IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 33 OF 2015

BETWEEN:		BALE TIKOSAYA

Plaintiff

AND:			THE PERMANENT SECRETARY OF HEALTH

First Defendant

AND:			ATTORNEY-GENERAL OF FIJI
Second Defendant

CORAM:	 	The Hon. Mr. Justice David Alfred

COUNSEL:		Mr. K. Ratule and Mr. A. Sen for the Plaintiff
	
			Mr. J. Pickering for the First and Second Defendants

Dates of Hearing:	3 and 4 April, 2017

Date of Judgment:	5 April, 2017

JUDGMENT

1.	At first blush this appears to be yet another medical negligence case where the 	claimant has allegedly suffered injuries and residual disabilities as the consequence of 	the alleged negligence of surgeons or doctors or other medical personnel.  But as the 	judgment unfolds the picture appears to be different and unique.

2.	The Statement of Claim says that the Plaintiff who was born on 10 February 1996 	was admitted to the Labasa Hospital (Hospital) on 29 April 2015, complaining of 	vomiting due 	to fish poisoning. She was subject to a scan and thereafter at about 	2a.m on 30 April 2015 the doctors advised her that she was pregnant and they had to 	remove the still born child to save her life.

3.	The Plaintiff repeatedly advised the aforementioned servants and agents of the 	Defendants that she was not in a sexual relationship and could not be pregnant.  	Without her consent, they took a pap smear from her from which it was evident she 	was still a virgin and had not engaged in any sexual activity.

4.	The doctors insisted on operating and this was done the next morning after they 	convinced her it needed to be done to save her. The laparotomy injured the Plaintiff.

5.	The particulars of negligence alleged are as follows:
	(A)	(1)	Making an improper and incorrect diagnosis.	
		(2)	Failing to accord the Plaintiff proper medical and surgical etc. 				treatment
		(3)	Operating on the Plaintiff when it was unnecessary to do so.

	(B)	Against the nursing staff:		
		(1)	Failing to pay any or any sufficient heed to the Plaintiff’s complaints
		(2)	Allowing  the  Plaintiff  to  go  for  an  operation  when  it  was not 				necessary.

6.	The particulars of injury allegedly suffered are as follows:
	(a)	Surgical incised wound;
	(b)	Severe back and abdominal pain and continues to suffer such pain;
	(c)	Suffers pain, weakness and restriction in movement and cannot perform much 		of her daily chores;
	(d)	Difficulty in lifting heavy objects;
	(e)	Difficulty in travelling, walking.

7.	The particulars of Special Damages are as follows:
	(1)	Transportation						$   500
	(2)	Medication						$   300
	(3)	Cost of Caregiver at $80 per week for
		27 weeks						$2,160
		Total Special Damages				$2,960		

8.	The Plaintiff also alleged she was employed at Flour Mills of Fiji (FMF) as a 	promotive personnel and was paid $63 for 3 days.  Due to the surgery she could not 	work and had to resign.  She lost the opportunity to be promoted and to advance to 	permanent employment.

9.	Finally the Plaintiff alleges she suffered, inter alia pain, joint and back pain and 	limitation in mobility.  Wherefore she claims general, special and punitive damages. 

10.	The Statement of Defence starts with a series of admissions and goes on to put the 	Defendants’ defence.  This is in essence that the assessment made by the doctor after 	the initial evaluation was, inter alia, “ectopic pregnancy – unlikely”.  An ultra (sound) 	scan (USS) was done with the following finding which included “Ectopic pregnancy”.

11.	After discussions, the decision was taken for an emergency laparotomy on the 	suspected ectopic pregnancy. 

12.	The initial history of the Plaintiff based on hospital records revealed she was not 	sexually active. The decisions made emanated from a genuine evaluation of an 	acute situation although the surgical findings were negative of ectopic pregnancy.  	The diagnosis was performed on the basis of the USS findings.

13.	The Reply to the Defence essentially repeats the contentions raised in the Statement 	of Claim and only merit the Court noting that it is reiterated that the surgical 	intervention was unnecessary and negligently done.

