N2779

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1262 0F 1996

KEMBO TIRIMA FOR HERSELF AND AS BEST FRIEND OF MONICA TIRIMA, MORRIS TIRIMA, MARGARET TIRIMA AND MOSLIN TIRIMA
Plaintiff

V

ANGAU MEMORIAL HOSPITAL BOARD
1st Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
2nd Defendant

WAIGANI: CANNINGS J
8 SEPTEMBER, 27 OCTOBER 2004, 4 FEBRUARY 2005

JUDGMENT

Negligence – medical negligence – person injured in criminal attack taken to hospital for emergency treatment – medical treatment administered – death of patient – dependency claim by widow – Wrongs (Miscellaneous Provisions) Act – action based on common law tort of negligence – five elements of the tort of negligence: duty of care, breach of duty, causation, non-remoteness of damage, non-contribution by plaintiff to injury – duty of care – particular relationships – public hospital – emergency and accident department – no issues as to remoteness or contributory negligence or volenti non fit injuria – findings of fact – considerations to take into account in making findings of fact – whether hospital or its staff were negligent – two-step process for determining negligence – standard of care – standard of treatment to be reasonable in all the circumstances – whether the medical staff acted reasonably – considerations to take into account in determining whether medical staff acted negligently – expert opinion – weight to be given to expert evidence – failure to give proper treatment – failure to initiate basic life saving procedures – failure to keep proper records – inference to be drawn in event of failure to keep proper records – paucity of evidence by medical staff to explain what happened – patient’s death preventable – causation – whether death caused by negligence of hospital or its employees or others for whose conduct it is vicariously liable – decision on liability.

Cases cited:
Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428
Bolam v Friern Hospital Management Committee [1957] 1 WLR 582
Gima Oresi v Chris Marjen and The State (1998) N1784
Government of Papua New Guinea v Elizabeth Moini [1978] PNGLR 184
Kembo Tirima v Angau Memorial Hospital Board, The State and Leasemaster Pty Ltd, WS 1262 of 1996, National Court, unreported, 18.11.97
Koko Kopele v MVIT [1983] PNGLR 223
Mahon v Osborn [1939] 2 KB 14
Marshall v Lindsey County Council [1935] 1 KB 516
Maxine George v Burns Philp (NG) Ltd (1981) N324
Moini v Government of Papua New Guinea [1977] PNGLR 39

Counsel:
B Boma for the plaintiff
J Kumura for the defendants

CANNINGS J: 

INTRODUCTION

This is a case about alleged negligence on the part of a public hospital and its medical staff. A man was injured as a result of a criminal attack. He was taken to the casualty ward. He was treated but died a few hours later.

His wife claims that he was treated negligently and this caused his death. She is making a dependency claim. She is suing the hospital and the State, which funds it. She seeks damages, ie compensation, on behalf of herself and her children.

The defendants deny that they were negligent. They claim that the medical staff did all that they could to save the man’s life. His death was tragic, but it was not due to negligence. This judgment addresses the issue of liability.

BACKGROUND

Stabbing incident and death

On Saturday 28 January 1995 in Lae, criminals attacked a driver employed by Hertz Rent-A-Car, Paul Tirima, during a hold-up. The Hertz car he was driving was stolen and Mr Tirima was stabbed in the abdomen. He made his way to a nearby service station. He collapsed. One of his friends found him and rushed him to Angau Hospital. The stabbing incident occurred about 7.00 pm. By about 8.00 pm Mr Tirima was in the casualty ward. He was operated on later in the evening. By 4 o’clock the next morning he had died. 

Workers compensation claim

On 13 October 1995 the Workers Compensation Tribunal awarded the plaintiff and her children K25,000.00 under the Workers Compensation Act, as Mr Tirima had been injured during the course of his employment.

Statement of claim

Mr Tirima’s widow, Kembo Tirima, is the plaintiff. On 19 December 1996 Warner Shand Lawyers filed a writ of summons on her behalf. Three defendants were named: 

•	the Angau Memorial Hospital Board; 

•	the State; and 

•	Leasemaster Pty Ltd, trading as Hertz Rent-A-Car.

The plaintiff sued for herself and as best friend of four children of her marriage to Mr Tirima: Monica Tirima, aged 17 years; Morris Tirima, aged 11; Margaret Tirima, aged 7; and Moslin Tirima, aged 7. 

The statement of claim attached to the writ claims that the hospital staff who treated Mr Tirima were negligent and that the first and second defendants are vicariously liable for the staff’s negligence. The alleged negligence was particularised as:

•	failing to administer any anaesthetic drugs to the deceased;

•	failing to perform a surgical operation to remove or reduce internal bleeding;

•	failing to assist in the surgical operation required by the deceased; and

•	refusing to accept the assistance of Dr Aikebuse, a private doctor, to assist in a surgical operation.

The plaintiff seeks damages, special damages, funeral expenses, interest and costs.

Events since filing of writ

On 15 April 1997 the Solicitor-General filed a defence on behalf of the first and second defendants. The circumstances in which Mr Tirima was stabbed and taken to hospital were admitted. But the alleged negligence by the hospital staff was denied outright. No issue was taken as to whether the plaintiff had complied with the time limitations for giving notice under the Claims By and Against the State Act 1996. So the Court has not addressed that issue and it is too late to raise it now.

On 18 November 1997 Sawong J summarily dismissed the claim against the third defendant, Leasemaster, for not disclosing a reasonable cause of action. His Honour held that in light of the award made by the Workers Compensation Tribunal a common law claim against the employer was prohibited by Section 84 of the Workers Compensation Act. (Kembo Tirima v Angau Memorial Hospital Board, The State and Leasemaster Pty Ltd, WS 1262 of 1996, National Court, unreported.)

The case was then set down for trial on several occasions over a number of years, but the trial dates were vacated. 

In December 2002 Warner Shand ceased to act and Paul Paraka Lawyers of Port Moresby commenced acting for the plaintiff. Then in November 2003 Paul Paraka Lawyers ceased to act and Poro Lawyers of Port Moresby commenced acting for the plaintiff. 

On 6 September 2004 the trial started at Waigani. By agreement of the parties, witnesses were not called to give oral evidence. It was agreed that the case would be run on the basis of nine affidavits, all tendered by consent. Submissions were made on 29 October 2004.

THE EVIDENCE

Nine affidavits

The first seven affidavits in the table below were tendered by the plaintiff; the remaining two by the defendants.

Exhibit	Date	Deponent and description	
A	02.07.01	Joanness Poya, brother-in-law of deceased	
B	05.06.01	Kembo Tirima, plaintiff, wife of deceased	
C	07.06.01	Aisik Wanu, service station manager	
D	14.08.01	Wapeya Kire, friend of deceased	
E	13.04.04	Dr Doura Vele, private medical practitioner	
F	15.06.04	Dr Ponifasio Ponifasio, consultant surgeon, university lecturer	
G	04.07.01	Monica Tirima, daughter of deceased	
H	30.11.99	Dr Koimbu, doctor, Angau Hospital	
I	11.10.01	Dr Polapoi Chalau, chief surgeon, Angau Hospital	

Treatment of evidence

Exhibits A, B, C, D and G are affidavits by friends or relatives of the deceased, all of whom were present at the hospital. I will summarise those affidavits first. Most of them contain references to statements made by other persons in Tok Pisin. The English translations of those statements have been agreed to by the lawyers for the parties and will be referred to, where relevant. I will then summarise the remaining four affidavits, which contain medical evidence. Exhibits H and I are affidavits by medical practitioners employed by the hospital. Exhibits E and F are affidavits of two other doctors, which the plaintiff asserts contain independent expert opinion as to the standard of treatment given to the deceased. As those affidavits contain extensive references to medical terms, I will present a glossary. 

Joanness Poya

He is the plaintiff’s brother. He was at the family home with the plaintiff and her four children on the night of the incident. At about 8.00 pm they were informed by three police officers that the deceased had been stabbed and that he was in the hospital. He and the plaintiff went with the police officers in their car to the hospital. They were immediately led to where Mr Tirima was lying, where he was "undergoing a sugar-water transfusion". Mr Tirima was conscious at that stage. He asked him about the incident but Mr Tirima’s only reply was:

Plis yupela katim na rausim blut. Blut ipulap long bel bilong mi. Yupela laikim mi idai na yupela wok long isi, isi istap. 

