Harrilal v South West Regional Health Authority et Al

• Jurisdiction: Trinidad & Tobago
• Judge: Shah, J.
• Judgment Date: 28 February 2008
• Neutral Citation: TT 2008 HC 54
• Docket Number: S.55 of 2003
• Court: High Court (Trinidad and Tobago)
• Date: 28 February 2008

High Court

Shah, J.

S.55 of 2003

Harrilal

and

South West Regional Health Authority et al

Appearances:

Mr. A. Ramlogan for the plaintiff, instructed by Miss Bhagwandeen.

Mr. E. Koylass S.C. for the first named defendant, instructed by Miss Dookeran.

Tort - Medical negligence — Breach of duty of care — Still birth — Nervous shock — Exemplary damages — Plaintiff with heart condition and overdue in pregnancy receiving inadequate care and giving birth to still born baby — Plaintiff in labour forced to wait without urgent treatment and no doctor on call to attend to her — Hospital denying negligence — Breach of duty proved — Damage foreseeable — Exemplary damages awarded.

I. INTRODUCTION.

Shah, J.

1 The plaintiff, Samdaye Harrilal, commenced this action in negligence against the defendant, the South West Regional Health Authority (Established by Act No. 5 of 1994 (hereinafter referred to as “the Act”)) (“the SWRHA”) and the Attorney General, by Writ and Statement of Claim (Filed on the 1st April, 2003, as amended on the 28th May, 2003). The action arose out of the stillbirth of the plaintiff's baby and the care she received as a patient at the San Fernando General Hospital (hereinafter referred to as “the Hospital”).

2 The plaintiff claims damages, including aggravated and/or exemplary damages and costs, as compensation for (i) Extreme pain and suffering; (ii) Mental anguish; and (iii) Nervous shock, consequent to her giving birth to a stillborn baby at the Hospital, on the morning of the 23rd April, 2002.

II. BACKGROUND

3 At the pretrial reviews attended to by Mr. Waithe who represented the SWRHA he represented to the Court that the Authority was settling the matter with the plaintiff. Upon Mr. Koylass appearing he said he had no instructions to do so.

III. SOME FACTS AND PLEADINGS

4 On the 22nd April, 2002 the plaintiff, who was “in an advance stage of pregnancy”, and who thought her amniotic bag had burst, went to the Hospital at about 8:00a.m. to 8:30 a.m. She attended the Hospital's Casualty Department where she spent about 2 ¹/₂ hours and after certain tests, was sent to the ward, where after sitting on a bench in the corridor in pain for about 2 hours, was given a bed.

5 The nursing staff of the Hospital attended to and provided medical treatment to the plaintiff in respect of her pregnancy. It was a matter of record at the Hospital where she did her pre-natal examinations that she suffered from a heart condition known as VSD and that her baby was overdue, that is, had passed 9 months of pregnancy.

6 At about 6:30p.m. on the said day, the plaintiff claims that she started experiencing pain, complained to the nurses on duty about it and requested a doctor to attend to her, however, none was available. In fact the plaintiff requested to see a doctor on more than one occasion. It was only until about 10:30 p.m. that the plaintiff claims that she was informed by a nurse on duty that no doctor was on the ward and that she, the nurse, required the order or authorisation of a doctor to administer antibiotics to the plaintiff. However, sometime later, a nurse administered the antibiotics after getting the required permission from Dr. Tam via telephone.

7 At about 11:00p.m. to midnight, the plaintiff claims that she was taken to the Labour Ward of the said Hospital and was hooked up to a monitor but at that time did not pick up a heart beat on the foetus. At about 1:06 a.m. on the 23rd day of April, 2002, the plaintiff gave birth to the baby, which was placed in an incubator.

8 At this stage the plaintiff's evidence is instructive:

The nurse told me when a pain came to push.

I got a slight pain and I pushed. She told me I had to push a little harder. I made several tries and about 1:06 a.m. The baby was born. It was a boy. I eventually found out he was 7 ¹/₂ lbs.

The nurse put the baby in a cot next to the bed. They told me nothing. I did not hear the baby cry.

The nurse started to press his chest and then a doctor came. He stuck something inside of the baby's mouth and keep pumping, and green stuff came out through the tube.

I saw the doctor gave him an injection in his foot.

I felt numb on seeing all of this, I felt my life had ended too.

9 The plaintiff claims that the death of the baby was caused solely by the negligent acts and/or omissions of the defendant, its agents and/or its servants. The plaintiff also claims that the care and management of her as a patient by the defendant was wanting in more than one way, as a doctor should have been available to attend to her or she should have been transferred to a private nursing home that was equipped and staffed to deal with her.

