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Bilitaki v Medical Superintendent Colonial War Memorial Hospital [2011] FJHC 774; HBC437.2008 (28 November 2011)

IN THE HIGH COURT OF FIJI ISLANDS
AT SUVA
CIVIL JURISDICTION

Civil Action No: HBC 437 of 2008

BETWEEN:

JOSEFA BILITAKI
Plaintiff

AND:

THE MEDICAL SUPERINTENDENT COLONIAL WAR MEMORIAL HOSPITAL
1st Defendant

THE ATTORNEY GENERAL OF FIJI
2nd Defendant

Counsel: Ms. S. Narayan for the Plaintiff.
Mr. S. D. Turaga for the Defendants.

Date of Judgment: 28th November, 2011

JUDGMENT

[1]. The plaintiff, by his writ of summons dated 4th December 2008, filed this action against the defendants claiming special damages, general damages, interest thereon and costs.

[2]. The suit was founded on negligence against the 1st defendant alleging that the 1st defendant through his servants and agents failed to exercise all reasonable care, skill and diligence in providing proper health care which resulted in the loss of vision of the plaintiff's left eye.

Background to the facts

[3]. The plaintiff is a retired teacher. In 1987, he developed an eye condition called uveitis, which affected his left eye. He was seen by a doctor in Levuka and was later referred to CWM, Suva for further treatments. At the CWM the plaintiff was seen by several doctors and was prescribed medication.

[4]. Despite a surgery and several laser treatments, his left eye was not improved, and he sought for a referral overseas.

[5]. The plaintiff then went to see Dr Sikivou who examined the plaintiff and informed him that his left eye was completely blind by then. Dr. Sikivou then prepared a referral referring the plaintiff to Dr. Bakani who forwarded the referral to Dr. Stephen Best of Auckland Eye in Auckland New Zealand.

[6]. The plaintiff went to Auckland Eye in New Zealand and was examined by Dr. Best and was advised that his left eye was completely blind so that it could not be operated.

[7]. The defendants deny the plaintiff's claim. In the statement of defence, it is stated that the defendants exercised all reasonable and ordinary care required by them in the circumstances of the operative treatment. The defendants alleged that the plaintiff was not regular with his medication and failed to attend clinic when required and his vision in the left eye deteriorated due to complication of uveitis. The defendants further alleged that the plaintiff's severe condition was caused or contributed to by his own negligence.

[8]. The following facts were agreed to by both parties at the pre-trial conference.

• The plaintiff is a teacher residing in Qaula village, Lami.
  
• The first defendant was at all material times the consultant ophthalmologist of CWM.
  
• The second defendant is joined pursuant to Crown Proceedings Act Cap 24.
  
• The first defendant was at all material times attending to the plaintiff as he was the patient of the said 1st defendant.
  
• On or about the second week of October 2007, the plaintiff's visual acuity in the left eye was reduced to only hand movement then the plaintiff realized that he was losing his left eye sight. This was due to secondary glaucoma. Laser treatment was done by the 1st defendant but it was unsuccessful.
  
• The plaintiff attended Auckland Eye in New Zealand for surgery on 6th December 2007 but was informed that the uvities would contribute to secondary glaucoma.
  
• The plaintiff sustained loss of vision in the left eye.
  

[9]. In view of the above admissions, the following issues are to be determined by court.

i. Whether the 1st defendant did not inform the plaintiff earlier during his eye check-ups that uveitis would later contribute to the blindness of his left eye, if operation of his left eye was not dealt with urgently and this had contributed to the plaintiff's blindness in the left eye?

ii. Whether the 1st defendant through his servants and agents failed to exercise all reasonable care, skill and diligence in providing proper health care which resulted in the blindness of the plaintiff's left eye?

iii. Had the plaintiff been referred to overseas treatment earlier by the defendants could the blindness of his left eye be prevented?

iv. Is the plaintiff entitled for damages?