[Please, you people operate and remove blood. Blood is filling up my abdomen. Do you people wish me dead and therefore are not doing it?]

Having heard Mr Tirima say that, Mr Poya and the plaintiff pressured the sisters and nurses to immediately transfer him to the theatre. At about 9.00 pm he was transferred to the operating theatre. By this stage the plaintiff’s four children and various friends had arrived at the hospital. Mr Poya looked through the glass where the receptionist was and saw that the doctors and nurses had not started operating.

He asked what was happening and he was told that they were waiting for a third doctor. About 11.00 pm or 12 midnight he asked again what was happening. One of the doctors responded that, as the family had contacted a private doctor, they could not do the operation quickly. He does not know who rang the private doctor.

At about 5.30 am a doctor emerged from the theatre and informed Mr Poya and the others that Mr Tirima was dead. 

Kembo Tirima

The plaintiff’s evidence was similar to Mr Poya’s. She was at the family home on the night of the incident. Around 8.00 pm a group of police officers informed her that her husband had been attacked by criminals and he was at the hospital. She and her brother went to the hospital. She noticed that a drip was connected to her husband. 

A little later she saw a couple of nurses pushing her husband into the operating theatre. A doctor told her and the others that no one should come inside. 

About thirty minutes later a doctor came out and said that they were waiting for a third doctor and that they had not yet operated on her husband. He told them that the doctor had gone to his house to pick up something.

They waited for a very long time and did not receive any more information. While they were waiting, three other friends, Kire Wapeya, James and Philip, came along. The three of them pushed the entrance into the operating theatre and went inside. She followed them, together with her brother and their friend, Aisik Wanu. She noticed that her husband had not been operated on and that he was in great pain. 

Her husband shouted in a loud voice calling:

Plis dispela nurse yu inap rausim dispela samting long bel blong mi. Mi hat long kisim win na klostu bai mi dai. 

[Please can you (nurse) remove this thing from inside my abdomen? I am having difficulty breathing and I am about to die.] 

Kire, James and Philip then said that they were going to see the Manageress of Hertz Rent-A-Car so that she could engage a private doctor to come to the hospital to attend to her husband. 

At about 12 midnight a hospital doctor came out of the operating theatre and said:

Husait long yupela iringim private dokta? Yu laik underestimatim mipela, sapos yupela laik operatim man ya, em istap, yu kisim na operatim em. 

[Who rang a private doctor? If you underestimate us then the patient is there. You can take him and operate on him.]

Her brother replied:

Mipela ino go aut na ringim wanpela private dokta. Mipela istap long hia klostu tulait nau. Em mas ol narapela sios memba mas ringim bikos yu no bin holim Late Paul Tirima liklik tru ikam inap nau long biknait. 

[We did not go out and ring a private doctor. We stayed here all the time and it is close to daybreak. The other church members may have rang because you have not touched Paul Tirima, up to now, late into the night.]

The doctor then slammed the door and went back into the operating theatre. 

Between 1.00 am and 3.00 am she and the others started to fall asleep. 

Just after 4.00 am a doctor came out, told her that her husband had passed away, and showed her and the others where they had operated on him.

She made the following observation:

We found out that they had taken out the deceased’s stomach and put it outside of his body as butchers do when they take out intestines and we saw that he lost of a lot of blood but we could not see where they had operated [on] him.

When we went into the operating theatre, we had not seen a number 3 doctor, which they claim they were waiting for. We saw the two same doctors and three nurses.

Aisik Wanu

He was a friend of Mr Tirima. He is a service station manager and was working close to the place where Mr Tirima was attacked. After he was attacked, Mr Tirima made his way to Mr Wanu’s office and it was Mr Wanu who took him to the hospital.

Mr Wanu says the stabbing incident would have happened around 6.45 pm to 7.00 pm.

They arrived at the hospital at about 7.15 pm. There was not many hospital staff around. But he eventually located a doctor and a nurse. By this time Mr Tirima’s stomach was swelling and causing breathing difficulties. He started calling out in agony. A second doctor joined them. The doctors said that Mr Tirima definitely needed an operation but they needed a close relative to sign the consent forms. Mr Wanu signed the forms. Mr Tirima was still conscious at this stage. 

They then moved Mr Tirima to another room and by this stage it was about 8.00 pm. 

Soon afterwards other members of the family and many church members came to the hospital. Mr Tirima was in great pain and calling out things like:

Dispela nes samting ya pulap ikam antap na hat long mi kisim win, inap yu rausim hariap. 

[Please nurse, remove this thing from my abdomen. It is very hard for me to breathe.]

The church members asked the doctors when they were going to operate. The doctors replied that they would operate as soon as a third doctor arrived.

They waited outside the operating theatre until about 11.00 pm. Then someone came out and said the two doctors were still waiting for the third doctor and the operation had not taken place.

Three friends, Kire, James and Philip, decided to go inside the operating theatre and see what was happening. The plaintiff and her brother also went in, together with Mr Wanu. At this stage Mr Tirima was still conscious and in great pain, complaining about breathing difficulties. 

They were told to leave the operating theatre. Then Kire, James and Philip went to Mr Tirima’s boss’s residence and asked her to arrange a private doctor. The boss rang Tusa Hospital to see if they could do the operation. And then, apparently, Tusa rang Angau to hand over responsibility.

At midnight one of the doctors came out of the operating theatre and said:

Husait long yupela i ringim privet docta? Yupela ting mipela wanem? Sapos yupela laik operetim man orait, man istap, yupela ken. 

[Who rang a private doctor? What do you think we are? If you want to operate on the patient, then he is there. You can.]

After midnight everyone grew tired and one by one went home. Mr Wanu was in the last group of five to go home. 

Wapeya Kire

He was a friend of Paul Tirima. He heard of the stabbing incident and went to the hospital about 9.30 pm. There were a lot of relatives and friends outside the operating theatre. He noticed that the plaintiff was crying and saying that the doctors were not operating on her husband.

He knew Mr Tirima’s boss and where she lived. He went there to suggest to her that she should arrange a private doctor; which she did.

He went back to the hospital and stayed there from 11.00 pm until 3.30 am. During this time there was no word of any operation on Mr Tirima. 

Monica Tirima

She is the eldest child of the plaintiff and the deceased. She was at the family home on the night of the incident. 

She arrived at the hospital about 9.00 pm. She was distressed on seeing the sight of her father. 

He was "terribly stabbed and wounded" and lying on a trolley half-dead with his eyes closed. His heart was still beating but he could not talk and he was pushed into the operating theatre. 

She expected the operation to start early. However a messenger informed the group that the doctors were still waiting on a third doctor. Someone later rang for a private doctor, Dr Aikebuse of Tusa Private Hospital Centre. 

The hospital doctors were upset on finding out that someone had called for a private doctor. 

