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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS 1086 OF 2016
BETWEEN:
RUTH VEAPI
Plaintiff
AND:
MATTHEW KALUVA in his capacity as the CHIEF EXECUTIVE OFFICER, KUNDIAWA GENERAL HOSPITAL
First Defendant
AND:
DR. NASSAR GADELKAREM
Second Defendant
AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant
Waigani: Bre, AJ
2023: 23 October
2024: 28 March
MEDICAL NEGLIGENCE – elements of negligence considered – duty of medical profession to patients – retained surgical instrument – 16.5cm metal retractor - lodged 8months - caused perforations of the bowel and bladder - faeces passing through urinary bladder - enteroversical fistula - second surgery done – medical complications still experienced – needs further surgery abroad - quality of life affected - liability established.
ASSESSMENT OF DAMAGES – considerations – impact of negligence on plaintiff's health and wellbeing- similar caselaw, evidence, economic conditions and reasonable judgment - damages awarded.
Facts
The plaintiff claims the defendants are negligent for pain and suffering caused to her when they carelessly left a 16.5 centimeter metal retractor in her abdomen after operating on her to remove an ovarian cyst. The retained surgical instrument caused perforations to her bowel and bladder causing serious medical and physical issues that required a second surgery to remove the surgical instrument. Her medical complications persist.
Held
The defendants owe a duty of care to the plaintiff to exercise professional medical skills, knowledge, competence, caution and care when performing surgery on 26 July 2014. They breached their duty of care resulting in the plaintiff developing enteroversical fistula, pain and suffering resulting in a second surgery on 16 March 2015. The plaintiff's fistula problems have not healed and she continues to suffer which has adversely affected her quality of life. The defendants' actions and omissions of the 26 July 2014 were reckless, without due care and regard for the sanctity of life and negligent. The defendants are directly and vicariously liable. The plaintiff is entitled to so much of the damages that can be reasonably assessed, considering evidence, case law and reasonable judgment.
Cases Cites:
Papua New Guinean Cases
Albert v Aine (2019) N7772
Figa v Agong (2012) N4707
Jack v Mola (2008) N3537
Jerry Goria v Sergeant Jeffery Simara & Ors (2001) N2066
Kunong v Paradise Private Hospital Ltd (2022) N9698
Limitopa v The State [1988-89] PNGLR 364
Luana v Fleming (2022) N9819
Mek v Kumi (2023) N10394
Moka v Motor Vehicles Insurance Ltd (2004) SC729
Oresi v Marjen (1998) N1784
Seeto v Dekenai Constructions Ltd (2023) N10172
Tirima v Angau Memorial Hospital Board (2005) N2779
Yaman v the State (2022) SC1942
Overseas Cases
R v Bateman [1925] 94 LJK B 791
Legislation
Judicial Proceedings (Interest on Debts and Damages) Act 2015, ss 4 and 6.
National Court Rules O4r7, O8r33(1)(g), O12r (6) (1), O22r11.
STATEMENT OF CLAIM
Trial on liability and assessment of damages on papers where the plaintiff sought to prove medical negligence and seek damages.
Counsel
Mr M Koimo, for the Plaintiff
Mr J Bakaman, for the Defendants
28th March 2024
1.BRE, AJ: INTRODUCTION: Ruth Veapi was operated on at the Kundiawa General Hospital on 26 July 2014 to remove an ovarian cyst. Six weeks later, she experienced sever pain. It was later discovered through an x-ray done in February 2016, that there was a foreign object in her abdomen. Seven months later, she underwent a second surgery on 16 March 2015, when a metal retractor used by medical doctors in surgical operations was found and removed from her abdomen. She has been experiencing medical complications and claims that the defendants are liable for medical negligence.
BACKGROUND
2. The proceeding has been set down for trial seven times, initially for 26 May 2019 according to the Court File endorsement record due to various reasons. On 12 September 2023, his Honour Makail J, issued directions for the parties to file affidavits and submissions and the trial of the proceeding to proceed on liability and assessment of damages on papers. The last date for any document to be filed was a reply by the plaintiff by 23 October 2023. The Court File was referred to me on 14 March 2023 after it took a while for the file to be located.
3. The Court issued directions for the plaintiff to rely on the affidavits listed in her Notice to Rely on Affidavits filed on 15 January 2019, the affidavit of Dr Sidney James filed on 02 March 2023 and his further affidavit filed on 18 September 2023. The defendants did not rely on any affidavits. The plaintiff was to file and serve her written submissions by 02 October 2023, the defendants to file their written submissions by 16 October 2023, with the plaintiff to file any reply by 23 October 2023.
4. The plaintiff's lawyer filed submissions on 01 October 2023, two days late. The defendants have not filed any submissions. I do not consider two days delay a material detriment and some four months have passed since the plaintiff filed her submissions with still no submissions filed by the defendants, I accept the plaintiff's submission and proceed to determine the issues.
