Tanya Clarke v Dr. Soe Win & Dr. Bennet & The Attorney Geenral
| Jurisdiction | Jamaica |
| Judge | Campbell J |
| Judgment Date | 21 September 2002 |
| Judgment citation (vLex) | [2002] 8 JJC 2601 |
| Court | Supreme Court (Jamaica) |
| Date | 21 September 2002 |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN EQUITY
DAMAGES - Laparatomy - Pain and suffering - Loss of amenities - Future medical expenses
On the 1 st June, 1995 the plaintiff, then aged 19 years, attended on Dr. Mary Sloper, Family Practitioner. She complained of having experienced severe abdominal pains for the "last four days". On examination Dr. Sloper reported that, "she had a large smooth tender mass in the left lower abdomen extending tip almost to the umbilicus." Sloper testified that she suspected a large ovarian cyst and referred her to a private gynaecologist. The health arrangements with Courts (JA) Ltd., where the plaintiff was employed, would not facilitate her treatment by a private practitioner. She was sent to University Hospital of the West Indies. She was unable to gain admittance there and was sent to the Spanish Town Hospital where she was admitted. She was x-rayed, and Dr. Sloper's diagnosis of ovarian cyst was confirmed. She underwent a laparotomy. The plaintiff testified that she was told that both her ovaries had been removed, as she had been found to have cancer of the ovaries.
On July 24 th 1995 Dr. Sloper was advised by Mr. Leighton Knight, the then Senior Medical Officer at Spanish Town Hospital, that the biopsy report of the plaintiff, was to the effect that the plaintiff had dermatofribromata of the ovaries. This is not a malignant condition.
The operation on the plaintiff had been performed by a surgeon, not a gynaecologist, as it should have been. It appears that there was no gynaecologist resident available at the hospital that night. There was no consultation with a senior doctor by the operating surgeon prior to performing the laparotomy. Neither was there a biopsy done to confirm the doctor's erroneous clinical impression that the cysts were cancerous. The plaintiff remained for one week in the hospital after her surgery. She testified that she was given her ovaries in a babies' formula bottle, marked "infamil" for the necessary tests to be done at Department of Pathology University of West Indies.
Before attendance on Dr. Sloper on the 1 st June 1995, she was engaged to be married. Her fiancé resided in the United States. Their wedding was scheduled for 24 th June, 1995. She testified that the lost of her ovaries had "an effect on my feelings about getting married". She said that the 2 nd Defendant had told her that she would not be able to conceive, and that she would be going through menopause. The plaintiff testified that her fiancé had discussed having children, and had indicated that he wanted two kids. They had already chosen the names of the children, the daughter would be Tanielle and the boy, Andre, Jnr. She was reluctant in the circumstances to get married, but was persuaded to do so because the plans were so far gone. She joined her husband in Brooklyn, New York, the year following their marriage.
The marriage faced considerable difficulties as a result of the plaintiff's condition. She says her sex life was not good, before the operation she enjoyed having sex with her fiancé. The premature menopausal state brought on by the removal of her ovaries caused vaginal dryness during sexual intercourse with the result that sex was painful and uncomfortable. She had to use a vaginal lubricant. She suffered from decreased libido, and her husband had to negotiate with her in order for them to have sexual intercourse. She testified that she did not want to have sex. Because of these reasons sexual relations with her husband were infrequent. During her testimony on the 20 th September 2001, she stated that she last had sex on the 4 th July 2001. She suffered from hot flashes, as a result the air in her bedroom was conditioned at a temperature of 70°F, "it cost a lot of money and it is cold, and would get much colder at nights." She testified that the temperature "creates difficulty with my husband, he has to sleep with his relatives or at a motel, that happens twice per month."
The plaintiff complains that her enjoyment of life has been severely impaired not only in respect to sexual relationships with her husband and health but generally. She feels sick and tired frequently and suffers from abdominal pains and vaginal bleeding. She has no menstrual period; the bleeding she experiences is a side effect of medication. Any physical activity causes spotting, that is a small amount of bleeding from her vagina. This limits her ability to participate in ordinary household chores. Her husband, "does most of the housework", this situation is exacerbated by the fact that her husband gets home from work at 7.00pm and sometimes works on weekends. Her husband becomes upset if she spots, claiming she deliberately brought it on by physical labour in order to avoid sex. The heat generated from ironing clothing affects her adversely. She says in exchange for ironing her clothing, her husband wants sex. She suffers from cramps in both legs, about four times per month since surgery.
The plaintiff's testimony was punctuated by pauses to allow her to compose herself. She wept quite openly throughout her testimony. She testified that she had not been to a psychiatrist before her visit to Dr. Knight on the 18 th September 2001. She had seen "nine or more" doctors because she felt that the staff of these institutions was discussing her case, which caused her great embarrassment. She recounts instances when doctors, on being told that her ovaries were removed, "looked at her as if she was crazy". She had made about nine visits to the doctor for each of the year, 1996, 1997, 1999, 2000 and five visits in 1998. She was admonished by her husband for dressing-up teddy bears in pampers, and placing it on the bed as one would a child. When her mother says that she needs grandchildren, she does not explain her inability to conceive naturally because of shame.
Dr. Frank Knight saw the plaintiff for the first time on the 18 th September 2001. He noted her apparent obsession with the idea "getting an egg". She...
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