The Attorney General for Jamaica v Authority Tahjay Rowe
| Jurisdiction | Jamaica |
| Judge | Morrison,Straw JA,Edwards JA |
| Judgment Date | 13 November 2020 |
| Neutral Citation | JM 2020 CA 137 |
| Court | Court of Appeal (Jamaica) |
| Docket Number | SUPREME COURT CIVIL APPEAL NO 105/2015 |
| Date | 13 November 2020 |
[2020] JMCA Civ 56
IN THE COURT OF APPEAL
THE HON Mr Justice Morrison P
THE HON Miss Justice Straw JA
THE HON Miss Justice Edwards JA
SUPREME COURT CIVIL APPEAL NO 105/2015
and
(A Minor, suing by Tasha Andhowell His Mother and Next Friend)
Ms Christine McNeil instructed by the Director of State Proceedings for the appellants
Alexander Williams and Ms Topazia Brown instructed by Alexander Williams & Company for the respondent
Morrison P
I have read in draft the judgment of Edwards JA, I agree with her reasoning and conclusion and have nothing further to add.
I too have read in draft, the judgment of Edwards JA and I am in agreement with her reasoning and conclusion. I have nothing useful to add.
This is an appeal against the decision of Lindo J (Ag) (as she then was) (“the judge”), made on 10 September 2015, giving judgment in favour of Tahjay Rowe (a minor suing by his mother and next friend, Tasha Howell) (“the respondent”), against the appellants, the Attorney General for Jamaica (“the 1 st appellant”) and the South-East Regional Health Authority (“the 2 nd appellant”) in a case of medical negligence. The judge, in her written decision cited at [2015] JMSC Civ 177, found that the medical staff at the Victoria Jubilee Hospital (“the hospital”) were negligent in respect of the management and treatment of the respondent and his mother whilst they were patients at the hospital, resulting in severe injury and damage to the respondent. The hospital falls under the auspices of the 2 nd appellant pursuant to the National Health Services (South-East Regional Health Authority) Management Scheme 1997 and the National Health Services Act of 1997. The Attorney General of Jamaica was sued by virtue of the Crown Proceedings Act.
I find it prudent to indicate from the outset what my decision is in this matter, as, based on the medical evidence and the applicable law, my reasons for coming to this decision will, regretfully, be quite lengthy. Therefore, for the reasons set out below, I agree with the appellants that the judge was wrong to have concluded that the appellants were liable in negligence for the injuries suffered by the respondent.
The following is a brief synopsis of what occurred whilst the respondent and his mother were in the hospital. The respondent was born at the hospital on 27 April 2004. He appeared, at least in the first 18 to 23 hours of life, to be a healthy baby boy. However, by his 18 th hour of life his mother reported that he was not feeding, that he cried incessantly and that his breathing was rapid. He was checked by the nurse mid-wife and subsequently taken to the hospital's nursery where he was examined by a doctor. The results of that examination caused the doctors to be concerned enough to run several diagnostic tests on the respondent to see what could possibly be causing his symptoms. His symptoms included pallor of the skin, bulging fontanelle, lethargy and possibly seizures. The initial test results showed that he was anaemic, his platelets were persistently low, and his body sodium was also low. Several other diagnostic tests were conducted, which ruled out several possible causes of these symptoms, including meningitis, sepsis and other infections. His treatment included whole-body blood transfusions and antibiotics.
The treatment given to the respondent apparently appeared to his doctors to have worked, as he appeared to be more active, and the repeated blood works showed improvements, although he still had a low blood count. He was declared to be well and was discharged from hospital after two weeks, with a date to return for outpatient assessment and with a requisition for a cranial ultrasound. No abnormality had been detected when the infant was seen at the outpatient clinic on 19 May 2004, no seizures had been noted by his mother, and she reported that he had been breastfeeding well. He was discharged from his outpatient visit as being a normal healthy baby. Unfortunately, his condition deteriorated soon thereafter, and he was taken by his mother to the Bustamante Hospital for Children (“the BHC”) where, after an ultrasound and CT scan were done, he was found to be severely brain damaged with signs of cerebral palsy and epilepsy.