PLAINTIFF'S CLAIM
5. The plaintiff's claim is one of medical negligence by the second defendant and the first and third defendants being vicariously liable by virtue of their employment of the second defendant. Dr Nassar Gadelkarem is alleged to have performed the operation to remove the ovarian cyst on 26 July 2014 which the plaintiff alleges left the metal retractor in her abdomen.
6. The plaintiff filed this proceeding two years after, on 29 August 2016. Excerpts of the Statement Of Claim pertaining to the cause of action and the relief sought are reproduced below:-
"1. The second defendant is, at all material times, an employed doctor for the Kundiawa General Hospital and is a medical specialist in Oncology and Gynaecology. He also heads the Obsteristic and Gynaecology at Kundiawa General Hospital. He is the employed doctor of the first and third defendants and is sued in his official employed capacity.
2. The third defendant is the Independent State of Papua New Guinea. It is the owner and operator of the Kundiawa General Hospital. Therefore, it is the employer and principal of the first and second defendants including any or all personnel employed by the Kundiawa General Hospital. Therefore, according to the Wrongs (Miscellaneous) Provision Act, it assumes all liabilities arising out of any acts or omissions committed by its servants and agents. It is sued pursuant to section 1 of the Wrongs (Miscellaneous) Provisions Act.
Particulars Of Duty Owed By The Second Defendant As Servant And Agents Of The First And Third Defendants
1. The second defendant owed a duty to the plaintiff to exercise all reasonable care, skill, diligence and competence as a medical doctor while conducting the surgery on the plaintiff.
2. It was an implied term of the plaintiff’s contract as the patient of the second defendant that the plaintiff will be given professional surgical operation.
Particulars Of Negligence And Breach Duty By The Second Defendant As Servant And Agent Of The First And Third Defendants
1. The second defendant failed to ensure that all the medical instruments or tools used for the purpose of operation was removed from the plaintiff’s abdomen before stitching the surgery area.
2. Because of the negligence by the second defendant in ensuring that all medical instruments or tools used for the purpose of operation was removed from the plaintiff’s abdomen, the plaintiff suffered medical conditions pleaded in paragraph 13 above including sever pain and discomfort she endured all along.
3. The plaintiff has also suffered physical and emotional injuries and sustained; loss and damage as follows.
The Plaintiff Claims
a) Damages pleaded in paragraphs 13, 24, and 25 of the claim
b) General Damages
c) Special Damages
d) Interest
e) Costs
f) Any other order this Honourable Court deems proper."
DEFENDANT'S CLAIM
7. The defendants filed their Notice of Intention To Defend on 21 October 2016 and Defence on 07 November 2016. The defendants admit to performing the operation on 26 July 2014 but deny negligently leaving the metal retractor in the plaintiff's abdomen.
PARTIES EVIDENCE
Plaintiff's evidence
8. According to the Court directions of 12 September 2023, the plaintiff relies on her affidavits outlined in her Notice to Rely on Affidavits filed on 15 January 2019 and those as stated in the directions of this Court:-
1) The Affidavit of Ruth Veapi filed on 08 May 2017
2) The Affidavit of Ruth Veapi filed 19 June 2017
3) The Affidavit of Dr Sidney James filed on 28 May 2017
4) The Affidavit of Dr Sidney James filed on 25 September 2023.
9. Dr Sidney James performed surgery on the plaintiff on 16 March 2015 to remove a medical metal retractor used in surgeries from the plaintiff's abdomen. He provides expert evidence about the plaintiff's medical condition and his findings and impact of medical complications on the plaintiff.
Defendant's evidence
10. The Court directions indicated the defendants will not rely on any evidence. The plaintiff has the burden of proof. The defendant did not file submissions.
PARTIES SUBMISSIONS
Plaintiff's submissions
11. Counsel for the plaintiff submits that liability has been proven by the evidence of Dr Sidney James and admissions by the first defendant to settle the matter. The defendants are negligent in not observing care, skill and diligence to operate on the plaintiff which has resulted in her suffering long-term medical complications that has greatly reduced her enjoyment of life and has adversely affected her usual way of life. The plaintiff contends, she has been recommended to undertake a major operation overseas and this has caused her much stress and anxiety.
Mr Koimo submits that the Court should refer to similar caselaw and the current economic times including the impact of the negligible
actions of the defendants on the plaintiff that affects her present and future life, to asses damages.
Counsel seeks exemplary damages amongst general and special damages.