Glossary of medical terms

This glossary is sourced mainly from The New Oxford Dictionary of English, Oxford University Press, 1998. The meaning given to the terms represents the Court’s understanding of various terms used in the evidence.

abdomen – the part of the body containing the digestive, urinary and reproductive organs 
abdominal cavity – the space in the abdomen in which the abdominal organs are located
abdominal haemorrhage – bleeding in the abdomen
adrenaline – a drug used to increase the pulse rate and rate of blood circulation or a hormone secreted by the adrenal glands, eg in conditions of stress, with that effect 
air hunger – shortage of breath, sometimes due to blood loss
alimentary tract – the whole passage along which food passes through the body from mouth to anus during digestion
anaesthesia – insensitivity to pain, especially as artificially induced by injection of drugs before a surgical operation
anaesthetic – a substance that induces insensitivity to pain
anaesthetist – a medical specialist (a doctor) who administers anaesthetics 
anus – the opening at the end of the alimentary canal through which solid waste matter leaves the body
artery – any of the muscular-walled tubes forming part of the circulation system by which blood (mainly oxygenated) is conveyed from the heart to all parts of the body; as distinct from veins 
ATO – anaesthetics technical officer
atropine – a drug used in medicine as a muscle relaxant
barbiturate – a class of sedative or sleep-inducing drugs
blood – red liquid that circulates in the arteries and veins, carrying oxygen to and carbon dioxide from the tissues of the body
blood pressure – the pressure of the blood in the circulatory system 
blood vessel – a tubular structure carrying blood through the tissues and organs; a vein, artery or capillary
bowels – the part of the alimentary canal below the stomach; the intestine
calcium gluconate – a drug, sometimes given to assist during restoration of heart function
brain – organ in the skull, functioning as the coordinating centre of sensation and intellectual and nervous activity
capillaries – fine blood vessels 
cardiac – of or relating to the heart
cardiac arrest – sudden stoppage of the heart 
cardiopulmonary – of relating to the heart and lungs
cavity – a space within the body
cerebral – of or relating to the cerebrum of the brain 
cerebral oedema – swelling of the brain
cerebrum – the principal part of the brain
chest – the part of the body between the neck and the stomach
circulatory – of or relating to the circulation of blood
circulatory collapse – failure of blood circulation secondary to blood loss or heart failure
circulatory system – the heart and blood vessels, through which blood is pumped to tissues and organs
coagulation – change of a fluid, eg blood, to a solid or semi-solid state
collapsed lung – shrinkage of the lung usually due to leakage of air
common iliac artery – see iliac artery
conscious – awake, aware of, and responding to one’s surroundings 
coronary – of or relating to the arteries which surround and supply the heart
dextrose – a sugar solution
distended – swollen
EMST – early management of severe trauma
general anaesthetic – an anaesthetic that induces general anaesthesia 
general anaesthesia – insensitivity to pain and unconsciousness induced by drugs
glucose – a simple sugar
haemacele – a type of intravenous fluid used to replace blood loss
haemal – of or concerning the blood
haemorrhage – bleeding; an escape of blood from a ruptured blood vessel, especially when profuse
haemostatic – of or relating to stopping the flow of blood
hartmans – a type of intravenous fluid
heart – the organ that pumps blood to the lungs and all body organs
heart attack – a sudden occurrence of coronary thrombosis, typically resulting in death of a heart muscle; sometimes fatal
hypovolaemia – a decreased volume of circulating blood in the body
hypovolaemic – of or relating to hypovolaemia
iliac – of or relating to the ilium 
iliac artery – a major blood vessel between the aorta and the pelvis and legs
ilium – the large broad bone forming the upper part of each half of the pelvis
incision – a surgical cut made in skin or flesh
intestines – the lower part of the alimentary canal from the end of the stomach to the anus
intra-abdominal – within the abdominal cavity
intra-peritoneal – within the peritoneum
intravenous – existing or taking place within, or administered into, a vein or veins
laparotomy – surgical incision into the abdominal cavity, for diagnosis or in preparation for major surgery
lung – each of the pair of organs situated within the ribcage, consisting of elastic sacs with branching passages into which air is drawn, so that oxygen can pass into the blood and carbon dioxide be removed
lung oedema – swelling of the lungs
membrane – a pliable, sheet-like structure acting as a boundary, lining or partition in the body
mesentery – a fold of the peritoneum which attaches the stomach, small intestine, pancreas, spleen and other organs to the posterior wall of the abdomen
mm Hg – millimetres of mercury; units for measuring blood pressure
oedema – a condition characterised by an excess of watery fluid collecting in the cavities or tissues of the body, resulting in swelling
operation – an act of surgery performed on a patient
pathologist – a medical officer who conducts examinations and tests to find the causes of disease or death
patient – a person receiving medical treatment
pelvis – large bony structure near the base of the spine, supporting internal organs, and to which the legs are attached 
perforation – a hole made by boring or piercing
peritoneal – of or relating to the peritoneum
peritoneum – the membrane lining the cavity of the abdomen and covering the abdominal organs
plasma – the colourless fluid part of blood
pneumothorax – the presence of air or gas in the cavity between the lungs and the chest wall, causing collapse of the lung
post-mortem – an examination of a dead body to determine the cause of death
post-operative – relating to the period after a surgical operation
pulse – rhythmical throbbing of the arteries as blood is propelled through them 
resuscitate – to revive circulation of a sick or collapsed person or of a person whose heart has stopped
resuscitation – the processes used to resuscitate a person
retroperitoneal – behind the peritoneum, at the back of the abdomen
retroperitoneal haemorrhage – bleeding at the back of the abdomen, behind the peritoneum 
saline – salt water
small intestines – the part of the intestine that runs between the stomach and the large intestine
sodium bicarbonate – an alkaline solution 
stomach – the internal organ in which the first part of digestion occurs 
surgery – the branch of medicine concerned with treatment of injuries by incision or manipulation
suture – verb: to stitch together the edges of a wound or surgical incision; noun: thread-like material 
tension pneumothorax – air in the chest cavity which is under high pressure
thiopentone – a sulphur-containing barbiturate drug used as to induce anaesthesia
thrombosis – local coagulation or clotting of the blood in a part of the circulatory system
tissue – distinct type of material from which animals are made 
unconscious – not awake, aware of, and responding to one’s surroundings 
vascular – of or relating to vessels
vascular repair – repair of a blood vessel
vessel – a duct or canal holding or conveying blood or other fluid; arteries, and veins are and capillaries types of vessels
vein – any of the tubes forming part of the blood circulation system of the body, carrying mainly oxygen-depleted blood towards the heart 

Dr Koimbu

He is a doctor by profession, employed by Angau Hospital. Though he does not say so in his affidavit, it can be inferred that he was one of the doctors who treated Mr Tirima. 

He recalls that Paul Tirima was first seen at about 8.00 pm with a history of being stabbed in his abdomen thirty minutes earlier. The admission records show that he was suffering severe abdominal pain and was in shock. He had blood pressure of 80/50 mm Hg, a rapid thready pulse rate, a respiratory rate of over 40 per minute and was very pale.

Dr Koimbu states:

A diagnosis of internal bleeding and shock was made and immediately an intravenous access line was inserted and 2 litres of haemacele (plasma expanders) was given fast while blood was collected for cross matching and four (4) units of "O" group blood was obtained and given to Mr Paul Tirima at that time. 

In the meantime, while resuscitation was in progress, the operating theatre was prepared for a laparotomy (exploratory).

The laparotomy began at 10.10 pm and Dr Pip and I assisted Dr Warangi assisted me as operating surgeons, [sic] while general anaesthesia was administered by the anaesthetics technical officer Mr Jacob Dalali. Consent for the exploratory laparotomy was given by a relative, Mr Aisik Wanu. …

During the laparotomy, a further four (4) units of "O" group whole blood were transfused, 1 litre of hartmans, 1 litre of normal saline, 2.5 litres of haemacele and 1 litre of 4.3% dextrose in saline, given intravenously. Estimated blood loss was about 6-10 litres. …

Findings during the laparotomy were that the stab wound involved small intestines causing multiple bowel perforations and mesentery perforations, severed right common iliac artery, and up to 10 litres of free blood in the abdominal cavity.

In total, the laparotomy lasted 5 hours, that is, 10.10 pm 28 January 1996 to 3.00 am, the next morning 29 January 1996. [sic] At 3.00 am the patient suffered a cardiac arrest and was resuscitated (cardiopulmonary resuscitation) until at 4.30 am when he was pronounced dead. Cause of death noted at that time was hypovolaemia from acute massive haemorrhage.

In summary, the late Mr Paul Tirima was attended to at 8.00 pm at the Accident and Emergency Department in shock, half an hour after being stabbed in the abdomen. He was resuscitated with blood, fluids and was operated on at 10.10 pm by Angau Memorial General Hospital Surgeons under general anaesthesia.

