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A case of medical negligence?
In Trinidad and Tobago as elsewhere, medical negligence claims can arise out of treatment at accident and emergency centres, wrong or excessive application of anaesthetics (remember the mysterious death of Forbes Burnham, former President of Guyana), cancer treatments (remember Smokey of Smokey & Bunty fame and the efforts of his brother Ian McKenzie to seek justice in that matter), cardiothoracic surgery, cardiology, gastroenterology, general surgery, neurosurgery, obstetrics and gynaecology, oncology, ophthalmology, orthopaedics, paediatrics, plastic surgery, radiology, sterilisation, urology, vascular surgery and the list goes on and on.
A breach of duty of care
Doctors both here and abroad can be found guilty of negligence which is in essence a breach of a duty of care for, among other things, failed or delayed diagnosis, failure to warn of risks in treatment (see allegations of the Ramsoomair family that they were not warned of the risks), failure to obtain proper consent to treatment (which can also result in assault and battery claims), medication errors (either overdosing or underdosing as in Michael Jackson’s case), careless surgical procedures (as in so many of these plastic surgery horror stories (Michael again), or delayed referral to specialists.
Negligence can also arise out of system errors in the hospital where the treatment took place (Nekeisha Caine), failure of equipment due to negligence or failure to maintain or upkeep (remember the autoclave sterilisation machine failure at Mt Hope a couple years ago). Most cases concern registered medical practitioners (doctors and surgeons) but similar principles apply to dentists, midwives, nurses, physiotherapists, psychologists and psychiatrists. We saw recently, Dr Tim Gopeesingh slamming the healthcare system available in Tobago, saying he was afraid to get sick there. And let’s not feel that it is because of our small size that mistakes occur here.
In a BBC report last week it was stated that authorities in the Indian state of Rajasthan have suspended three senior doctors in connection with the deaths of 18 pregnant women in a span of three weeks; that is six women dying every week from medical negligence. That hospital in particular has become infamous worldwide for its string of maternal deaths. The doctors have been charged with negligence and irregularities in purchases of medicines and IV fluids. The women died when severe haemorrhaging occurred after infected intravenous (IV) fluids were administered at two hospitals in the city of Jodhpur.
In Rajasthan last year also, medical doctors went on strike and during that time, 14 people died from a lack of medical attention. India accounts for the highest number of maternal deaths in the world. Campaigners say most of the deaths are needless and could easily be prevented if more care and attention were paid to their treatment. Fortunately, no one here in Trinidad and Tobago appears to have died as a result of the protest action by doctors. But clearly, as a result of a procedure gone awry, Chrystal Ramsoomair is with us no more.
The test for negligence
Her family is on record as saying that no amount of money can compensate for her loss, and indeed they are correct. While we recognise that it will never be possible to make health care free of all risk, we need to keep trying to improve our systems and procedures and be firm and insistent on holding people accountable if they are in default.
In T&T, compensation for medical harm is largely dealt with through a legal process that begins with an allegation of medical negligence under ‘tort’ law. The law of negligence in tort imposes a duty of care where one party could reasonably foresee that its conduct may cause harm to another and has caused the injury or damage through care delivered in a negligent manner. The party at fault causing the negligence could be a doctor, a nurse, a health care professional or an institution or a combination of these. The early test for medical negligence was the ‘Bolam’ test which stated that a doctor “is not guilty of negligence if he has acted in accordance with the practice accepted as proper by a responsible body of medical opinion.”
Application of the law in T&T
This test has been modified over the years and in the 1985 case of Grace Prima vs Attorney General, the plaintiff took the State to task over what was alleged to be negligent medical treatment of the plaintiff on December 13, 1984 by the servants and/or agents of the State at the Mount Hope Maternity Hospital. Prima alleged that upon entering the hospital for delivery of the baby, she was treated or attended upon so unskilfully and/or negligently that she suffered a rupture of her uterus, her baby died, her uterus was then removed by the hospital staff. Prima also suffered post-operative sepsis. The State, for its part, tried to defend the hospital and its staff saying that the plaintiff was attended to at all times by a qualified midwife and passed through the first stage of labour successfully.
They went on to say that, however, during the second stage, the plaintiff complained that something had burst inside her and the doctor in attendance diagnosed a ruptured uterus. A caesarian section was then performed and the body of a male child was then delivered stillborn, with the umbilical cord wrapped three times tightly around the child’s neck. A hysterectomy was then performed because of the severity of damage to the plaintiff’s uterus.
The learned trial Judge, the Honourable Mr Justice Basdeo Persad Maharaj rejected this and found that the nurses on duty at the labour ward were negligent in failing to pay due or any due regard to the plaintiff’s case notes or previous medical history and as a consequence, they failed to put themselves on guard and notify the medical team of doctors that the plaintiff was high risk. The judge also held that the labour ward staff were careless. The judge awarded the plaintiff damages in the sum of $130,000 plus interest, plus special damages in the sum of $1,690, plus legal costs.
(To be continued next week)
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