The claim against the appellants was filed by the respondent on 3 June 2009. The particulars of negligence alleged in the claim were as follows:
“1) Failure to deliver the [respondent] in an expeditious and timely manner;
2) Inexcusable delay in delivering a post-term baby;
3) Failure to properly monitor the [respondent's] mother during labour in view of the [respondent] being a post-term infant;
4) Failure to carry out proper management of the [respondent] after his birth and prior to his transfer to the Bustamante Hospital for Children;
5) Inexcusable delay in transferring the [respondent] to the Bustamante Hospital for Children;
6) Failure to properly care for the [respondent] after birth.”
The respondent further relied on the doctrine of res ipsa loquitur, claiming that, at the time of his birth, the respondent was “apparently a normal healthy baby but was found to be brain damaged, while under the management and control of the 2 nd [appellant], its servants and/or agents”. The respondent alleged that he suffered injury, loss and damage as a result of the negligent care given to him by doctors at the hospital prior to, during, and after his birth on 27 April 2004 by the servants and/or agents of the 2 nd respondent at the hospital.
The injuries alleged to have been suffered by the respondent were set out in his particulars of claim as follows:
“1) Jerking of limbs and neo-natal seizures
2) Difficulty breathing and feeding
3) Hydranencephaly
4) Hypertonic in upper limbs with macrocephaly
5) Grade 4 Hypoxic Ischaemic Encephalopathy
6) Symmetrical Advanced Cystic Leukomalacia
7) Central visual deficit
8) Hypotonic in lower limbs
9) Global Development Delay secondary to Hypoxic Ischaemic Encephalopathy, with visual and social inattention
10) Psychomotor developmental delay
11) 30° head lag and prone
12) Truncal hypotonia
13) Generalized hyper-reflexia with bilateral knee and ankle clonus and bilateral extensor plantar responses. [sic]
14) Epilepsy
15) Hyper explexia
16) Generalized spasticity, being early signs of spastic quadriparetic cerebral palsy.”
In a joint defence filed 22 October 2009, the appellants admitted that the 2 nd appellant owed a duty of care to the respondent, but disputed the claim on the basis that the medical and nursing staff of the hospital at all times exercised reasonable care in the treatment, examination and care of the respondent and his mother. The appellants admitted that after birth the respondent fed poorly, became lethargic and developed seizures, but averred that he had been admitted to the hospital's nursery and a series of tests had been conducted, including blood investigations, which showed that his platelets were persistently low. It was also averred that no abnormality had been detected when the infant was seen at the outpatient clinic on 19 May 2004, no seizures had been noted by his mother, and he had been breastfeeding well. At the time of his discharge, he had been scheduled for a cranial ultrasound. Ultimately, the appellants contended that the unfavourable outcome suffered by the respondent was most likely as a result of “an intracranial bleed as a consequence of hereditary alloimmune thrombocytopenia which is unpredictable and untreatable in the index pregnancy”.
At the trial, held on 18 June 2015, the judge heard oral evidence from three witnesses. Tasha Howell, mother of the respondent, and Yvonne Beckford, mother of Tasha Howell, gave evidence on behalf of the respondent. Natanee Dalhouse, the midwife assigned to the delivery ward at the material time, gave evidence on behalf of the appellants.
Four medical reports were in evidence. The reports from Dr Michelle-Ann Richards-Dawson and Dr Judy Tapper were attached to the particulars of claim and admitted in evidence on behalf of the respondent. Two expert reports were in evidence, one provided by the respondent and the other by the appellants. These were from Dr Leslie Gabay and Dr Roxanne Melbourne-Chambers. The medical records of the respondent's treatment and that of his mother at the hospital were not tendered into evidence, but it is clear that these records were accessible and were utilized by the aforementioned doctors in the preparation of their reports.
The only other evidence before the court was a letter tendered on behalf of the respondent, dated 1 June 2002, from Yvonne Beckford to the personnel officer at the hospital. The judge did no assessment of this letter in her judgment.
Tasha Howell's evidence was that she became pregnant in 2003 and attended the Sunshine Clinic on several occasions as the pregnancy progressed. Tests done during that period revealed no complications. In early 2004, in the first week of her ninth month, she began visiting the clinic at the hospital. The baby, she said, was due on 15 April 2004 and she mentioned to hospital staff that the baby was overdue. However, she was only admitted to ward 4 of the hospital on 25 April 2004. She was seen by a doctor in the early morning of 26 April 2004, and was given an injection, but according to her, she was not examined by the doctor. She was then moved to ward 2 on the instructions of the doctor and put on a drip. She was in no pain and had no contractions.
On the morning of 27 April 2004 she was given a...
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