Tamara Pierre Lysander Neville Pierre v The Attorney General of Saint Lucia
| Jurisdiction | St Lucia |
| Judge | Cenac-Phulgence J |
| Judgment Date | 20 January 2022 |
| Judgment citation (vLex) | [2022] ECSC J0120-2 |
| Docket Number | SLUHCV2018/0040 |
| Court | High Court (Saint Lucia) |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
(CIVIL)
The Hon. Mde. Justice Kimberly Cenac-Phulgence High Court Judge
SLUHCV2018/0040
Mr. Alvin St. Clair for the Claimants
Mr. Seryozha Cenac for the Defendant
This is an unusual medical negligence claim. Unlike many others, the alleged medical negligence has not resulted in a cost to life but a gift of life. The claimants, Mrs. Tamara Pierre (“Mrs. Pierre”) and Mr. Lysander Pierre (“Mr. Pierre”) (“together referred to as “the Pierres”) filed a claim against the Attorney General (“the AG”) of Saint Lucia alleging that the AG is vicariously liable for the negligence of its servants or agents, who were employees of the Victoria Hospital at the material time, in carrying out their contractual and professional duties owed to the Pierres.
On 11 th September 2016, Mrs. Pierre who was pregnant with her third child attended the Victoria Hospital as her delivery was imminent and she had had complications with her two previous pregnancies. On being examined, Mrs. Pierre was advised that an emergency Caesarian section (“C-section”) had to be performed as her unborn child was suffering fetal distress.
The Pierres' case is that Mrs. Pierre, during the examination, indicated to Dr. Wilson, the examining doctor, that she wished to have a Bilateral Tubal Ligation (“BTL”). She also relayed this desire to another doctor, Dr. King, who also came in to attend to her. Dr King instructed that she be prepared for surgery and given a consent form as she was eligible for a BTL. Mrs. Pierre completed and signed the consent form. They aver that Dr. King instructed Dr. Maria Lopez (“Dr. Lopez”), the consultant obstetrician/gynecologist who operated on Mrs. Pierre, that she desired to have a BTL. The Pierres aver that it was agreed that the BTL would have been performed by Dr. Lopez.
Mrs. Pierre remained at the hospital for three days and was discharged on 14 th September 2016 with the C-section having been successfully performed. The Pierres left the hospital under the impression that a BTL had also been performed successfully. As a result, the Pierres believed that Mrs. Pierre could not conceive and so they engaged in unprotected sexual intercourse, which they would not have, had they known that a BTL had not been performed.
In July 2017, the Pierre's had reason to believe that Mrs. Pierre may have been pregnant based on certain symptoms she was experiencing. To the Pierres' dismay, this was confirmed by ultrasound on 7 th August 2017. The Pierres communicated this to personnel at the Victoria Hospital and allege that Dr. Lopez disclosed that she did not perform the BTL in the event that the baby she delivered, who had ingested meconium, 1 did not survive and the Pierres wanted to have another child.
The Pierres allege the defendant was negligent in that they (i) failed to perform the BTL as agreed; (ii) failed to inform the Pierres that the BTL was not performed and (iii) allowed the Pierres to appreciate that the BTL had been performed causing them not to take any precautions whatsoever.
The Pierres allege that because of the negligence of the defendant, through its servants or agents, they are now saddled with the psychological, emotional and financial burden of caring for a child to the age of eighteen years, as well as having to endure psychological, emotional, mental and physical suffering associated with the complications of pregnancy, which Mrs. Pierre had experienced before.
They allege that they have suffered loss and damage consequent upon the negligence and claim special damages, general damages forthe expenses occasioned by the pregnancy and the rearing of a child to the age of 18 years, interest and costs.
The defendant avers that Mrs. Pierre was admitted to the Victoria Hospital on 11 th September 2016 with a due date of 23 rd September 2016. On Dr. Lopez's clinical assessment of her in the Labour Room, it was determined that Mrs. Pierre would undergo an emergency C-section on account of the diagnosis of fetal distress, which presented a real risk to the health and viability of the fetus. Mrs. Pierre was at that point prepared for ‘theatre’ also referred to as the Operating Room.