The important factors to take into consideration are that an average 60 kg male had 5 litres of blood in his circulation at any one time, the common right iliac artery a major artery in the abdomen which arises from the artery comes directly from the heart was severed and the fact that specialist surgeon, assisted by professionals were engaged during the operation. [sic]

Attached to Dr Koimbu’s affidavit were the following documents:

•	patient’s admission details and operation notes, 4-pages, mostly handwritten;

•	consent form for operation;

•	transfusion forms, nursing checklist, anaesthetic records and two pages of graphs.

Dr Polapoi Chalau

Dr Chalau was the Chief Surgeon at Angau Hospital. He says that he was asked by the Chief Executive Officer, Margaret Samei to give his professional medical opinion on the death of Mr Tirima based on information supplied to him. 

Dr Chalau states:

The main points noted from information supplied are:-

•	The patient was seen almost soon after a stab wound to the abdomen; and

•	The patient was in severe shock on admission; and

•	The patient was immediately resuscitated with intravenous fluid and blood. He was later prepared for an urgent laparotomy; and

•	A blood loss of around ten (10) litres was found in the abdominal cavity from injury to large artery (right common iliac artery). The amount of blood loss is more than the total blood volume; and

•	The patient arrested while under operation and attempts to revive … continued for about one and half hours until finally pronounced dead.

… my view is that the patient had been bleeding severely from a major blood vessel injury. I have also noted that the necessary and appropriate management were given including emergency laparotomy.

However, despite all these attempts, the patient arrested while undergoing operative surgery. In my professional opinion, the cause of death was due to hypovolaemic shock from severe blood loss, secondary to injury to the right common iliac vessels.

Dr Doura Vele

He is a private medical practitioner with Duba Medical Services. He is an ear, nose and throat specialist. He has been practising medicine since 1988. He was engaged by the plaintiff to provide an independent medical opinion as to the circumstances surrounding Paul Tirima’s death. He examined the clinical notes associated with the surgical operation and the anaesthetic information and the post-mortem report prepared by Professor Patil on 31 January 1995.

Dr Vele states:

Patient was in severe hypovolaemic shock upon presentation …, which was appropriately managed according to the clinical notes.

According to the clinical notes the operation commenced at 10.00 pm almost 2 hours after initial presentation. The 2 hours must have been used to resuscitate the patient and getting the operating theatre ready.

The operative surgical and anaesthetic notes show that the surgery commenced at 10.10 pm … and at 3.00 am … the patient arrested and pronounced dead at 4.30 am. From 10.00 pm to 3.00 am is 5 hours and there is no detailed record of the actual procedure in attempting to control the haemorrhage from the intra-abdominal wounds inflicted by the stab. There is no record of the suture materials used to suture the bowels, mesentery or the right common iliac artery if any attempt was made to repair the wounds. The post-mortem report only mentioned intra-abdominal haemorrhage without mentioning the vessel or vessels involved.

There were no resuscitation notes either by the Surgeon or Anaesthetic Technical Officer (ATO). In fact the ATO noted that the patient was "satisfactory" and "awake" in the immediate post-operative period…. Either did not record the usual resuscitative drugs. [sic].
 
This includes the administration of Adrenaline, and sometimes of Atropine, Sodium Bicarbonate, and Calcium Gluconate.

The question is also posed of why the full adult dose of Thiopentone at 350 mg was administered to a severely shocked hypovolaemic case such as this. The complication of further embarrassing the circulation by ordinary dose of Thiopentone is a well-recognised and widely taught phenomenon and other agents should be used in such cases.

The anaesthetic notes also mentioned the start of operation as 10 am … Whether this was a slip of the pen or meant to be 1.00 am is uncertain as the observations recorded start at 10.00 pm. If it did indeed mean 1.00 am then this would be consistent with the affidavits of the relatives and others that the actual operation did indeed commence after midnight.

The absence of the affidavit of the Consultant (Specialist Medical Officer) of the attending surgical team is noteworthy as this is the Team-Leader responsible for the work of the attending Registrars. This questions the actual presence and timely attendance of the consultant in this case.

There is obvious inconsistency between the reported operative findings and the post-mortem findings as follows:

•	The surgical operative notes indicated multiple perforations of the small intestines and mesentery but the post-mortem findings of the alimentary tract were "unremarkable"

•	The left sided pneumothorax and collapsed lung was noted by the post-mortem report and written as a cause of death. If the pneumothorax did contribute to the death then the managing team missed it and thus appropriate management was not applied.

•	The team reported severed right common iliac artery but no actual report of haemostatic or repair procedure done to the artery and the post-mortem report only mentions abdominal haemorrhage but no mention of the actual vessel/vessels involved. …

In summary the late Paul Tirima presented to the Accident & Emergency (A & E) ward of Angau Memorial Hospital … about half an hour after being stabbed in the abdomen. He was in severe hypovolaemic shock and was appropriately managed initially.

The medical records and affidavits then show that there are inconsistencies in further management of the case as highlighted by the following:

•	The 5-hour operation with no satisfactory reporting of what was done to the patient.

•	The question of whether anaesthetic time commenced at 10.00 pm or 1.00 am.

•	The questionable use of the full adult dose of Thiopentone to severely hypovolaemic shock patient that may further contribute to the circulatory collapse.

•	No actual record of resuscitation drugs used on the patient in the theatre.

•	The question of actual or timely presence of the surgical team leader as there is no affidavit by him as the on-call surgical team leader in the file presented to me.

•	The inconsistencies of both the operative and the post-mortem findings as noted above.

All these inconsistencies if true may surmounts to negligence. [sic]

Dr Ponifasio Ponifasio

He is a consultant surgeon and lecturer in the Faculty of Medicine of the University of Papua New Guinea. He was engaged by the plaintiff to provide an independent opinion on the circumstances surrounding Paul Tirima’s death. He examined a post-mortem report prepared on 31 January 1995. He also examined a number of other records including the affidavit of Dr Koimbu, admission notes, operation records and anaesthetic records.

Dr Ponifasio states:

[The patient] was allegedly stabbed by criminals in the abdomen at about 7 pm on Saturday 28th January 1995, in Lae. He was rushed into Angau Memorial Hospital where he was taken to the operating theatre for laparotomy.

The clinical finding initially was that he was in hypovolaemic shock from intra-abdominal bleeding. His abdomen was distended and he had "air hunger".

It appeared that there was a long delay in the definitive treatment (laparotomy) in this patient. The ideal situation for this kind of emergency treatment is to perform the laparotomy within one hour.

The laparotomy (operation) showed that the deceased had a massive intra-peritoneal haemorrhage (~6 litres), with multiple perforated bowels and severed right common iliac artery. The iliac artery was explored but there was no suggestion of a surgical repair done in the operation notes.

The [patient] went into cardiopulmonary arrest on the operating table at 3.00 am and he was resuscitated. At 4.30 am of the 29th January 1995, he was pronounced dead.

The post-mortem was conducted by a qualified pathologist, Professor PS Patil on the 31st January 1995. His findings included mild cerebral oedema, right lung oedema, left sided pneumothorax (collapsed lung) and retroperitoneal haemorrhage. There was no mention in his report of a severed iliac artery. …

It appeared to me that the trauma protocol of early management of severe trauma (EMST) was not strictly adhered to. Therefore, the medical officer who attended to him recorded only what was very obvious to anybody – the vital observations and the abdominal findings. There was no written examination of the chest.

The collapsed left lung or pneumothorax was completely missed in the examination. This may have been the major contributing factor to his death.

The medical officer in the emergency department wrote in the records that the patient was stabbed 30 minutes prior to arrival in the hospital. Despite his findings of a major intra-abdominal haemorrhage, it took longer than two hours to start the laparotomy. This is unsatisfactory in an emergency situation.

The laparotomy findings showed a severed right common iliac artery. There was no mention of a vascular repair. This is very unusual because the common iliac artery is a major vessel and bleeding from such a vessel can only be controlled by a surgical repair.

The operative finding or the repair of a severed right common iliac artery was not mentioned in the post-mortem examination report.

The general anaesthesia was administered by an ATO (Anaesthetic Technical Officer). Although he may be a very competent ATO, he is nevertheless not a medical officer. There are qualified anaesthetists in Angau Hospital and they should have been consulted.

