IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

HBC Action No. 568 of 2000

Between:

Kelera Ravasakula
Plaintiff

And:

Dr Tupou Wata
of CWM Hospital, Medical Practitioner
1st Defendant

The Attorney General
2nd Defendant

Appearances before Jitoko J: Mr Eroni Veretawatini for the plaintiff
Mr L. Daunivalu for the defendants 

JUDGMENT

1.	This action had commenced before Mr Justice Jitoko on 15th November, 2006. The Judge's notes of 16th March, 2007, provides that judgment was to be delivered on notice. The defendants filed closing submissions on 16th April, 2007.

2.	On 29th September,2011, this matter was mentioned before me. The plaintiff was present in person. Mr Raramasi, counsel for the defendants on that day, stated that the hearing was concluded and judgment was on notice. 

On 17th January, 2012, when this matter was called before me, the plaintiff was absent and unrepresented. Mr Chand, counsel for the defendants moved that judgment be delivered on the Judge's notes of the evidence .

On 11th April,2012, the plaintiff informed court that the counsel who conducted the hearing on her behalf, before Mr Justice Jitoko was not in the land of the living. I informed the plaintiff and Mr J.Pickering, counsel for the defendants that the hearing has to proceed de novo. The plaintiff was granted two further dates, to enable her to retain counsel.

On 14th June, 2012, when this matter was called over, Ms R. May represented the plaintiff. Ms L.Ramoce represented the defendants. Ms R. May informed court that two medical doctors, who had testified at the hearing before Justice Mr Jitoko, were no longer available. She also stated that the plaintiff did not have the means to retain counsel and with the passage of time, the plaintiff could no longer recollect the events. Ms L. Ramoce and Ms R. May moved that judgment be delivered on the Judge's notes of the evidence.

In the aforesaid circumstances, I agreed to deliver judgment on my predecessor's notes of the evidence.

3.	In these proceedings, Kelera Ravasakula has claimed damages for pain and suffering, loss of amenities of life and loss of earning capacity arising after her operation for the removal of a large fibroid uterus at CWM Hospital, on 19th October,1999.

The allegations of negligence against the defendants relate to two phases of her medical treatment. The first concerns a 13 cm blue nylon stitch left in her lower abdomen by Dr Tupou Wata, who performed the operation. The presence of the foreign object had caused constant pain and was the cause of a discharging sinus. The second phase relates to the post-operative treatment, she received at the Korovou and CWM hospitals.

The statement of claim recites that she suffered pain for 9 months, until she had the nylon stitch removed by a private medical practitioner, Dr Matairavula on 31st July, 2000. She also alleges that she suffered a great deal of pain, when she was operated for the removal of the nylon stitch.

The particulars of negligence pleaded in the statement of claim are as follows:

The said doctors ought to have been aware of the initial operation in October, 1999.

Further the said doctors were made aware of the said operation by the plaintiff and ought to have realised that the inflammations were due to the initial operation or complications therefrom.

The said doctors failed to realise that a foreign body (a nylon stitch) was or may have been left inside the plaintiff's body.

The defendants,in their statement of defence, denied that they were negligent and stated that it is accepted medical practice for nylon suture to be used in operations, particularly when the patient is obese. The statement of defence also provides that when Kelera Ravasakula was reviewed on 16 December,1999,the wound was observed to have healed. 

4.	The hearing

4.1 	Kelera Ravasakula had testified that she had returned home, a week after undergoing a hysterectomy at CWM hospital, on 19 October,1999. She was given instructions to obtain dressings at the Korovou hospital and return to CWM for reviews. In November, 1999, she had developed a non-healing sinus, which she described as a wound, still green with puss coming out. She had been taken in an ambulance from Korovou hospital to CWM hospital. The medical officers at CWM hospital had assured her that she was in good health and had given her tablets. She had thereafter, sought treatment from Dr Matairavula, a private medical practitioner.

 Kelera Ravasakula had been recalled to clarify her evidence, with regard to two visits she stated she had made to CWM hospital on 22 June, 2000, and 27 July, 2000. It transpired, as documented in her medical card, that the appointment for 22 June, 2000, had been re-booked for 27 July, 2000. There was no record of her visiting the hospital on 27 July, 2000. 

4.2 Dr Matairavula had given medical evidence in support of Kelera Ravasakula's claim. He had said that sinus and pus were signs of rejection by the body. Kelera Ravasakula had a non-healing sinus and medical officers of the CWM hospital had not detected that it was caused by the internal stitch. Dr Matairavula had opened her wound under local anesthesia and removed the nylon stitch, which was 13 cm long. Kelera Ravasakula had informed him that the sinus had thereafter healed within 24 hours. 

4.3 Aisea Ravanakula, Kelera Ravasakula's husband had testified that four weeks after the operation, she complained of having pains. Since she had found no relief from the treatment provided by the Korovou and CWM Hospitals, he decided to take her to Dr Matairavula.

4.4 Emori Dolevatu, the Head teacher from the school that Kelera Ravasakula taught gave evidence. She said Kelera Ravasakula stayed away from school, for three days a month.