[10]. At the trial, the plaintiff and Dr B. Sikivou gave evidence in support of the plaintiff's claim. Dr. J. Narayan gave evidence on behalf of the defendants.

[11]. According to the plaintiff's evidence, he had a blurred vision on his left eye in 1986, and he was examined by one Dr. Angela in Levuka, who referred the plaintiff to CWM hospital in December 1986. The plaintiff was attended to by several doctors at the CWM.

[12]. In 2000, the plaintiff was examined by Dr Narayan and was advised to undergo a surgery for cataract, and accordingly, the surgery for cataract was done in 2000. After the cataract surgery, the plaintiff's left eye vision was improved but in July 2003, it deteriorated. Having diagnosed his eye condition as uveitis, the plaintiff was prescribed medications, which he continued till 2007.

[13]. The plaintiff stated that he was examined by Dr. Narayan in 2005, and had laser treatment but saw no improvement. He continuously visited the eye hospital till 12.10.2007, where he had another laser treatment performed by Dr. Narayan, but by that time his eye was turning blind.

[14]. The plaintiff further stated that after 2007, he was given another laser treatment but did not have any improvement. Thereafter, the plaintiff sought a referral overseas from Dr. Narayan but was told by Dr. Narayan that he was going on leave and could not prepare a referral.

[15]. Subsequently, the plaintiff visited Dr. Sikivou who referred him to Dr. Bakani. By that time the plaintiff's eye was completely blind.

[16]. Having obtained a referral overseas, the plaintiff went to Auckland Eye Hospital, New Zealand and saw Dr. Stephen Best but the plaintiff was advised that his left eye was inoperable.

[17]. The plaintiff alleges that since 1987 up to 2007, he was being treated continuously at CWM but no doctor referred to him for overseas medical treatment. The plaintiff further stated that had he been referred to overseas treatment earlier by the hospital authorities at CWM the vision of his left eye could have been saved.

[18]. In cross examination, the plaintiff admitted that he was not regular with his medication, since he was in Kadavu. Answering further, he stated that in 1992, he came for reviews but in 1993, he did not turn up at the hospital since his left eye was 'okay' in 1993. When questioned about the non existence of the entries pertaining to his visits to the CWM in 1994 and 2002, he stated that he was not aware of that but he was seen continuously by doctors.

[19]. Regarding his non attendance to the clinics the plaintiff stated that he missed some visits due to the geographical situation of his place of work, but always attended clinics. Furthermore, he stated that Dr. Narayan promised him that he would operate on uveitis but nothing eventuated.

[20]. The plaintiff called Dr Sikivou as an expert witness. According to Dr Sikivou, she first examined the plaintiff in 1991 at CWM. The plaintiff presented with a condition known as uveitis. After 1991 the witness examined the plaintiff in 2007 October. When she examined the plaintiff in 2007, he had lost the vision in the left eye due to glaucoma which is a complication of uveitis. At that time he had inflammation in his left eye so that he was advised to seek a second opinion overseas.

[21]. Dr. Sikivou testified as follows:

Q. When you say he was suffering from uveitis and then had complications from glaucoma can you explain in simple English as to what those terms meant, what those conditions actually were?

A. Uveitis in simple terms is the inflammation of the pigmentation part of the eye which if continued for a long time can block the area which the fluid in the eye is drained out of the eye. Because, he has had this condition for a long time the fluid in the eye gets trapped and it increases the pressure n the eye obstruction, the supply of the blood to the nerve which connects the eye to the brain.

[22]. Dr. Sikivou further testified as follows:

Q. From your experience do you think when diagnosed with uveitis and there is lack of equipment in the hospital in Fiji, overseas treatment should be recommended at an early stage?

A. yes, it would depend really on the attending physician at the time. If the physician thinks that the treatment is not available in Fiji we should be suggesting to the patient for further care overseas.

Q. And in your expert opinion do you think the delay in sending Bilitaki overseas caused him to lose his eye sight in the left eye?

