Charmaine Manning-Allen v Caledonia Medical Laboratory Ltd

• Jurisdiction: Jamaica
• Judge: T. Hutchinson Shelly, J
• Judgment Date: 25 November 2022
• Court: Supreme Court (Jamaica)
• Year: 2022
• Docket Number: CLAIM NO. SU2021CV00231

[2022] JMSC Civ 202

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. SU2021CV00231

Between

Charmaine Manning-Allen

Claimant

and

Caledonia Medical Laboratory Limited

Defendant

IN OPEN COURT

Mr. Andre Earle instructed by Earle & Wilson for the Claimant

Mrs. Symone Mayhew instructed by Mayhewlaw for the Defendant

ASSESSMENT OF DAMAGES — Claimant diagnosed as HIV Positive — Claimant rediagnosed as HIV Negative — Medical negligence — Claimant suffering from Post— Traumatic Stress Disorder — Major Depressive Disorder — Adjustment Disorder — Expert Evidence — Relevant Guidelines — American Medical Association — California Schedule — Damages

T. Hutchinson Shelly, J

BACKGROUND

1 This matter concerns an assessment of damages against the Defendant arising out of the misdiagnosis of HIV which occurred on or about the 27 ^th day of December, 2019. The facts in brief are that on that day, the Claimant visited the Defendant's branch located at 5 Fernleigh Avenue, May Pen, in the parish of Clarendon, in furtherance of a request by her life insurance provider. The purpose of this visit was to conduct a blood test with the intention of obtaining life insurance coverage. The request from the provider also involved the screening of the Claimant's blood for the presence of the Human Immunodeficiency Virus (“HIV”). On or about January 27, 2020, the Claimant was informed by her family physician, Dr. Lucien Jones, that the HIV test performed on her blood sample on December 27, 2019 was positive.

2 The history of the Claimant's visits to the different medical facilities for further HIV tests is germane to the assessment process and in this regard the chronology is useful and is set out as follows:

• • Rapid HIV test conducted at Old Harbour Medical facility in St. Catherine on the 27 ^th day of January, 2020 – Negative

• • Rapid HIV test conducted at May Pen in Clarendon on the 29 ^th day of January, 2020 – Negative

• • Retest of initially taken blood sample at Caledonia Medical Laboratory Limited in St. Andrew on the 31 ^st day of January, 2020 – Positive

• • Regular HIV test from a newly taken sample at Caledonia Medical Laboratory Limited in St. Andrew on the 31 ^st day of January, 2020 – Negative

3 By way of a Claim Form and Particulars of Claim filed on January 22, 2021, Mrs. Charmaine Manning-Allen instituted proceedings against the Defendant. The Defendant filed and served an Acknowledgment of Service dated January 28, 2021 and a Defence limited to Quantum dated March 8, 2021. The Claimant filed a Request for Judgment on Admission on February 10, 2021. Judgment on Admission was entered for the Claimant against the Defendant with damages to be assessed and costs to be agreed or taxed on February 16, 2022. The Claimant has approached this Court for damages to be assessed.

4 In her Particulars of Claim, filed on January 22, 2021, the Claimant seeks damages for negligence as a result of Post-Traumatic Stress Disorder (PTSD), pursuant to an incorrect diagnosis by the medical professionals at Caledonia Medical Laboratory Limited. She particularized her injuries, as follows:

ISSUE

Whether the medical evidence can be reconciled in relation to the Claimant's claim for psychological injury;

Where there is conflict in the evidence of the Medical Doctors which narrative (evidence) should the Court accept;

• i. Post-Traumatic Stress Disorder

• ii. Major Depressive Disorder

• iii. Severe anxiety

• iv. Frequent flashbacks with phobic behavior

• v. Nightmares

• vi. Suicidal ideations

• vii. Emotional /Nervous shock

• viii. Insomnia

• ix. Headaches

• x. Impairment:

• a) Severe confusion brought on by contradictory blood test results

• b) Severe emotional and marital distress connected to feeling of infidelity on the part of her husband

• c) Prolonged Dysfunction

• d) Anhedonia

• e) Consistently fearful of reliving having been told she is HIV positive.

• • Whether the Claimant's PTSD is in partial remission?

• • Whether the Claimant still suffers from PTSD?

EVIDENCE

5 At the hearing on October 5, 2022, the Claimant was sworn and her witness statement filed July 22, 2022 was allowed to stand as her evidence- in- chief. Her evidence in brief was as follows;

• • Upon being advised that she was HIV positive, the Claimant recalled that she was traumatized and burst into tears. She also fell to the floor kicking and screaming. She was informed by the Doctor that the virus was at an advanced stage and immediately thought she was going to die. Her doctor instructed her to return to the Defendant lab for a viral load testing to be conducted.