Defendants Submissions
12. The defendants have not filed any written submissions as directed by this Court on 12 September 2023
Agreed Facts
13. The following facts have been agreed by respective counsels and are extracted from the Statement Of Agreed And Disputed Facts And Legal Issues For Trial signed by both counsel and filed on 18 May 2018 attached to the Pleadings Book filed on 14 January 2019, which I accept and reproduce below:-
"B. AGREED FACTS
1. Plaintiff underwent an operation (hysterectomy – ovarian cyst) on the 26 July 2014, by second defendant at the Kundiawa General Hospital
2. The plaintiff after six (6) weeks of the operation, started experiencing sever pains and discomfort in her abdomen. The plaintiff was persistently unwell and was experiencing passing of faeces through her urine.
3. The plaintiff was then referred to the Port Moresby General Hospital Obsteristic & a Gynaecology section by Dr Gawin in March 2015 for another x-ray and this time it was confirmed from the x-ray imaging that a foreign object a metal retractor was left in the plaintiff’s abdomen.
4. The plaintiff underwent the second surgery on the 16 March 2015 by Dr. Sidney James at the Port Moresby General Hospital wherein the metal retractor was removed.
5. Medical consequence caused from the metal retractor in the abdomen of the plaintiff were identified. They were;
(a) The plaintiff had a swollen abdomen caused by metal retractor.
(b) The metal retractor eroded the plaintiff’s caecum by which is a pouch-like portion near the end of the large intestine in humans.
(c) The plaintiff’s urinary bladder has a series of small holes around or within the small intestine caused by the metal retractor.
(d) The plaintiff has seriously suffered devastating complication as a result of the damages caused inside the abdomen from the metal retractor.
(e) The plaintiff was passing faeces through her urinary tract as a result of the damages caused inside the abdomen from the metal retractor.
6. The plaintiff medical consequence caused from the metal retractor in the abdomen of the plaintiff were repaired and the plaintiff was nursed at the Intensive Care Unit (ICU) for six (6) days before was transferred to the Acute Surgical Ward to fully recover.
7. The plaintiff as part of the recovery program did physiotherapy to regain muscle power and to be able mobilise (walk again) because the plaintiff has been bed ridden for more than 3 months
8. The plaintiff faced post-operative complications and was unfit for work.
9. The plaintiff is presently and persistently unwell."
14. The defendants dispute 'fact' 9, that the plaintiff's physical condition affects her presently and will continue. However, they
have not provided any evidence to counter this allegation, hence I accept that the plaintiff is frequently unwell as deposed to by
Dr Sidney James.
ISSUES
15. The issues for determination are:
ANALYSIS
16. I set out below some definitions of the common medical terms arising from the evidence of Dr Sidney James before proceeding with my analysis of the law and evidence:-
“cognitive behavior therapy” - psychotherapy that combines cognitive therapy with behavior therapy by identifying faulty or maladaptive patterns of thinking, emotional response, or behavior and substituting them with desirable patterns of thinking, emotional response, or behavior"[1]
"cystitis - inflammation of the urinary bladder."[2]
" enterovesical fistula: An enterovesical fistula is an abnormal communication between the intestine and the bladder. The organ of origin of the fistula is usually stated first. Therefore, with enterovesical fistula, the fistula usually begins from the intestine and ends to the bladder."[3]
"fistula - A fistula is an abnormal connection between two body parts, such as an organ or blood vessel and another structure. Fistulas are usually the result of an injury or surgery. Infection or inflammation can also cause a fistula to form.''[4]
"retractor - A retractor is a surgical instrument used to separate the edges of a surgical incision/wound or to hold away certain organs and tissues (i.e. to provide tissue retraction) so that body parts underneath may be accessed during surgical operations. The broad term retractor typically describes a simple steel tool possessing a curved, hooked, or angled blade, which is manually manipulated to help maintain a desired position of tissue during surgery."[5]
Liability
17. The elements of the tort of negligence are well settled and entails the following:-
1. duty of care;
2. breach of the duty;
3. causation of the injury or harm;
4. damages or loss suffered.
5. injuries were not too remote,
6. plaintiff did not contribute to her injuries.
See: Yaman v the State (2022) SC1942 at [64] and Tirima v Angau Memorial Hospital Board (2005) N2779.
18. The Courts in PNG have adopted with approval in Yaman v State, Mek v Kumi (2023) N10394 and Luana v Fleming (2022) N9819 the common law position on the duty of a medical practitioner and the degree of care owed by a medical practitioner to his patient
as stated in R v Bateman [1925] 94 LJK B791 that: “If a man holds out as possessing special skills and knowledge and he is consulted as possessing such skill and knowledge by or on
behalf of a patient, he owes a duty to the patient to use due caution in undertaking that duty and the patient submits to his direction and treatment.
Accordingly, he owes a duty to the patient to use diligence, care, knowledge, skill and caution in administering the treatment.”
19. The plaintiff must show that a duty of care exists with the defendants. It is common knowledge that doctor-patient relationships
creates a duty of care where the doctor is expected to exercise professional skills and knowledge to treat or operate on a patient.
