N7146
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1107 OF 2014

MARGRETTE LAKI FOR AND ON BEHALF OF
 DELILAH LAKI (DECEASED)
Plaintiff

V

DR JIUTH GAWI
First Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

MADANG: CANNINGS J
2016: 5 OCTOBER, 
2017: 5 SEPTEMBER, 
2018: 9 MARCH

NEGLIGENCE – medical negligence – death of patient eight hours after arrival at accident and emergency department of public hospital – whether doctor who attended to patient was negligent – whether medical negligence caused death of patient – whether the State is vicariously liable.  

The plaintiff claimed that her daughter, the deceased, was given inadequate medical care and attention by a doctor (the first defendant) in the accident and emergency department at a public hospital, resulting in her daughter’s death, eight hours after she was brought to the hospital. The plaintiff sued the first defendant and the State (second defendant), arguing that the State was vicariously liable for the negligence of its employee, the first defendant. The defendants denied liability. A trial was conducted on the issue of liability. 

Held:

(1)	In a case of multiple defendants, in which one defendant is alleged to be vicariously liable for the conduct of another, the task of the Court is to first determine whether liability is established against the primary defendant and if liability is established, to then determine the question of liability of the other.

(2)	Here, the first defendant was the primary defendant, so the first question was whether the plaintiff had established a cause of action in negligence against him.

(3)	To establish a cause of action in negligence a plaintiff must prove the elements of the tort: (a) the defendant owed a duty of care to the plaintiff (or as in this case the deceased) (b) the defendant breached that duty (acted negligently), (c) the breach of duty caused damage to the deceased, and (d) the type of damage was not too remote.  
 
(4)	Here, elements (a) and (d) were non-contentious, so the primary issues were (b) whether the first defendant was negligent and, if he was, (c) whether the first defendant’s negligent acts or omissions caused the death of the deceased. 
	
(5)	As to (b): the plaintiff proved that the first defendant was negligent, as the evidence that the first defendant had ignored the deceased and ignored the plaintiff’s plea for urgent assistance was accepted as credible and not directly rebutted by the uncorroborated evidence of the first defendant.

(6)	As to (c): there was sufficient evidence on which to draw the inference that the negligent treatment of the deceased caused her death. A cause of action was established against the first defendant. 

(7)	For the State to be vicariously liable for the negligence of the first defendant, three elements must be proven: (a) an employer-employee relationship existed between it and the first defendant (the tortfeasor), (b) the tort of negligence was committed by the first defendant, (c) the tort was committed in the course of the employee’s employment. All elements were established and the State is vicariously liable for the negligence of the first defendant.  

Case cited

The following cases are cited in the judgment.

Papua New Guinea Cases

Kembo Tirima v Angau Memorial Hospital Board & The State (2005) N2779
Roka Coffee Estate Pty Ltd v Gerebi [1973] PNGLR 486
Sheppard Makapa v Dr John Tsiperau (2017) N6590

Overseas Cases

Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428

STATEMENT OF CLAIM

This was a trial on liability for negligence.

Counsel

D F Wa’au, for the Plaintiff
B B Wak, for the Defendants

1.      CANNINGS J: The plaintiff, Margrette Laki, claims that her daughter, Delilah Laki, the deceased, was given inadequate medical care and attention by Dr Jiuth Gawi (the first defendant) in the accident and emergency department at Modilon General Hospital, Madang, resulting in her daughter’s death, eight hours after she was brought to the hospital. The plaintiff sues Dr Gawi and the State (the second defendant), arguing that the State is vicariously liable for the negligence of its employee, Dr Gawi. The defendants deny liability. A trial was conducted on the issue of liability. 

UNDISPUTED FACTS 

2.     A number of undisputed facts have emerged from the evidence:

•	The plaintiff and one of her daughters, Deblis Jerry, and Deblis’s husband Lloyd Anut, brought the deceased to the accident and emergency department on Tuesday 12 August 2013 at approximately 8.00 am. 

•	The deceased was coughing up blood, having chest pain and feeling weak. She was conscious.

•	Dr Gawi was the only doctor on duty that morning. Also on duty was at least one nursing sister, Martha Slaibot.

•	At least once during the day the plaintiff spoke to Dr Gawi and asked him to check the deceased as her symptoms (coughing up blood and chest pains) were worsening.

•	Between 4.00 and 4.30 pm the deceased died.  

ISSUES 

3.     In a case of multiple defendants, in which one defendant is alleged to be vicariously liable for the conduct of another, the task of the Court is to first determine whether liability is established against the primary defendant and if so, to then determine the question of liability of the other defendant. 