If this patient was anaesthetised with a tension pneumothorax in the left chest, then the general anaesthesia in itself was hazardous and a qualified anaesthetist could have easily detected this breathing problem.

The cause of the left sided pneumothorax is not mentioned. How did he get the pneumothorax? Was there another stab wound to his left chest?

Finally, I believe the death of the late Tirima Paul Pole could have been avoided. The usual situation in these cases is to blame the hospital staff for the cause of the death. However, I believe differently. The greater responsibility is with the State (government) for not providing adequate funding, equipment, other resources and sufficient qualified staffing to all its major hospitals.

Post-mortem report

A post-mortem report was prepared by Professor P S Patil, pathologist, on 31 January 1995. It was referred to in Dr Ponifasio’s affidavit. The report concluded:

Summary of the findings

Include mild cerebral oedema, right lung oedema, left sided pneumothorax and collapsed lung and haemorrhage in the abdomen.

Cause of death

Pneumothorax, lung oedema and abdominal haemorrhage.

THE CAUSE OF ACTION
 
This is a common law action for negligence, brought within the statutory framework of the Wrongs (Miscellaneous Provisions) Act (Chapter 297). There is no Papua New Guinea case law that provides precedent on how this case is to be resolved. In many other countries medical negligence is a burgeoning area of law. But that seems not to be the case in Papua New Guinea; at least as far as giving rise to decided cases and judgments which set out the principles of law applicable. Neither counsel was able to provide the Court with any local precedent. My own research revealed only one. 

In Gima Oresi v Chris Marjen and The State (1998) N1784, Woods J awarded damages of K23,042.20 to a woman who brought a claim for medical negligence against the chief executive officer of the Port Moresby General Hospital and the State as owner and operator of the hospital. The plaintiff underwent an operation for acute appendicitis but the doctors who performed the operation left two gauze swabs in her abdomen, causing severe pain and discomfort. She had to have another operation. That was a clear case of negligence, and his Honour did not address what a plaintiff needs to prove to establish a cause of action.

Though there have been many cases, particularly involving motor vehicle accidents, in which plaintiffs have made dependency claims following the death of a spouse or parent, which was due to the negligence of another person, there is no reported case in which a person has sued a hospital or doctors for a death.

This is therefore a case in which basic common law principles apply, by virtue of Schedule 2.2 (adoption of a common law) of the Constitution.

Common law

To establish liability a plaintiff needs to satisfy the five basic elements of the tort of negligence:

•	first that the defendant owed a duty of care to the plaintiff or to the person in whose stead the plaintiff is suing – in the present case, Mr Tirima;

•	secondly that the defendant breached that duty, ie by act or omission the defendant’s conduct was negligent; 

•	thirdly that the defendant’s negligent conduct caused injury to the person; 

•	fourthly that the person’s injuries were not too remotely connected to the defendant’s conduct; and

•	fifthly that the plaintiff has not contributed to his or her own injuries, eg by being contributorily negligent or voluntarily assuming the risk of injury.

(See generally Government of Papua New Guinea v Elizabeth Moini [1978] PNGLR 184, Supreme Court, Prentice CJ, Kearney J, Pritchard J; Koko Kopele v MVIT [1983] PNGLR 223, National Court, McDermott J; Maxine George v Burns Philp (NG) Ltd (1981) N324, National Court, Pratt J; Moini v Government of Papua New Guinea [1977] PNGLR 39, National Court, Williams J; and J G Fleming, The Law of Torts, 5th edition, Law Book Company, pp 103-105.)

Vicarious liability

It is accepted that both defendants are vicariously liable for the conduct of the hospital staff. Vicarious liability is a common law principle by which one legal person (such as the hospital or the State) is held liable for the acts or omissions of another person or group of persons over whom the first person has control or responsibility. The principles of vicarious liability have been codified by Section 1 (general liability of the State in tort) of the Wrongs (Miscellaneous Provisions) Act.

Statutory basis of dependency claim

The fact that a person has died because of another person’s alleged negligence is accommodated by Part IV (wrongful act or neglect causing death) of the Wrongs (Miscellaneous Provisions) Act.

Section 25 provides that a person who is negligent continues to be liable in an action for damages notwithstanding the death of the person injured because of their negligence. 

Section 25 states:

Where the death of a person is caused by a wrongful act, neglect or default and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect of it, the person who would have been liable if death had not ensued is liable to an action for damages notwithstanding the death of the person injured and notwithstanding that the death has been caused under such circumstances as amount in law to an offence.

Sections 26 and 27 provide the basis for the plaintiff commencing this action against the defendants, as she is claiming that her husband’s death was caused by the defendants’ neglect and would have, if he had not died, entitled him to sue the defendants and recover damages. She is the wife of the deceased person and, as no action under Sections 25 and 26 was brought within six months after the date of death by her husband’s executor or administrator, she is entitled by Section 27 to bring the action. 

Section 26 states:

(1)	An action referred to in Section 25 shall be for the benefit of the wife, husband, parent and child of the deceased person, and a person who is, or is the issue of, a brother, sister, uncle or aunt of the deceased person, and shall be brought by and in the name of the executor or administrator of the person deceased.

(2)	In the case of the death of a native within the meaning of the Interpretation Act 1975, an action referred to in Subsection (1) may be for the benefit of the persons who by custom were dependent on the deceased immediately before his death, in addition to the persons specified in that subsection.

Section 27 states:

(1)	Where in any case to which this Part applies there is no executor or administrator of the person deceased, or where no action referred to in this Part has, within six months after the death of the deceased person, been brought by his executor or administrator, the action may be brought by all or any of the persons for whose benefit the action would have been if it had been brought by the executor or administrator.

(2)	An action brought under Subsection (1) shall be for the benefit of the same person or persons and shall be subject to the same procedure as nearly as may be as if it were brought by the executor or administrator.

Section 31 imposes two requirements on actions brought under Part IV. It states:

Only one action under this Part lies for and in respect of the same subject matter of complaint, and every such action must be commenced within three years after the death of the deceased person.

Only one negligence action has been brought concerning the death of Paul Tirima and it was commenced in December 1996, well before the three year limitations period expired on 28 January 1998. So the requirements of Section 31 have been met.

MAJOR ISSUES OF LAW

No issues arise as to whether the plaintiff has met the requirements of the Wrongs (Miscellaneous Provisions) Act. So the issues are reduced to whether all the elements of the tort of negligence are established. It is accepted that the hospital and its staff, for whose conduct it is vicariously liable, owed a duty of care to a person admitted for emergency treatment. The first element is established. Of the remaining elements, it was not seriously contended that, if the second and third elements were established, the type of injuries sustained were too remote or that the plaintiff or the deceased had done anything to contribute to the death that occurred. So the fourth and fifth elements are also established.

That leaves two major issues of law for determination:

•	Was the hospital or its staff negligent?

•	If yes, did that cause the death of Paul Tirima?

PLAINTIFF’S SUBMISSIONS

Mr Boma, for the plaintiff, submitted that the hospital doctors failed to treat Mr Tirima properly, ie they were negligent and, as a result, Mr Tirima died. 

Mr Boma referred to several British cases, including Mahon v Osborn [1939] 2 KB 14; Marshall v Lindsey County Council [1935] 1 KB 516; and Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. These cases emphasise the duty of medical practitioners to do all that is reasonably expected to be done in the circumstances and the duty of the Courts to have regard to expert medical evidence when determining what is reasonable. 

Here the evidence shows that the hospital doctors did not act reasonably. Mr Boma asserts that they failed to operate on Mr Tirima to suture the organs in the abdomen in a timely fashion. In fact Mr Boma went further and submitted that the doctors did not conduct any operation until after Mr Tirima had died – and that they did this to cover up the fact that they had been negligent:

It is submitted that the doctors were pretending to the deceased’s relatives that the operation which the latter wanted done on the deceased was carried out and that they were not negligent. It may have been for their personal security reasons that the doctors wanted to show to the simple and unsophisticated relatives that the deceased died not because of their negligence to operate. This is because if a proper and conclusive laparotomy was done before the deceased died, then why were the intestines (stomach according to Kembo Tirima’s affidavit) separated from the deceased’s abdomen and put on a separate table and the abdomen left open? It is common knowledge that when an operation is concluded, the patient’s body part that was operated is put back to its original position.

