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Tala v Director of Health [2005] TVHC 6; Case No 07 of 2002 (20 May 2005)

IN THE HIGH COURT OF TUVALU
AT FUNAFUTI

Case No: 7/02

Civil Jurisdiction

Between

PENISULA TALA
Plaintiff

And

DIRECTOR OF HEALTH
First Defendant

And

ATTORNEY GENERAL
Second Defendant

BEFORE THE CHIEF JUSTICE

Malii Elisala for the plaintiff
Isala Isala for the defendants

Hearing: 17 and 18 May 2005
Judgment: 20 May 2005

Judgment

The plaintiff claims damages for pain and suffering caused by the alleged negligence of nurses employed by the first defendant. The defendants are sued as the employers of the nurses and the defence has not challenged the claim that they are vicariously liable.

The plaintiff’s case is that, in 1999, she was pregnant with her second child. On 6 June 1999, she went to into labour and was taken by her relatives to the medical centre on Vaitupu in the very early hours of the morning. The nurse on duty at the time was a staff nurse, Sokolito Malotu. The senior staff nurse, Tekafa Seni, was off duty and was at her house nearby in the village.

It became apparent that this was to be a breach birth but Sokolito did not call the other nurse having, she told the court, attended such births on more than one occasion previously. The birth took place satisfactorily until the head would not clear the womb and the contractions stopped. At that stage Sokolito sent for the senior staff nurse.

When she arrived, the baby’s head was freed but all attempts by Tekafa to resuscitate it were unsuccessful. In order to facilitate the birth it had been necessary, as a normal procedure, to cut the plaintiff and, whilst Tekafa was trying to revive the baby, Sokolito started to suture the wound using a two-inch curved stainless steel suturing needle.

Sokolito was suffering from a bad back at that time and, after she had completed three sutures, asked Tekafa to take over as her back was sore and her hands tired. Tekafa completed the repair and the plaintiff later went home.

From that time onwards, she experienced considerable pain to such an extent that, for more than two weeks, she was able to do little more than lie down. She told how she returned to the medical centre on one occasion to enquire about the pain but was told by Sokolito, without any further examination, that it was simply postnatal discomfort which would clear up and she should return home.

After two or three weeks the plaintiff was cleaning herself when she felt something sharp in her vagina. She was able to extract it accompanied by a quantity of yellow pus or mucus. On cleaning the object, she saw it was the sharp portion of a suturing needle with the end where there is normally an eye broken off.

That needle has been since been lost. The plaintiff told the court she gave it to her father in law and later, when she was in Funafuti to see a doctor, she sent for it and gave it to the acting matron at the hospital, Filoimanatu Leauma. The father in law gave evidence that he kept the needle in a jar and then sent it to the plaintiff in Funafuti when requested to do so.

Filoimanatu also gave evidence. She acknowledged receiving the needle and said that she eventually handed it to the matron. However, she made no record either of the receipt of the needle or of her handing it over subsequently. She is related to the plaintiff and she explained her failure to make any record was because she was split between the need to protect the interests for her nurses and her loyalty to a relative. She described a conversation she had with Tekafa in which the latter referred to the needle having broken. She said the nurse told her that she had looked for the broken part when she took over from Sokolito but could not find it.

The defence challenged her account. Counsel suggested that the whole story of the needle is a fabrication and the acting matron's story is part of an elaborate fraud to extract damages from the medical authorities. They called both staff nurses and both denied that they had broken any needle that day. Sokolito said that she placed the needle in the surgical tray when she handed over the suturing. Tekafa said she took a needle from the tray and was sure it was the same needle because it was already threaded. Both deny any negligence or that any needle was broken that day. When the comments suggested by Filoimanatu were put to Tekafa she denied she had ever had such a conversation.

The defence also called the acting Director of Health, Dr S Homasi. He described how surgical needles are very strong and, to avoid the risk of breaking, are designed to bend rather than to snap. He told the court that in his experience he had never seen or heard of a surgical needle breaking and doubted that it could occur.

The question of the needle is central to this claim and I deal with it at this stage.

The burden is on the plaintiff to establish on the balance of probabilities that the plaintiff’s account of finding the needle is true. If it is true there can be little doubt that she would have suffered a considerable degree of pain in the three weeks before she says she removed the needle.

It was seen by her relatives and consistently described by them although none of them claimed to have seen the type of needle used for the suturing at the birth. Counsel for the defendants emphasises that each witness for the plaintiff described it as two inches long and, as the needle used at the delivery was a two-inch needle, the broken part would have been shorter if it had come from such a needle. I attach little weight to that point. The witnesses were asked how long the recovered needle was and indicated something in the region of two inches. Most of them were then asked by counsel if the needle was two inches long and agreed. I do not consider such estimates can be taken precisely.

Dr Homasi told the court that he was not the Director at that time but he had checked the records and the plaintiff had never lodged a formal complaint. Had one been made, he explained, it would have been properly investigated. He also agreed that any doctor hearing of such an incident had a duty to report it for investigation. Counsel for the defence attaches some weight to the lack of complaint. However, the plaintiff was later referred to Fiji for further examination and the letter of referral was written by a Dr Natano on 30 October 2000. In it he refers to the account given by the plaintiff. On the basis of Dr Homasi's evidence he should, having heard that account, have reported it and did not do so. Further, as the referral had to be approved by the Director of Health, it was also copied to him. He too failed to make any report.