A. In my opinion that is a contributing factor because there are other factors to consider. The attending clinician at the time would be the best person to assess whether surgery was needed or not to consider the complications of the treatment that the clinician wants to offer as well.

[23]. In cross examination, Dr Sikivou stated that the plaintiff's condition can be treated locally with medication but if complications set in then it is the attending clinician who should decide whether the complications can be treated locally or need to be referred abroad.

[24]. In answering cross examination, Dr. Sikivou further testified as follows:

Q. So there is a process when there is complication there is a referral to overseas, is that correct?

A. Yes and every doctor knows that.

[25]. When enquired as to the main cause of loss of vision in the plaintiff's left eye, Dr Sikivou elucidated the main cause as follows:

"The main cause of vision in the eye is a complication of uveitis; because uveitis is the inflammation of the pigmented part of the eye. The inflammation blocks the channel that drains off the fluid in the eye so the fluids builds up in the eye and interferes with the blood circulation of the optic nerve that connects the eye to the brain so the nerve is no longer functioning because of the Glaucoma the increase of the intraocular pressure."

[26]. According to her, the report she made only pertained to the right eye and it was for the purpose of seeking a second opinion overseas to reassess the better eye. At the time of examining the plaintiff, she observed that the optic nerve that connects the eye to the brain was already dead and nothing could be done to the left eye. In other words, the plaintiff's left eye was blind at that time.

[27]. In her opinion, the delay in sending the plaintiff overseas is only a contributory factor for his present condition.

[28]. The defendants called Dr. Narayan, the consultant ophthalmologist in CWM. According to his evidence, the plaintiff had been attending the clinic since 1987; he had frequent attacks of uveitis; in 1997 February he had repeated attacks of uveitis and he was given special kind of eye drops together with steroids.

[29]. Dr Narayan further stated that because of the plaintiff's frequent attacks of uveitis there was no possibility of performing the surgery and they were waiting for uveitis to settle down because a surgery could not be performed while he is in active phase of uveitis.

[30]. Furthermore, he stated that the plaintiff was put on oral steroids and then only they were able to control his uveitis and perform the surgery to remove cataract. But even after the surgery, the plaintiff continued to have uveitis attacks and in 2003, it developed into dendritic ulcer in the left eye, and treated with laser. In 2006, he had another attack and also glaucoma secondary to uveitis.

[31]. Dr. Narayan further stated that the plaintiff had defaulted attending clinics and it has been noted in the record that there is high degree of non compliance with medication and attendance, for last 25 years the plaintiff made only 4 visits per year and at the time when he requested for a referral his eye was inflamed.

[32]. In cross examination, the witness admitted that he did not write in the report that the plaintiff was due for another laser treatment. Answering further, Dr. Narayan stated that although the plaintiff was given another laser treatment in 2007, it was unsuccessful.
[33]. In considering the evidence adduced by both parties, it is evident that the plaintiff's loss of vision in his left eye was caused by Glaucoma as a complication of uveitis. Further, it is evident that when the plaintiff went to see Dr. Sikivou, he had already lost the vision in his left eye. The plaintiff was also not regular in his visits to the eye hospital.

[34]. In view of the above, the crucial question of fact, which the court has to determine, is whether the cause of the plaintiff's loss of vision was the hospital authorities' negligence in not making a correct diagnosis, delaying treatment and not referring him to overseas treatments, or the plaintiff's non compliance with medication and clinical attendance.

[35]. Further, it has to be determined that whether the plaintiff has lost the vision of the eye as a result of natural progression of the said disease and it was unconnected with the defendant's way of treatment.

[36]. Also, court has to decide whether the 1st defendant had failed to inform the plaintiff of the seriousness of the condition prevailed in the left eye and its possible complications which led to the loss of vision in his left eye.

[37]. To determine the exact cause of the loss of vision in the plaintiff's eye, the evidence of Dr Sikivou is of great assistance. First, it is pertinent to explain the condition called uveitis and its complications and available treatments in Fiji.

