Annissia Marshall v North East Regional Health Authority Saint Ann's Bay Hospital and Another

• Jurisdiction: Jamaica
• Judge: Panton P,Phillips JA,Mcdonald-Bishop JA
• Judgment Date: 06 November 2015
• Neutral Citation: JM 2015 CA 115
• Docket Number: SUPREME COURT CIVIL APPEAL NO 50/2012
• Court: Court of Appeal (Jamaica)
• Date: 06 November 2015

[2015] JMCA Civ 56

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Mr Justice Panton P

The Hon Miss Justice Phillips JA

The Hon Mrs Justice Mcdonald-Bishop JA (AG)

SUPREME COURT CIVIL APPEAL NO 50/2012

Between

Annissia Marshall

Appellant

and

North East Regional Health Authority Saint Ann's Bay Hospital

1 ^st Respondent

The Attorney General

2 ^nd Respondent

Norman Hill QC and Raymond Samuels instructed by Samuels and Samuels for the appellant

Miss Tamara Dickens instructed by the Director of State Proceedings for the respondents

NEGLIGENCE - Medical malpractice - Claim for damages for medical malpractice - No case submissiom - Appellant not establishing case on a balance of probabilities

Panton P

1 I have read the judgment of my learned sister Phillips JA and agree with her reasoning and conclusion. I have nothing to add.

Phillips JA

2 This is an appeal from a judgment of Fraser J delivered orally on 7 March 2012, upholding a no case submission made by the respondents at the close of the appellant's case. The learned judge stated that the appellant had sought against the respondents by way of amended claim form damages for negligence and medical malpractice, in that, the respondents had by themselves or by their servants performed surgery on her without her consent. He found that on the totality of the evidence, the appellant had not established her case on a balance of probabilities, and accordingly, entered judgment for the respondents with costs to be agreed or taxed.

Factual background — the pleadings and witness statements

Pleadings on behalf of the appellant

3 Mrs Marshall, who was married and a 28 year old office manager, felt abdominal pains on 26 June 2004 and consulted a private practitioner, who referred her to the Port Maria Public Hospital. On 27 June 2004, she attended the Port Maria Hospital but was not treated on that day for her condition. She returned to the said hospital the next day, 28 June 2004, as the pains persisted. On 29 June 2004 an abdominal and pelvic ultrasound was performed which revealed that the endometrium was normal, but the appellant was suffering from a hemorrhagic left ovarian cyst. Based on the result of this test the appellant was referred to the 1 ^st respondent, the Saint Ann's Bay Hospital (the hospital) for treatment. The appellant was admitted to the hospital on 29 June 2004 and consented to an operation which was done on 1 July 2004 to remove the cyst.

4 The appellant was re-admitted to the hospital on 5 July 2004 as she was still in pain. On 14 July 2004, an abdominal and pelvic ultra sound examination was performed on her. It revealed inter alia:—

• ‘(a) The Endometrial Stripe is within normal limits

• (b) Fluid filled dilated lops of bowel with free fluid within the abdomen. No evidence of an interloop collection’

5 On 15 July 2004, a second operation was performed on her. During surgery a colostomy bag was attached to the left side of her lower abdomen. Having recovered from the anesthetic administered to her during surgery, the appellant claimed that she was informed by a doctor on duty that she had undergone surgery for abdominal obstruction and that the colostomy bag was necessary. He assured her that it would be removed shortly.

6 The appellant attended the hospital in October 2004 to remove the colostomy bag. However, she was told that the operating theatre was unavailable, as it was under construction. The appellant made several requests of the hospital to have the bag removed and finally returned to the said hospital on 29 December 2004 at which time due to the appellant's illness, the colostomy bag could not be removed.

7 The appellant filed the claim form and particulars of claim on 27 March 2006 and contended that the operation performed on 15 July 2004 was inconsistent with the ultra sound reports of 29 June 2004 and 14 July 2004 respectively, was arbitrary and done without her consent. She claimed that the hospital was negligent, and in the particulars of claim, the particulars of negligence were set out, namely, that:

• (i) the operation of 15 July 2004 had been performed when the ultra sound examination had not indicated that it was necessary;

• (ii) the operation was performed without her consent; the operation carried a risk of a complication of the colon and she had not been advised of the risk;

• (iii) the operation carried the risk of wearing a colostomy bag and she had not been advised of that risk or the likely period for which that condition would last.