Mr Boma suggested that the operation notes and the anaesthetics report, which had been made available, were bogus. They were produced to cover up the fact that the deceased died before the operation commenced. This established that the hospital should be liable for the negligent acts of its employed doctors.

DEFENDANTS’ SUBMISSIONS

Mr Kumura, for the defendants, agreed generally with the propositions advanced by Mr Boma as to the standard of care that was required. The standard is that of an ordinary, competent medical practitioner exercising an ordinary degree of professional skill. A doctor is not guilty of negligence if he or she has acted in accordance with accepted medical practice. A doctor is not to be held negligent simply because something went wrong.

Mr Kumura argued that it was wrong to say that the doctors had done nothing. The evidence of Dr Koimbu is that the emergency laparotomy started at 10.00 pm, not 1.00 am as suggested by Dr Vele. Although Dr Ponifasio considered that the laparotomy should have started within one hour, Dr Vele did not take issue with a two-hour delay. So the time it took to organise the laparotomy was reasonable. Dr Koimbu’s evidence is that three doctors were present for the operation; his evidence is to be preferred to that of the plaintiff’s witnesses, who said that only two doctors were present. 

Mr Kumura submitted that proper records were kept of the operation; that proper anaesthetic treatment was applied by a properly trained and qualified and competent officer; that appropriate treatment and techniques were applied at all times; and that there were no inconsistencies between the operative and post-mortem findings. 

FINDINGS OF FACT

Undisputed facts

There is no dispute about the circumstances in which Paul Tirima was injured. He was stabbed by criminals in the course of a hold-up. He was left to fend for himself in a badly wounded condition. He found his way to a nearby service station. He was discovered by a friend who rushed him to the hospital. All this happened within about 30 minutes after he was stabbed. 

He was treated in the hospital from about 8.00 pm on the night of Saturday 28 January 1995 until the early hours of the next morning when he was pronounced dead. He was treated in the emergency ward and the operating theatre for about eight hours. 

Area of dispute

There is considerable dispute as to what actually happened when he was in the operating theatre.

The evidence of Joanness Poya, Kembo Tirima, Aisik Wanu, Wapeya Kire and Monica Tirima is that very little was done and that Mr Tirima was not operated on at all. That is denied by the defendants, who say he was given reasonable treatment.

It is therefore important that clear findings of fact are made as to what actually happened. Before stating those findings I will set out the considerations I have taken into account in making them.

Relevant considerations

First, though there is some disparity amongst the plaintiffs’ witnesses as to the times that various events took place (eg Joanness Poya states that Mr Tirima was transferred from the emergency ward to the operating theatre about 9.00 pm; Aisik Wanu states it was 8.00 pm) their collective evidence as to the sequence of events is consistent. I do not regard the disparity in times as significant. This was a traumatic event for all concerned and it is not reasonably expected that the friends and relatives of a man in this condition would be able to recollect exact times that things happened.

Secondly, I regard the evidence from the two outside doctors, Dr Vele and Dr Ponifasio, as independent and credible evidence by experts. Their evidence was generally consistent. The defendants did not make any submissions that undermine its value. As they were expert witnesses, the Court is entitled, indeed obliged, to have close regard to the opinions they expressed. Their evidence is critical. It assists the Court not only in finding facts but also in drawing conclusions based on those facts, particularly concerning the issue of whether the hospital was negligent.

Thirdly, I have attached considerably less weight to the evidence of the defendants’ two medical witnesses, Dr Koimbu and Dr Chalau. Dr Koimbu was one of the doctors who attended on Mr Tirima. He is, in effect, one of the persons who is alleged to have been negligent. He cannot be regarded as an independent witness – at least, not for the purpose of assessing his medical opinion on whether the patient was given proper treatment. As to Dr Chalau’s evidence, I, considered it to be of little or no value. He was not at the hospital. He was the chief surgeon of the hospital. He was morally and professionally responsible for what happened when patients were admitted to the hospital for an operation. He cannot be regarded as an independent witness. His opinions are general and, with respect, vague. He gives no evidence that the hospital engaged in any serious attempt after this incident to find out what might have gone wrong or to ascertain whether any mistakes were made. 

Fourthly, though I have discounted Dr Koimbu’s evidence as far as he expresses an opinion on the standard of treatment that was given, I have given considerable weight to his evidence of what actually happened. It was suggested by Mr Boma that Dr Koimbu was involved in a cover-up, operated on a dead man, and may even have fabricated documents to assist the hospital in this case. But there was no evidence in support of those bold propositions. They are certainly not supported by the opinions of Dr Vele and Dr Ponifasio.

Fifthly, though the evidence of the plaintiff’s five lay witnesses (Joanness Poya, Kembo Tirima, Aisik Wanu, Wapeya Kire and Monica Tirima) as to what happened in the operating theatre and what they were told by the medical staff, was generally consistent, I have attached relatively little weight to their understanding of what happened. Dr Koimbu was there. He states that there was an operation. He has supporting documents to back up what he states. I regard his evidence of what happened as more credible than the evidence of friends and relatives, who can only relate their perception of what was happening. 

Findings

Mr Tirima was admitted to the emergency ward of Angau Hospital at about 8.00 pm on the night of 28 January 1995.

Was the hospital busy? Was it a quiet night? I expressed surprise during the trial that there was no evidence of that. If, for example, there had been a road accident or a plane crash and many people had been rushed to the hospital and there was a large-scale emergency, the standard of care that would be considered reasonable would be less than if it were a quiet night.

There is no suggestion in the affidavits of Dr Koimbu or Dr Chalau that it was a busy night or that there was any other emergency that would have taken priority over the need to give emergency treatment to Paul Tirima. The affidavits of the other witnesses also contain no suggestion that this was a busy night. Indeed the evidence of Aisik Wanu, which was not contradicted, is that when he brought Mr Tirima to the hospital it was almost empty of patients and staff. The hospital was quiet. There were no other major incidents or accidents that needed attention at that time. The hospital was not suffering from any extraordinary shortfall of capacity due to staff not turning up to work or to power failure or water shortages. No evidence was presented of any extenuating circumstances. It was an ordinary night in a major public hospital – the country’s second largest. 

After a short delay, Mr Tirima was seen to by a doctor and a nurse. As pointed out by Dr Ponifasio, the initial clinical finding was that he was in hypovolaemic shock from intra-abdominal bleeding. ‘Hypovolaemic’ means a decreased volume of circulating blood in the body. He was bleeding into his abdomen, ie the belly. His abdomen was ‘distended’, which means it was swollen. He was experiencing air hunger, ie acute shortage of breath due to blood loss. He was conscious, but in great pain and urging the staff to do something about his breathlessness. 

The doctor who diagnosed him formed the opinion that the patient needed a laparotomy, ie a surgical incision needed to be made into his abdominal cavity to ascertain what the exact underlying cause of his symptoms were and what needed to be done to fix it. 

At about 9.00 pm he was taken into another room, the operating theatre, and preparations were made for the laparotomy, which started at about 10.10 pm. By this stage quite a number of friends and relatives had arrived at the hospital. The exact number is not clear. I estimate that there were 10 to 15. They peered into the operating theatre from time to time. The impression that they gained was that nothing was happening. However, that was not correct. 

A laparotomy was carried out over a period of almost five hours. Dr Koimbu states in his affidavit that three doctors were involved: himself, Dr Pip and Dr Warangi. The plaintiff’s witnesses say that there was consistent talk of a need to get ‘a third doctor’. Perhaps that is what was said. But I accept Dr Koimbu’s evidence that there were, in fact, three doctors involved. However, it is not clear from his affidavit who was in charge, whether they were qualified surgeons or what roles each of them played during the conduct of the operation. Nor is there evidence as to the role of support staff (how many nurses were present? what were their names?) other than that of an anaesthetics technical officer, Jacob Dalali.

