Margarette May Macaulay v Attorney General and South East Regional Health Authority

• Jurisdiction: Jamaica
• Judge: Straw J.
• Judgment Date: 09 December 2011
• Judgment citation (vLex): [2011] 12 JJC 0903
• Court: Supreme Court (Jamaica)
• Date: 09 December 2011
• Docket Number: CLAIM NO. 2002/M273

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CIVIL DIVISION

CLAIM NO. 2002/M273

BETWEEN

MARGARETTE MAY MACAULAY (administratrix of the estate Berthan Macaulay; deceased)

CLAIMANT

AND

ATTORNEY GENERAL

1 ^ST DEFENDANT

AND

THE SOUTH EAST REGIONAL HEALTH AUTHORITY

2 ^ND DEFENDANT

Dr. Randolph Williams and Ms. Aisha Mulendwe for the Claimant

Mrs. Michelle Shand-Forbes and Ms. Alicia White for the Defendants

Medical Negligence – Breach of Duty – Causation

Straw J

1 The claimant, Mrs. Margarette Macaulay is the administratrix of the estate of Mr. Berthan Macaulay. Prior to his death, Mr. Macaulay, in July 1999, was treated for a cancerous tumour on the right side of his tongue extending into the right mandible by Dr. Venslow Greaves, a consultant oncologist and a specialist in radiation oncology at the Kingston Public Hospital (KPH).

2 The 1 ^st defendant is the representative of the 2 ^nd defendant by virtue of the Crown Proceedings Act and the 2 ^nd defendant is vested with the authority and the power to manage, control and administer KPH and to employ and engage medical specialists, practitioners, nurses, staff and provide other services at the said hospital.

3 Mr. Macaulay was admitted to a course of radiation treatment at KPH at the direction and under the supervision of the said Dr. Greaves, a servant and/or agent of KPH between August and September 1999.

4 During the course of the radiation treatment, one of the radiation therapists employed to KPH, omitted on one occasion, to insert a “bite block” in Mr. Macaulay's mouth before commencing radiation treatment. It is alleged by the claimant that this took place towards the end of the course of treatment, in the middle to the end of September 1999.

5 The claimant avers that as a consequence of the omission, Mr. Macaulay suffered grave injury to his tongue and mouth, pain and an inability to eat or drink, thereby causing dehydration and malnutrition and caused him to suffer loss and great expense.

6 The Particulars of Injuries contained in paragraph 8 of the Further Amended Particulars of Claim includes the following:

• a. considerable difficulty swallowing;

• b. inability to eat and swallow solids and liquids;

• c. speech impairment resulting in inability to perform legal practice;

• d. dehydration and malnutrition;

• e. excessive weight loss;

• f. excruciating pain;

• g. physical, mental distress and depression;

• h. —

• i. —

• j. radiation of the entire mouth including tongue, lips, gum and teeth.

7 The defendants admit that the bite block was omitted to one side of his mouth on one occasion, but they contend that the injuries to Mr. Macaulay were not caused by this omission. These injuries were due to the effects of the radiation itself which were exacerbated by Mr. Macaulay's failure to quit drinking and smoking during and beyond the course of treatment.

8 The issue to be determined is whether the omission of the bite block was the proximate cause of Mr. Berthan Macaulay's suffering as outlined in the Particulars of Claim. The defendants have put the evidence of Dr. Charles Lyn, Dr. Venslow Greaves and the expert witness, Dr. Dingle Spence before the court for its consideration. The claimant relies solely on the evidence of Mrs. Macaulay.

Evidence in Relation to the Consultation and Pre-radiation Treatment

9 Dr. Venslow Greaves has testified that Mr. Macaulay was referred to him by Dr. Charles Lyn, an ENT surgeon, with a cancerous tumour on the right side of his tongue extending into the right mandible in July 1999. He further stated that he explained what radiation treatment involved and outlined the side effects to both Mr. Macaulay and his wife, Mrs. Macaulay. These side effects included:

Dr. Greaves also stated that he explained to Mr. McCaulay the necessity to drink lots of fluid during treatment.

Admissions by Mr. Macaulay

• • soreness in the mouth, tongue and pharynx (throat)

• • hyperpigmentation

• • soreness of the mouth together with other discomforts would be likely to affect how much he would be able to eat and drink orally.

10 Dr. Greaves stated that Mr. Macaulay told him that he drank alcohol instead of water and had not drunk water in years. He also stated that he was anorexic and smoked twelve cigarettes daily. As a result of these admissions, Dr. Greaves stated that he told him to discontinue drinking and smoking as both tended to aggravate and worsen the acute side effects of radiation, such as mucositis, during the course of treatment to the oral cavity. Dr. Greaves also stated that it was standard to tell a patient receiving radiation for the head and neck to stop drinking and smoking as it increases the side effects. He admitted, however, that the warning was not recorded in his notes.

