Boyce v Lorde et Al

• Jurisdiction: Barbados
• Judge: Mason, J.A.
• Judgment Date: 16 August 2011
• Neutral Citation: BB 2011 CA 18
• Docket Number: Civil Appeal No. 20 of 2008
• Court: Court of Appeal (Barbados)
• Date: 16 August 2011

Boyce

and

Lorde et al

Waterman, J.A.; Moore, J.A.; Mason, J.A.

Civil Appeal No. 20 of 2008

Court of Appeal

Negligence - Medical negiligence — Whether doctor exercised proper care in relation to management of respondent after she delivered twins by caesarean section —— Respondent's health deteriorated to point where she suffered a stroke — Several medical expert witnesses — Conflicting testimony — Finding that the appellant was liable in negligence upheld.

Appearances:

Mr. Roger C. Forde, Q.C. in association with Mr. Francis De Peiza and Mr. Brian Barrow for the appellant.

Mr. Elliott D. Mottley, Q.C. in association with Ms. Marilyn Moore and Ms. Andrea Simon for the respondents

Mason, J.A.

INTRODUCTION

1 This appeal is from the decision of Reifer, J. in which she entered judgment for the respondents in a case involving medical negligence.

FACTS

2 The respondents, Stephen and Corine Lorde, are husband and wife. Mrs. Lorde who was pregnant with twins was a patient of the appellant, a consultant obstetrician/gynaecologist. Her estimated date of delivery was 25 January 1999 but on 3 January, her membranes ruptured prematurely as a result of which she was admitted to the Bayview Hospital where she underwent an emergency caesarean section performed by the appellant. Mrs. Lorde was delivered of healthy twin girls.

3 Mrs. Lorde remained in the hospital for five days during which time her temperature fluctuated. On 4 January, Mrs. Lorde was reported to have a temperature of 37.5°c and had now become tachycardic (rapid pulse) with a pulse rate of 100 per minute. On 5 January, her temperature remained elevated with a mild tachycardia. She was medicated with an oral antibiotic. On 6 January, she complained of feeling tired and dizzy and her pulse rate was still slightly elevated and her temperature again rose after having educed a little earlier on that day. On 7 January, her temperature became even more elevated and she complained of feeling unwell. On 8 January, a high temperature and elevated pulse were again recorded. Later in that day, Mrs. Lorde suffered a panic attack and complained of feeling unwell. She was “seen” by the appellant and in spite of her misgivings she was discharged. A review of the graphic sheet during the period of hospitalization shows that Mrs. Lorde was febrile from the time of admission with spiking temperatures and her temperature never reverted to normal up to the time of her discharge.

4 The next day, 9 January, after complaining of feeling unwell, she was visited at her home by the appellant who examined her and readmitted her to the Bayview Hospital. The appellant's diagnosis was postoperative pyrexia secondary to infection.

5 On readmission Mrs. Lorde was treated intravenously with antibiotics for 3 days. On 10 January her temperature remained elevated. On that day blood cultures, a complete blood count and sputum were taken. On 11 and 12 January, Mrs. Lorde's temperature and pulse rate remained elevated and she complained of pain. On 13 January her temperature was recorded as normal and she was discharged.

6 Following that discharge and until 21 January, Mrs. Lorde's health deteriorated to the point where she fell unconscious and suffered a stroke. She had again to be hospitalized, this time in the Medical Intensive Care Unit at the Queen Elizabeth Hospital. It is the evidence of Mr. and Mrs. Lorde that during the period following the second discharge, that is, 13 to 21 January, a number of telephone calls were made to the appellant but they were never able to personally contact him.

PLAINTIFFS/RESPONDENTS' PLEADINGS

7 By a Writ of Summons and Statement of Claim dated 5 February 2001, Mr and Mrs. Lorde claimed damages against the appellant and the Bayview Hospital on the grounds that they negligently managed Mrs. Lorde's case. This Writ of Summons and Statement of Claim were amended on 19 January 2005 and re-amended by order of the court on 27 September 2005.

8 The Lordes' allegations of negligence are more particularly set out at paragraph [16] of Reifer, J.'s judgment.

DEFENDANT/APPELLANT'S PLEADINGS

9 In his defence the defendant denied those allegations of negligence and maintained that he used all reasonable skill, care and diligence in attending to, treating and advising Mrs. Lorde during the period of pregnancy, delivery and after surgery.

