Mellissa Bissette v Queen Elizabeth Hospital
| Jurisdiction | Barbados |
| Judge | Madam Justice Sonia L. Richards |
| Judgment Date | 11 December 2020 |
| Neutral Citation | BB 2020 HC 64 |
| Court | High Court (Barbados) |
| Docket Number | SUIT NO. 1694 of 2006 |
| Date | 11 December 2020 |
IN THE SUPREME COURT OF JUDICATURE
HIGH COURT
CIVIL JURISDICTION
Dr. The Hon. Madam Justice Sonia L. Richards, Judge of the High Court.
SUIT NO. 1694 of 2006
Mr. Arthur Holder, Attorney-at-Law for the Claimant.
Mr. Ivan Walters, Attorney-at-Law for the Defendants.
On 27 October 2017, judgment was entered for the Claimant, pursuant to a claim for damages for personal injuries. The Court has before it the assessment of damages, and on 26 July 2019 counsel for the parties consented to a determination based on the written submissions.
On 07 November, 2002, the Claimant presented herself to the Accident and Emergency Department of the Queen Elizabeth Hospital (“QEH”). Her complaint was abdominal pain, vomiting and diarrhea. Similar symptoms with intermittent fever had manifested about three weeks earlier.
The Claimant was 18 years of age with no untoward previous medical history. On 06 November 2002, her general practitioner diagnosed appendicitis and referred her to the QEH. She was admitted to the hospital, and between 11 November 2002 and 17 July 2003, the Claimant underwent four abdominal surgeries connected to her appendicitis.
Between these operations, there were lengthy periods of hospitalisation. The Claimant was again admitted to the QEH in February 2005 with partial small bowel obstruction. This emergency was managed without surgical intervention.
The Writ of Summons was filed on 21 September 2006. The Claimant alleged therein that she:
“12…sustained permanent scarring of her stomach and physical body, loss of her right ovary, a punctured lung, irreparable damage to her intestine, deep permanent psychological pain and suffering, loss of her sexual appetite and sexual appeal, reduction and possible permanent loss of her procreative capacity, shame, hurt and embarrassment, low self esteem, ridicule, and permanent psychological complications relative to her intestine”.
It is alleged that the Claimant's losses and damages, detailed at paragraph [5], were caused by the 2 nd, 3 rd, 4 th and 5 th Defendants as servants and/or agents of the 1 st Defendant. The particulars of negligence are that the Defendants:
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1. failed and/or neglected to use correct procedure, care, expertise, knowledge, and skill in performing the surgery to remove the Claimant's appendix in the first surgery.
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2. failed and/or neglected to remove pus from the Claimant's appendix in the first surgery;
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3. failed and/or neglected to remove pus from the Claimant's abdomen in the first surgery;
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4. left the appendix entangled in the intestine after the first surgery;
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5. failed and/or neglected to remove the appendix in the first surgery causing the infected intestine to infect the ovary, resulting in the loss of the right ovary;
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6. punctured her intestine creating five holes or fistulas in the intestine;
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7. failed and/or neglected to use correct procedure, care, expertise, knowledge and skill in performing the first surgery, resulting in a permanent kink in the Claimant's intestine;
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8. failed and/or neglected to use correct procedure, care, expertise, skill and knowledge in performing the first surgery resulting in the Claimant developing a hernia;
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9. failed and/or neglected to give proper and/or adequate aftercare service to the Claimant after the first surgery;
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10. failed and/or neglected to observe or to act or to investigate properly or at all the steady and obvious serious deterioration in the condition of the Claimant while at the Surgical Intensive Outpatient Unit;
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11. failed and/or neglected to act in a timely manner to investigate properly or at all the steady and serious and obvious deterioration in the condition of the Claimant while under the care of the respective Defendants;
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12. failed and/or neglected to use the correct procedure to correct and/or repair the damage caused by the first surgery; and
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13. failed and/or neglected to observe and or to act properly in inserting a CVP line, thereby puncturing the Claimant's right lung.
The claim against the Defendants, jointly and severally, is for general damages for pain and suffering, interest and costs.
All five Defendants filed their defences on 02 March 2007. Essentially they each denied negligence, or that the Claimant suffered any loss or damage, or that the Claimant was entitled to any of the relief she claimed.
The heads of damage submitted by counsel for the Claimant are:
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1. general damages for pain, suffering and loss of amenities, loss of family life and loss of educational opportunities, future medical expenses, future travel expenses, gratuitous assistance and domestic home care and services; and
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2. special damages for medical expenses.