8 The appellant also pleaded and relied on the doctrine of res ipsa loquitur .

9 The appellant pleaded further that being 28 years of age and married she would not have consented to an operation which carried the risk of wearing a colostomy bag, and that the hospital was therefore negligent in denying her the right to choose whether to undergo such an operation. She also claimed that she had suffered a surgical opening in her lower left abdomen with the attachment of a colostomy bag which had resulted in her being traumatized by the constant feeling of unwellness, and the knowledge of not enjoying proper social hygiene, and that this was known to those with whom she had to maintain social intercourse from time to time. Additionally, she had observed that her husband had shown a lack of sexual appetite for her and she had also experienced a loss of libido herself.

10 She pleaded the particulars of injuries suffered namely:— the laparatomy without her consent; damage to the colon and the attachment of the colostomy bag without her consent. She claimed that she had suffered psychological trauma by being clinically depressed, preoccupied with the conditions brought about by wearing the colostomy bag, adjustment disorder with depressed mood and a psychological impairment of 30%. She also claimed special damages including past medical expenses, future costs to remove the colostomy bag and for loss of earnings.

11 The appellant claimed that she had not returned to the hospital subsequent to her last visit in December 2004 in respect of any treatment in relation to the removal of the colostomy bag, as she felt that she had been given the ‘run around’ with regard to its removal. She later had the bag removed by way of an operation done overseas. Subsequent to that, as indicated aforesaid, on 27 March 2006, she had filed the claim against the respondents for negligence setting out the allegations mentioned above.

Pleadings on behalf of the respondents

12 The defence filed on behalf of the respondents on 19 July 2006, accepted certain facts alleged by the appellant, such as the treatment administered to her up to and including the operation to which she consented on 29 June 2004 for the removal of the ovarian cyst. The respondents disputed the appellant's claim however, on certain bases. It was their contention that when the appellant had been re-admitted to the hospital she had been complaining of abdominal distension, pain and vomiting. Further, that the x-rays performed on her showed a picture in keeping with intestinal obstruction of the large bowel type.

13 The respondents therefore maintained that following the results of the x-rays, the need for further surgery and the possibility of the colostomy bag were explained to the appellant and she consented to the further surgical procedure which was performed on 15 July 2004. It was specifically denied in the defence, that the explanation for the surgery and the necessity for the bag had not been given to the appellant until after the procedure was performed. Indeed, the respondents asserted that the appellant had been informed that the bag was to have been removed within three months after the operation, but unfortunately that time frame had not been met. This the respondents said was due to the fact that on one occasion the appellant had developed acute abdominal pains and had to be referred to the gynaecological department, so surgery could not be performed, and secondly, the operating theatres at the hospital had to be closed for refurbishing. The respondents averred that the appellant failed thereafter to attend at the hospital to have the surgery performed on her.

14 In their defence the respondents denied any negligence on their part, stated that the doctrine of res ipsa loquitur did not apply, denied preventing the appellant the right to choose whether to have the operation, and failing to remove the colostomy bag. Finally, the respondents particularly denied causing any injuries to the appellant or being liable for the damages claimed.

15 Bearing in mind that the respondents succeeded on its submission that there was no case to answer, it is important, in my view, to have in mind what was understood by the parties as the issues between them before trial, on the pleadings, and also, with regard to what had been alleged in the witness statements. On the request of the appellant for information, the respondents complied, by providing the following answers:

• ‘(a) The [respondents] are unsure whether the x-rays performed on the Claimant were reduced in writing. If they were reduced in writing, a radiology report reflecting same would have been generated. A search was carried out at the Saint Ann's Bay Hospital and a radiology report was not found. However Dr. Titus had been the surgeon on call, he had interpreted the x- rays and proceeded with the [appellant's] care. His findings were recorded in the [appellant's] medical docket.

• (b) It is customary for patients to sign a consent form. But the respondents could not locate the consent form signed by the appellant. The respondents averred that the appellant had given her consent orally or impliedly for the surgical procedure, ‘the sigmoid collectomy’ and that the possibility of a colostomy was explained to the appellant by medical personnel at the...