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Aigilo v Lun [2022] PGNC 25; N9323 (15 February 2022)

N9323

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 896 OF 2014

BETWEEN

LAKEN LEPATU AIGILO FOR HIMSELF & AS BEST FRIEND OF ANNA IPATA, MELFORD PETER IPATA, VERONICA IPATA, SETA JACKLYN IPATA & WILIN FREDA IPATA

Plaintiff

AND

DR LISTER LUN

First Defendant

AND

PORT MORESBY GENERAL HOSPITAL BOARD

Second Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Defendant

Waigani: Tamade AJ

2021: 6^th December

2022: 15^th February

MEDICAL NEGLIGENCE – claim brought on behalf of the deceased who died after surgery – plaintiffs claim death was caused as a result of the negligence of medical doctors at the hospital – evidence of autopsy report not sufficient – no expert opinion to sustain claim – elements of the tort of medical negligence not made out – claim dismissed with costs

Cases Cited

Laki v Gawi [2018] PGNC 57

Molem v Taylor [2020] PGNC 4

Gima Oresi v Chris Marjen and The State (1998) N1784

Tirima v Angau Memorial Hospital Board [2005] PGNC 165

Counsel:

Mr Laken Lepatu Aigilo, Plaintiff in Person

Defendants- No Appearance

15^th February, 2022

1. TAMADE AJ: The Plaintiffs are dependants of the deceased, the Late Mr Alfred Andale Ipata. Mr. Ipata was admitted to the Port Moresby General Hospital on 13 March 2014 as a result of gall bladder complications.

2. On 20 March 2014, Mr. Ipata was operated on in surgery at the Port Moresby General Hospital. The next day around 2:30am as alleged by the Plaintiffs, Mr Ipata lost his life within 24 hours of the said surgery.

3. The Plaintiffs claim that the deceased’s death was a result of Defendant’s medical negligence. The Plaintiffs claim that the deceased was a healthy person and because of a “yellowish eye symptom”, he sought medical attention at the Port Moresby General Hospital. The Plaintiffs state that the deceased had sought medical attention at Kilakila but as his condition was not serious, he was not admitted. He was however later admitted when he attended at the Port Moresby General Hospital.

4. The Plaintiffs say that the deceased should just have been given medication and that the surgery was unwarranted. The Plaintiffs maintain that the deceased was healthy, and it was the removal of his gall bladder that caused him his death the next day.

5. The Plaintiff’s rely on an Autopsy Report prepared by Dr Phillip Golpak, a Pathologist at the Port Moresby General Hospital and undertaken at the Dove Funeral Services on 27 March 2014.

6. Dr Golpak states in his report that the cause of death of the deceased is “gangrenous bowel” and complications as a result of cholecystectomy. Dr Golpak states that the deceased bladder was surgically removed.

7. The Plaintiffs assert and maintain that the deceased was a healthy person and that as pointed out in the autopsy report by Dr Golpak, if the deceased’s gall bladder was not removed, he would still be alive as his death was a result of the removal of his gall bladder.

8. The Defendants did not appear at the trial of the matter to put forth any evidence and or defend the matter.

9. I cannot turn a blind eye to the pleadings in these proceedings. The Defendants have filed a Defence on 14 July 2015. The Defendants state in their Defence that the deceased was diagnosed with a medical condition called ‘obstructive jaundice” and surgery was the only option to treat the medical condition to remove the obstruction on the deceased’s bile duct system. The Defendants also state that necessary medical tests were done before the surgery and that medication was not the appropriate treatment.

10. Defendant’s state that the deceased’s medical condition known as ‘obstructive jaundice was at a late stage when he presented himself at the Port Moresby General Hospital. Defendant’s state in their Defence that the deceased was already showing signs of liver and kidney failure.

11. Also in Defendant’s Defence, Defendant’s state that the medical operation referred to as the Standard midline vertical abdominal laparotomy was conducted to remove the obstruction in the deceased’s bile duct system and therefore the gall bladder was removed as it was infected and inflamed and if left unattended it would cause further complications to the deceased.

12. The Defendants state in their defence that the cause of death of the deceased was cardiorespiratory arrest which is caused by septicaemia and renal failure from concealed gangrene bowel which is remotely connected to the surgery that was conducted on the deceased.

13. Though the Defendants have not attended the trial to put forward evidence to support their defence as pleaded, Plaintiff has a burden to prove their claim on the civil standard. Medical negligence claims are technical fields that require skilled experts be they doctors who are surgeons, nurses and professionals who are trained and who work in this area to be called to prove such claims and or to assist the Court to understand such peculiar fields of practice in medicine and diseases so that the Court can arrive at a just conclusion.

14. The Court is not assisted by the Plaintiffs in the trial of this matter as the only evidence they rely on is the Autopsy Report. The Autopsy Report is to my mind evidence after the fact, after the deceased had passed on. Careful consideration of the matter should entail the treatment or diagnosis of when the deceased attended the hospital as to what his medical condition was, what the suggested professional medical advice as to treatment, be it the type of treatment or surgery. Only considering the Autopsy Report is not conclusive evidence as to an enquiry into the cause of death of the deceased. The Plaintiffs did not bring the deceased’s medical reports to an independent doctor to comment on the deceased’s diagnosis and treatment starting from his first hospital visit. They simply concluded in laymen’s terms that the deceased was healthy prior to his surgery. That is not convincing evidence and falls way below reliable evidence without any medical opinion by an expert. Any layperson can conclude that someone is healthy by looking at their appearance however only when a person is medically examined by a medical professional with the necessary medical tests and careful examination, can a conclusion be reached that a person is healthy.