[38]. According to the Black's Medical Dictionary, uveitis is defined as follows:

'An inflammation of the uveal tract. Iritis is inflammation of the iris, cyclitis inflammation of the ciliary body and choroiditis inflammation of the choroid....'

Dendritic ulcer is defined in Black's Medical Dictionary as a branching ulcer on the surface of the cornea cause by Herpes simplex infection.

[39]. According to the evidence of both Dr. Narayan and Dr Sikivou, complications like cataracts, fluid within the retina, Glaucoma, retinal detachment and vision loss could develop in the eye as a result of uveitis.

[40]. Glaucoma caused by a number of different eye diseases including uveitis, which in most cases produce increased pressure within the eye. Over time, it causes damage to the optic nerve.

[41]. First I will consider the duty of care and its standard required by the defendant. The standard of care and whether the defendant has failed to meet that standard are normally the central issues in an action for medical negligence.

[42]. It is trite law that a doctor owes a duty in tort to his patient irrespective of any contract between them. When a person has been accepted as a patient, the medical practitioner must exercise reasonable care and skill in his treatment of that patient. Similarly, hospital authorities and their staff owe a duty to any patient admitted for treatment.

[43]. Hence, court has to determine whether there was a breach of duty of care and that breach of duty of care caused the damage to the plaintiff. In other words, court has to determine whether there was a causal connection between the alleged breach of duty by the 1st defendant and the damage suffered by the plaintiff.

[44]. The object of medical care as stated in Airedale N.H.S. trust v. bland [1993] A.C. 809 are:

• (i) to prevent the occurrence of illness, injury or deformity before they occur;
  
• (ii) to care illness when it does occur;
  
• (iii) where illness cannot be cured, to prevent or retard deterioration of the patient's condition; and,
  
• (iv) to relieve pain and suffering in body and mind.
  

[45]. Dr. Narayan's final report dated 24.12.2008, was issued on a request made by the plaintiff. In that report, Dr Narayan has made his observations as follows:

• The plaintiff has been attending Ophthalmology Clinic since 1987, but his records are available from 1994. In 1994, he was given medication but he failed to show up after two weeks as required.
  
• The plaintiff had another attack in 1996, and it was brought under control with regular follow up. Then he had a relapse in Feb. 1997 and continued till Feb. 1998.
  
• In 1999, his vision in the left eye deteriorated due to uveitis. He developed complication of cataract in the left eye and cataract was removed in December 2006, and after that he maintained a good visual acuity in the left eye.
  
• In 2003, the plaintiff developed dendrtic ulcer which was treated with medication.
  
• In 2005, he had Yag laser to improve the visual acuity in the left eye. It was 6/12 with glasses.
  
• In 2006, he had attack of uveitis in the left eye complicated by raised pressure in the eye (glaucoma).
  
• Both uveitis and glaucoma was under control and his left eye v/a was 6/9
  
• Records at this stage show that he had the habit of missing clinics.
  
• By March 2007, records show that he had a relapse of uveitis, pressure in the left eye was elevated and his V/A has reduced to 6/3.
  
• His visual activity continued to remain poor despite treatment until May 2007.
  
• He presented again on 19.10.2007, with severe uveitis in his left eye and appropriate treatment was commenced.
  
• On 22.10.2007, laser indectomy was done and was asked to come after 2 days but he did not turn up.
  
• On 26.10.2007, he asked for a referral overseas.
  

[45]. The above report clearly demonstrates that the plaintiff's left eye, though treated and attended to by the 1st defendant, had been developing complications and also had repeated attacks of uveitis despite the treatments.

[46]. Dr. Narayan testified as follows:

Q. You said that he had another attack in 1996 and this was brought under control with regular follow-ups, if you can just explain please.

A. He had a very acute attack of uveitis-he had frequent attacks but that another last one and we actually give injections on to the eye to control.

