Maibau v Medical Superintendant [2012] FJHC 1176; Civil Action 43.2009 (22 June 2012)

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MELANIA ROMANO TIKOTIKOCA
infant of Vunivau, Labasa who
sues by her mother and next friend TORIKA MAIBAU.
Plaintiff

Appearances: Mr A. Kohli for the plaintiff
Mr J.Mainavolau for the defendants

It is alleged that the negligence of the first defendant caused the inflammation, as a result of which she suffered pain and discomfort, permanent scarring, disfigurement, discomfort and constriction of movement of the fingers of the right hand. Melania brings this claim by her mother, Torika Maibau as next friend.

The first defendant is the Medical Superintendent of the Labasa Hospital and sued on the basis that he is entrusted with the duty to oversee the overall function of the hospital including delegation of duties to surgeons, doctors and nurses. The second defendant is sued as an office entrusted under the Public Hospitals and Dispensaries Act Cap 110, to have general control and supervision over the organisation of all public hospitals in Fiji. The third defendant is sued as representative of the Government of Fiji.

The particulars of negligence, as spelt out in the statement of claim, are inclusive of the following namely, that:

The defendants, in their statement of defence, state that proper procedures were followed. It was also stated that ordinarily, IV sites are inspected daily, but this was not possible when the site was covered with a dressing and splint.

Torika Maibau testified in support of the claim. She stated Melania was brought to her three days after her delivery on 16th September,2006. She had observed a syringe and scar on the right hand and thought that the scar was a birth mark. They were discharged from the hospital on 20th September,2006. After three days, she had taken Melania back to the hospital, since she was crying and pus was coming out from the right hand. The Doctor had asked the nurse as to how the scar had arisen .The nurse had said it was the result of an "Ivy burn". The Doctor advised that Melania should be brought for dressing of the wound.

Dr Abhay Chaudhari, Acting Consultant of Surgery, Labasa Divisional Hospital testified on behalf of the defence. He said that newly born babies in a precarious condition are admitted to the Neonatal Intensive Care Unit. Drugs had to be given intravenously to be more effective, in the case of infants. He said the cause of the swelling in Melania's hand was due to the inflammatory response to antibiotics and IV fluids, which are irritants and cause "necrosis" of the tissues surrounding the vein. This is a strong likelihood, particularly in new born babies. In cross-examination, he agreed that if administration of IV from one site causes inflammation, the site should be shifted. Ordinarily, if a swelling arises on the fourth or fifth day, the nurse would make a note. He stated babies in the Neonatal Intensive Care Unit require special observation every two hours and it was unusual that the charts for three of the five days Melania was in the Neonatal Intensive Care Unit, were unavailable.

The issue for determination in this case concerns the duty of care owed by the first defendant and his responsibility to ensure the observance of proper standards by the hospital authorities.

The starting point is the well known decision of Bolam v Friern Hospital Committee, [1957] 1 WLR 582 as relied on by counsel for the defendants, Mr Mainavolau,in his closing submissions. In that case,Mc Nair J stated at page 587 :

" A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art".

Counsel for Melania, Mr Kholi has referred to Suruj Narayan v Ministry of Health & Anor,[HBC 43/2004 L] where Justice Byrne preferred to follow the decision of the High Court of Australia in Rogers v Whittaker[1992] HCA 58; , [1992] 109 ALR 625 which refused to apply the Bolam principle and adopted the "standard of reasonable care demanded by the law "as enunciated by King C J in Fv R, (1983) 33 SASR 189 at 194 .The Court of Appeal in AG v Suruj Narayan,(Civil appeal No.ABU 0057 OF 2008) stated the facts in the case did not necessitate a determination of the appropriate test to be applied in in Fiji.

Mr Koli also relies on the maxim res ipsa loquitur [the thing speaks for itself]. Mr Mainavolau, in his closing submissions, objects to the reliance on this maxim, since it has not been pleaded. It has been held that there is no requirement under the High Court Rules [Order 18 r.17], that this doctrine be specifically pleaded- Shah v Narayan, (2003) FJHC 340 and Ali v Ali, (2009) FJCA 41.

In Scott v London and St Katherine Docks Co.[1865] EngR 220; , (1865) 3 H & C 596 at p 667 Erle CJ delivering the majority decision of the court said:

" But where the thing is shewn to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care".

"Once such basic facts are proved, which constitute reasonable evidence of negligence and which cannot be described as a mere scintilla of evidence, a burden is cast upon the defendant, here the 2nd defendant, to disprove negligence. This is a burden that can be discharged;".

In Mahon v Osborne, (1939) 2 K.B. 14 a surgeon and theatre nurse were sued for the consequences of a swab being left inside a patient after an operation. It was held that since the plaintiff, had no means of knowing what happened in the theatre, he could rely on the maxim res ipsa loquitur".

3.2 Mr Kholi,, in his closing submissions, states that the defendants were negligent in
administering antibiotics through the same intravenous line for five consecutive days.

Mr Mainavolau, in his closing submissions, has submitted that Torika Maibau had not complained about the inflammation, when Melania was discharged from the hospital. It was thus contended that it has not been sufficiently demonstrated that the IV drip caused or materially contributed to the injury suffered. Reliance is placed on the joint medical report of the Acting Consultant of Paediatrics Dr Abdul Manaan and Dr Choudhari dated 6 May, 2008, which provides that "Following completion of 5 days IV antibiotics, the baby was discharged..and there was no complication in the iv site".

The answer to this contention lies in the medical evidence, which is compelling. Dr Choudhari stated that the inflammation of Melania's skin was caused by the reaction to the antibiotics administered through the IV site .

