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Mani v Permanent Secretary Ministry of Health [2012] FJHC 28; HBA1.2010 (20 January 2012)

IN THE HIGH COURT OF FIJI AT LABASA
CIVIL APPELLATE JURISDICTION

CASE NUMBER: HBA 1 of 2010

BETWEEN:

RESHMA RANJEETA MANI
APPELLANT

AND:

THE PERMANENT SECRETARY, MINISTRY OF HEALTH
1ST RESPONDENT

ATTORNEY – GENERAL
2ND RESPONDENT

Appearances: Mr. A. Sen for the appellant.
Ms. Lee for the respondents.

Date/Place of Judgment: Friday, 20th January, 2012 at Labasa.
Coram: The Hon. Justice Anjala Wati.

JUDGMENT

CATCHWORDS:

MEDICAL NEGLIGENCE- EXPERT EVIDENCE- RULE IN BROWNE AND DUNN- EFFECT OF BREACH OF RULE-ATTACHING WEIGHT TO EVIDENCE.

LEGISLATION:

THE HIGH COURT RULES 1988
THE MAGISTRATES' COURTS RULES CAP. 14.

CASES REFERRED TO:

BROWNE V. DUNN (1893) 6 R 67.
MAHON V. OSBORNE [1939] 2 KB 14.

_________________________________________________________________

The Cause

1. The appeal is against the decision of the lower Court of the 26th day of February, 2010 where after a trial, the Court dismissed the appellant's case of medical negligence.
   
2. The appellant's allegation was that the hospital authorities were negligent in leaving a cotton swab in her vagina after cleaning her when she gave birth on the 16th day of January, 2007. She also alleged that after she complained of a foul smelling vaginal discharge to the Labasa hospital, it failed to treat her properly for her ailment by not carrying out the vaginal examination and thus her condition worsened. She had to go through great suffering until the cotton swab was finally removed by one of the private doctors on the 3rd day of July, 2007.
   

The Trial Verdict

3. There are principally two main reasons why his worship rejected the claim for medical negligence. On the aspect of the hospital being negligent in leaving the cotton swab inside the vagina, his worship preferred the evidence of Dr. Rani who had testified that the cotton swab could not have stayed in the patient's body for more than two weeks. If it did than the patient would have suffered toxic shock syndrome and would have had her life at risk because toxic shock syndrome causes damages to important organs of one's body. As a result, his worship stated that the cotton wool was not from the time of delivery.
   
4. On the aspect of Dr. Farooq being negligent in not carrying out the vaginal examination on the patient, the Court held that in the circumstances the appellant presented herself, a vaginal examination was not necessary and as such his treatment was according to good medical practice.
   

The Grounds of Appeal

5. The appellant says that the lower Court erred in law and in fact in the following ways:-
   
   • (a) In holding that a vaginal inspection of the appellant was not necessary when the condition the appellant presented herself in, required such examination.
     
   • (b) In upholding Dr. Rani's evidence when he neither examined the appellant nor had produced any medical foundation on the demeanour of the appellant or his testimony.
     
   • (c) In failing to analyse the evidence and further give all due weight to the testimony of Doctor Bhartee who had examined the appellant and had discovered the cotton swab.
     
   • (d) In finding that the defendants were not negligent when the defendants had not met the basic standards of skill and care required of them to examine and treat the appellant.
     
   • (e) In dismissing the appellants case when there was clear and unequivocal evidence that a cotton swab from the hospital was inside the appellant's vagina which caused the complication.
     

The Submissions

6. Mr. Sen strongly contended that:-
   
   • (a) The respondents were in breach of the rule in Browne v. Dunn by not putting two crucial aspects to Dr. Bhartee but calling evidence on those aspects which was accepted by the Court to dismiss the case. The first being on non-invasive procedure and second being that the cotton wool cannot be in a human body for more than two weeks and the existence of the same causing toxic shock syndrome thereby causing damage to the vital organs of the body.
     
   • (b) There were certain positive facts established, those facts give a clear indication of negligence of the hospital; the facts being, the appellant gave birth to a child, the doctors had to ensure that before she was discharged, her vaginal passage was clear and this was not done, and that a cotton swab was found inside the vagina of the appellant.
     
   • (c) Dr. Rani's evidence should not have been accepted at all because it breached Order 25 Rule 8 (1) (b) of the High Court Rules 1988 in that he did not disclose the substance of his evidence through a written report. The appellant was caught by surprise with the expert evidence. The evidence was also not supported with any documentation or authority. The doctor also said that the patient can have toxic shock syndrome which was a possibility only and not conclusive.
     
   • (d) From the facts of the case, negligence should be inferred. The doctrine of res ipsa loquitor should have been applied to this case.
     