The second defendant and the first defendant's surgical and medical team did owe a duty of care to the plaintiff when performing
surgery on her on 26 July 2014. That duty extended to ensuring that no surgical instruments were retained in her abdomen when closing
or stitching up the abdomen, when finishing up on the ovarian cyst removal operation. Their failure to exercise diligence, care,
knowledge, skill and caution has resulted in grave medical complications for the plaintiff which was avoidable, had they observed
the required standard of care.
The plaintiff relies on her Affidavit and that of Dr Sidney James to prove liability.
The plaintiff's affidavit filed 08 May 2017.
20. Ruth Veapi's deposes to undergoing surgery on 26 July 2014 by the second defendant at the Kundiawa General Hospital for removal of a cyst in her ovaries. She deposes that the operation was successful as the cyst was removed. However after six weeks she experienced severe pain and discomfort in her abdomen. She did an x-ray in March 2015 which confirmed the presence of a foreign object in her abdomen. In March 2015, she underwent a second surgery to remove the foreign object, which when retrieved was identified as a metal retractor used in surgery to keep the abdomen open as the surgeon worked on the affected area. A copy of a photograph of the retractor was annexed to her affidavit.
The presence of the metal retractor affected her intestines and caused holes in her urinary bladder resulting in her passing faeces through her urinary bladder. These were repaired during surgery and she was in the Intensive Care Unit (ICU) at the Port Moresby General Hospital for nine weeks. She did physiotherapy to mobilise as she had been bedridden during this time. Her medical report was issued to her employer by Dr Sidney James who performed the second surgery on her Department of Treasury to provide reasons for her absence at work.
Ruth Veapi further deposes that by letter dated 19 October 2016, the acting Chief Executive Officer informed her lawyer that the Kundiawa General Hospital Board agreed in principle to settle the matter.
The plaintiff’s additional affidavit filed 19 June 2017
21. Ruth Veapi deposes in this additional affidavit that the first defendant's lawyer's had written to her lawyers for settlement and that they would be providing a settlement proposal to her lawyer.
Dr Sidney James Affidavit filed 28 May 2017
22. Dr Sidney James is a surgeon with 11 years of experience at the time of deposing to the affidavit. He deposes to conducting the second surgical operation on the plaintiff at the Port Moresby General Hospital on 16 March 2015 to remove the metal retractor from her abdomen and has been in contact with the plaintiff to review her post operative condition since the time of the surgery. He annexes a copy of a photograph of the metal retractor placed against scale which shows the retractor is a U-shaped blunt instrument measuring 16.5 centimetres at its widest ends.
23. Dr James examined the internal organs of the plaintiff where the metal retractor was lodged and noted the following medical consequences inside the plaintiff's abdomen:-
"5.1 The Plaintiff had swollen abdomen associated with pain caused by metal retractor.
5.2 The metal retractor eroded into the plaintiff’s caecum which is the beginning of the large intestine in humans.
5.3 The mental retractor had also eroded into segments of the small intestine causing a series of small holes as well as the urinary bladder.
5.4 The plaintiff has seriously suffered devastating complication as a result of the metal retractor.
5.5. The plaintiff was passing faeces through her urinary bladder as a result of the damages caused inside her abdomen from the metal retractor. "
24. He attaches his medical report to that effect dated 14 April 2015. He states that the medical consequences were repaired, and the plaintiff was monitored at the ICU for nine weeks. He states that he has been reviewing the plaintiff from thereon and has observed the surgical wound has gradually healed but that she still experiences mild to moderate pains associated with nausea and occasionally develops diarrhea, but the abdominal pains are relieved by taking simple analgesics (painkiller tablets) orally. He further states that a review on 13 March 2018, revealed clinical symptoms indicating recurrence of enterovesical fistula has not improved much since 2016. He also annexes a progressive medical report done by him dated 22 March 2018.
His professional view is that the plaintiff has not fully recovered and requires a major operation during the year (2018), to further
treat her recurring condition.
To prepare the plaintiff for the surgery, she was referred to a psychiatrist, Dr Monica Kakirau-Hagali, who counselled her and provided
her report dated, 21 March 2018. The Psychiatrist reported the plaintiff suffered from anxiety and depression and will require cognitive
behaviour therapy and relaxation techniques to manage her stress.
Dr James concludes that in his professional judgement the plaintiff suffers post surgery complications which has led to her developing psychological stress that she will suffer into the future by not benefiting from the full use of her body and life as she would have done if no retractor was left inside her. He recommended further tests to identify the fistula and to undergo another operation to correct the complication.