It was also established that newly born infants in the Neonatal Intensive Care Unit require observation every two hours. In the instant case, the nurse's charts for three of the five days Melania was hospitalised were unavailable. No explanation was given as to the unavailability of the charts nor was evidence called by the defendants to suggest that Melania had been closely monitored on those days.

The first defendant owed a duty of care to ensure that Melania was closely monitored in the Neonatal Intensive Care Unit. If this was done it is most likely that the inflammation would have been discovered and the IV site accordingly, shifted. The failure to do so constitutes in my judgment, a breach of the accepted medical practice and the standard of reasonable care required by law. I am satisfied that a case of negligence has been made out against the first defendant. The maxim res ipsa loquitur applies. The defendants have not adduced any evidence to the contrary. Accordingly, Melania is entitled to damages .

Melania is claiming damages for pain and suffering, scarring and discomfort, physical disfigurement, mental anxiety and emotional stress.

Mr Kholi placed at the forefront of his case the decision in Pavic v Australian Capital Territory, (2007) ACTS 97 and submitted that the proper award in the instant case would be $20,000. Mr Mainavolau suggested a sum of $ 1500 to $ 2000.

In Pavic v Australian Capital Territory, the Supreme Court of ACT had awarded a sum of $50,000 as general damages, where the intravenous infusion of calcium gluconate injury to a newborn baby had caused a burn on the back of the hand. It was held that the particular treatment was probably not the most appropriate and that it should have been introduced for a short period through a major line rather than a peripheral line. In that case, part of the scarring was raised and clearly visible because of the difference to the surface of the back of the hand, arising from an abdominal skin graft to the burnt site, which also increased the risk of skin cancer, if exposed to sunlight. It would appear the scarring is not comparable to the case before me . I had opportunity to see Melania's scar.

Pavic v Australian Capital Territory is authority however, for the proposition that a new born who is treated with an IV drip "should be kept under close observation to ensure that burning and tissue necrosis do not occur".

In assessing damages, past awards can be used as a guide, but the facts of each case have to be considered. Torika Maibau and Melania's grand-mother Akesa Veitala asserted that after the initial discharge from hospital, Melania was always crying and whilst at home did not want to have clothes on, as she used to sweat. It also transpired in their testimony that Melania could write with her right hand and was able to throw a ball and lift objects. The second medical report dated 2 February,2011 Dr Abhay Chaudhari provides as follows:

"The child was initially treated with saline dressings and oral antibiotics. Debridement of this slough was done on 6/10/2006 in OT. Post operatively this wound was managed with dressings and oral medications.

At final assessment on 31/1/11,there is a scar over the dorsum of right hand. The child does not have any restricted movements of the wrist or fingers of the right hand.

In my opinion, this child does not have any permanent disability".(emphasis added)

Dr Abhay Chaudhari in his evidence, confirmed there was no impairment. He stated however, that there was disfigurement but the natural tendency was for the scar to contract with time.

It transpired that Melania suffered discomfort after she was initially discharged from hospital on 20th September,2006. She was then taken for dressing and finally underwent surgery. The medical report dated 6 May, 2008, referred to above provides further that:.

"On follow up clinic 27.9.2006 the baby was noted to have swelling on right hand and advised on saline dressing bid daily at home.

On next visit [02/10/2006] the wound slough noted and discussed with the surgical registrar..

On 04/10/2006 the baby was seen in OPD for the right hand wound and was once again booked for minor OT on 6/10/2006. The necrotic tissue was removed from the wound on right hand (dorsum) and the baby was sent home with betadine dressing and also advised for daily dressing at GOPD..

In the light of the principles applicable to assessing damages, I assess the general damages for pain and suffering and the disfigurement in the circumstances of this case at $ 10,000 (ten thousand dollars).

A sum of $ 100 is claimed as medical expenses and $300 as travelling expenses under this head.

In Narendra Kumar (f/n) Shiu Kumar and Sairusi Drawe 36 FLR 90 at page 95, Palmer J stated:

"Notwithstanding that not a single receipt has been produced in evidence I am satisfied from the Plaintiff's evidence that he paid those amounts."

Despite the absence of any documentary evidence to support this claim, I hold she is entitled to expenses reasonably incurred in respect of transport to the hospital. I allow the sum of $300 as travelling expenses.

I disallow the expenses claimed for medical expenses, since receipts have not been produced nor was any evidence led in support.

In Mahendra Naidu and Ravindra Patel,C.A. No. 105/197999 (West Div) it was stated:

"No receipt or evidence has been tendered to show that hospital fees amounted to $50.00 and I do not accept that figure. I am unable to guess what it would be and I do not allow it. As Lord Goddard and the F.C.A. have pointed out claimants are expected to call evidence supporting their claims".

She is entitled to interest at the rate of 6% on the sum of $10,000 from the date of writ, 30th September,2009, to the date of hearing,14 th February, 2012 and 3 % per annum on special damages on the sum of $ 300 from the date of injury to the date of hearing.

The total sum awarded to the plaintiff as damages is $ 11769 made up as follows:

a.	*General damages*	*10,000.00*
b.	*Interest on general damages*	*1420.00*
c.	*Special damages*	*300.00*
d.	*Interest on special damages*	*49.00*
	Total	*$ 11769.00*

Melania is entitled to judgment against the defendants in a sum of $ 11769 together with costs in the sum of $ 2000 summarily assessed payable by the defendants.

High Court of Fiji

Maibau v Medical Superintendant [2012] FJHC 1176; Civil Action 43.2009 (22 June 2012)