7. Ms. Lee submitted that:-
   
   • (a) The standard of care expected from Dr. Farooq was a standard of care of a reasonable general outpatient department doctor and not that of special gynecologist. He would only be liable if his conduct fell below the standard of a reasonably competent practitioner in his field. Dr. Farooq in this case acted in accordance with a proper accepted practice by not carrying the vaginal examination.
     
   • (b) Dr. Rani's evidence was properly allowed and accepted. The appellant had not objected to Dr. Rani being called as an expert evidence and so the evidence was properly allowed. This was a medical negligence case and Order 25 Rule 8 (1) (b) regarding giving the substance of evidence in writing to the other party does not apply to this case.
     
   • (c) There was no objection by the appellants counsel at the trial stage that there was a breach of the rule in Browne v. Dunn. If there was, the appellant had the opportunity of recalling the witness being the appellant's doctor to clarify the position. Moreover, the issue of toxidity was put to Dr. Bhartee and she stated that blood would have shown toxidity.
     
   • (d) The doctrine of res-ipsa loquitor does not shift the legal burden of proof on the hospital authorities. It leaves the hospital to negate the inference of negligence only. The cotton wool would have come to the vagina from any other place like the appellant's act of using herbal medicine or using cotton wool as pad due to financial difficulties in not able to buy pads.
     
   • (e) If anything, there should be a rehearing and not judgment on the evidence before the Court.
     

The Law and Analysis

8. The first ground relates to the alleged negligence of Dr. Farooq. The evidence is clear that Dr. Farooq did not carry out any vaginal examination of the appellant. The appellant says that if he had, he would have found the presence of the cotton wool in the vagina.
   
9. The applicant presented herself to the hospital and she alleged that she made a complaint of foul smell emanating from her vagina, and that she was feeling weak and her stomach was painful. She said that she was sent for a blood test, a scan and given some antibiotics. She also stated that the doctor said that the vaginal discharge was normal and that he did not carry out any vaginal examination. She took the medication for the complete cycle. She said she discussed the problem with the doctor again and he said that she did not have any form of disease. He again did not carry out any vaginal examination.
   
10. Dr. Bhartee in her evidence stated that if the patient presented herself to the doctor with a vaginal discharge, it was normal that the vitals be taken and the vagina be examined. If that was done, the cotton swab would have been discovered by the hospital staff. It is not proper to give the tablet for insertion into vagina without first examining the same. Even if the problem is not severe, a vaginal examination needed to be carried out because that is where the problem was.
    
11. Dr. Farooq said that the patient did not complain about lower body weakness. He did not conduct the vaginal examination. The patient was stable. On the 2nd visit, the patient stated that her condition was getting better and that the vaginal discharged had decreased in quantity. He said that he checked her and confirmed that the discharge had decreased. He said that he did not carry out the vaginal examination although the patient had history of vaginal discharge.
    
12. Dr. Rani, the expert witness testified that in a case of vaginal discharge, history is taken and proper examination is conducted. If demeanour of the patient was not fine then it was routine to conduct vaginal examination. If anyone had a history of vaginal discharge, it was imperative to conduct vaginal examination.
    
13. It is clear from the evidence that the appellant went to the hospital with a problem of vaginal discharge. When a patient complains of having problems in the vagina, it is medical sense that the place of the problem be examined so that the proper assessment of the problem is made and a proper medication is prescribed. Any prudent medical outpatient practitioner would conduct that basic task and not rely on the patient's description of the problem for reason that the patient may not accurately describe what the problem was or that she may ignore informing the doctor of some minute details which in fact could be a fatal medical issue. I find it inconceivable that Dr. Farooq said that he started off with non-invasive procedure. This is not a case of surgery that invasive procedure be made an option. Here the primary duty of a prudent reasonable practitioner was to examine the problem and ascertain the same. This doctor however failed grossly and acted below the standard expected of him. Instead he sent the patient for a scan which was not going to reveal the vaginal problems. Even if the doctor believed that there was a vaginal infection, that too needed examination. The patient did not have to be sick and with unfine demeanour for such examinations to be carried out. She had a problem, a specific problem in the specific area and that area needed examination.
    
14. His worship's acceptance of the evidence that a vaginal examination was not needed, on the facts of the case, was improper. Even when the patient presented herself to the doctor the second time, he stated that the discharge had decreased. He just confirmed this from the patient's words. A prudent doctor would have carried the examination on both the occasions and made notes of what is seen each time and compares whether the situation has improved. How would a doctor remember a patient having certain amount of discharge and that it has decreased without examination? If this was good medical practice, then patients should get treated online without being referred to a doctor because the patient's words should be enough for a prescription to be advanced by the doctor.
    
15. I find that doctor Farooq's standard of care provided was below the standard which a reasonable and prudent doctor would have provided. He therefore breached a duty of care that was bestowed upon him. I will discuss the aspect further.
    