The laparotomy revealed, as explained by Dr Ponifasio, "that the stab wound involved small intestines causing multiple bowel perforations, and mesentery perforations, severed right common iliac artery, and up to 10 litres of free blood in the abdominal cavity".

During the laparotomy, Mr Tirima was given blood transfusions and administered various drugs intravenously. 

The friends and relatives who were waiting outside the operating theatre were in an anxious and agitated state. About 11.00 pm, a group of six went inside the theatre to find out what was happening and to enquire of the doctors why they were not moving faster. They were quickly asked to leave.

Around 11.30 pm, three of Mr Tirima’s friends went to the residence of Mr Tirima’s boss to ask her to arrange for a private doctor to come to the hospital. She attempted to contact Dr Aikebuse of Tusa Private Hospital Centre. Whether she succeeded is not clear. Dr Aikebuse did not come to the hospital. Nor did any other private doctor. But the hospital doctors found out that attempts were being made to get a private doctor and this led to a further altercation between the doctors and the relatives and friends who were waiting outside the operating theatre.

It was a very tense situation. There was little amicable communication between the hospital staff and the relatives and friends. 

At about 3.00 am Mr Tirima suffered a cardiac arrest, ie his heart stopped beating. For about the next ninety minutes the medical staff tried to resuscitate him, unsuccessfully. At 4.30 am he was pronounced dead.

The medical staff prepared two sets of important documentation. First the admission details and operation notes. Secondly the anaesthetic records. I conclude that they are genuine records, not fabricated, and that they were prepared during or shortly after the time Mr Tirima was attended to and operated.

WAS THE HOSPITAL OR ITS STAFF NEGLIGENT?

Two-step process

In determining this issue, a two-step process will be applied. First, what was the standard of care expected? Secondly, having regard to the findings of facts outlined above and the opinion of the two expert witnesses, was that standard met? Or was it breached? If it was breached, the conclusion will be that the hospital or its staff was negligent and the second element of the tort of negligence will be established.

Standard of care

Counsel for the parties agreed in their submissions that a doctor is required to exercise reasonable skill and judgment, taking into account all the circumstances in which the doctor is working. In the present case, doctors were working in an emergency situation in a public hospital. They were required to do all that was reasonable in that particular setting. They were not expected to perform miracles. But on the other hand they were not expected to be reckless or lackadaisical or to disregard standard and accepted medical practices.

Some attention has to be paid to the conditions prevailing on the night. 

Did the medical staff act reasonably?

I have come to the view that this issue must be answered ‘no’, for the following reasons.

1.	The patient, Paul Tirima, was not given proper and immediate treatment when he was first admitted to the emergency ward. Though Dr Vele states that the patient’s severe hypovolaemia (blood loss) was appropriately managed, Dr Ponifasio’s opinion is that the EMST (early management of severe trauma) protocol was not strictly adhered to. This is one of the few instances where the opinions of the two expert witnesses appear to diverge. It would have been preferable to have all the medical witnesses available for cross-examination on their testimony. But the case was not run that way and I have to make an assessment of the evidence. I put more weight, at this point, on Dr Ponifasio’s opinion. He is a consultant surgeon. He points out that there is no evidence that, when the patient was initially attended to, there was any examination of the chest. No notes were made of a chest examination. This was a critical, early oversight. It is evident from the post-mortem report that the patient was suffering from a severe pneumothorax condition – ie one of his lungs (the left) had collapsed. That was listed as a cause of death. Dr Ponifasio states: "The collapsed left lung or pneumothorax was completely missed out in the examination. This may have been the major contributing factor to his death". Apart from recording the patient’s condition immediately after admission, there are no records of other basic observations and results of examinations while the patient was in the accident and emergency department, eg pulse rate, respiration rate, blood pressure. There is no evidence that oxygen was administered, which is a basic requirement in patients who are bleeding.

2.	There was an inordinate and unexplained delay in commencing the laparotomy. It took more than two hours after admission, from 8.00 pm to 10.10 pm, to get the laparotomy started. That was too long, especially as the hospital staff knew that the patient had been stabbed 30 minutes prior to arrival at the hospital and was suffering from a major intra-abdominal haemorrhage, ie serious internal bleeding. Dr Ponifasio states: "This [two-hour delay] is unsatisfactory in an emergency situation". It should have been done within one hour. No explanation for the two-hour delay is provided in any of the hospital records or in the evidence of Dr Koimbu or Dr Chalau. The hospital was not busy. This was its most serious emergency and the patient was not given the definitive treatment – the laparotomy – quickly enough.

3.	No attempt was made to repair a major cause of blood loss: a severed iliac artery. The laparotomy occupied five hours, from 10.10 pm to 3.00 am. That is a considerable period, but no detailed records were kept of what happened. In particular, there is no record of what steps were taken to control the haemorrhage, ie excessive bleeding. There is no evidence of any steps taken to remedy or repair the ruptured vessels which were leading to excessive blood loss. Dr Vele states: "… there is no detailed record of the actual procedure in attempting to control the haemorrhage from the intra-abdominal wounds inflicted by the stab". Dr Ponifasio points out that the laparotomy revealed that the patient had a severed right common iliac artery. This is a major vessel and bleeding from it can only be controlled by a surgical repair, ie something must be done to stop the bleeding, even if the corrective measures, such as clamping the vessel, are only makeshift. Such measures would have removed, or at least considerably lessened, the immediate threat to the life of the patient. However, there was no mention in the post-mortem report of any repair of the right common iliac artery. The only conclusion that can be drawn is that no attempt was made to repair it. As ‘abdominal haemorrhage’ was listed as one of the causes of death, the failure to carry out the repair was a critical oversight. The doctors failed to initiate this basic life saving procedure. 

4.	No attempt was made to manage the pneumothorax. As noted in (1) above, the post-mortem report revealed that the patient had a collapsed left lung and concluded that that condition ("pneumothorax") was a cause of death. The medical staff overlooked it in the accident and emergency department; then the problem was overlooked during the course of the laparotomy. That was a fatal oversight. 

5.	The anaesthetic management of the patient was inadequate and hazardous. Dr Ponifasio highlighted the fact that general anaesthesia was administered by an ATO (anaesthetic technical officer). He may have been a competent technician but he was not medically qualified. This was a scenario that required a qualified anaesthetist. There is no evidence that any attempt was made to get one to the hospital. There is no evidence of any procedures in place to ensure that one is on call for such emergencies. As to the actual anaesthetic treatment given, Dr Vele considers that the patient was wrongly administered a full adult dose of the anaesthetic drug thiopentone. As the patient was suffering severe hypovolaemia (blood loss), it was a dangerous procedure, likely to worsen the patient’s condition. Dr Ponifasio also considered that the general anaesthetic that was administered was hazardous, given that the patient was suffering a pneumothorax in the left chest. 

6.	Proper records were not kept. It is a basic duty of all professional people, eg lawyers, accountants, valuers, psychologists, bankers, pilots, doctors, to keep full and complete records of what they do in the course of their professional work. This duty is particularly acute in the case of medical staff in a hospital. Comprehensive notes must be kept of what was done; when it was done; where it was done; by whom; and why it was done. This is an integral and essential part of proper medical practice. It is a way of imposing self-discipline on the staff involved. It makes them accountable for their conduct. It brings transparency and openness to what has been done. It helps in the process of working out what might have gone wrong. If mistakes have been made, it reduces the chances of repeating them. It is what is reasonably expected to be done, whether the hospital is a huge, well-equipped facility in an economically advanced country such as Australia or whether it is a small, provincial hausik in Papua New Guinea. Computerised and contemporaneous records are desirable, but not essential. Handwritten notes, prepared as soon as practicable after an emergency procedure is carried out, will suffice, provided that they are legible, comprehensive, comprehensible and accurate. In the present case, the quality of record keeping was very poor, from beginning to end. As noted above, the patient’s condition during two hours in the accident and emergency department was inadequately recorded. He then underwent a five-hour laparotomy (if the records are to be believed, and I have already found that I accept them as being truthful). However, the operation notes record only in a few lines what happened in that period. Basic information such as who the surgeon-in-charge was, and who the doctors assisting were, is omitted. The times of particular events are not recorded. It is not clear who wrote which notes. There were no resuscitation notes kept, so there was no record of any resuscitation procedure and drugs used on the patient in the theatre. The anaesthetic notes record the operation ("anaesthetic begun") as starting at 10.00 am. As Dr Vele states: was this a slip of the pen? Was 10.00 pm intended? Or 1.00 am? Probably, it was meant to be 10.00 pm. Whatever the case, it is indicative of slack record-keeping. Another example, pointed out by Dr Vele, is the section of the anaesthetic form which is supposed to show the patient’s post-operative condition. Two words were ticked: "satisfactory" and "awake". The patient was neither. He had a cardiac arrest at 3.00 am and he was deceased at 4.30 am. If the notes of medical treatment are slipshod, the inference to be drawn is that the treatment was shoddy. The Court has been presented with no credible inference to defeat that inference in this case. 

