Melissa Smith v Patricia Dunwell
| Jurisdiction | Jamaica |
| Judge | EDWARDS, J |
| Judgment Date | 20 December 2011 |
| Judgment citation (vLex) | [2011] 12 JJC 2003 |
| Docket Number | CLAIM NO. 2008 HCV 02484 |
| Court | Supreme Court (Jamaica) |
| Date | 20 December 2011 |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CLAIM NO. 2008 HCV 02484
Mr. Dale Staple instructed by Kinghorn & Kinghorn for the Claimant.
Mr. John Graham and Peta-Gaye Manderson instructed by John G. Graham & Company for the Defendant.
NEGLIGENCE - Medical specialist - Controversial treatment - Whether departure from acceptable medical practice - Duty to inform of risk - Whether failure to warn - Consent to treatment - Standard of disclosure required - Whether objective or subjective test is to be applied - Whether defendant liable
Negligence-medical specialist-controversial treatment-whether departure from acceptable medical practice-duty to inform of risk-whether failure to warn-consent to treatment-standard of disclosure required-whether objective or subjective test is to be applied-whether defendant liable.
INTRODUCTION
The claimant is no different from any other young female. She wants perfect skin. It is the ideal. But perfect skin tone has eluded her from childhood. So, like any other young lady with the resources to do so, as soon as she reached adulthood she sought help for her perceived problem.
The claimant was plagued with a common childhood problem in people of colour; a skin problem known as hyper-pigmentation. In layman's terms, it is the presence of dark spots on the skin. In the case of Miss Smith, it was on her lower limbs. But so conscious was she of their presence that she missed out on the childhood delights of physical education, and that delectable freedom felt in the wearing of skirts and shorts.
She is now 26 years old and happily married but she continues to be haunted by her childhood nemesis, that wretched hyper-pigmentation. In her quest for freedom she began visiting doctors, dermatologists, those who claim to be experts in such matters. The first began treating her with bleaching creams. This offered temporary relief only; for as soon as the use of the creams was suspended, those pesky spots would return.
She was referred to the defendant in this case and was offered a course of treatment, specifically chemical peeling, which gave her some hope of a final resolution to her dilemma. But alas, it was not to be. The end results led to disappointment, damage to the skin and ultimately this claim.
The defendant, on the other hand, has been a dermatologist since 1990 and had been performing chemical peels on black skin for over fifteen years. She also claimed that she had performed over a thousand chemical peels in non-face areas of people of dark skin. In addition to her practice, the defendant also teaches the chemical peel procedure to doctors both locally and internationally. She denied that the damage to the claimant's skin resulted from the chemical peel or any negligence on her part.
THE CLAIM
The claimant is suing to recover damages for negligence as a result of the medical treatment administered by the defendant to treat what she described as a minor skin discolouration. The claimant avers that the medical process known as chemical peel which was applied to her skin by the defendant has resulted in her skin being irreparably damaged.
The claimant contended that, due to the defendant's negligence in administering the chemical peels, her skin was damaged and left in a far worse condition than when she first consulted her. As such, the claimant claimed damages for negligence in that the defendant did not act in accordance with acceptable medical practice. She also claimed that she had not given her informed consent to the treatment.
The claimant further contended that the defendant failed to properly advise her on the risks involved in and the implications of the treatment and had failed to take reasonable care to ensure that the treatment would have the desired result and not worsen the appearance of her skin. In her particulars of claim the claimant alleged that she suffered the following injuries as a result of the defendant's negligence in administering the chemical peel:-
-
(1) Development of a large ulcer on the posterior aspect of the right thigh;
-
(2) Large scar on the right thigh and smaller scars and bleached areas on both legs;
-
(3) Distinct bleached areas at the injection sites and a depressed area at the sites;
-
(4) Outburst of stretch marks on the thighs;
-
(5) Large atrophic scar with mottled pigmentation on the right posterior thigh;
-
(6) Thinned skin on both inner thighs with marked red striae (stretch marks) on the inner areas extending from the inner knees to the upper thigh areas;
-
(7) Depressed scars with bleaching on the right lateral thighs;
-
(8) Chemical trauma to the legs, thighs resulting in scarring and bleaching.
