Genas (Howard) v Attorney General of Jamaica and Others

JurisdictionJamaica
Judge CORAM: ANDERSON J.
Judgment Date06 October 2006
Judgment citation (vLex)[2006] 10 JJC 0602
CourtSupreme Court (Jamaica)
Date06 October 2006

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN COMMON LAW

SUIT NO. C.L. 1996 G-105
BETWEEN
HOWARD GENAS
CLAIMANT
AND
THE ATTORNEY GENERAL OF JAMAICA
1 st DEFENDANT
AND
THE BLACK RIVER HOSPITAL BOARD OF MANAGEMENT
2 nd DEFENDANT
AND
DR. K.D. MSHANA
3 rd DEFENDANT

NEGLIGENCE - Medical

CORAM: ANDERSON J
1

Howard Genas is a young farmer from Accompong Town, Bethsalem Post Office, a small district in the parish of St. Elizabeth. On or about the 9 th day of September 1995 when he was around 29 years of age, he fell from the motor cycle that he was riding and injured his right leg in an incident which was to change his life dramatically. On that Sunday night, as a consequence of the accident, he was taken to the Black River Hospital which was operated by the 2 nd named Defendant and was eventually seen by the 3 rd named Defendant who was the medical officer in charge of the hospital. How could he have known that, as a result of that fall from his motorcycle, some ten and a half years later, he would be in court seeking redress for the loss of one of his legs? According to the evidence before me, default judgments had been issued in respect of the 2 nd and 3 rd named Defendants but these have been set aside and the matter is now before me for adjudication.

2

The Claimant's Statement of Claim sets out the factors which are alleged to give rise to a claim in negligence and it is useful to set out parts of the said claim, including the alleged particulars of negligence, here.

3

STATEMENT OF CLAIM

  • 1. The first Defendant is sued by virtue of the Crown Proceedings Act, and the action is against the Crown for vicarious liability by virtue of section 3 (1) of the said Act.

  • 2. The Second Defendant operates a Public Hospital situated in Black River in the Parish of Saint Elizabeth.

  • 3. The Third Defendant was at the material time a Medical Doctor attached to the Second Defendant Hospital and was a servant and/or agent of the Defendants.

  • 4. On or about the 9 th day of September, 1955 the plaintiff attended the Second Defendant's Hospital as a result of having been involved in a motor cycle accident on the said day.

  • 5. The Plaintiff was admitted to the Hospital as a patient on the said day.

  • 6. The Plaintiff was treated, attended and advised, whilst there by Dr. Mshana, the third Defendant and by other servants and/or agents of the First Defendant.

  • 7. The Plaintiff, on admission to the said Hospital was suffering from injuries to his right leg.

  • 8. That the Third Defendant and other servants and/or agents of the First Defendant were guilty of negligence as they failed to use reasonable care, skill and diligence in and about the treatment, attendance and advice which they gave to the Plaintiff.

4

PARTICULARS OF NEGLIGENCE

  • a) Failing to perform promptly, completely, professionally and with due care and diligence the necessary treatment;

  • b) Failing to observe or to heed or to take any reasonable steps to investigate properly or at all, the serious and obvious deterioration in the condition of the Plaintiff whilst under the care of the Defendants.

  • c) Failing to detect, diagnose or suspect the seriousness of the Plaintiffs condition and/or failing to give or procure any treatment for the same or any investigation which would have discovered same.

  • d) Failing to observe or to heed or to take any reasonable steps to investigate the complaints of the plaintiff;

  • e) Failing to pay any or any sufficient attention to the Plaintiffs complaints of pain and treating the same insufficiently, incompetently, unprofessionally and without due care, dispatch and diligence.

  • 9. Subsequently the Plaintiff on the 18 th day of September. 1995 was transferred to the Kingston Public Hospital, in the parish of Kingston, and there his right leg was amputated on or about 20 th September, 1995 and as a consequence there the Plaintiff suffered great pain and sustained severe injuries and incurred loss of expense and he has thereby suffered loss of damage.

5

In the course of the trial which lasted some two (2) days, there were two witnesses as to fact, the Claimant and the 3 rd Defendant while there was an expert witness, Dr. Warren Blake, a consultant Orthopaedic Surgeon. Each of the witnesses as to fact provided a witness statement and was cross-examined thereon. In the case of Dr. Biak.:, it was sought to introduce a report which he prepared pursuant to a notice to adduce hearsay evidence pursuant to the Evidence Act but the Defendants required that Dr. Blake attend to give his evidence and be cross-examined.