Dr Sidney James additional Affidavit filed 25 September 2023
25. In his recent affidavit, Dr James deposes to continuing to see the plaintiff and undertook a review on 02 May 2023 where he confirms the plaintiff has not fully recovered with clinical symptoms indicating recurrence of enteroversical fistula has not improved since 2016. That enteroversical fistula is a post operative complication caused by the retained surgical instrument, the metal retractor during the operation on 26 July 2014. He states the fistula has failed to completely heal and not achieved the full expected outcomes. As a result the plaintiff has lost her secured job at Treasury Department, continued anxiety and depression, complete change of normal eating and drinking habits, complete lifestyle change as she wears sanitary pads frequently, takes precaution in the types of food she eats, and frequently develops cystitis which can become chronic and led to cancer in the urinary tract and intestine.
That she will continue to suffer into the future from not having the full use of her body and life. She continues to suffer post-surgical
complications which has increased psychological stress on her.
Dr James still recommends major surgery and to be done overseas.
Analysis of the evidence to the law
26. The plaintiff and Dr James evidence are uncontested. The evidence clearly proves the defendants breached their duty of care to
the plaintiff which as a direct result of their negligence has adversely affected her health and quality of life and caused medical
complications that she continues to suffer from for which she will require a further major surgery overseas. There is no evidence
of contributory negligence on the part of the plaintiff. The medical complications and loss of enjoyment of life and psychological
stress and anxiety are clearly attributed to the retained surgical instrument, the metal retractor, from the first operation of 26
July 2014.
The metal retractor is 16.5 centimetres, only a reckless act of the highest order can ignore or omit noticing that the surgical instrument
used to keep the abdomen open is not accounted for before the abdomen is closed. It shows the surgeon and medical staff assisting
were not paying attention and being careful during the surgery.
27. The standard of care test is that the second defendant, as a medical doctor and the registered nurses who form the medical team assisting him during the surgery must use diligence, care, knowledge, skill and caution during the operation. The uncontested evidence is that they failed miserably to observe this standard of care when they left the 16.5centimetre metal retractor in the plaintiff's abdomen from which she continues to suffer and underwent an avoidable second operation.
The defendants reckless and careless omissions to retrieve and account for the metal retractor during the surgery has resulted in the plaintiff losing her job, undergoing additional surgery and a diminished quality of life that requires further surgery in the future.
Medical professionals have a high standard of care as their work involves people's lives and our society generally trusts doctors and nurses at their word. Medical professions and the hospitals that employ them must ensure medical standards are met in every treatment or surgery.
I adopt and accept the remarks by his Honour Deputy Chief Justice Kandakasi in Albert v Aine (2019) N7772, that there is a "need for prompt action against negligent doctors and medical professionals".
28. I find the defendants actions and omissions in leaving the metal retractor behind in the plaintiff's abdomen were reckless, unreasonable and without regard for the sanctity of life to which their noble professions call on them to uphold. They miserably failed to exercise or ensure the doctor and medical team they employed took all reasonable steps to observe the standard of care that their profession demands to use diligence, care, knowledge, skill and caution during the surgery. The plaintiff has sufficiently proven the defendants' actions and omissions are negligent. I enter judgement against the defendants on liability in favour of the plaintiff.
ASSESSMENT OF DAMAGES
29. The rule in assessing damages is that the plaintiff must prove her losses, particularly those losses that can be quantified such as special damages. In considering damages, I am guided by relevant caselaw, evidence and reasonable judgement in doing the best I can. See Mel v Pakalia (2005) SC790.
General Damages
30. The plaintiff seeks general damages as a result of prosecuting this claim despite the clear intent of the first defendant to settle and claims damages for seven years being the time of filing the writ to the year of hearing by submissions on papers. The plaintiff claims three categories of general damages;
31. As to the settlement proposal, no evidence was produced as to what became or did not become of the settlement proposal. However, I gather from the evidence of the plaintiff that a defence was filed soon after the settlement offer. It appears the State Solicitor took carriage of the matter rather then the private law firm that initially communicated the settlement offer to the plaintiff. Either way, it appears to me that the settlement offer fell through. Still, I accept the evidence produced by the plaintiff that the first defendants' board did resolve on 18 October 2016 to settle the matter. This was within two days after they accepted a sealed copy of the writ of summons. The first defendant’s board were decisive but let down by their lawyers in settling this case.
32. As to the general damages sought, the purpose of this award is to compensate the plaintiff as nearly as possible for the pain, loss and suffering caused to her by the defendant's careless actions and omissions.
In Kunong v Paradise Private Hospital Ltd (2022) N9698 at [50] the Court explained:-
"The purpose of an award of general damages is to compensate a plaintiff for the pain, suffering, humiliation, distress and inconvenience caused by the unlawful actions of a defendant. General damages are compensatory in that the Court endeavours by way of an award of money to put the plaintiff as far as possible in the same position they would have been had they not suffered the injuries incurred because of another person’s wrongful conduct. General damages are intended to be neither a reward nor a penalty: see Limitopa v The State [1988-89] PNGLR 364; Figa v Agong (2012) N4707."