14.	The Minutes of the Pre-Trial Conference include the following:
	
	Agreed Facts
	
	(1)	The 1st Defendant employed the medical and other staff of Labasa Hospital 		and is liable for any breach of duty or negligence on their part.
	(2)	The Plaintiff was admitted to the hospital complaining of vomiting the reason 		for which was fish poisoning.

	Issues
(1)	Was the Plaintiff properly diagnosed?
(2)	Were the Defendants negligent in operating on her when she repeatedly said she was not pregnant?
15.	The hearing commenced with the Plaintiff (PW1) giving evidence.  She does 	domestic duties and is 21 years of age.  On 29 April 2015 she ate fish and had 	poisoning. She was unconscious when she arrived at the Hospital and when the 	doctors woke her up they asked her where she was and she told them at the hospital.  	They told her she was pregnant and that the foetus was outside the womb.

16.	She told them 4 times she has never been with a male.  They told her if she did not 	have an operation the thing might explode inside.  They conducted a pregnancy test 	by taking a specimen of her urine.  The operation was at 3am on 30 April 2015 and 	she was still conscious. After the operation she felt pain and had breathing 	problems. 	She was discharged on 2 May 2015.  Her mother looked after her at home, 	bathed, fed 	and massaged her.  She was employed at FMF to sell their goods and 	do packing in 	the shops. She carried cartons.  Her payslips were tendered as Exhibits 	P2 and P3.  After the operation she returned to work but came back because she was 	not feeling well.  She could not stand for long as her injuries had just healed.  She 	now cleans the house and washes the dishes.  When she looks up at the sky and sees 	clouds, she feels pain 	in her injuries (emphasis mine). She had not visited any doctors 	or hospital to complain of her pain.

17.	Under cross examination PW1 said the procedure was explained to her father before 	he signed the consent. Before the surgery there was an ultra sound scan done.  She 	went back to the hospital 3 times.  There was still pain but she did not complain to the 	doctors of this.  She was not advised by the doctors not to lift heavy stuff.

18.	The next witness was the mother, (Madam) Losena Vakaloloma (PW2).  She said the 	Plaintiff’s uncle took her to the hospital.  The Plaintiff’s brother signed the consent 	form.  After the Plaintiff returned home, PW2 took her to the hospital to see Dr. V. 	Nasila, who apologised.  He asked her what the Plaintiff told her and she replied the 	Plaintiff heard the doctors say during the operation that there was no foetus.  Dr 	Nasila performed the operation and he asked for forgiveness from PW2 and her 	husband.

19.	At this juncture Counsel on both sides agreed the expenses of transportation at $250 	and medication at $150.

20.	When cross examined PW2 said the doctors told her husband and her that the Plaintiff 	was carrying a foetus in the tube.  At the review they informed her that after the 	injuries healed, the Plaintiff would feel better.  After the surgery the Plaintiff is 	unemployed.

21.	With that the Plaintiff closed her case and the Defendants opened theirs.

22.	The Defendants’ sole witness was Dr Viliame Nasila (DW1), the medical officer in 	the Labasa Hospital.  The Plaintiff was brought in for fish poisoning.  The doctor’s 	(on duty at the A and E) initial evaluation ruled out ectopic pregnancy (fertilised 	ovum 	outside the womb) (EP).  An ultra sound scan was ordered to rule out EP.  Its 	findings were there was a possibility of EP.  The diagnosis of EP was based on the 	ultra sound scan.  The doctor on call and the O and G Registrar advised the Plaintiff 	of EP.  The doctor on call advised DW1 that consent was given by the Plaintiff’s 	brother.  DW1 performed the operation with another surgeon.  The Plaintiff was under 	general anaesthesia (GA).  The laparotomy was done and found no EP.  The go ahead 	was given on the basis of the USS.  At the review, on 14 May 2015, she did not 	complain any more of urinary symptoms but of a discharge from the surgical site.  On 	29 May 2015 the wound was clean and dry and it was NNR (no need for further 	review).Exhibit D1 is his medical report.

