Tahjay Rowe (a minor, suing by Tasha Howell, his mother and next friend) v Attorney General for Jamaica and Another

• Jurisdiction: Jamaica
• Judge: Lindo J. (AG.)
• Judgment Date: 10 September 2015
• Neutral Citation: [2015] JMSC Civ 177
• Docket Number: CIVIL DIVISION CLAIM NO. 2009HCV 02858
• Court: Supreme Court (Jamaica)
• Date: 10 September 2015

[2015] JMSC Civ 177

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

Lindo J. (AG.)

CIVIL DIVISION CLAIM NO. 2009HCV 02858

Between

Tahjay Rowe (a minor, suing by Tasha Howell, His mother and next friend)

Claimant

and

The Attorney General for Jamaica

1 ^st Defendant

and

The South Eastern Regional Health Authority

2 ^nd Defendant

Negligence — Breach of duty of care — Standard of care — Whether claimant given adequate care during and post delivery

Damages — pain and suffering and loss of amenities — Cost of future care — Loss of future earnings

1 [1] This is a claim filed on June 3, 2009, in which the claimant, a minor, suing by his mother, Tasha Howell alleges that the 2 ^nd defendant as the authority responsible for the control of health service provided by the Victoria Jubilee Hospital (VJH) breached its duty of care owed to him from the time of his birth on April 27, 2004 to the time he was discharged, which resulted in him suffering severe injuries, loss and damage.

2 [2] The particulars of negligence as stated in paragraph 6 of the Particulars of Claim are as follows:

• 1. Failing to deliver the claimant in an expeditious and timely manner;

• 2. Inexcusable delay in delivering a post-term baby;

• 3. Failure to properly monitor the claimant's mother during labour in view of the claimant being a post term infant;

• 4. Failure to carry out proper management of the claimant after his birth and prior to his transfer to the Bustamante Hospital for children;

• 5. Inexcusable delay in transferring the claimant to the Bustamante Hospital for Children;

• 6. Failure to properly care for the claimant after birth.

3 [3] Ms. Tasha Powell gave evidence that she became pregnant in 2003, attended clinic at Sunshine Clinic on Red Hills Road and there were no complications. She states further that she went to VJH in early 2004, made a number of visits, and that the baby was due on April 15, 2004.

4 [4] She states that she was admitted on April 25, 2004, was given an injection by a male doctor in the early morning of April 26, 2004 after which she was moved to Ward 2 where she was examined by the said doctor. She states further that ‘he put me on drip… I was given a pill to induce labour on Tuesday morning. She indicates that at 11:38 am she had the baby and that the baby cried a lot and would not feed and was taken to the nursery and blood tests were ordered. She also states that she was discharged on April 29, 2004 and ‘the baby was still on drip’ and that the baby was discharged two weeks after he was born.

5 [5] Her evidence further is that two days afterwards she noticed that the baby would shake whenever she bathed him so she took him to the Bustamante Hospital for Children (BHC), an ultra sound was done at Oxford Medical Centre, and the baby was admitted in BCH.

6 [6] In cross examination she stated that when she was admitted to the VJH on April 25, she was not seen by a doctor or a nurse, she was not in labour and that it was ‘in the evening hours’ on April 26 that she was advised that induction would be commenced.

7 [7] In support of the claim Ms. Yvonne Beckford, grandmother of the claimant gave evidence that the claimant was born at VJH on April 27, 2004 and that about three weeks after, she accompanied her daughter to BHC and that the baby was crying constantly and ‘the baby was also having twitches’.

8 [8] She further states that the claimant remained at the BCH for about two weeks and that the claimant is now nine years old. She indicates that it costs about $2,000.00 per day to get someone to care for him, that he cannot eat any solids, is asthmatic and medication is either paid for by herself or her daughter. She states that on June 1, 2004 she wrote a letter to the Personnel Officer at VJH and delivered it but got no response so she reprinted it and left it there again.

9 [9] The following were tendered and admitted in evidence:

• 1. Letter dated June 1, 2004 written by Yvonne Beckford

• 2. Medical report of Dr. Leslie Gabay dated July 5, 2010

• 3. Medical report of Dr. Roxanne Melbourne- Chambers dated December 13, 2013

• 4. Medical report of Dr Judy Tapper dated August 20, 2008 and

• 5. Medical report of Michelle Richards-Denton dated October 21, 2008.

10 [10] Special damages were agreed in the sum of $21,000.00.