33. The plaintiff has produced sufficient evidence of the three categories of damages she is claiming which has been corroborated by the expert medical evidence of Dr Sidney James. I am satisfied she is entitled to the three heads of general damages. In terms of arriving at a quantum that can reasonably compensate her, in money terms, the physical aspects of her life can not be adequately compensated but I take note of Dr James evidence that a major operation overseas may correct the medical complications the plaintiff currently faces and the Court must do its best to award damages.
34. Unfortunately, the plaintiff has not produced any evidence of how much it would cost for the medical surgery to be done overseas nor the loss of her employment income. Though I note loss of employment income is not pleaded nor claimed, it does contribute to her loss of quality of life.
I therefore have recourse to other medical negligence cases decided in our jurisdiction and note that most of the cases group the general damages award under this category into one category of 'general damages for pain and suffering'. I adopt this method in considering these damages. Counsel has referred me to similar cases in his submissions to which I am grateful. Of the cases canvassed, the following provide uselful guidance, they are; Oresi v Marjen (1998) N1784, Jack v Mola (2008) N3537, Albert v Aine ( 2019) N7772), Kunong v Paradise (2022) N9698, and Mek v Kumi (2023) N10394.
35. Oresi v Marjen is one of the first reported medical negligence cases where two gauze swabs were left in the abdomen of the plaintiff after an operation. The plaintiff experienced pain and discomfort in her abdomen and was operated on and the two gauze swabs were located and removed. The Court considered the difficulty in arriving at a figure for injuries of this nature and awarded K20,000.00 for general damages for pain and suffering plus K3,042.20 in interest. This case was decided in 1998 about 26 years ago while the quantum may not be appropriate in today's economic conditions, the grouping of the damages and the remarks about the difficulty in quantifying such damages are noted and accepted in my reasoning.
36. In Jack v Mola a misdiagnosis lead to a tubal ligation operation and stigma resulting in infertility of the plaintiff. The Court considered general
damages sought of K50,000.00 not appropriate for the negligent actions causing infertility, considered similar caselaw being Oresi v Marjen and Jerry Goria v. Sergeant Jeffery Simara & Ors (2001) N2066 which was decided seven years ago, took into account the economic conditions at the time of judgement and doubled the amount claimed
for general damages in pain, suffering, loss of amenities, mental anguish/distress to K100,000.00
The Court awarded further general damages amount of K175, 000.00 against the defendants for being highly culpable and negligent resulting
in the plaintiff's loss of fertility.
The Court awarded exemplary damages for K50,000.00 and aggravated damages for K50,000.00.
The total damages awarded was K375,000.00
37. In Albert v Aine a pregnant mother due for delivery was left unattended at the Port Moresby General Hospital for more than 10 hours. This led to her bleeding and rapturing her uterus resulting in foetal death. The medical surgery called hysterectomy was performed on her to remove the foetus. This resulted in removal of her ovaries and her becoming permanently infertile and unable to menstruate. The Court considered this case was much worse than Jack v Mola and Oresi v Marjen because of the permanent nature of the infertility, the loss of a child and the avoidable nature of the case and the increased cost of living and awarded the following damages:
1) General damages: plaintiff claimed K200,000.00, K200,000.00 was awarded.
2) general damages for loss of fertility, the Court considered the case of permanent infertility was worse than Jack v Mola which it considered was for partial infertility and the culture of PNG for children caring for the parents when old, which the
plaintiff will be permanently deprived of and her state as a healthy young women who faced permanent infertility because of the
careless and reckless actions of the defendants and awarded K350,000.00 as reasonable damages.
3) For exemplary damages, the Court considered the lack of evidence by the State defendants in disciplining medical professionals
for negligence found in earlier cases, considered the punitive nature of exemplary nature of damages and exercised its discretion
to increase by 100% the award in Jack v State to K100,000.00
4) The Court awarded aggravated damages of K100,000.00 based on the considerations discussed above. This was also a 100% increase
from the award in Jack v the State.
5) Special damages were awarded subject to evidence provided.
6) For future medical expense and surgery overseas; no award was granted because the Court found the medical advice conflicting
and the claim speculative in the absence of “confirmed arrangements for review and treatment over a definite time frame." A claim for K150,000.00 based on the view of a local private doctor was rejected.
38. In Kunong v Paradise the plaintiff sued the defendants for medical negligence in the loss of her newborn child after untreated prolonged labour pains,
subsequent caesarean section and the death of her new born baby six hours after from low blood sugar and oxygen saturation due to
not being fed after delivery by the defendants. The Court distinguish the facts to Albert v Aine and Jack v State, noted there was no infertility but relied on the general damages for pain and suffering of K200,000.00 in Albert v Aine, catered for inflation and increased cost of living and the time factor being three years since Albert v Aine decision and increased the award by K50,000.00 to K250,000.00 for general damages in pain and suffering.