• • Mrs Manning-Allen recalled that on her way home she became involved in an argument with her husband who was driving as she blamed him for her ‘condition’. She described her state of mind as being one in which she entertained thoughts of grabbing the steering wheel from him in order to cause a crash as she wanted to die.

• • As outlined above, Mrs Manning-Allen underwent a number of other tests, she described her feelings at the time of the testing as varying between being doubtful of the negative results and feeling hopeless and devastated. She also recounted feeling ashamed at what she perceived as a dismissive manner in which she was spoken to by the lab technician who conducted these tests.

• • On the 31st of January 2020, her first sample was retested at the head office of the defendant lab and again yielded a positive result. A fresh blood sample was then taken from her as well as her husband and both were negative for HIV.

• • Mrs Manning- Allen outlined that in the time since she was informed of this positive result her life has significantly changed. In recounting the effect on her marriage she stated that she actually asked her husband for a divorce because it was her belief that their relationship was crumbling.

• • She described her emotions as spanning the range of pain, tearful episodes, loss of sexual appetite, headaches, loss of appetite and suicidal thoughts. It is already established on the record that she subsequently sought out medical attention from a psychiatrist.

• • In describing the impact on her family life, Mrs Manning-Allen stated that she was unable to assist her daughter to prepare for her PEP exams. She stated that she was also impacted professionally, as in her interactions with her students, she was unable to give 100%. In viva voce evidence, she expanded on these challenges and stated that it was in recognition of this difference that she opted to apply for her vacation leave.

• • She also outlined that in respect of her responsibilities at church, she asked to be replaced in her position of Assistant Sunday School Superintendent and Assistant Treasurer as her interest and output were being affected.

• • In cross-examination, she agreed that she had never been the subject of any complaint or disciplinary action at the school and she also stated that she had never been the subject of any complaints by parents of her students.

MEDICAL EVIDENCE

6 Two medical doctors gave evidence in this case. Their reports were permitted to stand as their evidence- in- chief.

Dr. Geoffrey Walcott

7 Dr. Geoffrey Walcott examined the Claimant on two separate occasions. His findings from the first consultation dated July 27, 2022 were:

Diagnosis

• • Claimant experienced symptoms which meets the criteria for Post-Traumatic Stress Disorder characterized by the re-experiencing of an event that pose significant threat to life or integrity through flashbacks or nightmares

• • The persistence of a hyper-arousal state

• • The Claimant experienced symptoms which meets the criteria for Major Depressive Disorder (MDD) which is characterized by persistent feelings of sadness accompanied by anhedonia, disturbance in sleep and appetite.

• • Suicidal ideations

Impairment

• • Whole person disability score of 30% - 48% in accordance with California schedule for rating permanent disability 2005.

8 The Claimant was recently reassessed by Dr. Walcott on July 25, 2022 and the findings were as follows:

• • The Claimant is still suffering from Post-Traumatic Stress Disorder

• • The Claimant no longer meets the criteria for a Major Depressive Disorder. It is in full remission.

• • Claimant now has a whole person disability of 24%.

9 Under cross examination, Dr. Walcott was challenged as to his utilization of the California Schedule (CS) viz-a-viz the American Medical Association guidelines (“AMA”). His assessment in the whole person disability of the Claimant was based on the California schedule for rating permanent disability and not the AMA guidelines. He sought to clarify that the California schedule is guided by the AMA. He admitted to Counsel for the Defendant that the rating system between the California schedule and AMA guidelines may not be precise but they should correlate.

10 He agreed that he did not use the AMA guidelines when coming up with the disability ratings of Mrs. Charmaine Manning-Allen but stated in re-examination that this was for consistency as he had always used the California schedule in his reports. Under further cross-examination by Counsel Mayhew K.C., Dr. Walcott stated that he had used the 2005 edition of the California schedule as a guide in his report but the latest edition is 2013.

11 It was suggested to Dr. Walcott that the World Health Organization (WHO) has outlawed the use of the California schedule and he indicated that he was not aware of this. In respect of this suggestion, no evidence to this effect was presented on the part of the Defendant when Dr. Sewell provided his account. He commented on the reliability of the California Schedule by stating that the literature suggests that there is often criticism of this testing tool on the basis that it over-emphasizes impairment and the AMA guidelines are more accepted and predominantly used in this jurisdiction in respect of impairment.

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