Paula Whyte v Attorney General and South East Regional Health Authority

• Jurisdiction: Jamaica
• Judge: Sykes J
• Judgment Date: 06 July 2012
• Neutral Citation: [2012] JMSC Civ 85
• Docket Number: CLAIM NO. 2007 HCV 05051
• Court: Supreme Court (Jamaica)
• Date: 06 July 2012

[2012] JMSC Civ 85

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CIVIL DIVISION

CLAIM NO. 2007 HCV 05051

Between

Paula Whyte

Claimant

and

The Attorney General

First Defendant

and

South East Regional Health Authority

Second Defendant

MEDICAL NEGLIGENCE — CAUSE OF ACTION NOT CLEARLY PLEADED — EVIDENCE DOES NOT ESTABLISH NEGLIGENCE

Sykes J

1 [1] This claim arose from the alleged negligence of the health care team at the Spanish Town Hospital which falls under the supervision of a statutory body called the South East Regional Health Authority (SERHA).

2 [2] Nearly a decade ago, on Monday, October 7, 2002, Miss Paula Whyte was admitted to the Spanish Town Hospital as a high-risk obstetric patient. According to Miss Whyte, on Thursday of the same week she was informed that a Caesarean section (C-section) was to be done on her. She was prepared by the staff to undergo the operation. Dr Donat Mair who testified for the defendants said that the C-section was the best treatment option for Miss Whyte having due regard to all the factors and circumstances of her case.

3 [3] Miss Whyte waited all day and the operation was not performed. Eventually, she delivered the baby normally. It was a live birth. Unfortunately, the baby died. The reason given for not doing the C-section was that the operating theatres were busy. In economic terms, the demand for operating theatres was greater than the supply available at the Spanish Town Hospital. It was not the case that Miss Whyte's case was not urgent but it turned out that there were more urgent cases. Dr Mair testified that when he came on duty at about 4:00 pm on the Thursday, the operating theatres were already in use and continued to be in use until very late into the night.

The pleading issue

4 [4] Miss Marlene Chisolm took the point that the claim as pleaded does not amount to cause action in that the injury alleged is not one that gives rise to a claim. Learned counsel submitted that it is well known that to succeed in negligence the claimant must allege and prove (a) duty owed, (b) the breach, and (c) damage or injury flowing directly from the breach of duty. Her submission was that the particulars of claim do not show any connection between the conduct of the hospital staff and any damage suffered by Miss Whyte. She also submitted that the particulars actually speak to injury to the child but the child has not brought an action and therefore there is no claim in respect of the child before the court. Miss Chisolm highlighted the parts of the pleadings set out below in support of her submissions.

5 [5] The particulars of injury in the particulars of claim read:

• a. The claimant who is now 30 years having been born on the 28 ^th day of August 1977 suffered:

  • i. Neonatal death of a female child

6 [6] There was further pleading in respect of the baby under the heading “Particulars of Injury of [Baby] Paula Whyte:

• a. Cerebral oedema with moved haemorrhage of tentorial membrane.

• b. Subarachnoid haemorrhage, marked in occipital lobes.

7 [7] According to Miss Chisolm the pleaded case is that the child died and further, that the child suffered from the conditions stated under the particulars of injury to the baby. However, the particulars of claim do not say what the alleged acts of negligence are in respect of the death of the child. This Miss Chisolm said was vital because once the child was born alive, which it was, then the child has its own independent cause of action which can be pursued by the appropriate adult as a next friend. This was not done. Just to say what the child suffered from would not be enough. It would be necessary to make the connection in the pleadings between the injury allegedly suffered by the child and the conduct of hospital staff. Also the claim would have to be properly constituted and that is not the case here.

8 [8] Miss Chisolm also insisted that death of child born alive is not an injury to the mother. There may be an injury to the child but that does not translate into an injury to the mother unless there is a claim for some kind of mental distress. The claimant's case has not been presented as one of mental distress or anything of the kind. Indeed, Miss Chisolm closed this aspect of her submission by pointing out that no injury to the mother was in fact pleaded and the claim before the court is in respect of the mother and not the child.

9 [9] Miss Chisolm submitted that until the child is born, that is to say, a live birth has occurred, it has no independent legal personality. She also submitted that a foetus cannot sue. Counsel cited the case of Burton v Islington Health Authority [1992] 3 Al ER 833; [1993] QB 204 (CA) which affirmed the analysis and conclusion of Phillips J in de Martell v Merton and Sutton Health Authority [1992] 3 All ER 820 [1992] 3 All ER 820; [1993] QB 204.

10 [10] Mr Forsythe responded by saying that paragraph 23 was sufficient to make the case for Miss Whyte. Paragraph 23 of the particulars of claim reads:

By reason of the aforesaid the claimant suffered excruciating pain, loss and expenses. The injury, loss and damage to the claimant were caused by the negligence of the defendants, their servants or agents.

11 [11] As can been seen, this paragraph does not specify the injury allegedly suffered. It is also well known that pain in child birth is not unusual and therefore is not necessarily the consequence of negligence on the part of the health professionals. Having read the case, this court agrees with Miss Chisolm's submissions. They are well supported by existing authority. The claim could be dismissed on these grounds but the court will examine the case on the merits in order to show that the claim would have failed in any event for the additional reasons given by Miss Chisolm.

The facts

12 [12] Miss Whyte gave evidence and was cross examined. It is clear that she was and still is quite distressed by the experience. She fully accepted that medicine is not a precise endeavour and mishaps can happen. She is still incensed at the insensitive way she was treated when her child died. She...