No exemplary damages were awarded because the court found it was not pleaded.
39. The most recent case is that of Mek v Kumi which concerned after care treatment of an wound after the removal of a contraceptive device implant in the left arm of the plaintiff's wife. The wound was not treated well which resulted in infection and muscle loss (muscle atrophy) of the limb. The Court considered at [129], muscle atrophy cases of personal injury cases decided in 2001, 2005 and 2020 all awarding K35,000.00 and awarded K35,000.00 for general damages for physical hardship, stress and inconvenience.
40. Following this case review, I am minded to be guided by the approach taken by the Court in Albert v Aine and in all the cases surveyed, to consider one head of general damages for physical and mental pain and suffering, and general damages for the continuing enteroversical fistula, exemplary and aggravated damages, apart from interests and costs.
I note the Court factoring inflation or the costs of living in the surveyed cases but there is no reference to a formular or reference to guide the Court in deciding inflation, I take it, that it is left to the Court's reasonable judgement and lived experience. On factoring inflation or increased cost of living, I note an increase of between 50% to 100% of prior similar awards or amount submitted is factored in the above cases where the Court has made a finding of negligence.
I also refer to the case of Moka v Motor Vehicles Insurance Ltd (2004) SC729[6]
where the Supreme Court held:
" We are of the opinion that in the light of the high rate of inflation existing at the present time the Courts ought to consider that as a factor in considering awards for general damages for pain and suffering. We consider that due to inflation, the award for general damages for pain and suffering ought to be much higher now then what the Court was awarding in 1988 and 1998, when the above cases were decided. Accordingly, our view is that, general damages for pain and suffering should be higher than claimed in this case."
41. I turn now to consider the damages claimed. The quantum the plaintiff seeks for the three categories of general damages claimed are:-
42. Based on the strength of the caselaw surveyed above, the general damages for psychological and physical pain and suffering is grouped into one group of general damages for pain and suffering, and for present and future damages will be grouped as general damages for the particular medical condition; enteroversical fistula, as was done in the surveyed cases for loss of fertility.
General damages for psychological and physical pain and suffering
43. In terms of an award for general damages for pain and suffering, I consider that the award in Albert v Aine of K200,000.00 was made based on the plaintiff's submissions to which the Court in Kunong v Paradise relied on three years later in 2022 to increase this award by 25% or K50,000.00 to K250,000.00. Inflation[7] and its impact to the price of goods and services and cost of living are real challenges facing our country and made worse when plaintiffs livelihoods are adversely affected by the negligent acts or omissions of others. The plaintiff's evidence of pain and suffering and loss of amenities are uncontested, for these she claims a total of K 650,000.00.
Albert v Aine and Kunong v Paradise concerned complications arising from childbirth resulting in loss of fertility from malpractise. In Albert v Aine, the loss of a fetus and in Kunong v Paradise the loss of a new born child. This case is distinguished in facts on this point but, relevant as it also concerns malpractise which has resulted in serious post surgery complications of fistula and continuing physical and psychological pain, discomfort and loss of the quality of life.
I would consider 50% of K650,000.00 reasonable given high inflation exacerbated since 2020-2021 by covid 19 whose effects on the economy are still being felt. I am mindful of the Court's remarks in Albert v Aine that personal injury awards are increasing. The plaintiff has not provided sufficient justification to demonstrate that the Court should accept the full amount sought of K650,000.00.
I therefore award general damages for physical and psychological pain and suffering, an amount of K325,000.00.
General damages for present and future medical conditions
44. I accept from the evidence of Dr James that the plaintiff will need to undergo surgery overseas and that her quality of life or loss of amenities has been greatly affected by the surgical blunder caused to the plaintiff by the initial surgery of 26 July 2014. However, as noted by the Court in Aine v Albert, the plaintiff has not provided any evidence about the cost of the overseas surgery to substantiate why she should be awarded K400,000.0 Counsel has not referred me to any caselaw under this relief except for Jack v Mola and Oresi v Marjen which did not address the issue of future damages. However, I do note that in both Jack v Mola and Albert v Aine, the Court made allowance for the specific loss or injury sustained by the respective plaintiffs being that of loss of partial and permanent infertility and awarded damages of K175,000.00 and double that amount to K350,000.00 I consider the perforations of the bowel and bladder caused to the plaintiff a serious matter that post correction surgery has not completely resolved resulting in ongoing complications that appear life threatening and affects the plaintiff’s quality of life. Dr James mentions she lost her employment as a result but the plaintiff has not provided any evidence about lost income or job prospects. I consider the psychological report and her mental state also noteworthy factors in determining present and future damages. In Mola v Jack, the court considered the loss of fertility arose from a highly culpable act of the defendants and awarded K175,000.00 whereas in Aine v Albert the Court awarded the higher amount of K350,000.00 due to permanent infertility. The injuries, pain and suffering of the plaintiff are not comparable but in all these cases permanent scarring, pain and suffering are caused. The plaintiff's loss will eventually become terminal according to Dr James, if it is not resolved by further surgery.