23.	DW1 said in Fiji when a female in the reproductive age group comes in, complaining 	of fainting she is subjected to a USS to rule out EP.  After 29 May 2015 the Plaintiff 	was not seen by the Hospital. He said from the medical folder the proper procedure 	was followed and medication was provided before and after surgery.  After surgery it 	was normal to have pain.  They inform a patient of the expected complications when 	she is signing the consent form. There were no records of the Plaintiff coming to the 	Hospital after 29 May 2015. With abdominal surgery they would advise the patient 	against any heavy lifting for up to 6 months.

24.	DW1 said with regard to surgery there was no negligence.  The intention was to treat 	the patient.  At the review on 5 May 2015 DW1 advised the Plaintiff and her parents 	that the surgery could not have any impact on her future pregnancy and child birth.

25.	Under cross examination, DW1 said the pregnancy test was not available in the 	Labasa Hospital.  The Plaintiff did not have any of the symptoms of pregnancy.  The 	blood test was not available in the Labasa hospital.  The only way to ascertain if she 	were pregnant was to do a laparotomy.  In 2015 they did not have the HCG test.  They 	have not made any assessment of her disability till now.  They need to evaluate her if 	other conditions are causing her to have those complications.

26.	DW1 said there was a misdiagnosis by the technician who did the USS.  Given the 	situation that morning his decision would have been the same.  There is pain after 	surgery and it is awhile before the patient recovers from the pain.  The incision that 	was made was a small incision.  Their thinking was based on a misdiagnosis.  If the 	pregnancy test and the proper procedure were followed she would not have suffered 	pain and suffering.
27.	With that the Defendants closed their case and Counsel made their oral submissions.

28.	The Counsel for the Plaintiff submitted the Defendants had a duty of care to the 	Plaintiff to provide a safe system of care.  There was an improper and incorrect 	diagnosis and an unnecessary operation.  The Plaintiff was a major and conscious and 	capable of giving her consent but no consent was given by her. There was a	misdiagnosis by the technician and a misdiagnosis by the doctors.

29.	Counsel submitted that general damages for pain and suffering should be $$60,000, 	$5,000 should be awarded for past and future nursing care and $20,000 for future pain 	and suffering.

30.	The Counsel for the Defendants in his submission said with regard to the standard of 	care he relied on the decision of the High Court of Australia in – Rogers v. 	Whitaker [1992] 109 ALR 625.  He also said no evidence of any permanent 	disability was adduced.  The brother gave consent.

31.	As for the quantum he submitted the general damages for pain and suffering and loss 	of amenities should be $30 – 45,000 and for nursing care $700.

32.	At the conclusion of arguments I said I would  take time to consider  my decision.  	Having done so, I now deliver my judgment.

33.	I have reproduced the evidence at some length because in my opinion, this is really 	one case of negligence that turns on its facts and the facts that the Court has collated 	in the course of the hearing are these:
	The Plaintiff was admitted for fish poisoning.  She was diagnosed for EP which in the 	event proved false.  A laparotomy was performed which proved unnecessary.  The 	Plaintiff was subjected to pain and suffering.

34.	The pivot on which the issue of liability turns is the duty of care owed by the 	Defendants’ nurses, doctors and other staff to the Plaintiff.  In the event the pleadings 	and the evidence led by both sides provide the Court with the answer. The Defendants 	admit 	the Plaintiff was a major, that they owed a duty of care to her to provide 	medical, nursing and other care.  From the evidence the Court is satisfied the Plaintiff 	has proved, on a balance of probabilities, that the Defendants woefully failed to 	provide that reasonable standard of care that she was entitled to receive in the 	Hospital.  In the face of all the evidence that she was not pregnant, the doctors for 	some reasons, that the Court is not able at the end of the day to fathom, carried out an 	operation that was wholly unnecessary for a female complaining of food poisoning.  	The doctors cannot exculpate themselves by inculpating the technician who carried 	out the USS.  And even if they could, this does not get the Defendants off the hook 	because that negligent technician is still a servant and agent of the Defendants.  The 	evidence speaks for itself and there is no need for the Court to repeat the salient 	evidence.