[47]. When the evidence of Dr. Narayan is considered, it appears that the plaintiff has had frequent attacks of uveitis and the laser treatments performed on the plaintiff had little or no effect on it. Despite that, the plaintiff was not referred to overseas treatment by the doctors until the plaintiff asked to do so.

[48]. In considering the standard of care that should have been employed by the 1st defendant, the following authorities would be of great assistance.

[49]. The accepted test currently applied in the English Law to determine the standard of care of a skilled professional, commonly known as the 'Bolam test', is based on the dicta of Mc Nair J in his address to the jury in Bolam v. Friern Hospital Management Committee [1957] 2 All.E.R.118.At page 121, he stated:

"But where you get a situation which involves the use of some skill or competence, then the test where there has been negligence or not is the test of the man on the top of a Calpham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill at the risk of being found negligent. It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.

[50]. In Sidaway v. Bethlem Royal Hospital Governor and Others [1985] UKHL 1; (1985) 1 All E.R. 643, while 'Bolam test' was approved by the House of Lords, it was held by a majority, that it applied not only to diagnosis and treatment, but also to the doctors duty to warn his patient of the risks inherent in the treatment recommended by him.

[51]. In Marshall v.Lindsey County Council [1935] 1 KB 516 at 540, Morgan J stated:

'An act cannot, in my opinion, be held to be due to a want of reasonable care if it is in accordance with the general practice of mankind. What is reasonable in a world not wholly composed of wise men and women must depend on what people presumed to be reasonable constantly do.'

[52]. The test for medical negligence is essentially objective; and therefore it concentrates upon the relationship between the doctor and patient and generally excludes other considerations.

[53]. In Hotson v. East Berkshire Area Health Authority[1987] 1 All E.R 210,

it was held that the crucial question of fact, which the judge had to determine, was whether the cause of the plaintiff's 13 year old boy's injury, was his fall or the Health Authority's negligence in making an incorrect diagnosis and delaying treatment, since if the fall had caused the injury, the negligence of the authority was irrelevant in regard to the plaintiff's disability. That question was to be decided on the balance of probabilities. Accordingly, since the judge had held that on the balance of probabilities, given the plaintiff's condition when he first arrived at the hospital, even correct diagnosis and treatment would not have prevented the disability from occurring, it followed that the plaintiff had failed on the issue of causation.

[54]. It was the doctors' duty to act in the best interest of his patient's health and well being and not to expose him to the risk of unnecessary pain and suffering. Further, it was also their duty to examine the plaintiff's eye and give consideration to the history while prescribing treatments and make every possible effort to cure, if not, at least to control the plaintiff's eye condition. As Dr. Sikivou explained, it is the prerogative of the attending clinician to make the decision whether the patient can be improved by overseas medical treatment.

[55]. It is evident in the present case that the hospital authorities have shown a very lethargic attitude in treating the plaintiff despite the fact that the plaintiff had series of uveitis attacks and other complications secondary to uveitis. They treated the plaintiff as if he was suffering from some trivial illness which could be dealt with some basic treatments.

[56]. When a person presented himself with a serious eye condition and the treatments given to him do not show a positive response, it is the duty and responsibility of the doctors to decide whether he should be referred to overseas treatment or should continue with the same treatments.

[57]. Dr. Narayan in his evidence laid great stress on the plaintiff's non compliance with clinical attendance and tried to show that it contributed the present status of his left eye. However, the letter dated 3.11.2008, written by Dr.Narayan (document 49 in the agreed bundle of documents) states that he has been seen regularly at the eye clinic. It is pertinent to reproduce the most vital parts of that letter.

• Mr Bilitaki has been seen regularly at the eye clinic, CWM Hospital for recurrent episodes of uveitis in both his eyes.
  
• At his first visit in 1987 visual activity measured was 6/6 and 6/ 36 in his right and left eye respectively.
  
• He subsequently developed a complicated cataract in his left eye. This was surgically removed in December 2000 and an intra- ocular lens was implanted. Vision in his left eye prior to surgery was counting fingers at 1 meter. This improved to 6/9 2 months post op. vision in the right eye was 6/6.
  