16. I will straight venture into the issue of Dr. Rani's evidence. The first question is, should it have been allowed? Dr. Rani's evidence was admissible because it is the appellant's counsel who failed to object to the testimony of Dr. Rani and also that he failed to object to Dr. Rani testifying on the aspect of the toxic syndrome and that the cotton wool could not stay in the vagina for more than two weeks. Even when the doctor had testified on that aspect and Mr. Sen was caught by surprise, his immense experience and knowledge on law is no excuse why he did not make an application that Dr. Bhartee be recalled. Having lost that right at the trial, it is prejudicial to the defence case that such an objection be allowed on admissibility. Mr. Sen should not have sat back hoping this to be raised in appeal and the objection sustained. This appellate Court can never safely speculate what Dr. Bhartee would have said to the aspects which are alleged was not put to her.
    
17. However it is important for me to analyse the weight that the Court placed on Dr. Rani's evidence. Dr. Rani said that cottons swabs are used after delivery to clean inside of vagina. It is used with forceps. Before discharge, the patient should be checked as to whether the vaginal passage is clear. If there was a foreign body, the odour would come in few weeks time. The mother could have experienced this within a week or two. She stated that in her experience cotton swabs never stay in the body for longer than two weeks and that it was not possible for cotton swabs to be left in body for 6 weeks. She based her opinion on experience and books.
    
18. The Learned Magistrate placed all reliance on the evidence of the expert witness and stated that the cotton wool in the vagina was not from the time of delivery. In my judgment the weight attached to the expert witness's evidence was not proper.
    
19. There was no medical text based on which such an opinion was founded and none was produced to the Court.
    
20. Dr. Rani had never made any medical examinations of the patient to make such general conclusions of this nature as opposed to doctor Bhartee who made findings of the primary facts like the cotton wool in the vagina being of 5cm by 5cm and that it was covered with old blood.
    
21. Dr. Rani's evidence was biased towards the hospital as it never accounted for rare instances where Court wool can stay in a patient's body for as long as three months, if I may say so, having taken judicial notice of the facts of the case in Mahon v.Osborne [1939] 2 KB 14. In this case a surgeon has operated on a patient and left cotton wool inside his body which later resulted in the patient's death after three months.
    
22. The purpose of citing the case above is to show that there indeed are circumstances in which doctor Rani's evidence is not sustainable. In this case at least the cotton wool was not in the abdomen as compared to Mahon's case and the possibility is that it could stay longer in the appellant's body before causing toxic shock syndrome.
    
23. Has Dr. Rani not heard of any cases or read any medical texts of a cotton swab left in a patient's body for longer than two weeks? I find that although doctor Rani was an expert witness, her generalizations were biased towards the hospital as she is employed by the hospital.
    
24. It was therefore imperative that Dr. Rani's evidence be viewed together with the undisputed facts of the case and not accepted without any analysis of other evidence.
    
25. The facts of the case are that the patient had a cotton wool in her vagina. She had delivered a baby. Soon after delivery, that is, after six to eight weeks, she started experiencing foul discharge and pain, she presented herself to the doctors in March, 2007 and finally got the wool removed in July. Hospitals do clean patient's vagina with a forceps and cotton wool. After delivery the patient ought to have been checked that her vaginal passage was clear. There is no evidence that such exercise was undertaken by the defendants. These are some positive facts established by the appellant and undisputed by the defendants with which, I can, on a balance of probability infer that the cotton wool in the vagina was left in the patient's body when she was being cleaned up after delivery. Her passage was never checked for clearance and as result the patient experience what she did. Had Dr. Farooq earlier examined her properly, he would have found that there existed a cotton wool which needed removing.
    
26. I find the hospital staff negligent and as such judgment must be entered in favour of the appellant.
    
27. The patient had to suffer physically and mentally both for her foul vaginal discharge. I distinguish this case from that of where a person loses a part of a body and undergoes pain. Pain, uncertainty, and depression definitely would have existed for this patient too.
    
28. I am of the judgment that there should be an award for damages for pain and suffering for about 5 months and I assess the same to be $5,000. There should be interest on damages from the date of filing the writ till the date of the judgment at the rate of 5%.
    

Final Orders

29. The appeal is allowed. Judgment is entered in favour of the appellant in the sum of $5,000 with interest from 14th August, 2007 to 20th January, 2012 at the rate of 5 % per annum.
    
30. The appellant shall further have costs of the appeal proceedings in the sum of $1,500.
    
31. Orders accordingly.
    

Anjala Wati.
Judge
20.01.2012

To:

1. Mr. A. Sen, counsel for the appellant.
2. Ms. Lee, counsel for the Respondents.
3. HBA. 1 of 2010.