Labasa Hospital. Both parties were relying on the Surgeon’s evidence as the independent ‘expert’ evidence. Both Counsels sought my direction as to the calling of the Surgeon as a witness by both parties. I pointed out that there was no property in a witness and either party could call the Surgeon as his witness but there were risks. I was concerned that this expert witness was ‘not independent’ in the sense that he had been involved in the management of the Plaintiff and is a Surgeon employed by the First Defendant, and there was the possibility that the Court may be left with no reliable evidence to do justice to this case, either for the Plaintiff or the Defendant. In saying that I do not cast any doubt whatsoever on the Surgeon’s honesty and integrity as a witness, and as it turned out the Surgeon gave his evidence professionally and forthrightly without any hint of bias. As a matter of practice though it is unsatisfactory from the Court’s point of view, for cases such these that no ‘independent’ expert witnesses are called.

THE FACTS FROM THE EVIDENCE:

[9] The Plaintiff was born on 16 August 1943 and lives in a village in Bua, in Vanua Levu. She gave her occupation as ‘domestic duties’.

[10] She appeared at the trial to be a healthy 65 year old woman despite her ordeal.

[11] She went to the Nabouwalu Hospital on 16 October 2006 with her daughter, Ms Suliana Cagialau, at about 9.00am for treatment of a painful right ear. The medical term for her ailment is “mastoditis and skull sepsis”.[1] She had been suffering this ailment for 3 days before going to the hospital and could not tolerate the pain.

[12] She was seen by a Doctor Gene Bogitini at about 9.30am. The Doctor examined her ear, went out of the room and came back with a small bottle and a ‘pink needle’. The Doctor inserted the ‘pink needle’ (IV cannula) into the Plaintiff’s right wrist just below the thumb. Blood gushed out and the Doctor pressed on the point of insertion and put a plaster over it. The Doctor then took a syringe and emptied into it ‘medicine’ from a small bottle and injected the medicine into the IV cannula.

[13] The IV cannula was an Intra Cannula G20 and the ‘medicine’ came from 4 small bottles of the antibiotic, Cloxacillin, of 500mg each making a total dosage of 2gm. There was no mention of the amount of antibiotic administered to the Plaintiff in the hospital file records. This evidence came from the Nurse in Charge and the Plaintiff’s sister.

[14] The Plaintiff complained of extreme pain but the Doctor ignored her complaint and was not seen again by him until after 2.00pm after the lunch break.

[15] The Plaintiff was seen by the Nurse in Charge, Sister Suliana Batikawai, at about 10.30am when the Plaintiff’s daughter asked the Sister for ‘Vicks’ to rub on her mother’s hand for the pain. The Sister’s evidence was that:

“When I entered the emergency room, she was in pain. She was crying. This is not normal for Fijian.

I saw her right hand – a needle in it – Intra Cannula G20 – was cold and clammy, like someone’s hand in a mortuary; the end of her fingers were white from the tips to the needle and to a spot half way up her arm.

She was continually crying...

I went to Dr Gene and asked why there was no line up for IV fluid to go with the drug. The Doctor said that the medicine can be given directly...

The Plaintiff was restless and said to me in Fijian that she could not take the pain...

At about 11.30am the Plaintiff was taken to the ward, crying like someone in labour to give birth.

I was with the Plaintiff from 1 – 2pm (lunch hour). Her condition was getting worse...

I pulled out the IV needle.

The Dr came back to see the Plaintiff after 2.00pm.

I saw the needle was deep down into the tissue and into the vein. In my opinion, it was not inserted in the right place.

I told Dr Gene that the cannula was not in the right place. He did not respond.

The cannula was inserted into the artery. It was not supposed to be in the artery.

I saw the Plaintiff at 6.30pm. Her condition had not improved. Her arm had blisters on the skin and I felt no pulse in her hand...”

[16] The Sister said that in her 30 years as a nurse she had not seen a Doctor inserting an IV cannula directly into a vein nor has she seen a dosage of 2gm of antibiotics being directly injected into an IV cannula without using a drip.

[17] The Plaintiff was unable to walk after the dosage of antibiotics and had to use a wheel chair to be admitted to the Women’s Ward and then later to the ambulance and transferred to the Labasa Hospital.

[18] She arrived at the Labasa Hospital at about 9.00pm on 16 October 2006 and admitted to the Women’s Ward at 10.00pm according to the hospital records. Sister Batikawai visited the Plaintiff on the next day and saw “her hand condition swollen from halfway up her arm to her fingers. Her hand was gangrenous; black in colour.”