Contrary to the Pierre's allegations, the defendant avers that Dr. Lopez did not have any direct contact with Mrs. Pierre following the initial assessment in the Labour Room and as such did not receive any indication from Mrs. Pierre that she desired a BTL. They aver that Mrs. Pierre requested this from Dr. Wilson, the intern on the ward, whilst she was being prepared for theatre. They aver that this request did not constitute the required pre-operative consultation prior to performing a BTL.
In their reply, the Pierres say that Mrs. Pierre communicated to Dr. King and Dr. Wilson that she wanted the BTL done. They say further that the request for the BTL is visibly apparent on the informed consent form, which was signed by Mrs. Pierre and an agent of the defendant. The Pierres aver that the defendant's allegation that Dr. Lopez was not informed or was not aware that the BTL was to be done highlights carelessness and incompetence on her part, as this indicates that as the operating surgeon, she never consulted the consent form prior to performing the C-section. The Pierres also aver that there was nothing in any of the records to indicate that the BTL was not done.
The defendant further avers that since a BTL is irreversible, unless it is specifically requested before the expected date of delivery, it is not a procedure that is recommended or conducted spontaneously and more so during an emergency. They aver that the operating surgeon would have to be satisfied that the patient along with her spouse (if any), understood and accepted the consequences of the procedure and all related matters.
There being no communication between Dr. Lopez and Mrs. Pierre about the BTL, the defendant avers that there could have been no agreement between them for the conduct of the BTL and as such Dr. Lopez did not assume responsibility for performing it. Dr. Lopez was under no legal obligation to perform a BTL and therefore there was no breach of duty. There was, therefore, no corresponding duty to inform Mrs. Pierre that it had not been done.
Notwithstanding, the defendant avers that Mrs. Pierre was informed that the BTL had not been conducted when she received (i) her post-operative C-section review, which did not include discussions on the BTL procedure or other post-operative treatment following a BTL; and (ii) her Admission & Discharge Sheet, which recorded only one (1) patient procedure being done, a C-section. With this, the Pierres were put on enquiry that the BTL had not been done. In their reply, the Pierres deny that they were informed that the BTL was not done.
The defendant denies that it caused the Pierres to believe that the BTL had been done. The defendant avers that the Pierres negligently assumed that the BTL had been done and allege the following particulars of negligence: (a) that Mrs. Pierre failed to communicate her intention to have a BTL in advance of her admission on 11 th September 2016; (b) she failed to enquire into whether the BTL had in fact been done and was successful; (c) she failed to take notice of the absence of a BTL being recorded on any of her medical documents and to enquire about such absence; (d) she either failed to have her six week post-operation review with her private doctor or failed to mention to her private doctor that a BTL had been done; and (e) she failed to take the necessary precautions pending confirmation of the success of the elected BTL procedure. These particulars of negligence are all denied by the Pierres in their reply.
It is averred that, had Mrs. Pierre not acted negligently as alleged, it would have probably come to her attention prior to conception that the BTL had not been done and she would have been in a position to pursue corrective or alternative procedures.
The defendant denies that Dr. Lopez ever communicated to Mrs. Pierre that she had elected on her own not to perform the BTL. They say that Mrs. Pierre misunderstood what was communicated to her. All that had happened was that Dr. Lopez explained to Mrs. Pierre what had transpired on 11 th September 2016. However, there was no explanation of what the misunderstanding was.
The defendant denies that the Pierres suffered any psychological, emotional or financial distress or that the servants or agents of the defendant acted in breach of contract or breach of duty to the Pierres as alleged or at all. However, if the Court was to make such a finding, the defendant avers that the loss and damage alleged are not recoverable as claimed. The defendant avers that the Pierres are not entitled to the relief which they claim and ask that the claim be dismissed with costs.
Further or in the alternative, the defendant avers that to the extent that the Pierres have suffered any loss or damage it was caused or contributed to by the Pierres' negligence.
The trial of this claim commenced on 28 th October 2020 and was adjourned to a date to be decided in order to facilitate the taking of the evidence of the last witness for the defendant, Dr. Maria Lopez, who by the time of trial had returned to her home country, Cuba. The matter was listed for status hearing on 21 st January 2021 at which time counsel for the defendant indicated firstly, that they needed some more time to arrange for Dr. Lopez to give evidence and was liaising with the Ministry of External Affairs in that regard; and secondly, to allow them to make a submission to Cabinet on the matter of settlement of the claim....
To continue reading
Request your trial