4.     Dr Gawi is the primary defendant, so the first question is whether the plaintiff has established a cause of action in negligence against him. To do so, the plaintiff must prove the elements of the tort of negligence: (a) the defendant owed a duty of care to the plaintiff (or in this case, the deceased); (b) the defendant breached that duty (acted negligently); (c) the breach of duty caused damage to the plaintiff; and (d) the type of damage was not too remote (Sheppard Makapa v Dr John Tsiperau (2017) N6590).
 
5.     Elements (a) and (d) are non-contentious. A doctor owes a duty of care to his or her patient and it is reasonably foreseeable that a doctor’s negligent treatment of a patient can cause personal injury or death. The contentious elements are (b) whether Dr Gawi was negligent and, if he was, (c) whether his negligent acts or omissions caused the death of the deceased. If those issues are determined in the plaintiff’s favour, the question of vicarious liability will be addressed. 

WAS DR GAWI NEGLIGENT?

6.     This is the critical issue. It will be dealt with in the following way: first, the competing evidence will be outlined; secondly, the issue of the appropriate standard of care will be addressed; finally a determination will be made of the critical question of law: was Dr Gawi negligent?  

Plaintiff’s evidence 

7.     The plaintiff’s case was based on the affidavits of three witnesses:  the plaintiff, Deblis Jerry (the deceased’s elder sister) and Lloyd Anut (the husband of Deblis Jerry, ie the plaintiff’s son-in-law).

8.     The plaintiff deposed that when they brought her daughter to the emergency department, her daughter was seen by the staff and they were told to go to the x-ray department. They went there but were told that the x-ray machine needed repair, so they went back to the emergency department without an x-ray. A female nurse and a nursing student gave the deceased an injection and a “drip transfusion”. The deceased was still coughing blood. A nurse was sent to the blood bank to get blood but came back with nothing as the blood bank was closed. 

9.     At that point – however, no time is specified in the affidavit – the plaintiff says that she went straight to Dr Gawi and asked him if he could examine her daughter as she had not yet been examined by a doctor and she was still coughing blood. She says that Dr Gawi ignored her plea and said that “her doctor would come”. She was confused by that response. She did not know which doctor Dr Gawi was referring to. No doctor came. Her daughter continued to cough blood. She counted at least eight bowls of blood coughed up by her daughter. No doctor examined her daughter until 4.00 pm when Dr Gawi “rushed to her bedside to perform resuscitation on her”. Dr Gawi “tried to perform suctioning/clearing of the upper airway. But she was already dead and he removed the glucose drip from her”.

10.     The plaintiff denies that before 4.00 pm Dr Gawi discussed with her the condition of her daughter or explained that the prognosis was very poor. The plaintiff’s evidence is that Dr Gawi ignored her pleas for urgent intervention. 

11.     The only nurse to attend to her daughter was Sister Slaibot, who administered a glucose drip and gave her daughter oxygen and kept saying that they had to wait for a doctor to attend to the deceased. 

12.     The plaintiff stated that she realised at 3.00 pm that her daughter was dying but still nothing was done until 4.00 pm when Dr Gawi came, but it was too late. 

13.     Deblis Jerry does not state her age but evidently she is an adult woman as she gives her occupation as a teacher at Brandi Secondary School, East Sepik Province. Her evidence is similar to that of her mother, the plaintiff. She states that she too tried to alert the staff on duty to call in a doctor immediately to attend to her sister, to no avail. She saw Dr Gawi at the time that she was pleading with the staff to find a doctor. She states, “However, despite my emotional plea to the staff Dr Jiuth Gawi was somewhat ignorant and did not attend to her. I tried everything to get Dr Gawi’s attention by holding the dish full of blood in front of me that he could see what was on my hand and that should prompt him and other specialists to assist my sister. Dr Jiuth Gawi just ignored me and walked out of the room. I was helpless but did not give up and asked the training staff to fetch a doctor and they kept saying ‘doktas bai kam’ but there were no doctors or specialists around to assist.” Dr  Gawi did not attend to her sister until late in the afternoon, after her sister had been in the emergency department for at least seven hours, when he performed the suction and clearing of the airway.

14.     Lloyd Anut is the husband of Deblis Jerry and the son-in-law of the plaintiff. His evidence is similar to their evidence. He states that Dr  Gawi did not attend to the deceased until late in the afternoon, after the deceased had been in the emergency department for at least seven hours, when he performed the suction and clearing of the airway. Dr Gawi did not talk to him or his mother-in-law or his wife about the deceased or explain her condition to them and did not attend to the deceased until it was too late. 

Defendants’ evidence 

15.     The defendants’ case was based on the affidavits of three witnesses:  Dr Gawi, Reuben Wus (the unit manager of the emergency department) and Dr Weston Yambut (specialist physician at Modilon General Hospital, in charge of the TB unit).

