Tesheira v Gulf View Medical Centre Ltd and Roopchand

• Jurisdiction: Trinidad & Tobago
• Judge: Kokaram, J.
• Judgment Date: 27 March 2015
• Neutral Citation: TT 2015 HC 116
• Docket Number: CV 2009-02051
• Court: High Court (Trinidad and Tobago)
• Date: 27 March 2015

High Court

Kokaram, J.

CV 2009-02051

Tesheira

and

Gulf View Medical Centre Ltd and Roopchand

Appearances:

Mr. Douglas Mendes SC and Mr. Simon de la Bastide instructed by Ms. Marcelle Ferdinand for the claimant

Ms. Mary O'Rourke QC and Mr. Anand Beharrylal instructed by Mr. Winston Seenath for the First defendant

Mr. Roger Kawalsingh instructed by Mr. Ravi Mungalsingh for the Second defendant

Negligence - Medical negligence — Liability — Causation — Pre/post-operative care — Damages — Survivorship action — Lost years — Dependency action — Bolam test — Whether defendants' actions caused or materially contributed to death.

1 Kokaram, J. This is a medical negligence claim arising from the death of Mr. Russell Tesheira. He died due to complications which developed from his excessive bleeding after a TURP [It is accepted by the parties that the Transurethral Resection of the Prostrate (TURP) is a surgical procedure that removes portions of the prostate gland through the penis. The prostate gland is about the size of a walnut and surrounds the neck of a man's bladder and uretha - the tube that carries urine from the bladder. The prostate gland is partly muscular and partly glandular with ducts opening into the prostatic portion of the uretha] was performed on him on 13th April 2004 at the Gulf View Medical Centre (“Gulf View”) the first defendant. Mr. Tesheira died mere hours after the TURP was completed by a team of specialists comprising a urologist Dr. Lester Goetz and an anaesthetist Dr. Crisen Jendra Roopchand, the second defendant. Although his TURP was completed by 1:10p.m and he was resting in a private room on the ward, by about 3:30p.m something went wrong. The medical experts assert he had gone into hypovolemic shock and he was being rushed back into the operating theatre to arrest the heavy continuous post operative bleeding which was considered a risk in the performance of TURPs. There was heightened activity of preparing him for further surgery, conducting CBC and PTT tests, ordering and obtaining blood products and preparing them for transfusions, transfusing about 11 pints of blood products into Mr. Tesheira and conducting two further surgical procedures to arrest the bleeding. Despite this however, within an hour of the closure of the incision on the last procedure, Mr. Tesheira's heart stopped beating. He died during anaesthesia while receiving his last unit of blood. His wife Mrs. Karen Tesheira, the claimant, who was waiting for her husband anxiously in the waiting room was simply told “Russell did not make it…” She left no doubt in a state of despair [In the witness box she was visibly upset at the recollection of her husband's death].

2 Mrs. Tesheira has brought this claim against Gulf View and Dr. Roopchand [Referred to as the defendants collectively] in her personal and representative capacities for damages for negligence in which she has alleged that they were negligent in their care and medical treatment of her husband. [Her claim against Dr. Lester Goetz who was previously a party to this action was withdrawn after the parties' compromised that claim. That agreement provided for an ex gratia payment to be made to the claimant without any admission of liability on the part of Dr. Goetz, a release and discharge of Dr. Goetz by the claimant for all claims and actions she may have against him arising or related or other complaint in this proceeding and a withdrawal of these parties of their respective appeals in relation to Dr. Goetz. See this Court's earlier decision dated 12th May 2012 on the effect of this compromise agreement.

3 There is no doubt in this case that Mr. Tesheira succumbed to a “trilogy” of complications of hypovolemic shock leading to a condition known as Disseminated Intravascular Coagulation (DIC) and then TURP syndrome or fluid overload which led to his demise. His post operative bleeding was not addressed more than two hours after he was returned to his room. What was at first a manageable risk, over the space of a few hours mushroomed into a fatal chain of events. The problem with this patient was that there was uncontrolled clotting in the blood circulation where clotting factors and platelets in the blood were being consumed. This is known as DIC. This condition could have been managed by transfusions of fresh whole blood and platelets, fresh frozen plasma and cryoprecipitate. However failing to properly manage the subsequent transfusion with proper products can lead to TURP syndrome or fluid overload. The autopsy report into Mr. Tesheira's death which shows his death was caused by irreversible shock DIC also strongly suggests the onset of TURP syndrome or fluid overload [There were signs of fluid overload by the congestion of his liver, lung and spleen. One of the medical experts Dr. Pitt-Miller also pointed out that the report indicates the existence of fluid overload.].