It is to be noted that the claim as filed was limited to damages for pain and suffering. No amended claim to incorporate other heads of damage was seen on the Registry file. However, counsel for the Defendants did not make this an issue. He addressed the heads of damage raised in the Claimant's quantification of damages, and conceded some of the heads.
The Claimant asks for the sum of $2,394,322.00 as damages as follows:
General Damages
(1) pain, suffering and loss of amenities
$1,614,277.50
(2) past loss of educational opportunities
$ 5,000.00
(3) future medical expenses
$ 700,000.00
(4) future travel expenses
$ 2,000.00
(5) domestic services, home care and services
$ 15,000.00
Special Damages
(1) medical expenses
$ 7,375.00
(2) transportation and travel expenses
$ 420.00
(3) home care and services
$ 50,000.00
Miscellaneous Expenses
(1) disbursements
$ 260.00
The Defendants are of the view that the Claimant is entitled to no more than $75, 837.50. This figure was calculated as follows:
General Damages
(1) pain, suffering and loss of amenities
$ 58,962.50
Special Damages
(1) medical expenses
$ 7,375.00
(2) past domestic assistance
$ 8,820.00
(3) past transportation/travel expenses
$ 420.00
(4) disbursements
$ 260.00
From the outset then, there is no dispute about the following:
| (1) medical expenses | $ 7,375.00 |
| (2) past transportation/travel expenses | $ 420.00 |
| (3) disbursements | $ 260.00 |
| TOTAL | $ 8,055.00 |
More than two million dollars separates the parties. The Defendants rely heavily on the argument that “It was the Claimant's General practitioner who had misdiagnosed her and prescribed antibiotics for her symptoms and which had masked the Claimant's appendicitis and it was the Claimant's parents and/or the Claimant who had delayed seeking medical help for “three weeks” and thus triggered the body's defence mechanism of surrounding the appendicitis in [a] mass of tissue which resulted “from longstanding untreated appendicitis” and which made the surgery formidable”. (See para. 25 of the Defendants' Assessment of Damages: Counter-Quantification, filed on 15 January 2019).
It is the view of the Defendants that the Claimant's delay in seeking surgical intervention was the cause of her subsequent misfortune. Despite this assertion, none of the Defendants so pleaded in their defences. Neither did they plead contributory negligence on the part of the Claimant. In addition, the Defendants have never appealed this Court's order of 27 October 2017, whereby an unconditional judgment was entered in favour of the Claimant. Therefore, it is too late in the proceedings for the Defendants to be attempting to escape or significantly reduce their liability, for any acts of negligence occurring during or after the first surgery, on the basis that the Claimant waited too long to come to the QEH for medical intervention.
The Claimant relies on her medical notes from the QEH, and their interpretation in a report by a medical expert Dr. T.R. Shepherd, FRCS (Ed.). Additional medical reports were provided by Dr. J.E. Bennett, an obstetrician gynaecologist. There are also witness statements from the Claimant and her husband Kenroy Hope.
There are no witness statements or affidavits filed on behalf of the Defendants. Two expert medical reports were provided by Dr. Carlos Chase, Head of the Department of Obstetrics and Gynaecology at the QEH, and another report by Mr. Selwyn Ferdinand, a Consultant Surgeon at the QEH. As a matter of interest Mr. Ferdinand is the 4 th Defendant to the claim.
As unpleasant as it may be, it is necessary for the Court to detail what transpired in relation to the Claimant and her several surgeries at the QEH.
This surgery occurred on 11 November 2002, after a pre-operation diagnosis of appendicitis. The hospital notes indicate the surgical findings as “Retroileal inflammatory mass with turbid peritoneal fluid and walled off by the omentum and small bowel. No appendix to be found”.
Dr. Shepherd explains the notes in this way:
“In operating theatre, the surgeons encountered a classical appendix mass situated behind the last portion of the small bowel.
[An appendix mass results from longstanding untreated appendicitis. Initially when the appendix is inflamed it lies more or less freely in the abdomen. If the patient comes to surgery quickly there is not time for a mass to form. If however there is a delay the body attempts to wall off and protect itself from the infected appendix by forming a “mass” around it. This usually consists of a fatty structure called the omentum, along with nearby bits of intestine which all wrap themselves around the inflamed appendix forming a mass, in the...
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