[19] The Plaintiff was admitted to the Labasa Hospital for 10 days.

[20] The Referral Form from Nabouwalu to Labasa Hospital[2] from Dr Gene Bogitini to Dr Abhay dated 16 October 2006 states:

“Pt was admitted this morning for scalp abscess ® temporal region.

While admitted she developed acute pain and numbness in ® forearm after IV Cloxacilin stat was administered = limb ischaemia”.

[21] The evidence of the Consulting Surgeon, Dr Abhay Choudhari, when referring to the hospital file[3] was:

“I had seen the patient as per record. My observation was she had acute pain and ischemia. Her right hand was cold, pain and bluish in colour. The reason for the bluish colour is lack of blood flow and oxygen to the part of the body...No pulse on the arm subsequently.

As per record – gangrene to the right hand finger tips; gangrene is dead tissue.

There is no cure. Amputation is the only option...

The patient developed ear discharge around her eye and ear and was transferred to CWM...

My opinion was that the right hand and forearm was ischemic at Labasa.”

[22] The Plaintiff was transferred to the CWM Hospital in Suva on 26 October 2006 by plane and admitted on that day.

[23] When asked about the CWM Report, Dr Choudhari, said that he did not have it but instead referred to a Note[4] dated 14 December 2006 from Dr Semesa Matanaicake, Surgical Registrar at the CWM, concerning the Plaintiff states:

“The above named was referred from the Labasa Hospital and was admitted on 26/10/06 to CWM Hospital. She was referred because of Right hand gangrene and chronic Right otitis media with Right mastoiditis by X-Ray and CT Scan. Conservative management with IV antibiotics was recommended by ENT Department for ear and mastoid problem.

The gangrene areas included all of the Right thumb, Index finger, middle aspect of 2nd digit and distal phalanges of 4th, 5th digit. The infection had also spread mid anterior aspect of the forearm and below amputation was performed on 21/11/06 with primary wound closure. Samples of tissue were cut and sent for histology a copy of the report is attached.

She is discharged to Labasa Hospital where permanent incapacitance can be assessed in 6 months time.”

[24] The Defendants allege[5] that the Plaintiff’s own action in not consenting to a “brachial block” whilst in the Labasa Hospital “contributed to (her) additional damage and further deterioration of her condition”. Dr Choudhari explained this procedure as a “nerve blocking” procedure. When asked in cross examination whether such a procedure would have prevented the pain had it been done on 17 October 2006, he answered:

“If the procedure had been done it would have relieved the pain but would not have changed the outcome, that is, the ischemia and the condition that she was admitted for...”

[25] As for the use of IV cannula and the procedure involved Dr Choudhari explained as follows:

“IV cannula can be inserted for the purpose of administration of antibiotics...

The IV cannula is inserted usually in the vein and not the artery.

The veins carry blood flow from the periphery to the heart. The infusion is given to the veins system then it is distributed by the heart through the arteries. The veins are just below the skin so they are easy to access. Arteries are deep and difficult to access. The cannula is inserted where the veins are visible. The cannula might hit the artery if you go too deep...”

[26] When asked about what would happen if the patient was injected with a high dosage in the artery such as in this case, Dr Choudhari answered as follows:

“If you inject high concentration then the artery will contract (spasm) and blood flow will stop, then the blood would clot and impair the flow of oxygen and blood then causes ischemia...the spasm happens immediately...colour will be pale (white) then blue. Then there will be no pulse. Then severe pain.

Even if you give painkiller the pain won’t go away. You need a high dose of pain killers or you use a nerve blocking procedure called “brachial block”...

The patient should be attended to immediately if spasms occur...it is normal for patients to cry in such pain...the category of pain in a scale of 1 to 5 being the highest, is 5...post op pain would be there but not as high...

but not normal to have condensation on the hand but the patient can perspire...

There will be a smell depending on the type of gangrene. If infection sets in then the hand will smell...”

[27] As to what could cause a spasm, the Surgeon’s evidence was:

“Spasm can be caused by either injection going into the artery or by coincidence where the blood flow to extremities gets blocked because of an embolus, which is a solid or liquid block...

but it is unusual to have embolus; it is extremely rare; in my last 5 years I have seen only one case of it;...

there was no investigation for embolism done here...”