10 The heart of the case is stated in paragraph 2 of the Statement of Claim, which states:

11 The First named defendant was established by Act No. 5 of 1994, (hereinafter referred to as the Act”) and is a body corporate whose powers, functions and duties include, inter alia, the provision and/or employment of competent medical personnel and all things necessary for the delivery of efficient and/or safe systems of health care within its area of responsibility.

12 The defendant by paragraph 5 of its Defence agrees with this. It even went further to admit that it provided medical and/or specialist and other services including gynecological service to the public.

13 The particulars of negligence (According to the Statement of Claim, filed on the 1st April, 2003, as amended on the 28th May, 2003) as claimed by the plaintiff are as follows:

• a) Failing to have a competent or any doctor available on call to respond and attend to the plaintiff's deteriorating condition;

• b) Allowing the plaintiff's condition to deteriorate to the point where it was impossible or impractical for her to deliver a healthy baby;

• c) Failing to take any or any sufficient measures to safeguard the interest, life and welfare of the plaintiff's baby;

• d) Failure to administer antibiotics and/or such other medicines unto the plaintiff in a timely manner and/or at all;

• e) Failure to staff the Hospital with suitably skilled, experienced, qualified and /or competent staff;

• f) Failure to make and/or implement appropriate policies by which the plaintiff would have been transferred to a suitably staffed private or other institution that was properly equipped to handle the plaintiff's case;

• g) Failure to transfer the plaintiff to a suitably staffed institution that was properly equipped to handle the plaintiff's case;

• h) Failing to apply the correct procedures in dealing with the plaintiff's case;

• i) Failing to use reasonable care, diligence in and about the treatment and/or attendance given to the plaintiff;

• j) Failing to heed the medical condition of the plaintiff;

• k) Admitting the plaintiff at the Hospital when the defendants knew that they were not suitably staffed to handle the plaintiff's case;

• I) Keeping and/or continuing to keep the plaintiff at the Hospital when the defendants knew that they were not suitably staffed to handle the plaintiff's case;

• m) Failing to exercise reasonable care and skill in the treatment of the plaintiff;

• n) Treating the plaintiff inexpertly;

• o) Failing to provide suitable skilled and experienced staff to deal with the plaintiff's condition;

• p) Failing to provide a system and or any adequate system and/or procedures to deal with a situation where the nurse on duty could not contact or get a doctor to attend to the plaintiff in time or at all.

14 According to its Defences (Filed on the 17th November, 2003), the defendant claims that:

• (i) At the material time there was a Doctor's impasse, where the Doctors employed with the SWRHA withdrew their services without notice or at very short notice not taking up duty at the Hospital (paragraph 2).

• (ii) That there were midwives and nurses at the Hospital who were competent and capable of carrying out the delivery of a baby (paras. 3 and 17).

• (iii) That the death of the plaintiff's foetus occurred without Negligence by it through its servants or agents (para 16).

• (iv) That apart from delivery per vagina, there was no other viable method of delivery of the plaintiff's baby due to the short time frame within which the plaintiff was in established labour (para 18).

15 The defendant denies that it was negligent as alleged or at all/or that the death of the plaintiff's foetus was by reason of any negligence. The defendant avers that the death of the plaintiff's foetus due to infra partum asphyxia as was determined could have and did occur without negligence by reason of a number of factors (According to the defendant's Defence filed on the 17th November, 2003, para 16) including: -

• i) Congenital defect,

• ii) An inherent and unavoidable risk of childbirth,

• iii) The stress of labour,

• iv) Ingestion of liquor,

• v) Lack of oxygen in the foetal descent along the birth canal.

IV. EVIDENCE

16 The plaintiff's Witnesses- Briefly.

17 1. Briefly, the plaintiff's evidence is as above.

18 She stated that the doctor, who eventually came, had informed her that he tried his best but that the baby had died. The plaintiff admits that the nurses on the ward did their best.

19 2. Dr. Ralph Hoyte

20 A specialist in obstetrics and gynecology for 51 years. He gave evidence that the plaintiff was never seen by a doctor at the Hospital from the time of admittance to the time she gave birth to the baby. He said that the preparation for an emergency cesarean section may even take place in a matter of minutes and categorically stated that a C-section could have been performed within the time the plaintiff was in established labour.

A midwife or a nurse does normal delivery not forceps or C-sections. None of these options were even attempted as the doctor was not there. If one of these options had been done to Mrs. Harrilal the chances would have been good. That the child would...