Joan Thompson v Jamaica Health Security Network Ltd
| Jurisdiction | Jamaica |
| Judge | A. Nembhard J |
| Judgment Date | 03 February 2022 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. 2016 HCV 04924 |
[2022] JMSC Civ 18
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN CIVIL DIVISION
CLAIM NO. 2016 HCV 04924
and
Lord Anthony Gifford Q.C., Mr Hugh Thompson and Ms Maria Brady instructed by Gifford, Thompson & Shields for the Claimant
Mr Lawrence Haynes and Ms Rochelle Haynes for the 1 st and 2 nd Defendants
Negligence — Medical negligence — The duty of care owed by a medical practitioner to a patient — Breach of the duty of care — Causation — Foreseeability of damage — Remoteness of damage — Whether the defendants are liable for psychiatric injury
Damages — Psychiatric injury — Post Traumatic Stress Disorder — Mild to moderate difficulty functioning physically and emotionally — Quantum of damages
This matter concerns a Claim in negligence which is brought by the Claimant, Ms Joan Thompson, against the 1 st Defendant, Jamaica Health Security Network Limited and the 2 nd Defendant, Dr Clinton Sewell. The Claim raises the issue of the duty of care that is owed by a medical practitioner to his patients and the circumstances in which a medical practitioner might be held liable for a breach of that duty of care. The Claim specifically raises the issue of whether the 2 nd Defendant, Dr Clinton Sewell, might be held liable for the psychiatric damage suffered by the Claimant, Ms Joan Thompson, as a direct result of an error that he made during the performance of a medical procedure.
By way of a Claim Form, which was filed on 17 November 2016, Ms Thompson alleges that, on 6 April 2016, as a result of the negligent performance of a colonoscopy that was conducted by Dr Clinton Sewell, the servant and/or agent of Jamaica Health Security Network Limited, she experienced pain, mental suffering, loss and damage.
The Claim was filed against the background that, on 6 April 2016, Ms Thompson made arrangements with Jamaica Health Security Network Limited to undergo a colonoscopy. That procedure was to be performed by Dr Clinton Sewell, the Managing Director of Jamaica Health Security Network Limited and a Consultant Physician, specializing in gastrointestinal endoscopy.
Ms Thompson was administered an anaesthetic prior to the commencement of the colonoscopy. At the conclusion of that procedure, Dr Clinton Sewell indicated to Ms Thompson that a biopsy would have to be done on tissue that he had discovered. The results, he indicated, would become available thereafter.
As it turns out, on 22 April 2016, Dr Clinton Sewell revealed to Ms Thompson that, during the performance of the colonoscopy, the colonoscope had been inserted into her vagina instead of her rectum. Dr Sewell offered to perform the colonoscopy, once again, at no additional cost to Ms Thompson.
The Claim raises several issues for the Court's determination. The central issues may be distilled in the following way:-
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(i) Whether Dr Clinton Sewell owed a duty of care to Ms Thompson;
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(ii) Whether Dr Clinton Sewell is in breach of the duty of care owed to Ms Thompson;
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(iii) Whether Dr Clinton Sewell's breach of the duty of care caused the injuries sustained by Ms Thompson;
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(iv) Whether Jamaica Health Security Network Limited is liable for the injuries sustained by Ms Thompson, as a consequence of the actions of Dr Clinton Sewell;
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(v) Whether Ms Thompson is entitled to recover Damages for pain, mental suffering, loss and damage incurred, as a consequence of Dr Clinton Sewell's performance of the colonoscopy and, if so:-
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(a) What is the basis on which the Court is to assess the quantum of Damages to be awarded to her? and
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(b) What is the quantum of Damages to be awarded her?
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It is well established by the authorities that, in a claim grounded in the tort of negligence, there must be evidence to show that a duty of care is owed to a claimant by a defendant, that the defendant acted in breach of that duty and that the damage sustained by the claimant was caused by the breach of that duty.
A medical practitioner owes a duty in tort to his patient irrespective of any contract between them. Once a person has been accepted as a patient, the medical practitioner owes a duty to exercise reasonable care and skill in diagnosing, advising and treating the patient. Any negligent error in carrying out treatment, or, omission to provide adequate treatment, will be actionable, if it causes injury to the patient. To amount to medical negligence, any alleged error in diagnosing and/or treatment must be shown to be derived from a failure to attain the required degree of skill and competence of a reasonable medical practitioner. This question falls to be answered in the light of the medical practitioner's specialty and the post that he holds. 1
It is equally well settled that, where a claimant alleges that he has suffered damage resulting from a defendant's negligence, a burden of proof is cast on him to prove his case on a balance of probabilities. 2 This principle was enunciated by Lord
“The burden of proving negligence rests throughout the case on the plaintiff. Where the plaintiff has suffered injuries as a result of an accident which ought not to have happened if the defendant had taken due care, it will often be possible for the plaintiff to discharge the burden of proof by inviting the court to draw the inference that on the balance of probabilities the defendant might have failed to exercise due care, even though the plaintiff does not know in what particular respects the failure occurred…
…it is the duty of the judge to examine all the evidence at the end of the case and decide whether on the facts he finds to have been proved and on the inferences he is prepared to draw he is satisfied that negligence has been established.”
In Miller v Minister of Pensions, 4 Denning J, speaking of the degree of cogency which evidence must reach in order that it may discharge the legal burden in a civil case, had the following to say:-
“That degree is well settled. It must carry a reasonable degree of probability but not so high as is required in a criminal case. If the evidence is such that the tribunal can say ‘we think it more probable than not’, the burden is discharged but if the probabilities are equal it is not.”
To establish a duty of care, there must be foreseeable damage, consequent upon the defendant's negligent act. 5 There must also exist sufficient proximate relationship between the parties, making it fair and reasonable to assign liability to the defendant.
Lord Bridge, in Caparo Industries plc v Dickham, 6 spoke to the test in the duty of care, sufficient to ascribe negligence, in this way:-
“In determining the existence and scope of the duty of care which one person may owe to another in the infinitely varied circumstances of human relationships, there has for long been a tension between two different approaches. Traditionally the law finds the existence of the duty in different specific situations each exhibiting its own particular characteristics. In this way the law has identified a wide variety of duty situations, also falling within the ambit of the test of negligence.”
At pages 573 and 574, Lord Bridge went on to say:-
“What emerges, is that, in addition to the foreseeability of damage, [the] necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterized by the law as one of ‘proximity’ or ‘neighbourhood’ and that the situation should be one in which the Court considers it fair, just and reasonable that the law should impose a duty of a given scope on the one party for the benefit of the other.”
A medical practitioner is in breach of the duty of care owed to a patient if his conduct falls below the standard of care required of an ordinary skilled man exercising and professing to have that special skill. The standard of care demanded of medical practitioners is that required of any professional person.
The vital decision of Bolam v Friern Hospital Management Committee 7 makes it clear that, in determining whether a defendant has fallen below the required standard of care, great regard must be shown to responsible medical opinion and to the fact that reasonable doctors may differ. There, McNair J outlined the test for
“…where you get a situation which involves the use of some special skill or competence, then the test whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill at the risk of being found negligent. It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.” 8
In Hunter v Hanley, 9 Lord President Clyde opined that, where the conduct of a medical practitioner is concerned, establishing a breach of duty is not as clear cut as in a normal action based in negligence. The true test, for establishing negligence in diagnosis or treatment on the part of the doctor, is, whether he has been proved to be guilty of such failure of which no doctor of ordinary skill would be guilty, if acting with ordinary care.
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