16.     Dr Gawi deposed that the deceased was “attended to” upon her presentation to the emergency department with symptoms of coughing up blood (haemoptysis), chest pains and feeling weak. He states, “Upon taking and getting the clinical history of the patient Delilah Laki and Margrette Laki her guardian and reading her past medical history in her clinic book and conducting an examination of Delilah Laki, I concluded and diagnosed the deceased as having tuberculosis of the lungs.” The deceased was placed inside one of the cubicles categorised as ‘life threatening to not life threatening’. Intravenous fluid was administered to the deceased. She was under observation by nursing staff while he attended to other patients. While he was doing that he was asked by the deceased’s guardians to check on her, which he did. He observed that her symptoms had intensified. . The deceased was moved from the cubicle to the emergency bay area and was attended to by the staff on duty who “carried out the necessary medical interventions to assist clearing her airway and supporting her breathing according to emergency protocols and guidelines to the best of our respective abilities but we could not save her life.”

17.     Dr Gawi states that “during the period the patient … was in the emergency resuscitation bed, I clearly explained the possible complications that had arose from the medical condition and of the prognosis of the patient with regards to the state she was in (coughing up of blood) to the guardian(s). I personally explained to the guardian(s) that the patient was bleeding from inside her bronchi and lungs and that the blood was pooling inside her lungs and preventing oxygen perfusion to her body. I clearly stated that despite suction/clearing of the upper airway I could not do anything more to stop the bleeding from the bronchi and the lungs and that the prognosis of the patient was extremely very poor. … I attended to the patient professionally with respect to my medical ethics and oath and to the best of my alibility while the patient was in the emergency and adult outpatient department right up to the time I confirmed and pronounced her dead. … The deceased’s tuberculosis condition had come to a stage where medical assistance of any manner would not have been able to stop the bleeding as it was at its worst stage.”

18.     The evidence of Reuben Wus is general in nature. He gives a description of his duties as ward manager of the emergency department and standard procedures and protocols required to be applied. He gives the opinion that “at the time the deceased … was brought in, all the necessary equipment and procedures at the Accident and Emergency were in ready for that day”. He gave no evidence of what actually happened. 

19.     Dr Weston Yambut stated that he had been asked to provide an independent medical opinion on the cause of death of the deceased. He drew the following conclusion: “In my opinion the deceased died from continuous bleeding from one of the major pulmonary arteries which had burst during coughing most likely attributed to active lung TB or lung scarring from old/previously treated lung TB infection.”

What standard of care was required?

20.     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, Dr Gawi was working in an emergency situation in a public hospital. He was required to do all that was reasonable in that particular setting. He was not expected to perform miracles. But nor was he expected to be reckless or lackadaisical or to disregard standard and accepted medical practices (Kembo Tirima v Angau Memorial Hospital Board and The State (2005) N2779).

Was Dr Gawi negligent?

21.     I have concluded, after assessment of the evidence and submissions of counsel, that this issue must be determined in the affirmative for the following reasons:

1.	Three witnesses for the plaintiff gave clear and unequivocal evidence that Dr Gawi did not attend to the deceased until late in the afternoon, at about 4.00 pm. I was given no reason to doubt the veracity of that evidence. Dr Gawi does not directly deny that. He does not state that he personally attended to the deceased at any time before 4.00 pm. I find as a fact that Dr Gawi did not personally attend to the deceased until about 4.00 pm. This was not reasonable given the symptoms exhibited by the deceased and in particular her persistent coughing up of blood. I find that Dr Gawi did not perform suctioning/clearing of the upper airway until 3.00 to 4.00 pm, by which time it was too late. The natural question to ask is ‘why was this not done earlier?’ No answer has been provided in Dr Gawi’s evidence. 

2.	Dr Gawi’s evidence is vague and not time-specific. He does not state or estimate the times at which: 

•	he took the medical history of the deceased and concluded that she had tuberculosis of the lungs; 
•	the deceased was placed inside one of the cubicles; 
•	he was approached by the deceased’s guardians and went and saw her; 
•	when the staff carried out the “necessary medical interventions”; 
•	he explained to the deceased’s guardians the possible complications and that the prognosis was extremely poor.

Dr Gawi’s evidence was so vague as to leave open the possibility that all of those things he said were done, were done later rather than sooner. He has not taken the opportunity to rebut the allegation that those things were not done until 3.00 to 4.00 pm, by which time it was too late.