• He presented again in 2003, with Herpes Opthalmicus that gave him a dendritic ulcer in his left eye for which he was treated. Mr Bilitaki also developed Posterior Capsular Opacity and underwent a Yag Capsulotomy (laser) in 2005. Later that same year he was found to be hypertensive and referred for management. He redeveloped uveitis in his left eye and increased intra-ocular pressure in 2006. He was treated for both conditions. Despite treatment, his intra-ocular pressure remained elevated and in 2007 he had Yag Iridotomy (Laser) done to relieve his iris bombe. Intra ocular pressure remained high despite him taking systemic and topical anti glaucoma medication.
  
• At his visit on 22.10.2008, vision was 6/6 in the right eye and no perception of light in the left eye (totally blind eye). Intra Ocular pressure measured was normal on the right eye and elevated at 59mmHg on the left eye. He is being treated and followed up for secondary glaucoma.
  
• Due to blind status of his left eye, he is entitled to permanent incapacity of 40%.
  

[58]. The above letter shows that secondary to the uveitis, the plaintiff developed some complications like hypertension, dendritic ulcer and posterior ocular opacity, which confirm that his uveitis condition became more complicated from 2005-2007. When he last visited in October 2008, his vision was limited to hand movements.

[59]. It could also be observed in medical records in the Agreed Bundle of Documents, that in year 2006 the plaintiff made 10 visits, 17 visits in 2007, and in 2008, he made 10 visits till 22nd of October, which indicates that the plaintiff, though admitted that he missed a few clinics had visited almost once a month to the CWM during the period between 2006-2008.

[60]. The evidence of Dr Narayan clearly demonstrates that despite the treatments, the plaintiff's vision in his left eye was being deteriorated, which further corroborates the fact that the 1st defendant should have informed the plaintiff about his eye condition and should have advised him to have overseas treatment if possible without waiting till 2008 in which year his eye turned totally blind.

[61]. In his evidence in chief, Dr. Narayan admitted that the outcome of the operation, which was performed in December 2000, was very good but the plaintiff had recurrent attacks of uveitis, and it had developed into a dendritic ulcer in 2003. Hence, it is abundantly clear that the treatments that the plaintiff had at the CWM, could not prevent him from having recurrent attacks of uveitis. Therefore, the attending doctors should have advised the plaintiff to seek overseas treatment without waiting till the last moment. In other words correct decision should have been taken at the correct time.

[62]. Further, knowing very well the complications that had already existed in the plaintiff's eye and the likelihood of recurrent attacks because of the nature of the illness, the doctors who had been attending the plaintiff since his first visit to the CWM should have assessed the plaintiff's condition more circumspectly and considerately.

[63]. The important fact which should be stated here is that it was the plaintiff's eye-a very vital sensitive and delicate organ in the human body that was attended to by doctors. Therefore, given the importance of the particular organ and the nature of the illness, the doctors should have advised the plaintiff about the possible complications that could occur and also should have directed the plaintiff to have overseas treatment at the earliest possible stage, when they apprehended that the plaintiff started complications despite the treatments.

[64]. However, until the plaintiff asked a referral overseas, neither Dr. Narayan nor any other consultant had even suggested to refer the plaintiff for overseas treatment, which in my view, shows that they did not exercise duty of care as required by law. In other words they did not act up to the standard of the ordinary skilled man exercising and professing to have that special skill, hence have manifestly failed the 'Bolam Test.'

[65]. It is true that the plaintiff had missed some visits to the clinics due to the geographical situation of his place of work, which according to both Dr. Narayan and Dr. Sikivou would also have contributed to the deterioration of the vision of the plaintiff's eye. However, that does not absolve the doctors from failing to exercise due care.

