Kimola Merritt (Suing by her mother and next friend Charm Jackson), now continuing as 1st plaintiff upon the death of 1st plaintiff by Order of the Court made on the 20th day of January, 1997 and the said Charm Jackson v Dr. Ian Rodriquez and Attorney General

• Jurisdiction: Jamaica
• Judge: M. McIntosh, J.
• Judgment Date: 21 July 2005
• Judgment citation (vLex): [2005] 7 JJC 2101
• Court: Supreme Court (Jamaica)
• Date: 21 July 2005

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN COMMON LAW

BETWEEN

KIMOLA MERRITT (Suing by her mother and Next Friend Charm Jackson)

1 ^ST PLAINTIFF

AND

NOW CONTINUING AS 1 ^ST PLAINTIFF UPON THE DEATH OF 1 ^ST PLAINTIFF By Order of the Court made on the 20 ^th Day of January, 1997

AND

THE SAID CHARM JACKSON

2 ^ND PLAINTIFF

AND

DR. IAN RODRIQUEZ

DEFENDANT

AND

THE ATTORNEY GENERAL

ADDED DEFENDANT

^st

^nd

NEGLIGENCE - Medical

M. McIntosh, J

1 The plaintiffs filed an action against the 1 ^st defendant on the 4 ^th February 1991, in which they alleged that the 1 ^st defendant failed to properly treat the now deceased 1 ^st plaintiff (Kimola Merritt) in September 1986 at Savanna-la-mar Hospital and this failure resulted in the 1 ^st plaintiff being severely brain damaged and disabled.

2 The facts are that Kimola Merritt developed a high fever, running nose and swollen face on or about 4 ^th September 1986. Her mother Charm Jackson (2 ^nd plaintiff) took her to the Savanna-la-mar Health Clinic where she was given medication. Three days later Kimola's fever had not abated and plaintiff took her to Dr. Norma Blythe, a private doctor practicing in the Savanna-la-mar area. Dr. Blythe gave Kimola medication and instructions that Kimola should return 2 days later. Two days later when Kimola returned the fever had not abated, Dr. Blythe increased the dosage of medication and told her to return 3 days later. On her return to Dr. Blythe 3 days later the fever had not abated and Dr. Blythe gave the plaintiff a note to take to the hospital for a lumbar puncture to be done on Kimola.

3 PLAINTIFF'S CASE

4 The plaintiff's evidence is that Kimola had developed a respiratory tract disorder characterized by a cold and high temperature and the plaintiff sought treatment for Kimola. A lumbar puncture was to have been done on Kimola and whatever appropriate treatment was required should be given to her she took Kimola to the Savanna-la-mar Hospital where the child was admitted.

5 It is the plaintiff's case that no lumbar puncture was performed on the date of admission and in fact the 1 ^st defendant refused to perform a lumbar puncture. Further the plaintiff contends that for 14 days Kimola got no treatment whatsoever in the hospital and that the lumbar puncture was done 14 days after Kimola's admission and this was done only after the child collapsed in the bed.

6 This situation is set out in the evidence of the plaintiff who states that she saw no evidence of lumbar puncture being done up to three days from admission and on 15 ^th September 1986 the plaintiff made enquiries of the 1 ^st defendant as to the lumbar puncture. Her evidence is that the 1 ^st defendant indicated that he would not be doing any lumbar puncture and reprimanded her for taking her sick child from place to place before bringing her to the hospital.

7 All this is denied by the 1 ^st defendant

8 The plaintiff's case is that when Kimola was released from the hospital in October in 1986 the child had physical defects in that she was unable to walk, she could not speak or sit up and was totally irresponsible to anything.

9 In spite of all these obvious defects the plaintiff states that the 1 ^st defendant assured her that Kimola would recover and should be given banana and arrowroot porridge which would aid in her recovery.

10 Finally the plaintiff alleges that although she made repeated requests of the 1 ^st defendant, he never gave her a medical report in respect of the child

11 THE FIRST DEFENDANT'S CASE

12 Kimola Merritt was taken to Savanna-la-mar Hospital on 13 ^th September 1986 after having been taken to the Savanna-la-mar Health Centre and days later to a private practitioner who examined and treated the child, increased her medication to no avail. The child was eventually referred to the Savanna-la-mar Hospital with recommendation for a lumbar puncture procedure to be performed because of suspected menengitis.

13 When Kimola was taken to the Hospital on the 13 ^th September 1986 she was seen by Dr. Rodriques the 1 ^st defendant, and the plaintiff gave a listing of the child's condition and background on the child's referral to the hospital.

14 There is much dispute between the parties as to whether the child was given a lumbar puncture, blood test and treatment by intravenous antibiotics when she was admitted on the 13 ^th September. The plaintiff maintains that Kimola was not given any treatment, the 1 ^st defendant strongly denies this.

15 The defendant contends that Kimola received the appropriate treatment in the hospital, a lumbar puncture was done and the specimen sent to the Cornwall Regional Office for testing on the day of admission. In addition a blood test was done. The 1 ^st defendant further contends that a second lumbar puncture was done on the 22 ^nd September 1986 when Kimola had a seizure.

16 The plaintiff as has already been stated insists that up to the 27 ^th September (14 days after admission) no visible form of treatment had been administered and se had visited the hospital for those 14 days. The first Lumbar puncture the plaintiff insists was performed on the 28 ^th September - 15 days after admission.

17 The results of the second lumbar puncture, the 1 ^st pefendant contends, were received from a private laboratory in Savanna-la-mar to which the specimen had been taken by the plaintiff.

18 Kimola's condition did not improve and the first week in October 1986 she was discharged from hospital. She had sustained brain damage and had been treated by private voluntary organization at the clinic after her discharge from hospital and she had been referred to the Bustamante Children's Hospital.

19 Dr. Rodriques was instrumental in having these facilities provided for Kimola as he had written to those medical and health care establishments explaining the condition of the child medically.

20 At the time when all records would have been intact no one requested any report from Dr. Roderiques.

21 THE 2 ^ND DEFENDANT'S CASE

22 The 2 ^nd defendant's defence is based on 2 limits:

• (1) The first is that the Plaintiff's case is statute barred under the PUBLIC AUTHORITIES PROTECTION ACT, which when this suit was brought, required that a claim against any public official for acts done in the execution of a...