6

According to the witness statement of the Claimant, on the day of the accident, after he fell from his motorcycle, he was taken by his brother to the Black River Hospital. There, he waited for over half an hour before seeing a doctor, the 3 rd Defendant, Dr. Mshana. He claims that he was advised by the doctor that in view of the swelling of the injured leg, he (the doctor) would be unable to do anything until the swelling abated. He further averred that he spent the night at the hospital in considerable pain but got no medication although he complained to the nurse on duty. It was not until the following day that an x-ray of his injured leg was done. He was then given a prescription by the 3 rd Defendant and, according to his witness statement, was told that because his leg was "cold" he would need to get a blanket from home to cover the leg, presumably to keep it warm. He was unable to get the blanket from his home and Dr. Mshana got one for him.

7

The Claimant remained at the Black River Hospital for a total of nine (9) days during which time it was his testimony that the only medication he received was from the prescription he had got on the Monday morning following his admission and which he had asked a friend to purchase. The nurses would ensure that his leg remained covered by the blanket. During his stay at the hospital, the Claimant says that he requested and continued to request that he be transferred to the Kingston Public Hospital for his condition to be treated but was advised that, as there were "more dogs than bones at KPH", he would not be sent there. The Claimant also averred that on about the 3 rd day he was advised by the 3 rd Defendant to remain in bed. He said, however, that he was provided with a wheel chair by the said Dr. Mshana, which wheel-chair he would use to go to the bathroom. He stated that he stayed in bed apart from his trips in the wheel chair to the bathroom. It was his testimony that on the 5 th day of his hospitalization, the 3 rd Defendant advised his visitors that they could push him outside for him to "breeze out", although his foot was hurting so badly that he still stayed in bed most of the time. He said he noticed from about the third day of his hospitalization that his leg "started getting black" from the knee first, then it spread down toward his toes. He said he mentioned this to Dr. Mshana as from about the fifth day his leg had no feeling but was advised to just keep the blanket over the leg.

8

The witness said that on the 9 th day when he showed his brother his leg, "he got vex and say if they did not transfer me that day to Kingston Public Hospital he was going to take me himself. He said that as a result of his brother's behaviour it was decided to transfer him to the KPH on that day. However, before he was released, his father was required to pay a bill at the Black River Hospital of some $1,500.00. It is common ground that on or about Monday the 18 th day of September 1995, the Claimant was transferred to the KPH where, two (2) days following, he had an above-the-knee amputation, it having been confirmed that the kg had become gangrenous. He said he remained at the KPH for about six (6) days and further stayed in Kingston for about two months after the amputation his leg and during that time, he visited the surgery ward at the KPH about five (5) times for check ups and dressing. He stayed with a relative in Franklin Town and visited the local clinic in that area about three times. He subsequently was a patient of the Sir John Golding Rehabilitation Centre (Mona Rehab) to which he was referred by the doctor at KPH and from where he received a prosthesis. The cost was $15,000.00 but he still owed $5,000.00. He was given physical therapy, was taught to swim and to walk with his prosthesis, There were numerous visits to this facility, over fifty (50) according to the Claimant, and each time he incurred registration fees of $50.00. In addition, he had to charter a taxi to take home from his home in Accompong to the Mona rehab Clinic on each trip as he was unable to cope with the public transport system.

9

After spending approximately two (2) months in Kingston, the Claimant returned to the district where he normally resided. Subsequently, he had a fall and the stump of the amputation again started to swell so that he had to seek further medical attention from a Dr. Johanna. He had to visit this doctor on two (2) subsequent occasions, incurring expenses on each such occasion. The loss of his leg had severely impacted negatively upon his ability to earn a livelihood as a farmer and as a result, he had lost considerable income.

10

In cross-examination, the Claimant denied suggestions that he was placed on a drip when he was admitted to the Black River Hospital.

11

The 1 st Defendant denies liability in respect of any negligence or breach of a duty o. care towards the Claimant. As indicated above, there are already default judgments against the 2 nd and 3 rd Defendants. The defence of the 1 st Defendant is essentially a denial of liability or at worst a claim that the claimant contributed to his own loss by failing to follow the regime for "absolute bed rest" of which he was advised by the 3 rd ...

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