[66]. Dr. Narayan's evidence clearly suggests that the plaintiff's vision in the left eye was gradually being deteriorated despite the treatment he had from the CWM. He also admitted that dendritic ulcer is not a common occurrence but is an isolated incident. Hence, did not the doctors at the CWM hospital have a duty to assess the prognosis of the left eye and prevent the complications which lead to the blindness of the plaintiff's eye or at least to warn the plaintiff about the possible risks and direct him for overseas treatment?

[67]. The evidence shows that the plaintiff was told by Dr Narayan that his eye would be operated on. According to Dr. Narayan's evidence, the reason for not performing the surgery was that inflammation of the eye was not settled. There was no evidence that the hospital authorities advised the plaintiff to admit into the hospital and keep him under observation in order to control the inflammation in the left eye in order to perform the surgery. What the Hospital authorities had done was prescribed some medication and sent the plaintiff back which should not have been expected from a consultant ophthalmologist. The lackluster attitude shown by the doctors in treating the complications secondary to uveitis was the main reason for postponing the plaintiff's surgery when it was urgently required to be performed.

Causation

[68]. When the breach of duty of care is established the next issue to be determined is whether the evidence so adduced is sufficient to establish the causal connection between the breach of the duty of the care and the injury suffered by the plaintiff.

[69]. When the evidence is analyzed, it is abundantly clear that the plaintiff has developed some complications secondary to uveitis which warranted an overseas referral, but neither Dr Narayan nor did any of the doctors working at CWM eye clinic pursue that option until it was insisted by the plaintiff, which in my view is a clear instance of a breach of duty care.

[70]. There is no doubt that the doctors owed a duty of care in this case. It was their paramount duty to exercise reasonable care in the circumstances. However, damages could only be awarded if the injury which the plaintiff has suffered was within the scope of the duty to take care.

[71]. The mere proof of the fact that the defendant was negligent in not doing a surgery on the plaintiff (which led to the loss of vision of his left eye) or not issuing him a referral overseas does not make the plaintiff become entitled to damages. The plaintiff must further prove that such failure of the defendant caused or materially contributed to the deterioration of the vision of the eye.

[72]. In Barnett v. Chelsea and Kensington hospital Management Committee [1969] 1 Q.B 428,although it was held that the defendants were in breach of their duty to the deceased, still the plaintiff's claim failed because the plaintiff had failed to establish on the balance of probabilities that the defendant's negligence had caused the death of the deceased.

[73]. In the present case, if the blindness would have occurred in any event unconnected with the defendant's breach of duty, the defendant is not liable in damages.

[74]. In other words, the plaintiff must prove on a balance of probabilities, the existence of the causal connection between the defendant's breach of duty and the damages he suffered. In this connection, there were certain specific issues raised at the trial on behalf of the defendants, and they were:

i. The plaintiff had failed to attend clinics regularly;

ii. He has not complied with the medication;

iii. His non-compliance with clinic visits contributed to his present condition.

[75]. The notable breach of duty of care by Dr. Narayan as can be seen from the evidence was not referring the plaintiff to overseas treatment when he developed complications. In light of the plaintiff's prolonged period of illness and the obvious deterioration of the vision in his left eye, Dr Narayan should have either revised his diagnosis or referred him to overseas treatment. The need to explore all the alternative treatments was especially important when it became evident that the treatment given had little or no effect in improving the vision of the eye.

[76]. In view of the above, court has to determine whether there would have been any difference had the plaintiff been referred to overseas treatment, when it was observed the complications developing in the plaintiff's eye.

[77]. When the expert evidence is considered there was no significant certainty about what would have happened to plaintiff's left eye if referred for overseas treatment promptly. Dr. Sikivou's evidence does not provide an answer to the critical question of what would happen if there had been an overseas referral much earlier. Hence there is considerable medical uncertainty about what the outcome would have been, had the plaintiff been referred to overseas treatment when he started to develop complications.