11 Mucositis is the medical term for the inflammatory reaction of the lining of the oral cavity. It is characterized by redness, discolouration and exudate (a coat of inflammation on the tongue).

12 Mrs. Macaulay has taken issue with this evidence to some extent. She stated that Dr. Greaves advised Mr. Macaulay to reduce his drinking and smoking so that the cancer would not re-occur and that he also told him of some of the side effects of radiation which were to last two to three weeks. These included difficulties eating solids.

13 Mrs. Macaulay admitted however, in her witness statement, that Dr. Greaves told her husband to desist from drinking and smoking. She maintained that this was only in relation to the re-occurrence of the cancer. She also stated that, although he would boast that he did not drink water, he did drink a little.

The Radiation Treatment

14 Dr. Greaves described the radiation treatment planned for Mr. Macaulay in relation to the area to be treated. It is as follows:

Dr. Greaves stated that the actual dose was administered over a period of seven weeks due to the fact that Mr. Macaulay missed a few days as a result of the intensity of the radiation reaction on the tongue.

The Bite Block

• 1. A treatment field is designed. This is an area marked out to surround the tumour, based on its size. This field is described in terms of length and width.

• 2. Areas outside the radiation treatment field are protected by shielding blocks. These shielding blocks are placed in the radiation field on the Gantry Head of the Cobalt 60 machine. The Gantry Head is where the radiation beam originates.

• 3. The radiation dose prescribed was 66 gray tumour dose in 33 fractions over six-and-a-half weeks. (This involved 200 gray dose per day, distributed 100 to right side, 100 to left side).

  Two radiation beams would irradiate the tumour lying on the tongue and mandible. These two beams would ensure a high dose to the area where the tumour was located.

15 The procedure involved a bite block being placed in Mr. Macaulay's mouth, first on one side, then another, as each side of his mouth received irradiation in turn. Dr. Greaves stated that the bite block was an essential part of his instructions. It is noted that the words “special mouth bite” are part of the instructions written on Mr. Macaulay's treatment plan.

16 It is this bite block that is the centre of controversy in relation to the treatment offered to Mr. Macaulay. It is not disputed that the bite block was omitted for one daily treatment to one side of Mr. Macaulay's mouth. Mrs. Macaulay states that this occurred on a date in the second half of the treatment period, sometime after mid-September 1999.

17 Although the claimant's evidence is that it was left out by one Ms. Williams, the identification of the actual radiation therapist is disputed by the defendants. The omission was not recorded in the records. According to Mrs. Macaulay, it was omitted for the treatment to the right side of the patient's mouth and when the therapist returned to prepare him for the treatment to the left side, Mr. Macaulay complained that his mouth was “hot and hurting.” The evidence of Mrs. Macaulay is to the effect that Mr. Macaulay stated, “‘Why did you not put that thing in?’ Ms. Williams expressed regret that she had forgotten, placed it in and then did the left side of his face.”

18 It is Mrs. Macaulay's opinion that her husband suffered far more than the side effects that were explained to them. She has stated that he never ate solids again to the day of this death and that he had lost all his teeth so that he could not chew.

Evidence of Mrs. Macaulay of the effects on Mr. Macaulay after the bite block omission

19 Mrs. Macaulay stated that Mr. Macaulay did not remain in his office that day as he was in pain. By 9:30 p.m., he was in excruciating pain and his tongue, his palate, his jaws, inner cheeks, gums and insides of his lips were seeping blood and looked like liver.

20 According to her, Dr. Greaves was still on leave, so she spoke to his locum the next day, who prescribed a mouth ointment, spray and some pain killers. The claimant's attorney, Ms. A. Mulendwe, actually suggested to the defence witness, Mr. Betageri, one of the radiation therapists, that he was in fact this person. However, this was denied by the witness who stated that he was not a doctor and could not write a prescription.

21 Mrs. Macaulay further stated that Mr. Macaulay had no radiation treatment the next day and for the next two or three days. In support of this, the schedule of Mr. Macaulay's treatment was put into evidence. The document reflects 33 treatments between the August 5, 1999 to September 22, 1999.

22 She has stated that her husband saw Dr. Greaves, the Monday after “the burning of his mouth” and that Dr. Greaves stated that the incident was unfortunate but persuaded Mr. Macaulay to continue the treatment in order that the cancer would be fully radiated. In a subsequent visit to Dr. Greaves, Mr. Macaulay was dehydrated and weak so Dr. Greaves inserted a nasal tube in order...