4.5 Vasemaca Rokaratu, Kelera Ravasakula's sister had given evidence in support of the claim for hire of domestic assistance. 

4.5 Dr Tupou Wata of the Obstetrics Unit of the CWM Hospital, the first defendant gave evidence. Kelera Ravasakula had consulted Dr Tupou Wata on 23 September,1999. She had complained of abdominal heaviness. She was admitted on 19 October,1999,and a hysterectomy was carried out the next day. Dr Tupou Wata had produced the relevant medical examination sheet maintained by CWM Hospital.

4.6	The other witness called by the defence was Dr Nainoca, Consultant, Obstetrics and Gynaecology Unit, CWM hospital. He said that the use of nylon suture can cause complications of stitch sinus, a few months after operation, but this would be an unusual phenomenon. He referred to the consent given by Kelera Ravasakula, prior to the operation as customarily required by hospitals, and the post-operative reviews made at the CWM hospital .

5	The determination

The main issues to be determined, as recorded at the pre-trial conference, are whether:

.. the 1st defendant and/or his supporting nursing staff left a 13 cm blue nylon stitch in the plaintiff's lower abdomen without any good reason.

.. the defendant used the accepted self-dissolving stitch to stitch the wound after the operation.

.. the defendant's advised the plaintiff of the complications that could occur as a result of the use of the nylon stitch.

.. the foreign object, the nylon stitch caused great pain, anguish, discomfort and nuisance to the plaintiff until its removal in or about the 31st day of July 2000 some 9 months after the first operation.

.. the plaintiff was able to do all those things, which she was doing prior to the first operation.

.. the operation carried out on the plaintiff was done according to the accepted medical practice.

.. it is a normal practice to use nylon suture on people and whether the same varies according to various kinds of people."(emphasis added)

The first issue to be determined is whether the use of non-soluble nylon material in operations, was in accordance with accepted medical practice. 

Counsel for the defendants, in their closing submissions, have referred to the celebrated Bolam v Frien Hospital Management Committee, (1957)2 All ER 118 and the subsequent decision of the House of Lords in Bolitho v City and Hackney Health Authority, (1997) 4 All ER 771. McNair J in the Bolam case set out the locus classicus of the test for the standard of care required of a Doctor, namely that a Doctor was not negligent, if he acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that art.

In Rogers v Whittaker,[1992] 109 ALR 625 the High Court of Australia, "discarded" the application of the Bolam principle in the field of non-disclosure of risk and the provision of advice and information, and adopted the "standard of reasonable care demanded by the law. The High Court recognised however, that " evidence of acceptable medical practice is a useful guide for the courts,(but stated) it is for the courts to adjudicate on what is the appropriate standard of care.." .

The evidence in this case reveals that the medical witnesses were in agreement, that it is an accepted medical practice to use non-soluble nylon material in operations. Dr Tupou Wata and Dr Nainoca had said that it was the prerogative of the surgeon, to decide on the material to be used for suturing. Dr Tupou Wata stated that since Kelera Ravasakula was obese, it was decided to use insoluble suture, as it has greater strength. She had produced medical literature, in support, which provide that overweight patients were sutured with a higher suture length and that the use of nylon stitch was safe. Dr Matairavula, the private practitioner, engaged by Kelera Ravasakula had also acknowledged that he had successfully used such material many times, in operations for the removal of the womb and ovaries.

Lord Browne-Wilkinson in Bolitho v City and Hackney Health Authority, (op.cit at page 779) stated; 

 "The assessment of medical risks and benefits is a matter of clinical judgment which a judge would not normally be able to make without expert evidence....it is only where a judge can be satisfied that the body of expert opinion cannot be logically supported at all that such opinion will not provide the bench mark by reference to which the defendant's conduct falls to be assessed."

I am satisfied that the choice and use of non soluble nylon by Dr Tupou Wata, in the operation carried out on Kelera Ravasakula, was in accord with medical practice. 

I now turn to consider the second issue in this case, namely whether the medical officers of Korovou and CWM hospitals, failed to realise that a foreign object was left in Kelera Ravasakula's abdomen, when she was reviewed in the post-operative period.

On 24 October, 1999, Kelera Ravasakula had requested to be discharged from CWM Hospital, since her son had an examination on the following day. She was advised to go daily for dressing of her wound to Korovou hospital. 
On 27 October, 1999, the Korovou hospital had forwarded a memo to the "Gynae Registrar", CWM Hospital requesting that they take over this case with the observation that Kelera Ravasakula had a " Gaped Infected Op Wound. Discharging purulent. No stitch seen." (emphasis mine) 

It will be convenient at this stage to refer to the entries documented in the medical examination sheet maintained by the CWM hospital, as follows.

i)	On 3rd November, 1999. It was recorded that the wound was checked and that it was 

 " –healing by 2nd intention
-granulation tissue filling the wound from crater. Now shallower compared to last week
 Debris/sloughs seen but not infected.
 ........................ 
 R/V in 1/52 ". 

Dr Nainoca had explained that the phrase " healing by 2nd intention" signified that the wound was allowed to heal naturally. She further testified that the surface suture had been removed, but the internal nylon suture remained.

ii)	The entry of 11th November, 1999, bears out that the wound was " clean but some granulation." 