11 [11] Ms. Natanee Dalhouse, Registered Midwife, gave evidence on behalf of the defendants. Her evidence is that her duties include the care of patients during the ante natal, intra-natal and post natal period as well as the care of neonates and that she was the midwife who conducted the delivery of the claimant.

12 [12] She states that on the date the claimant was delivered, she was assigned to the delivery room and ‘based on record, Miss Howell delivered a live male infant at 11:38 am with a birth weight of 3.71kg. and a APGAR score of 8 at one minute, and 9 at five minutes. For the one minute APGAR score of 8, the heart rate, respiratory effort, muscle tone and reflex irritability and colour were scored at 1. For the five minutes APGAR score of 9, the heart rate, respiratory effort, muscle tone and reflex irritability were scored at 2 and colour scored at 1.’ She also indicates that the claimant was ‘suctioned and given oxygen, eye prophylaxis and vitamin K was administered. …the claimant passed meconium at birth’.

13 [13] In cross examination she could not recall the particulars in relation to the delivery of the claimant and stated that everyone, including herself, who cared for him, had the responsibility to make entry in relation to the care given to him. She stated however, that she had no responsibility for making any records in relation to investigations as to clotting mechanisms or in relation to the platelets count, which she said was the doctors' responsibility.

14 [14] She also admitted that she was responsible to measure the circumference of the claimant's head at the time of birth, could not recall if she did so, and added that prior to 2009 measurements ‘were not routinely done as a protocol’. She could not recall if there were any complaints made by Miss Howell in relation to the claimant not feeding or as to any seizures the claimant had.

15 [15] Ms. Dalhouse admitted that she was a mid-wife for three months at the time of the delivery of the claimant. She could not state if a doctor visited, or how often a doctor visited Ms Howell before delivery. When confronted with paragraphs 7 and 9 of her witness statement which speak to Ms. Howell being seen by a doctor on April 19 and on April 26 when she was transferred to the Labour Ward, she indicated that the information there was from the record. She admitted that her evidence can go no more than in relation to the birth of the claimant.

Claimant's submissions

16 [16] Counsel for the claimant pointed to the inadequacies in the care given to the claimant according to Dr. Leslie Gabay, and the ‘deficiencies’ in the management of the claimant as stated by Dr. Melbourne-Chambers and noted that neither expert is able to say if there had been proper care and documentation whether this would have reduced the claimant's disabilities. He highlighted the information contained in the report of Dr. Melbourne-Chambers where she stated: ‘I am unable to say whether an earlier transfer to the Bustamante Hospital for Children would have produced a better outcome. The reason for this uncertainty is that the timing of the insult to the neonate's brain was not established and could have been intrauterine, that is, prior to labour and delivery. If the insult occurred during the intrauterine period, it is unlikely that the outcome could have been improved had the infant been treated at the Bustamante Hospital for Children’. Counsel therefore questioned how the timing of the insult to the neonate's brain was not established by the hospital.

17 [17] He noted that the defendant, at paragraph 6 of the defence, contends that the unfavourable outcome of the claimant ‘most likely resulted from an intracranial bleed as a consequence of hereditary alloimmune thrombocytopenia which is unpredictable and untreatable in the index pregnancy’ but Dr. Melbourne-Chambers contradicts this by her opinion that ‘Tahj Rowe's injuries cannot be attributed to hypoxic ischaemic encephalopathy… The clinical and laboratory findings could be explained by an intracranial bleed but there is no definite evidence of an intracranial bleed. The clinical course is not typical of hereditary alloimmune thrombocytopenic purpura (neonatal alloimmine thrombocytopenia)’

18 [18] Counsel pointed out that the expert report of Dr. Gabay indicated that intracranial imaging should have been done by the hospital as an early investigation and that correction of thrombocytopenia should have been done urgently. He submitted that the observations of Dr. Gabay and Dr. Melbourne-Chambers prove a failure to carry out proper management of the claimant after his birth and prior to his being taken to the BHC, and a failure to properly care for the claimant after birth.

19 [19] He expressed the view that the particulars of negligence are therefore proved but further submitted that the doctrine res ipsa loquitur also applies so that the onus lies on the defendant to disprove negligence. He cited the case of Cassidy v The Ministry of Health [1951] KBD 343, where the plaintiff went into hospital for an operation on his hand which necessitated post operational treatment and at the end of the treatment it was discovered that his hand could not be used and the court held that in those circumstances the doctrine applied and the onus was on the hospital authority to prove that there had been no negligence on its part.

20 [20] He noted that because of the failure of VJH to conduct certain critical tests, the defendant is unable...