[28] As to whether the Plaintiff’s prior medical history of ‘hypertension’, as noted in her medical file, would have made her more susceptible to embolisms, Dr Choudhari in cross examination said that it was a factor but the Plaintiff had been treated during her admission.

[29] The Plaintiff was admitted to the CWM Hospital on 26 October 2006. She did not give consent for the amputation of her right arm until the date of the operation 21 November 2006. The Defendants argued that this delay further aggravated the Plaintiff’s condition. Dr Choudhari explained in evidence that it usually took time for patients to give consent. Whether the time taken in this case was normal the Doctor did not say and Defence Counsel did not cross examine the witness on this point.

[30] The Plaintiff was finally discharged from hospital on 15 December 2006.

[31] I accept the evidence of Sister Suliana Batikawai and Dr Abhay Choudhari in respect of the treatment that the Patient received for her medical condition and consequences of that treatment. I find them very forthright and candid witnesses. I therefore make the following findings of fact in respect of the medical evidence:

• (a) The IV cannula was inserted by Dr Gene Bogitini directly into the artery of the Plaintiff’s right wrist.
• (b) This is neither standard nor acceptable medical practice according the expert medical evidence.
• (c) Dr Gene Bogitini injected 2mg of the antibiotic Cloxacillin directly into the IV cannula and hence into the artery and into the blood system of the Plaintiff’s right hand and arm.
• (d) Again, this is neither standard nor acceptable medical practice.
• (e) The injection of the antibiotic caused the Plaintiff’s right hand to be ischaemic.
• (f) Doctor Bogitini did not take any reasonable steps to minimise or alleviate the Plaintiff’s pain and suffering and deteriorating medical condition.
• (g) The insertion of the IV cannula and the injection of the antibiotic started a chain of events that led directly to the amputation of the Plaintiff’s right arm below the elbow.
• (h) The Plaintiff’s refusal and/or delay in giving consent to have the brachial block procedure or early amputation was reasonable in the circumstances and did not break the chain of events that led to the amputation.
  

[32] The question that I have to decide now is whether these facts amount to negligence.

THE LAW

[33] The law is well settled now that a doctor owes a duty of care to a patient. The issues in this case are what that standard of care is and whether it has been breached.

[34] The law in Fiji as to the appropriate test is not yet settled. Counsel for the Plaintiff has referred me to the decision of Mr Justice Byrne in Suruj Narayan v. Ministry of Health & Anor [Civil Action 43/2004Labasa] in which His Lordship referred to two possible tests.

[35] Firstly, the Bolam principle which came from a case of the same name, Bolam v Friern Hospital Committee [1957] 1 WLR 582, 586. In Sidaway v Board of Governors of Bethlem Royal Hospital [1985] UKHL 1; [1985] AC 871, Lord Scarman who dissented in the decision stated the principle in these terms:

“The Bolam principle may be formulated as a rule that a doctor is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion even though other doctors adopt a different practice. In short, the law imposes the duty of care: but the standard of care is a matter of medical judgment.”

[36] The second principle is found in the High Court of Australia decision in Rogers v Whittaker [1992] HCA 58; [1992] 109 ALR 625. Quoting from Justice Byrne’s judgment in Suruj Narayan, at page 16, His Lordship said this in respect of Rogers (supra):

“The High Court rejected the Bolam approach ... In doing so the High Court quoted with approval the remarks of King C.J. in F v R [1983] 33 SASR 189 at 194, that:

“The ultimate question, however is not whether the Defendant’s conduct accords with the practices of his profession or some part of it, but whether it conforms to the standard of reasonable care demanded by the law. That is a question for the Court and the duty of deciding it cannot be delegated to any professional group in the community.”

[37] The facts of the present case do not require me to decide as to which of the tests should be applied in Fiji. However, if I were so required, I would agree with Justice Byrne in Suruj Narayan (supra) that the appropriate test is that in Rogers (supra).

[38] It is my opinion that on either test Doctor Gene Bogitini was negligent. He failed to meet the standard of accepted medical practice in inserting the IV cannula and in administering the antibiotic Cloxacillin. As a qualified medical practitioner he must have known, or at least should have known, that to insert a cannula too deep would result in the cannula puncturing an artery and the subsequent administration of an antibiotic, as to the amount and the way that he did, would more likely than not, cause blockage of blood flow resulting in the Plaintiff’s hand being ischaemic leading it to being gangrenous and ultimately loss of functionality and amputation. He failed to take reasonable care to avoid such a reasonably foreseeable outcome.