15. I find that the Plaintiffs have not met the prerequisite and the requirements under the civil standard on the balance of probability that the Defendants were medically negligent in the discharge of their duties. The onus is always on the Plaintiffs to prove their case. A mere wave of an allegation that is not supported with cogent medical opinion and merely an opinion from laypeople is not enough and should not be relied on to prove a claim for medical negligence as it is a professional field and should be proven by evidence and expert opinion from qualified professionals in the field of medicine.

16. In the case of Laki v Gawi [2018] PGNC 57, the Court presided over a matter in which the deceased died as a result of the failure of the medical attending doctor in not attending to the patient eight hours after she was brought in at the Accident and Emergency section of the hospital. The Court cited the case of Barnet v Chelsea and Kensington Hospital Management Committee [1969] 1QB 428 where there were similar facts. The patient was brought to the hospital emergency department where he was not adequately treated and was told to go home, and he later died five hours later at home. The Court considered the elements of the offence of medical negligence in that the Plaintiff has the onus to prove on the balance of probability the following:

1. The hospital owed a duty of care to the patient,
2. The hospital/doctor acted negligently toward the patient and

100. The negligence of the attending doctor/ hospital resulted in the death of the patient.
     

17. The Court found in Laki v Gawi that the attending doctor was negligent in failing to attend to the patient immediately when the patient was brought in and that the patient’s death was preventable if not for the failure of the doctor to attend to her immediately. As to the element of causation, the Court found that the cause of the patient’s death was as a result of the negligence of the doctor in preventing the death. Causation as ruled in the Barnet v Chelsea case was that the death could have happened anyway as a result of the patient being poisoned with arsenic and therefore causation was not a direct result of the doctor’s negligence.

18. Another relevant case as to proving medical negligence is the case of Molem v Taylor [ 2020] PGNC 4. This was a case where Plaintiff was an employee at a mine and sued for medical negligence that the attending doctor had misdiagnosed the Plaintiff for having epilepsy and as a result, Plaintiff lost his job. The Court stated in that case that again the Plaintiff bears the onus to prove medical negligence on the balance of probability. The Court was not satisfied and stated that Plaintiff had not proven that the doctor was negligent in her diagnosis of epilepsy of the Plaintiff.

19. In cases of clear medical negligence, the case of Gima Oresi v Chris Marjen and The State (1998) N1784 is one such case where the patient attended the hospital due to appendicitis. The patient was operated on however two gauze swabs were left in the patient’s abdomen in which she was required to undergo a second operation to correct this error. It was a clear case of medical negligence.

20. The Plaintiff has relied on the case of Tirima v Angau Memorial Hospital Board [2005] PGNC 165. This is a case where the patient was attacked by criminals and was brought to the hospital. He was treated at the hospital but died several hours later. His widow sued for negligence against the hospital for the death of her husband as a result of medical negligence. Justice Cannings further expounded on the elements of the tort of negligence as submitted by the Plaintiffs counsel as previously stated in the case of Laki v Gawi. The following are the elements of the tort of medical negligence:

1. The defendant owed a duty of care to the plaintiff or the patient
2. The defendant breached that duty by act or omission and was negligent

100. The defendant’s negligent conduct caused injury to the patient

4. The patient’s injury was not too remotely connected to the patient’s injury and
5. The patient had not contributed to his or her own injuries (contributory negligence or voluntary assuming the risk of injury)
   

21. Justice Cannings discussed in the Tirima case what the expected standard of care was that a doctor is required to exercise proper skill and judgment in the exercise of his/her duty. The Court ultimately found that the hospital was negligent in the treatment of the patient whose death could have been prevented. Two expert witnesses were called in the Tirima case. That is not the case before me where I am not assisted by any independent expert witness as to what was the expected standard of care that should have been accorded to the deceased in this case, whether the conduct of the attending doctors amounted to negligence and whether the deceased death is caused by the omission and or misconduct of the attending doctors and hospital.

22. I am of the view that an additional element to the tort of medical negligence as in the case of Tirima v Angau Memorial Hospital Board is the duty of medical professionals to act swiftly and in haste when an injured person is presented in their custody. Of course, this will depend on the number of emergencies and cases that doctors and nurses have to attend to and to resources available, bed space etc. The medical people can only go as far as their resources can take them and their workload at any given time.

23. The Plaintiff has only put forth in evidence the autopsy report which is insufficient for this court to carefully assess the advice and treatment of the patient prior to the surgery and what happened during and after the surgery which will give a complete picture of the enquiry into the conduct of the treating doctors.

24. I find that the Plaintiffs have failed to prove a case of medical negligence taking into account the elements of the tort of medical negligence and I, therefore, dismiss this claim in its entirety.

25. I, therefore, make the following orders:

1. These proceedings are dismissed for the reasons given in this decision.
2. As the Defendants were not present at the trial of this matter, I order that each party shall bear their own costs of the proceedings.
   

Orders accordingly.
________________________________________________________________
Laken Lepatu Aigilo: Plaintiff in Person