3.	Dr Gawi’s evidence, which is characterised by a failure to take the opportunity to directly rebut specific allegations of lack of attention to the deceased and ignorance of requests made to him by the plaintiff and Deblis Jerry, is uncorroborated, in three respects. First there is no documentary evidence. The clinic book of the deceased was not tendered. None of her medical records were tendered. There was no post-mortem report tendered. (Surely there should have been a post-mortem examination for a death in these circumstances. Where is it?) No medical certificate of death was tendered. There was no record of the presentation of the deceased to the emergency department. There were no clinical notes. There is no record of what happened. 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 standard medical practice (Kembo Tirima v Angau Memorial Hospital Board & The State (2005) N2779). If such notes are inadequate or vague or as in this case non-existent the natural inference to draw is that the treatment was inadequate. Secondly the evidence of Mr Wus and Dr Yambut was of little probative value. Mr Wus, who according to his evidence was on duty, gave no evidence as to what happened. His evidence was only about what should have happened. Dr Yambut gave no indication that he was present. He did not explain the basis of his opinion on the cause of death. He gives the impression that he did not even see the medical certificate of death – if there was one. Thirdly no other person gave evidence to support Dr Gawi’s evidence of what happened. Mr Wus did not state what happened. Sister Slaibot, who, it is clear, was on duty, and who it appears was the nurse devoting most time to the deceased, did not give evidence at all. It is reasonably to be expected that a nurse in such a position would give evidence. No reason was provided for her failure to do so. The natural inference to draw is that her evidence would not have assisted the defendants’ case. 

4.	Though the burden of proof rests on the plaintiff and it is not up to the defendants to prove that Dr Gawi was not negligent, I consider that the evidence of Dr Gawi’s failure to attend to the deceased is so clear and specific, and, on the face of it, credible (no reason being provided to say it was not honest or credible) that the defendants’ failure to rebut that evidence (by Dr Gawi’s vague evidence and the lack of corroboration of it) results in the conclusion that the plaintiff has proven that Dr Gawi was negligent.

22.     Dr Gawi failed to exercise reasonable skill and judgment, taking into account all the circumstances in which he was working, due to his failure to attend to the deceased in a timely manner. I find that he disregarded standard and acceptable medical practice in an emergency department. Element (c) of the tort of negligence has been established. 

WAS THE DEATH OF THE DECEASED CAUSED BY NEGLIGENCE?

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

•	Would the deceased have died but for the negligent conduct of Dr Gawi? 

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

24.     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 doctor was negligent, the evidence suggests that the patient would have died anyway. So it would not be negligence that caused her 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. 

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

•	No, the deceased would not have died but for the negligence of the first defendant. 

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

•	Therefore, yes, her death was caused by the negligence of the first defendant.

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

26.     The plaintiff has therefore established a cause of action in negligence against the first defendant. 

VICARIOUS LIABILITY

27.     For the second defendant, the State, to be vicariously liable for the negligence of the first defendant, three elements must be proven: 

(a)	an employer-employee relationship existed between it and the first defendant (the tortfeasor); 

(b)	the tort of negligence was committed by the first defendant; 

(c)	the tort was committed in the course of the employee’s employment (Roka Coffee Estate Pty Ltd v Gerebi [1973] PNGLR 486).

28.     I am satisfied as to all elements. Vicarious liability has been proven. 

REMARKS

29.     This case has not been taken seriously enough by the defendants. Very serious allegations of medical negligence resulting in death of a patient have been raised. Dr Gawi provided an affidavit but did not give oral evidence. There was a dearth of documentary evidence. Serious allegations have been raised as to the appalling state of medical facilities at Modilon General Hospital. The plaintiff gave evidence that in an emergency in the mid-morning on a week-day, no diagnostic x-rays and no blood could be immediately provided for a critically ill patient with TB symptoms. These alarming allegations were left unchallenged. No one from the hospital gave evidence to directly support Dr Gawi’s evidence or to directly rebut the plaintiff’s evidence or to give a clear account of what actually happened. Evidence of what should have happened was of little use and only had the effect of supporting the plaintiff’s case. I will ensure that, as a matter of public interest, a copy of this judgment is forwarded to the Chairman of the Papua New Guinea Medical Board and to the Chairman of the Board of Modilon General Hospital. 

ORDER

(1)	The plaintiff has established a cause of action in negligence and liability has been established against both defendants.

(2)	The proceedings shall proceed to a trial on assessment of damages.

(3)	The question of costs shall be addressed at the end of the trial on assessment of damages. 

(4)	The Assistant Registrar, National Court, Madang shall forthwith forward a copy of this judgment to the Chairman of the Papua New Guinea Medical Board and to the Chairman of the Board of Modilon General Hospital.

Judgment accordingly.
_______________________________________________________________
Ninerah Lawyers:  Lawyers for the Plaintiffs		
Solicitor-General:  Lawyer for the Defendants