Gemyma Shaunerva Norville Claimant v Attorney General of Saint Lucia Defendant [ECSC]

• Jurisdiction: St Lucia
• Judge: Mason J
• Judgment Date: 05 June 2008
• Judgment citation (vLex): [2008] ECSC J0605-2
• Court: High Court (Saint Lucia)
• Docket Number: Claim No SLUHCV 2004/0362
• Date: 05 June 2008

[2008] ECSC J0605-2

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

Claim No SLUHCV 2004/0362

Between:

Gemyma Shaunerva Norville

Claimant

and

Attorney General Of Saint Lucia

Defendant

Appearances:

Mr. Mark Maragh for the Claimant

Mrs. Brenda Portland— Reynolds and Mr. Dwight Lay for the Defendant

Mason J

1 This action is brought by the administratrix of the estate of a twenty four (24) year old man (hereinafter referred to as "the deceased") who arrived at the Victoria Hospital in the early hours of 9 ^th November, 2003 after having sustained stab wounds — one to the abdomen and one to the shoulder. The deceased presented in obvious distress, was cold and clammy with signs of hypovolemic shock.

2 On admission, the medical officers on duty at the Accident and Emergency Department classified the deceased's condition as urgent, needing immediate surgical intervention and thereupon initiated emergency care in preparation for such surgery. His wounds were bandaged, his feet elevated, he was given crystalloid fluids, oxygen was administered, a catheter was inserted to drain blood stained urine, blood was collected for purposes of cross matching and instructions were given for the on call surgeons to be summoned.

3 Telephone calls were repeatedly made to the on call consultant surgeon and the registrar but all efforts to reach them proved futile. Some time later at the request of his family, the deceased was transferred to the Tapion Hospital where he underwent emergency surgery but he succumbed to his injuries and died.

4 The Claimant bases her claim for damages for negligence by the Defendant on the grounds that by virtue of admittance of the deceased to the Victoria Hospital, that the hospital undertook to provide for the deceased's general medical care, treatment, attendance and advice for and in respect to his injuries and as such owed a duty of care to the deceased to use reasonable care, skill and diligence in observing, attending, treating and/or advising the deceased with respect to his injuries.

5 The Claimant relies in the alternative on the principle of res ipsa locquitur in proof of negligence against the Defendant, its servants or agents.

6 The particulars of negligence as alleged by the Claimant are that the Defendant, its servants or agents:

• —Failed to exercise the necessary skill, care and precaution in treatment of the Deceased while in their care and custody;

• —Failed to provide at all and/or in a timely manner circulatory support including correcting hypovolemic shock with fluids and blood within a reasonable time of the Deceased's admission at the said Hospital.

• —Failed to perform surgical intervention to arrest the bleeding, promptly or within a reasonable time;

• —Failed to observe or to act upon or to investigate properly or at all the steady and serious and obvious deterioration in the condition of the Deceased while under their care;

• —Failed to diagnose or suspect that the Deceased had suffered any internal injuries, and failed to give or procure any treatment for the same or perform any investigation which would have discovered same

• —Failed to act in a timely or urgent manner in treating the Deceased for his injuries as the circumstances ought to have revealed.

• —Failed to take any or any proper or effective measures whether by way of examination, test or otherwise to properly diagnose the nature, extent and/or gravity of the Deceased's injuries;

• —Failed to have a physician on call qualified to deal with accident and emergency situations.

7 The Defendant while admitting that it owed a duty of care to the deceased makes no distinction between "observing and advising" and "attending and treating" and contends that at all material times, this duty of care was satisfied. The Defendant also denies the allegations of negligence (enumerated above at paragraph 6) and asserts that the deceased's injuries were properly diagnosed and that the treatment provided was in accordance with accepted medical standards. The Defendant refutes application of the principle of "res ipsa locquitur".

Issues

8 The court is being asked to determine:

It was decided at trial that if the Claimant succeeded on the question of liability that the issue of quantum would be subsequently considered.

• —whether there was a breach of duty on the part of the Defendant in failing/omitting to perform surgery on the deceased as a consequence of which the Defendant can be viewed to have been negligent; and

• —whether there is a causal link between the Defendant's failing/omitting to treat the deceased and the deceased's subsequent death.