Bearing all these in mind, I consider an amount of K300,000.00 reasonable in the circumstances, given the continuing discomfort, pain, suffering and the adverse impacts on her life. I therefore award general damages for present and future medical conditions to the plaintiff of K300,000.00.
Exemplary and Aggravated damages
45. The plaintiff has not pleaded nor claimed in her prayer for relief exemplary or aggravated damages, which should have been warranted in her case. However, these are specific heads of damages and must be pleaded in order to be granted any relief. The general relief for “any other orders” or under s155(4) Constitution does not apply to primary reliefs and would not be appropriate to use to make orders as the Court deems proper. See Order 4 rule 7 National Court Rules and Kunong v Paradise at [104]. Therefore, no exemplary or aggravated damages are awarded.
Special Damages
46. Special damages are out of pocket expenses and must be particularised and proven. See Order 8 rule 33(1)NCR. The plaintiff must produce source documents and payment receipts to prove actual expenses incurred. I note the plaintiff has been accessing medical services at the public hospital, Port Moresby General Hospital, so her costs would be minimal except for costs of transportation or accommodation if any, or special care.
The plaintiff submits for an award of K20,000.00 which is refused in the absence of proof.
INTEREST
47. Interest where the State is a party is to be awarded at 2 % pursuant to sections 4 and 6 of the Judicial Proceedings (Interest on Debts and Damages) Act 1962 “in proceedings for the recovery of debt or damages.” I will award pre-judgement interest from the date on which the cause of action arose, which is 26 July 2014, being the date of the initial surgery, to the date of decision, 28 March 2024, which I consider appropriate given the circumstances. This amounts to 3533 days (about 9 and a half years). The pre-judgement interest awarded is K120,993.15.
48. Using the interest calculation by his Honour Sheperd J, in Seeto v Dekenai Constructions Ltd (2023) N10172, 2% interest on general damages of K625,000.00 is K120,993.15, computed by applying the formula:-
D x IR x (N/365) = I, where: D is the principal amount of general damages, IR is the applicable percentage rate of interest per
annum, N is the number of days expressed as a percentage of years and I is the amount of interest:
K625,000.00 x 2% x (3533/365 days) = K120,993.15
49. Post-judgment interest is discretionary and allowed by Section 6 of the Judicial Proceedings (Interest on Debts and Damages) Act 2015 and Order 12 Rule 6(1) of the National Court Rules, given the considerations above, a post judgment interest at the rate of 2% per annum on the whole or part of the total judgment amount of K745,993.15 that remains unpaid from time to time is awarded.
COSTS
50. Costs are discretionary. Costs follow the event and are awarded to the successful party. See O22r11 NCR. In this case, the evidence is that the first defendant intended to settle the matter as early as two months after being provided copies of the writ of summons. I find they were let down by their Lawyers in not genuinely proceeding to settlement with the plaintiff. The Court encourages parties to settle. This matter should have been resolved in 2016. It went through nine trial dates since 26 May 2019 over four years. The plaintiff’s lawyer has not put in an affidavit to explain why settlement fell through. On that basis, I exercise my discretion to award costs on a party/party basis to be taxed, if not agreed.
CONCLUSION
51. Overall, I find the plaintiff has proven that the defendants are liable for medical negligence. Judgment is entered against the defendants for medical negligence with total damages of K745,993.15 awarded to the plaintiff.
FORMAL JUDGEMENT
52. The formal judgement of the Court are:-
Judgement and Orders accordingly
Kipes Law: Lawyers for Plaintiff
Solicitor General: Lawyers for First, Second and Third Defendants
[1] Merriam-Webster Medical Dictionary https://www.merriam-webster.com/dictionary/cognitive%20behavior%20therapy
[2] merriam-webster medical dictionary at https://www.merriam-webster.com/medical?
[3] National Library of Medicine USA, https://www.ncbi.nlm.nih.gov/books/NBK532936
[4] Penn Medicine https://www.pennmedicine.org/for-patients-and-visitors/patient-information/conditions
[5] Wikipedia https://en.wikipedia.org/wiki/Retractor_(medicine)#
[6] Also adopted with approval in Motor Vehicles Insurance Limited v Kol (2007) SC902 and Mel v Kumi.
[7] Refer to the PNG National Budget Books Volume 1 on Ínflation Outlook' to confirm Treasurer's discussions about inflation in 2022 and 2024 for example see 2022 National Budget Books Volume 1 p45 and 2024
National Budget Volume 1 pp40-41.
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