It is relevant to note that Dr Natano's letter also supports the plaintiff’s account that when she went to Funafuti after about three weeks, she saw a doctor who treated a wound caused by the needle. When Dr Natano saw her over a year later, he also noticed the presence of a vagino-perineal fistula which Dr Homasi agreed could have been the result of an infected wound.

I found Filoimanatu a credible witness although I am satisfied her excuse for failing to make a report of the incident or the receipt of the needle is no more than that. Whatever the reason for her failure, it was not for the reason she described. I also consider that, if the defence suggestion is correct that she was a part of the plan to make a false claim, nothing would have been easier than to leave a written record of the receipt of the needle somewhere in the files which could be unearthed later to support the plaintiff’s case.

I accept the evidence of the plaintiff and her witnesses and am satisfied to the required standard of proof that a broken surgical needle was removed from the plaintiff’s vagina.

I cannot accept the evidence of the nurses that they used the same needle and that it was still intact at the end of the operation. The plaintiff was stitched with a surgical needle and a needle of the same type and grade was ejected from her lower abdomen three weeks later. It is beyond the bounds of credibility that the broken needle could have come from any other source and I am satisfied on the balance of probability that the broken needle had been left inside her at the time she was stitched.

There is no challenge that the nurses owed a duty of care to the plaintiff. In order to establish negligence, the plaintiff must prove that there was a breach of the duty that amounted to gross negligence. The evidence satisfies me that the broken needle was left in her body but the manner in which it was broken or that it came to be left there is not clear. I am not satisfied that the evidence has shown that the breaking of the needle was the result of a negligent act but the fact it was left in the plaintiff’s body undoubtedly was a negligent breach of the nurses duty of care to the plaintiff.

The claim is for general damages for the pain and suffering caused to the plaintiff as a result of this negligence.

The plaintiff’s evidence was that she continued to suffer severe pain for a very long time after the needle had been removed. Even when it subsided she was still unable to ride a bicycle, carry objects or to squat without acute pain or discomfort. Eventually she saw Dr Natano and he referred her to the Colonial War Memorial Hospital in Suva. She travelled to Suva at the Government's expense and was examined.

The letter from Dr Nainoca, the consultant obstetrician and gynaecologist who examined her in Suva has been exhibited. His investigations proved negative except for a laparoscopy which revealed the presence of endometriosis in the plaintiff’s pelvis. His opinion was that her recurrent abdominal pain was attributable to that and was related to her periods. Dr Homasi agreed that the pain from endometriosis is acute and would be particularly likely to be brought on by squatting or in such activities as riding a bicycle. There is no evidence that endometriosis could be the result of any infection or injury such as that suffered by the plaintiff from or as a consequence of the presence of the needle in her tissues.

On the evidence as a whole, I am satisfied that the plaintiff has proved that she suffered a period of severe pain and suffering and that was initially the result of the presence of that needle and therefore of the negligence of the nurses attending her at her confinement in 1999.

I am also satisfied that she was still suffering acute pain by the time she saw Dr Nainoca in Suva in April 2001 but the pain then was solely the result of endometriosis. The court must determine as best it can when the pain attributable to the needle stopped and was replaced by the symptoms of the, then, undiagnosed endometriosis.

I note Dr Nainoca's reference to the link between the pain and the patient's periods. If that affliction is linked to menstrual periods then it certainly cannot have accounted for the pain suffered in the first few months after the birth as I assume the plaintiff’s periods will have taken at least a few months to resume. However, I have no evidence of the certainty of that link nor of the time her periods did restart or would be likely to have restarted. Doing the best I can, I divide the time between the birth and the examination by Dr Nainoca equally between the two causal factors. I accept that the pain from the presence of the needle would have gradually reduced as the injury cleared up. On that basis I accept that the pain experienced by the plaintiff from the needle continued for eleven months but thereafter any pain was more likely to have been the result of the endometriosis.

Clearly the acute pain before the needle was discovered would have continued for some time after it was removed. I assess that acute level of pain would have continued for four months from the birth. Over the remaining seven months it would have steadily reduced although the effect of that reduction may have been masked and countered by the developing endometriosis. In all my references to pain, I include an equal degree of accompanying mental anguish.

Apart from the suffering which resulted directly from the physical pain, the plaintiff described additional factors which compounded her suffering.

Initially after she returned from the medical centre, she was unable even to walk and she was conscious of the disapproval of her husband's family with whom she was staying. She was shamed by her inability to look after herself and the fact that they had to assist her in matters which must have been intimate and embarrassing.

Her husband was a seaman and on his return, they were unable to have sexual intercourse because of the pain she suffered. The difficulties in their relationship meant he returned to sea and was away for a year but, on his return, the problem had gone. I consider that also supports the assessment that the effects of the needle extended over eleven months.

No claim is pursued for special damages and counsel have cited no authorities to establish the levels of compensation for pain and suffering in this or any other jurisdiction. They would have been helpful and counsel should always be prepared to submit them in any personal injuries case.

Bearing in mind the nature of the negligent act and the degree of pain and suffering I assess general damages as $1,000.00 for each of the four months when I consider there was acute pain and average the damages for the reducing pain over the remaining seven months at $250 per month. I add a further $750 for the distress engendered by the reaction of her relatives and the effect on her marriage which gives a total of $6,500.00.

This claim was not filed until 27 May 2002. The delay in bringing the case to trial since is not the result of default by either party. I order that the defendant shall pay interest on the judgment sum at the rate of 5% per annum from the date of the filing of the claim.

Dated 20^th day of May 2005

CHIEF JUSTICE