Dr Tupou Wata had testified that this confirmed the healing process.

iii)	The entry of 16th December, 1999, states that the wound was "healed". She was given "Premarin" and advised to come back in 6 months. 

Dr Nainoca said that Dr Tupou Wata had reviewed Kelera Ravasakula on 11th November, 1999, and 16th December, 1999.

iv)	Finally, on 22 February, 2000, the following entry was made:

"wound swelling at upper end. 
 Needle-no aspirate .. 
 ........ Premarin (she was prescribed antibiotics).
Discharge Note to Korovou". (emphasis mine)

The defendants, in their closing submissions, contend that, as testified by Dr Tupou Wata and Dr Nainoca, the swelling of the wound was related to the wound and not the suture, which would not be apparent, until a few months had elapsed, after the operation .I find this argument unconvincing, as it is inconsistent with the evidence of these witnesses read as a whole. 

In the course of her evidence, Dr Tupou Wata, had stated the swelling of the wound at upper end was suggestive of a reaction to a foreign body. She confirmed that sinus was more prevalent in non-absoluble sutures. Dr Nainoca, in cross-examination, had said the body reacts to non-solouble stitch in two ways, namely by an outer wound infection or sinus. Dr Matairavula said non-solouble nylon suture is suitable to be used for suturing, provided it was accepted by the body. Sinus and pus, he said were signs of rejection by the body. 

The decisive factor is this: it was accepted aetiology that the use of non-solouble nylon sutures in operation could have adverse reactions. Accordingly, the presence of the internal nylon suture in Kelera Ravasakula's lower abdomen, could not be disregarded, in the diagnosis of her symptoms.

I also decline the suggestion that the proper course would have been for Kelera Ravasakula to return to CWM hospital, rather than consulting Dr Matairavula. The medical officers of CWM hospital had prescribed antibiotics and discharged her on 22 February,2000. Dr Matairavula said Kelera Ravasakula's condition could not be cured with antibiotics. Surgery was the only remedy, as confirmed by Dr Nainoca, in cross-examination. I conclude it was reasonable for her to seek treatment from a private medical practitioner. 

In my judgment, the medical officers of CWM hospital had failed in their duty of care owed to Kelera Ravasakula in the post-operative period. I find them negligent in this regard.

General damages
Turning to the question of damages, Kelera Ravasakula testified that, in the aftermath of the operation, she felt pain when she walked and exerted. A further surgical procedure was required to remove the nylon suture. I am satisfied that Kelera Ravasakula is entitled to general damages for the pain and discomfort, she suffered. I assess the general damages for the pain suffered by her in the circumstances of this case at $ 5,000.00 (five thousand dollars).

Kelera Ravasakula has also claimed damages for loss of amenities of life and loss of earning capacity. There was no evidence that she could no longer do the things she was accustomed to do. The claim for loss of amenities of life is unfounded and is therefore dismissed.

As regards, the claim for loss of earning capacity, Kelera Ravasakula, a teacher by profession, had said there were no deductions made from her salary, although she had stayed away from school for three days a month. It follows therefore, that her claim for loss of earning capacity fails.

Special damages

Kelera Ravasakula has claimed special damages in a sum of $1,100 approximately for transport, medicine and hire of domestic assistance for nine months. The special damages claim has not been itemised.

I accept that Kelera Ravasakula would have incurred costs in travelling to CWM hospital for reviews as noted above, although she had produced any receipts in support of this claim. I award $ 300 as a ballpark figure.

I find the claim for medicine unsubstantiated. The absence of receipts has been addressed by courts in Fiji. 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". 

Domestic assistance

Kelera Ravasakula stated that she required domestic assistance, in the post-operative period. She has claimed the expenses she incurred in hiring her sister, Vasemaca Rokaratu, in this regard at $ 25 a week. Vasemaca Rokaratu gave evidence to that effect. 
I am not satisfied that she required domestic assistance. In so far as she could continue teaching, except for three days a month, in my view,there would have been no impediment to her performing her domestic activities. I decline to award any special damages in respect of this claim.

Interest

The plaintiff has claimed interest pursuant to Section 3 of the Law Reform Miscellaneous Act (cap 27).Interest on general damages is awarded to compensate a plaintiff for being kept out of the capital sum –Pickett v British Rail Engineering Ltd (1980) AC 136 at 137.

In the exercise of my discretion I award interest at 6% per annum on the general damages of $5,000.00 and 3 % per annum on special damages on the sum of $ 300.00 from date of service of writ,being 4th January,2001, to date of trial, 15th November, 2006.

6	Orders

The total sum awarded to the plaintiff as damages is $ 7111.55 made up as follows: 

a. 	General damages	5000.00	
b.	Interest on general damages	1758.79 	
c.	Special damages 	300.00	
d.	Interest on special damages	52.76	
	Total	7111.55	

There will therefore be judgment for the plaintiff against the defendants in the sum of $ 7111.55 together with a sum of $ 1500 payable by the defendants to the plaintiff as costs summarily assessed.

28th September, 2012

A.L.B. Brito-Mutunayagam
Judge