The defendant denied the claimant's allegation of negligence and asserted that the claimant's injuries were caused by or contributed to by the claimant's own negligence. The defendant admitted to recommending chemical peeling to treat the claimant's condition as there was no other treatment that she would have recommended to get the results she wanted to see in the claimant's skin.
The defendant claimed that she acted in accordance with accepted practice of a reasonable body of medical practitioners skilled in the practice of dermatology. She denied that the claimant was not told of what was involved in the process. She insisted that the claimant was properly advised, both verbally and in writing and was told of and recognized that such problems that may arise with her skin was treatable. The defendant averred that the claimant agreed that she would give her the opportunity to treat those problems in accordance with accepted practice and the signed agreement between them.
The defendant averred that the claimant's injuries was caused or contributed to by her aggressive use of the priming agents, in particular Retina A; and also by her failure to attend on the defendant for the continued management and treatment after the chemical peels, as agreed.
THE ISSUES
FACTS
-
1. Whether the claimant was properly advised by the defendant of the risks inherent in and implications of the treatment administered;
-
2. Whether the claimant gave informed consent to the treatment which was administered;
-
3. Whether the defendant was negligent in administering the treatment to the claimant.
The defendant is a dermatologist with sterling qualifications. She was consulted by the claimant in December 2006 regarding her face and lower limbs. The defendant diagnosed the claimant as having post inflammatory hyper-pigmentation of lower limbs and buttocks, small scattered multiple scars to lower limbs, stretch marks to buttocks and inner thighs, keratosis pilaris to the thighs and acne vulgaris to the face. The face was successfully treated and there is no complaint in that regard. For the hyper-pigmentation the defendant recommended a course of treatment involving chemical peeling. The claimant consented to undergo this course of treatment.
Before the administration of the chemicals the defendant provided the claimant with priming agents to be applied to the skin in preparation for the peels. These were Retin A, Beta Hydroxy and Glycolic lotion. She was also given sun blocking lotions. Before commencing the procedure, the claimant signed a document termed ‘Informed Consent for Chemical Peeling’. The plan was to perform three chemical peels to the lower limb. The first peel was administered on the 25 January 2007 and the second on March 24, 2007. A third peel was never done. The first peel was carried out by applying Glycolic acid (70%) (superficial peeling all over the legs) and Trichloracetic acid (35%) (medium peeling to the spots and scars).
Before the second peel was administered, the defendant noted that the claimant's legs were irritated in certain areas. She had multiple areas of irritation with cracks in the skin especially on the inner thighs and posterior thighs. Despite this, the second peel was administered to the lower limbs. The irritated areas were protected with petrolatum and avoided. Because of the skin irritation the processing time for the second peel was abridged but still the claimant suffered severe discomfort. The peeling time was shortened from thirty minutes to eight minutes.
On both occasions the claimant was sent home with post peel moisturizers and instructions. She was also given antibiotics to apply to the irritated areas. The prescribing of antibiotics was disputed as no record of it appears in the doctor's notes. But I accept as most likely than not that the doctor would have prescribed treatment to the broken skin and even more likely that the claimant would have requested such treatment.
By April 2007 the irritated areas had crusted and were in the healing stages. The peeled areas had normal response with uniform fine exfoliation. The irritated areas on the posterior thighs healed with hyper-pigmentation and a small scar. She was prescribed Dermovate. She was also given an injection in May 2007 for a deeply imbedded hyper-pigmented old scar. The claimant missed her follow-up appointment on June 6, 2007. Her wedding took place on the 9 th June 2007. She returned to the defendant in July and August for further treatment.
By August most of the superficial and deep pigmentation were gone but thereafter, the claimant visited the defendant and complained of the scarring to her posterior right leg and stretch marks to her inner thighs. She claimed that these scars and stretch marks were not present prior to the peel. She became dissatisfied with the results of her treatment and discontinued the services of the defendant.
As noted earlier, the claimant has had this stubborn skin problem (as she described it) to her legs since childhood. Her first visit to a dermatologist with regard...
To continue reading
Request your trial