[39] It is admitted that the First Defendant is responsible for administration of public Health at various hospitals in Fiji including Nabouwalu Hospital. It is also admitted that the Second Defendant is the representative of the Fiji Government and is liable for this claim.

[40] In Commonwealth v Introvigne [1982] HCA 40; (1982) 150 CLR 258, the High Court of Australia, in comparing the duty owed by a school to its students to that owed by a hospital to its patients, said this about the liability of a hospital:[6]

“As Lord Greene M.R. observed in Gold v. Essex County Council (1942) 2 KB 293, at p 304 , the liability of the hospital arises out of an obligation to use reasonable care in treatment, the performance of which cannot be delegated to someone else, not even to a doctor or surgeon under contract for service, according to Denning L.J. in Cassidy (1951) 2 KB, at p 364 ; cf. Hillyer v. Governors of St. Bartholomew's Hospital [1909] UKLawRpKQB 157; (1909) 2 KB 820 ; Collins v. Hertfordshire County Council (1947) 1 KB 598 . Thus a hospital was held accountable for an injury caused by negligence of a radiographer in Gold, of a part-time anaesthetist in Roe v. Minister of Health [1954] EWCA Civ 7; (1954) 2 QB 66 and Toronto General Hospital v. Matthews (1972) SCR 435 , and of a special consultant in Samios v. Repatriation Commission (1960) WAR 219 . Fleming, Law of Torts, 5th ed. (1977), p. 361 makes the point that the uncontrollability of professionals in the performance of their tasks is no longer a bar to recovery, certainly so long as they are part of the hospital organization and are not employed by the patient himself..."

[41] I therefore find the First and Second Defendants liable for the negligence of Doctor Gene Bogitini.

ASSESSMENT OF DAMAGES

Special Damages

[42] The Plaintiff claims Special Damages which was agreed at $1,000.

General Damages

[43] The Plaintiff also claims General Damages.

[44] I accept the evidence of Sister Suliana Batikiwai that the Plaintiff cried because of the pain, which was unusual to her; that the Plaintiff "could not take the pain"; and that the Plaintiff was "crying like someone giving birth". I also accept the evidence of Dr Choudhari that the Plaintiff would have suffered "severe" pain. He put the level of pain that the Plaintiff suffered initially at its highest - level 5 in a scale of 1 to 5; post operation pain would not have been as high. The Plaintiff was in medical care from 26 October 2006. Her arm was amputated on 21 November 2006, 27 days later.

[45] Dr Choudhari’s evidence is that amputation of a patient’s right forearm according to his chart is equal to 57% of total permanent disability. It is not contested by Counsel for the Defendants.

[46] The Doctor also gave evidence that it was not unusual for a patient to take time to consent to amputation but once amputation had taken place, the patient gets depressed.

[47] The Plaintiff gave evidence of what she was able to do before the amputation. She looked healthy despite her ordeal. I accept her evidence that she was a healthy and active person before going to hospital.

[48] Mr Sen for the Plaintiff submitted that I should award $70,000 for pain and suffering and loss of amenities of life. He referred me to several cases.

[49] In Suruj Narayan (supra), the plaintiff suffered a wound to his ankle in the workplace in 2003. He was treated at the Labasa Hospital without due care which resulted in his leg being amputated because of infection. Like here, the plaintiff suffered severe pain before amputation but less post-op. Justice Byrne awarded $70,000 for pain and suffering and loss of amenities of life in a judgment delivered in 2008.

[50] In Kotoiwasawasa & Another v Govind & the Attorney General [Civil Action 192/2000], the Plaintiff suffered an injury to her leg in a motor vehicle accident in 1996 which resulted in amputation of her leg below the knee. Justice Pathik awarded $95,000 for pain and suffering in a judgment delivered in 2003. His Lordship has conveniently summarised the awards that His Lordship had made over the years, for which I am grateful, and re-list them here for convenience:

1. Sharma v Prasad [HBU 40/88, Civ Appeal 73/91] – amputation of leg - $100,000.
2. FSC & Anor v Subramani & Anor [HBU47/93] – loss of both eye sight- 75 % - $37,500.

100. Salaitoga v Anderson [Civ Appeal 26/94] – severe head injury - $85,000.

4. AG & Dr Elliot v Sharma [Civ Appeal 41/93] – loss of leg - $50,000.
5. AG v Waqabaca [Civ Appeal 18/98] – cerebral palsy – loss of all bodily function - $85,000.
6. Flour Mills of Fiji Ltd v Raj [2001] FJCA 35 – loss of right arm - $85,000.
   