JUDGE'S DECISION

10 The court was satisfied on a balance of probabilities that Mrs. Lorde contracted an infection as a result of poor management by the appellant after the caesarian section and that there was a general failure to properly manage the situation to determine and treat the source or cause of the infection (para. [52] of the judgment). The court was of the opinion that on the evidence of the experts the pelvic infection ultimately caused the stroke.

11 The court was also of the view that from inception the failure to administer prophylactic antibiotic during or immediately after the surgery in a patient who was at higher risk as a result of the rupture of her membranes was an error of clinical judgment. Reifer J determined that Mrs. Lorde's after-care was below an acceptable standard since:

• (a) there was a failure to administer the antibiotics during surgery;

• (b) oral as opposed to intravenous antibiotics were prescribed after the surgery;

• (c) there was a failure to ensure the antibiotics were administered in a timely fashion;

• (d) there was a poor (though not ridiculous) choice of antibiotics; and

• (e) Mrs. Lorde had been discharged without proper follow-up care.

12 As a consequence the court determined that the particulars of negligence as alleged had been proven and that the appellant was liable.

13 The claim against the Bayview Hospital was dismissed, the court having found that the Lordes had failed to establish a case against the hospital.

14 The appellant appealed these findings and filed the following grounds of appeal:

• i. The learned trial judge misdirected herself and/or erred in law and/or finding of fact in finding that the injury (stroke) suffered by Mrs. Corrine Lorde the plaintiff/respondent was caused by the negligence of the first defendant/appellant in that:

• a. the learned trial judge paid no or no sufficient regard to the undisputed evidence of Medical Consultants, Messrs. Gill and Marquez that there was no evidence of infection in the body of Mrs. Corrine Lorde, the plaintiff/respondent at the time that she was admitted to the Queen Elizabeth Hospital on 21 January 1999;

• b. the learned trial judge paid no or no sufficient regard to the evidence that the age of Mrs. Corrine Lorde, the plaintiff/respondent (43 years) and her origin (African Descent) increased the risks of cerebro-vascular injury during the puperium as a natural and ordinary but unfortunate complication of the event of childbirth;

• c. the learned trial judge paid no or no sufficient regard to the evidence of Mr. Sean Marquez that the cause of the injury (stroke) suffered by Mrs. Corrine Lorde, the plaintiff/respondent was unknown.

• ii. The decision is against the weight of the evidence in that the evidence does not establish that the injury (stroke) suffered by Mrs. Corrine Lorde, the plaintiff/respondent, was caused by:

• a. infection and/or

• b. the negligent treatment of the first defendant/appellant.

DISCUSSION

15 In his introduction, Mr. Roger Forde, Q.C., counsel for the appellant, submitted that in terms of the jurisdiction of the Court of Appeal, Order 59, Rule 5 of the Rules of the Supreme Court, 1982 provides that an appeal shall be by way of re-hearing. He submitted that since ground (ii) of the appeal — causation — concerned the finding of fact, the following statement from the 1991 edition of the “White Book” (The Supreme Court Practice, UK), note 59/1/30 offered good guidance to the Court of Appeal:

“Even where the appeal turns on a question of fact the Court has to bear in mind that it has a duty to rehear the case and the Court must reconsider the material before the Judge with such other material as it may have decided to admit. The Court must then make up its own mind not disregarding the Judgment appealed from, but carefully weighing and considering it, and not shrinking from overruling it if on full consideration it comes to the conclusion that it is wrong. Great weight is due to the decision of the Judge at first instance whenever in a conflict of testimony the demeanour and manner of witnesses who have been seen and heard by him are material elements in consideration of the truthfulness of these statements, but the parties to the cause are nevertheless entitled as well on question of fact and question of law to demand the decision of the Court of Appeal and the Court cannot excuse itself from the task of weighing conflicting evidence drawing its own conclusion though it should always bear in mind that it has neither seen nor heard the witnesses and shall make due allowance in this respect.”

16 Mr. Forde submitted that the judge failed to analyse the evidence of the experts in order to determine whether her findings could be supported by the evidence of the experts. He contended further that the judge did not make sufficient reference in her judgment to the evidence which had weighed with her, that she merely pronounced that she was satisfied on a balance of probabilities on the evidence of the experts that the pelvic infection ultimately caused the stroke and that the appellant was liable. In counsel's opinion, the judge did not evaluate the evidence in order to say why she preferred one expert's opinion over that of the other. He maintained that the judge needed to resolve the conflict of evidence of the experts since there were several experts and each expert had his own discipline.

17 Mr. Forde was of the view that it was now incumbent upon the Court of Appeal to reconsider the matter and reach its own...