35.	However, I hasten to add that this is not a case of the negligent conduct of an 	operation which resulted in injuries, loss of a limb etc., or some other adverse 	consequence to the patient.  This is purely and simply an unwarranted surgical 	intervention.  Perhaps I would be more correct and accurate to describe it as an 	unwarranted surgical invasion of the Plaintiff’s body without her consent.  Fortunately 	for the Plaintiff I find from the medical evidence no injury to her except an incision 	and no residual disability from the laparotomy, which was carried out without any 	negligence on the part of the doctors.  It is this which in my opinion makes this case 	rather unique.

36.	The Court does not need to fortify the decision it is arriving at by relying either on 	Bolam v Friern Hospital Management Committee [1957] 1 W L R at 586, a 	decision of the High Court of England nor on Rogers v Whitaker (previously alluded 	to) a decision of the High Court of Australia for the cardinal reason that the Plaintiff 	was undeniably never asked to give her consent nor did she give her consent to the 	operation.  The Defendants’ entire defence collapses on this salient fact.

37.	At the end of the day, for the above reasons, the Defendants’ servants and agents were 	negligent in their duty of care to the Plaintiff and I enter judgment for the Plaintiff 	against both the First and the Second Defendants.
38.	I turn now to the assessment of the damages, first the general, which is going to be a 	Herculean task for the Court.  This is because the authorities cited are of awards for 	much more serious injuries and residual disabilities caused by some negligence in the 	performance of operations. From these, however, as I can discern from the medical 	evidence, the Plaintiff has fortunately been spared.  With all respect to the Counsel for 	the Plaintiff who asked for $80,000 ($60,000 + $20,000) for pain and suffering and 	the Counsel for the Permanent Secretary of Health and the Attorney General who 	suggested $30 – 45,000, the Court is unable to consider either figure. On the 	contrary, the Court as the custodian of the public interest has to be careful in its award 	of damages, not showing partiality to one side nor favour to the other.  In my opinion, 	the proper and adequate award for the pain and suffering and incision the Plaintiff has 	suffered and for being subjected to a wholly unnecessary operation, to which she 	never consented, would be the sum of $12,000.

39.	On the medical evidence I do not find that the Plaintiffs could have suffered any loss 	of amenities and I make no award for this claim.  Unfortunately for her an illusive  	adverse effect from seeing clouds is a claim which is not known to this Court.

40.	As for the cost of a caregiver, I am prepared to award the sum pleaded of $80 per 	week but only for 12 weeks which would come up to $960.

41.	There is no cogent evidence of any loss of earnings or loss of earning capacity.  The 	Statement of Claim states clearly she was not permanently employed by FMF and that 	she resigned.  There was no evidence that the FMF asked her to go home.  In any 	event this is a claim for special damage and it has not been pleaded nor proved.  In the 	Statement of Claim the Plaintiff only claimed transportation, medication and for a 	care provider totalling in all $2,960 which figure is repeated in para 23 in the claim.  	The Plaintiff is bound by her pleadings, and any awards have to be based on what has 	been claimed therein.

42.	Finally, there was no evidence and no submission regarding punitive damages, and 	this is also not allowed.

43.	In the result I order the First and Second Defendants to pay the Plaintiff:
(1)	 	$12,000 as general damages with interest thereon at the rate of 6% p.a. from 	the date of service of the writ to the date of judgment.
(2)		Special damages in the sum of $1,360 with interest thereon at the rate of 3% 	p.a. from the 30th April 2015 to the date of judgment.
(3)		Interest on the judgment sum of $13,360 from the date of judgment to the date 	of realisation, at the rate of 4% p.a.
(4)		Costs which I summarily assess at $2,000.

	Delivered at Labasa, this 5th day of April, 2017.

							……………………..
							DAVID ALFRED
							JUDGE
							HIGH COURT OF FIJI