[51] In Flour Mills of Fiji Ltd v Raj (supra) the Plaintiff’s right arm required amputation above the elbow and he has been left with severe limitation of movement in his left hand and arm, his disability being assessed by a medical witness at 100% loss of working capacity. The trial Judge’s assessment of $85,000 for pain and suffering was upheld by the Fiji Court of Appeal.

[52] Taking into account the above cases and the trial evidence I accept that the sum claimed by the Plaintiff is a reasonable amount and I therefore award the Plaintiff the sum of $70,000.00 for her pain and suffering and loss of amenities of life.

Interest on General Damages

[53] The Plaintiff also claims interest on General Damages of 6% under the Law Reform (Miscellaneous Provisions)(Death and Interest) Act from the date of issue of the writ to the date of hearing, namely, 2 years. Section 3 of the Act allows the Court, if it thinks fit, to award interest on the whole or any part of the damages for the whole or any part of the period between the date when the cause of action arose and the date of judgment.

[54] The cause of action arose in October 2006 when the Plaintiff was treated in hospital. The writ was filed in April 2007 and the matter heard in March 2009. I therefore allow interest for 2 years as claimed at 6% i.e. $70,000 x 6% x 2 = $8,400.

Loss of Future Earnings

[55] The Plaintiff also claims loss of earnings. She gave evidence that she weaved a special type of mat before her ordeal but is no longer able to do so now. She would receive orders from Labasa and Nabouwalu and was paid between $60 and $300 depending on the purpose for which the mat was weaved. She also said that she weaved bags, head wear and fans. She also went fishing for crabs and fish and sold them. She earned as much as $600 but on average $150 a month. She is not able to do that now.

[56] Dr Choudhari’s assessment of her incapacity is 57% total permanent disability. However, for the purposes of deciding her future earning capacity, I believe her disability is 90%. The type of work that the Plaintiff was doing required the use of her dominant hand. However, I do not believe that she is totally unable to earn any income now. She said that she used to give classes on weaving and she maybe able to continue to do that albeit in a limited capacity.

[57] In Singh v Bui [2007] FJCA 2, the Court of Appeal approved the method used by the trial Judge to assess the income of a villager and noted "the reality of the situation seems to be that for self-employed traditional farmers, growers and fishers, in a lower socio-economic group, niceties of commerce, such as accurate bookkeeping, are often not observed". The claim for $150 per month in earnings is not excessive in my view and I accept it despite the lack of documentary evidence.

[58] Taking into account the age of the Plaintiff at the time she went into hospital (63 years) and her otherwise good health and her evidence as to her earning capacity before she lost her right arm, I award loss of income to be 90% of $150 per month and a multiplier of 7 i.e. $150 x 12 x 7 x 90% = $11,340. No interest is payable on this amount as the Plaintiff receives it in advance and may invest it as she wishes.

Future Care

[59] The Plaintiff also claims $50 per week for the care that she is now receiving and will receive from her daughter in the future. She said in evidence that she can bath herself and feed herself now but she is unable to cook. Her daughter now has to do that for her. I think she is entitled to compensation for this future care. I think the days when family members care for each other for free are long gone. Times have changed. The Plaintiff’s daughter is entitled to live her own life and if she has been put in a situation where she has to care for her mother as well, especially in a village environment where no alternative care is available, she should be paid for it. I think $30 a week is reasonable. I therefore award the sum of: $30 x 52 x 7 = $10,920. Again no interest is payable on this amount as the Plaintiff receives it in advance.

COSTS

[60] The Plaintiff asks for costs. The usual rule applies. I summarily assess costs at $2,500.00. I therefore award costs to the Plaintiff of $2,500.00.

ORDERS

[61] The Orders that I make are as follows:

1. The Defendants pay to the Plaintiff the sum of $101,660 made up as follows:
   

2. The Defendants pay to the Plaintiff costs in the sum of $2,500.
   

Sosefo Inoke
Judge

^[1] Statement of Defence, para 4(1).
^[2] Exhibit 2, p 5 of the Bundle of Documents.
^[3] Bundle of Document, pp 5-66.
^[4] P 1, Bundle of Documents
^[5] Para 7(ii) of the Statement of Defence.
^[6] Per Mason J at para 28