Evidence

9 Thirteen (13) witnesses gave evidence —inclusive of one (1) medical expert for each party, one of the on call surgeons and the pathologist.

10 The sum of the evidence of the lay witnesses for the Claimant — the mother of the deceased, the deceased's girlfriend and her mother and the Claimant herself — indicates that the deceased was taken to the Accident and Emergency Department of the Victoria Hospital at around 1:00 a.m. on the morning in question, that on admittance his wounds were bandaged and an oxygen mask placed on his face, that although he continued to communicate with them he was in obvious pain and was bleeding profusely, that as early as 2:00 a.m. they requested a transfer of the deceased to the Tapion Hospital when it appeared to them that nothing was being done for the deceased and that the agreement to transfer the deceased was made at about 2:45 a.m. It was the deceased's girlfriend who eventually arranged for the ambulance to transfer the deceased and it was the deceased's mother who at about 2:45 a.m. went personally to Tapion to have the transfer effected. The deceased was transferred at around 3:30 a.m.

11 Dr. Christie Daniel the medical expert for the Claimant attended to and operated on the deceased at the Tapion Hospital.

12 It is his evidence that when he first saw the deceased at Tapion Hospital sometime after 3:30 a.m. that day he was very ill and was in full blown shock with blood pressure readings of 70/30. a pulse rate of 124 and two (2) intravenous lines in progress with crystalised solutions being administered. He stated that he was aware that if the deceased were to have a chance of survival that he needed lots of blood immediately. On his request for blood, he was advised that the laboratory at the Victoria Hospital had indicated that it would be another twenty (20) minutes before blood would be available. He then issued instructions for the technician at the Victoria Hospital to send whatever blood was available. He was informed that there had been a problem with the cross match of the blood. This would necessitate a further ten (10) minute wait to complete the cross match. He was also informed that no O negative blood was available. He stated that by the time the blood arrived from the Victoria Hospital and the transfusion commenced, the patient's condition had begun to rapidly deteriorate and all efforts failed to save him.

13 Dr. Daniel is of the view that had the deceased received immediate blood. transfusion and surgical intervention he would have had "a fairly good chance of survival".

14 Dr. Daniel also provided an expert report, prepared after reference to a number of documents:

• —The post mortem report

• —The medical report of Dr. Newton Jerome

• —The medical report of Dr. Marcia Gossai

• —The report of Professor Walrond

• —The patient's chart notes — Victoria Hospital

• —Referral letter from Victoria Hospital undated by Senior House Officer, general surgery

• —Tapion Hospital admission/discharge record, nurses' notes, doctors' notes, pre and post operative vital signs form and surgeon's record of operations

15 He concluded his report by stating:

"It is my opinion that the patient's chances of survival were significantly compromised due to the delay in receiving definitive surgery to stem his hemorrhage. Had he received competent surgical and resuscitative treatment at Victoria, he should have survived. The fact that he arrived in shock and remained in shock throughout his stay in the emergency room at Victoria Hospital except for one vital sign reading before his transfer which in fact was not normal. Given his respiratory rate of 38 per minute, hardly describes a stabilized individual. The patient was passing blood per rectum on arrival at Tapion emergency room which implied he was having massive ongoing bleeding into his gastro-intestinal (GI) tract. The patient's condition was critical and deteriorating rapidly when I saw him sometime after 3:30 a.m. He was, in my opinion in Stage 4 shock at the time. Even with the best of facilities at the time I saw him, his chance of survival was less than one percent. With no blood to replace his ongoing hemorrhage his chances of survival were almost non-existent, but nevertheless attempts were still made to save his life".

16 Under cross examination Dr. Daniel emphasised the necessity for surgical intervention stating that a blood transfusion would not stop the bleeding and that was why surgery would have to be performed. He stated that when the deceased arrived at Tapion he was in profound shock and that the fact that a pulse beat could not be taken was indicative of profound shock. Dr. Daniel then went on to list the degrees of shock from compensated through mild, moderate to irreversible. This last he stated is caused when a person remains in shock for so long a period resulting in damage which it becomes difficult to reverse.

17 Dr. Daniel stated that when the deceased arrived at Tapion the blood did not arrive in a timely manner and that the operation was performed when the deceased was already dying. He denied that when the deceased arrived that the opportunity for a successful surgical...