7.	There is an unexplained disparity between the operating theatre notes and the post-mortem report. Three major inconsistencies were highlighted by Dr Vele: (a) the notes indicated that there were multiple perforations of the small intestines and mesentery, but the post-mortem reported that the alimentary tract was "unremarkable; (b) the notes made no mention of the pneumothorax but the post-mortem reported it as a cause of death; and (c) the notes indicated that the right common iliac artery was severed (but not repaired), whereas the post-mortem only generally mentions an abdominal haemorrhage and does not state the condition of the actual vessel involved. These were not minor discrepancies so it was incumbent on the defendants to address the disparity and explain why it existed. 

8.	There is a paucity of evidence by the medical staff and little explanation of what happened. As noted above, the only significant evidence presented by the hospital was in Dr Koimbu’s affidavit. He states that there were two other doctors involved. There was also an anaesthetics technical officer and, presumably, nursing staff. The Court should have received evidence from them. It is no good saying that the plaintiff bears the burden of proof. That is a legal duty, which has been discharged in this case. The hospital administration should have ensured that the doctors and other medical staff involved had the chance to tell their side of the story. That was the proper thing to do. When such opportunities are not taken, the Court is left with the impression that the hospital and its staff are trying to sweep this incident under the carpet. To pretend that the problem does not exist. This reinforces the impression gained from considering the evidence that is available, that the hospital and its staff were incompetent. 

9.	The hospital failed to keep the patient’s relatives and friends informed of what was happening. The hospital evidently did not have proper protocols in place to deal with the tense situation that developed outside the operating theatre. If procedures existed, they were clearly breached. It is the duty of a public hospital to have procedures in place to ensure that relatives and friends are kept informed of all developments. The spectre of a surgeon having to leave an operating theatre during the course of an operation to reprimand relatives and friends is frightening. But that is what happened in this case. On one occasion, six people entered the theatre to seek information and urge the doctors to work faster. That was an intolerable work environment, which should never have been allowed to develop. 

10.	Overall, the patient’s death was preventible. The opinions of both Dr Vele and Dr Ponifasio lead to that conclusion. The patient had a life-threatening condition, which was not properly managed. The hospital staff failed to take basic, remedial steps to stop the bleeding. They failed to remedy his collapsed lung. The anaesthetic treatment was hazardous and may have hastened the patient’s death. This did not happen at an aid post or a small provincial hopspital. It is the country’s second largest hospital, with the personnel and facilities necessary to prevent the death. 

Conclusion on the first major issue

The hospital and its staff failed to exercise a reasonable standard of care and therefore were negligent. 

WAS THE DEATH CAUSED BY THE NEGLIGENCE OF THE HOSPITAL?

General principles

The second major issue – causation – requires that it be proven, on the balance of probabilities, that the negligence of the medical staff actually caused the death of Paul Tirima. Causation can be a very complex legal concept. It must be dealt with objectively. That is a challenging task in the present case as the circumstances surrounding Paul Tirima’s death were tragic. He was brutally attacked by criminals. In one sense, it was the criminals who caused his death. It looks like a murder case. 

But the Court is not dealing with criminal liability. Nobody has been charged with a criminal offence. The issue is not who was ultimately or morally responsible for Mr Tirima’s death, but whether his wife and children should be compensated for the loss they have suffered. Papua New Guinea has a fault-based system of compensation. The plaintiff must prove that the persons she is suing were at fault. 

To do that a plaintiff must prove the five elements of the tort of negligence referred to earlier: duty of care, breach of duty, causation, lack of remoteness and non-contribution to injury. All but one have been established so far. Only causation remains.

The test to apply

The causation issue can be resolved by asking the simple question: 

•	Would Paul Tirima have died but for the negligent conduct of the hospital staff? 

(See generally J G Fleming, The Law of Torts, 5th edition, Law Book Company, pp 179-182.)

If the answer to that question is ‘no’, the element of causation is established. 

If the answer is ‘yes’, causation is not established. The Court would be saying that, though the doctors were negligent, the evidence suggests that the patient would have died anyway. So it would not be negligence that caused his death. That was the case in Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428. A man felt ill and went to a hospital accident and emergency department in England. He was told by the nurse, who consulted the duty medical officer, to go home to bed. He did that, then died five hours later. His widow sued the hospital for negligence. She proved the first two elements of negligence: the hospital owed a duty of care and it was negligent, as the duty officer did not see, examine, admit or treat the deceased. But the plaintiff failed to establish the element of causation. The Court held that the deceased had been poisoned with arsenic and, even if he had been given proper medical treatment, he would have died anyway. The plaintiff lost the case and received no compensation. 

Conclusion on second major issue

In the present case, I am satisfied that, on the balance of probabilities, the answer to the question posed above must be answered differently to the answer given in Barnett’s case. That is:

•	No, Paul Tirima would not have died but for the negligent conduct of the hospital staff. 

•	His death was, for the reasons set out earlier, preventable. If he had been given proper treatment he would have survived.

•	Therefore, yes, his death was caused by the negligence of the hospital.

•	The plaintiff has proved the third element of negligence, causation.

CONCLUSION ON LIABILITY

The plaintiff has established a cause of action in negligence against the defendants, who are liable to the plaintiff for damages on account of the death of her husband.

The trial will proceed to assessment of damages.

REMARKS

There is much to be learned by many people from this case. It appears to be one of the first cases in which a hospital in Papua New Guinea has been brought to Court to account for its alleged negligence. If the case is in any way typical of the standard of care that is given when people are admitted to hospital, it is alarming. The incident happened ten years ago. Perhaps things have improved. But whether they have improved or not, every person involved in the public health system needs to take stock and ask themselves whether they are equipped and prepared to act professionally in dealing with medical emergencies. 

As Dr Ponifasio remarked, it is easy to blame the hospital staff when a death occurs. But the State also has a duty to provide adequate funding, equipment, other resources and sufficient qualified staff to all its major hospitals. 

There are lessons to be learned too, for relatives and friends of the injured. They must appreciate and respect the role of the many individuals that work in our hospitals, often under less than ideal conditions.

Hospitals are very difficult places in which to work. Everyone who visits a hospital must conduct himself or herself appropriately. Doctors, nurses and other hospital staff are human and mistakes are inevitable. But the chances of mistakes being made are considerably lessened if everyone involved respects the rights and interests of others and communicates effectively and respectfully.

This case does not mean that whenever a person dies in a hospital the relatives will be entitled to compensation. The law does not work like that. Many people die in hospital despite the best efforts of staff to save them. However, all those who work in the hospital system must do their jobs carefully and professionally. They must work in accordance with accepted medical standards and protocols. They must accurately document their activities and findings. In this way patients will receive proper care, relatives and friends will be kept informed and medical staff will be accountable, and seen to be accountable, for what they do.

ORDER

The order of the Court is –

1	The defendants are liable to the plaintiff for damages, which will be assessed by the Court after a hearing on that issue.

2	The defendants shall pay the plaintiff’s costs of these proceedings, to be taxed, if not agreed.
_____________________________________________________________

Lawyers for the plaintiff	: 	Poro Lawyers
Lawyers for the defendants	: 	Solicitor-General