4 However accepting that Mr. Tesheira died while a medical team was trying to save his life is one thing, but finding that they were negligent in his treatment and care, and if so, whether but for that treatment he would not have died, is quite another altogether. Indeed, the defendants, Gulf View and the anaesthetist, Dr. Roopchand vigorously deny their responsibility for the death of Mr. Tesheira. The two issues that are the central focus of this trial is whether they breached their duty of care to Mr. Tesheira and whether that breach actually caused his death. Interwoven in these main issues are the questions of the material contribution to the cause of death, the roles played by these professionals and the evidence adduced by Mrs. Tesheira of an acceptable body of medical opinion representing the proper standard of care to be observed by these professionals.

5 No doubt the medical personnel and specialists in this case make life and death decisions within seconds. The pressures of proper patient care and management are extremely high. Their Hippocratic Oath enjoins them to a sacred duty to save lives. At times members of the medical profession may appear to perform superhuman procedures and miracles but they cannot save everyone they treat nor can they guarantee success in every operating procedure. However what the law demands is that they exercise reasonable skill and care in their treatment of the patient and act in accordance with a practice accepted as proper by a responsible body of medical men and women skilled in that particular specialty. McNair J's “Bolam test [ Bolam v. Friern Hospital Management Committee [1957] 2 All ER 118]” has served to guide the Court in regulating the medical profession in the execution of their duties and their relationship with their patients. If I may adopt a phrase used by one of the experts in this case, it is “the gold standard” of conduct in the medical profession. It recognises on the one hand the expertise and specialist skill and knowledge required by hospitals and doctors and on the other the limitations of a Court in entering the operating theatre and “donning its own scrubs”. The rationale of the Bolam test is to limit the liability of the medical profession from actions in negligence if their conduct ascribes to a practice that is accepted as proper by a responsible body of the medical profession skilled in that area of expertise. As Lord Denning observed it would be doing a disservice to the community at large if liability is to be imposed on hospitals and doctors for anything that goes wrong [ Roe v. Minister of Health [1954] 2 QB 66 at p.87 ]. The problem with such a litigious climate may tend to make doctors think of their own safety than that of the welfare of patient, stifle initiative and intuition and shake their confidence in life and death situations. While the Court must insist on due and reasonable care for the patient it would not condemn the misadventure but similarly the Bolam test cannot act as a shield for the bravado or the cavalier.

6 In reality to apply the Bolam test to a great extent means that the level of professionalism and standard of care is largely self regulated. That is to say the medical professional's reliance upon a body of responsible peer professional opinion is sufficient to dispel the suggestion of negligence. The Court must however guard against the danger of self regulation in cases where there are differing professional opinions on a recommended course of treatment or management of a patient. In such a case the medical professional can adopt any view or practice for which there is a significant support in the profession and can be absolved of liability. Even where such a view or practice, behind which the medical professional shelters, is attendant with dangers and notorious risks. This is not to say that a Court must be swayed by sympathy for the patient. However, being overly deferential to “doctor knows best” comes at the expense of “opportunities to precipitate changes where required in professional standards” and the reality that patients do put their lives virtually in the doctor's hands. The Bolam test may not have intended these consequences and a Court must always scrupulously guard against practices that may develop in the profession not for the interest of the client but for the protection and convenience of the members of the profession. No such practice can in the true sense of the Bolam test be described as held by a “responsible body of medical men skilled in that particular art”. To this extent the Court reserves the right to scrutinise professional practice and declare it negligent. If it can be demonstrated that even if the medical professional did so act in conformity with an accepted practice if that practice is demonstrated to be inherently wrong or illogical then it would not serve as an escape route for liability in negligence. This is the “ Bolitho Gloss [See Trumping Bolam: A critical legal analysis of Bolitho's...