Kimola Merritt and Another v Dr Ian Rodriquez and Another

• Jurisdiction: Jamaica
• Judge: Phillips JA,Brooks JA,McDonald-Bishop JA
• Judgment Date: 29 May 2015
• Neutral Citation: JM 2015 CA 58
• Court: Court of Appeal (Jamaica)
• Docket Number: CIVIL APPEAL NO 105/2005 APPLICATION NO 182/2014
• Date: 29 May 2015

[2015] JMCA Civ 31

JAMAICA

IN THE COURT OF APPEAL

SUPREME COURT

Before:

The Hon Miss Justice Phillips JA

The Hon Mr Justice Brooks JA

The Hon Mrs Justice McDonald-Bishop JA (Ag)

CIVIL APPEAL NO 105/2005

APPLICATION NO 182/2014

Between

Kimola Merritt (Suing by her mother and next Friend Charm Jackson)

and

Now Continuing As 1st Plaintiff Upon the Death of the 1st Plaintiff By order of the Court made on the 20th day of January 1997 the Said Charm Jackson

Appellant

and

Dr Ian Rodriquez

1st Respondent

and

The Attorney-General

2nd Respondent

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

Miss Lisa White instructed by the Director of State Proceedings for the respondents

MEDICAL NEGLIGENCE - Grounds of appeal - Application to amend, to add an alternative ground of appeal - Negligence - Malpractice - Whether matter statute-barred - Res judicata - Issue of fraud - Whether issue decided and embodied in judicial decision was final - Effect of failure of appellant to plead concealed fraud in statement of case - Issue of concealed fraud emerged as triable issue on pleadings - Whether there was prejudice - Appeal dismissed

Phillips JA

1 I have read in draft the very comprehensive reasons of my learned sister McDonald-Bishop JA (Ag) with regard to the application to amend the grounds of appeal to add an alternative ground of appeal regarding the true and proper interpretation of section 2(l)(a) of the Public Authorities Protection Act and also with respect to the substantive appeal. I am satisfied that she has set out in extensive detail the basis for our refusal of the application, it being entirely without merit. I am also in full agreement with her exhaustive reasons for concluding that the claim was statute-barred and that the issue of the claim being statute-barred was not caught by the doctrine of res judicata at the time of the trial.

2 It has been a long and difficult battle in the courts for the appellant which must have been extremely distressing for her, but regrettably and unfortunately the required limitation period had passed before the claim was instituted and so this appeal must be dismissed.

Brooks JA

3 I too have read in draft the judgment of my learned sister, McDonald-Bishop JA (Ag). I agree with her reasoning and conclusion for refusing the application to amend the grounds of appeal and that the appeal should be dismissed. There is nothing that I could usefully add.

McDonald-Bishop JA (Ag)

4 This is an appeal from the judgment of Marva McIntosh J, delivered on 21 July 2005, in which she entered judgment with costs in favour of the respondents on a claim brought by the appellant for medical negligence. The learned trial judge found that the claim was statute-barred by virtue of the Public Authorities Protection Act as it stood in 1986 (which will, interchangeably, be referred to as ‘the Act’) and that, in any event, the case presented by the appellant was deficient.

5 The fundamental issue that is raised on this appeal concerns the applicability of the Act to the claim of medical negligence (alternatively, medical malpractice). In particular, the appeal focuses attention on whether the issue that the claim was statute-barred, as pleaded by the respondents in their defence, was res judicata by an ex parte order made by Master Hazel Harris (as she then was) on 14 January 1992, in which she stated, in essence, that the limitation period stipulated by the Act was suspended by reason of fraud (concealment of material information) on the part of the 1 ^st respondent and/or servants or agents of the Crown.

The background facts

6 The appellant brought proceedings in the Supreme Court against the respondents in two capacities. In or around 4 February 1991, she commenced proceedings against the 1 ^st respondent as next friend for and on behalf of her minor daughter, Kimola Merritt (‘Kimola’), for damages for personal injuries allegedly suffered by Kimola as a result of the negligence (alternatively, medical malpractice) of the 1 ^st respondent. She also brought a claim in her personal capacity for damages for consequential losses she suffered as a result of the injuries allegedly sustained by Kimola as a result of the 1 ^st respondent's negligence.

7 The 1 ^st respondent had treated Kimola at the Savanna-la-Mar Hospital between September and October 1986 when she presented there with suspected meningitis. The appellant alleged that he had failed to properly treat Kimola and that this failure resulted in Kimola suffering severe brain damage and disability caused from the meningitis.