[78]. If it is proved that the overseas referral and treatment would have cured the eye then the causal connection is established. If not the plaintiff fails. Dr. Sikivous evidence does not form a view that a overseas treatment could have saved the vision of the plaintiff's eye. What Dr. Sikivou stated was that it would have contributed to the loss of vision of the plaintiff's eye.

[79]. In the present case, there were two opinions expressed by Dr. Narayan and Dr. Sikivou respectively. According to Dr. Narayan, when the plaintiff was supposed to undergo the second laser treatment his eye was inflamed and therefore, nothing could be done until the inflammation was settled. By that time, his left eye had already turned blind.

[80]. Dr. Sikivou also confirmed that when the plaintiff asked for a referral overseas his left eye had already turned blind. Hence, there are no conflicting views as to the condition of the plaintiff's left eye at the time he asked for a referral overseas.

[81]. In view of the above, the next question to be answered is when should the doctors have referred the plaintiff to overseas referral and if so had there been a possibility to save his left eye? In my view, there is no concrete opinion expressed as to the above question, nor can any inference be drawn upon the evidence adduced by both parties.

[82]. To attribute the defendant's failure to exercise due care to the plaintiff's loss of vision in his left eye, there should be some substantial evidence. Mere speculative evidence is not sufficient to arrive at a conclusion that the delaying in referring the plaintiff to overseas treatment would have contributed to his blindness. The evidence before this court in particular the expert evidence does not form a view that a timely overseas referral of the plaintiff would have saved the plaintiff's eye.

[83]. Dr. Sikivou though stated that the delaying in referring the plaintiff to overseas treatment would have contributed to his blindness, she did not explain any further as to how the delay could have materially contributed to the loss of vision in the plaintiff's left eye. She further stated that there were other factors to consider but did not elaborate what those factors were.

[84]. The above evidence does not permit me to form an opinion that the defendant's failure to exercise due care caused the loss of the vision in the left eye of the plaintiff.

[85]. It could not be said, therefore, that but for the doctor's negligence the plaintiff's eye would have saved, because medical evidence does not indicate had the plaintiff been referred to overseas treatment his eye could have been saved.

[86]. Upon analysis of the above, it is my considered view that the plaintiff has failed to establish on the balance of probability the causal connection between the defendant's failure to exercise the duty of care and the plaintiff's loss of vision in the left eye.

[87]. While considering the evidence, I have also not lost the sight of the procedural irregularities which are noticeable on the plaintiff's pleadings.

[88]. In this action, the 1st and 2nd defendant are the Medical Superintendent of the CWM Hospital and the Attorney General of Fiji respectively.

[89]. This is a medical negligence case. The hospital could be liable in two ways. Firstly, vicariously liable for the action of one of the doctors or its staff and secondly, if the purported liability could be directly attributed to the hospital. E.g., if the sickness was due to germ that a patient contaminated in the hospital then the hospital is directly liable to the plaintiff as it has a duty to provide a clean environment.

[90]. It is therefore necessary for the plaintiff set out the cause of action which could be defended by the defendant. Neither in his statement of claim nor in his evidence the plaintiff has explained the basis upon which the 1st defendant could be liable for the loss of vision in the plaintiff's eye. Further, the plaintiff has not identified a particular person whose conduct would have caused the alleged injury to the plaintiff.

[91]. Although the plaintiff made the Medical Superintendent a defendant in this case, the plaintiff has failed to establish any basis upon which the liability could be imposed on the 1st defendant. Hence, the plaintiff's statement of claim and naming the defendants are also defective and bad in law.

[92]. Therefore, even if it is proved that the doctors at the eye unit of the CWM hospital were negligent in treating the plaintiff still the 1st defendant cannot be held liable for that.

[93]. For these reasons, I find that the plaintiff has failed to establish on the balance of probability, that the defendants' negligence caused the loss of the vision in the plaintiff's eye.

[94]. Having regard to the above, I dismiss the plaintiff's action. Cost is summarily assessed in the sum of $ 350.00.

Pradeep Hettiarachchi
JUDGE

At Suva
28th November, 2011