8 The 1 ^st respondent in his defence, apart from denying negligence (and malpractice), averred that he was at the time acting as a servant or agent of the Crown and was, as such, entitled to the protection of the Public Authorities Protection Act that rendered the claim statute-barred.

9 Following the service of the defence, containing that pleading, on the appellant, she successfully sought and obtained, by way of an ex parte summons, an order from the learned master on 14 January 1992 to add the 2 ^nd respondent as a defendant to the claim although the limitation period stipulated by the Act had already expired before the filing of the claim. The 2 ^nd respondent was duly joined as a party to the proceedings in 1992 on the basis alleged by the appellant that the limitation period was suspended due to fraud (concealment of information) on the part of the 1 ^st respondent and other public officers employed to the Savanna-la-Mar Hospital.

10 Kimola eventually died during the course of the proceedings in the court below and the appellant, by the order of the court made 20 January 1997, was permitted to continue the proceedings that were earlier brought by her on Kimola's behalf.

11 The gist of each party's case presented at trial will now be outlined, starting with the case for the appellant.

The appellant's case

12 The appellant's case was, essentially, as follows: on or about 4 September 1986, Kimola, then 11 months old, developed a persistently high fever, runny nose and swollen face. The appellant took her to the Savanna-la-Mar Health Clinic where she was given medication. Three days later, her fever continued and the appellant took her to a private medical practitioner who gave her medication and an instruction for her to return two days later. Two days later, upon Kimola's return to the private doctor, the fever had not abated. The doctor increased the dosage of medication and told her to return three days later.

13 On Kimola's return to the private doctor, as instructed, the fever had still not improved and she was referred to the Savanna-la-Mar Hospital with a note that a lumbar puncture should be done as meningitis was suspected. Upon the instruction of the private doctor, Kimola was taken to the Savanna-la-Mar Hospital and was admitted.

14 The appellant contended that no lumbar puncture was performed on Kimola on the date of admission as the 1 ^st respondent refused to perform the procedure. Up to three days later, the procedure still had not been done. She alleged that when the 1 ^st respondent was asked about the reason for the procedure not having been done up to three days after admission, his response to her was that he would not be doing any lumbar puncture and he reprimanded her for taking the child from place to place before bringing her to the hospital.

15 The appellant's contention was that for 14 days in the hospital, Kimola had obtained no treatment whatsoever. On 28 September 1986, the lumbar puncture was done, 14 days after Kimola's admission, and only after she had collapsed in the bed. Kimola was released from the hospital in October 1986 and she then had physical disabilities, in that, she was unable to walk, speak or sit up and was totally unresponsive. The appellant stated that despite all this, the 1 ^st respondent told her that Kimola would have recovered and that she should be given banana and arrow root porridge which would aid in her recovery.

16 Kimola sustained brain damage and was treated by a private voluntary organization at the Savanna-la-Mar Health Clinic after her discharge from the Savanna-la-Mar Hospital and was later referred to the Bustamante Children's Hospital. A year after Kimola's discharge from the hospital, Kimola was examined by a medical practitioner who advised that Kimola would not recover. Kimola died roughly eight years later, on 6 July 1994.

17 The appellant also contended that she never received a medical report from the 1 ^st respondent or the Savanna-la-Mar Hospital despite repeated requests for one to be furnished to her.

18 The appellant maintained that Kimola's condition was brought about by the lack of medical treatment by the 1 ^st respondent or the poor medical treatment she received under his care for which the 2 ^nd respondent is vicariously liable as his employer.

The 1 ^st respondent's case

19 The 1 ^st respondent admitted that Kimola was taken to the Savanna-la-Mar Hospital where she was admitted and seen by him in his capacity as a part-time doctor employed to the Government of Jamaica at that time. She presented at the hospital after she had already been taken to the Savanna-la-Mar Health Clinic and a private doctor. She was referred to the hospital by the private doctor with recommendation for a lumbar puncture procedure to be done because of suspected meningitis.

20 He denied the appellant's case that Kimola was not given any treatment by him until 14 or so days after her admission. He maintained that Kimola received the appropriate treatment when she was given, among other things, a lumbar puncture and intravenous antibiotics on the day she was admitted. She also received a second lumbar puncture on 22 September 1986 when she had a...