Laurence v Attorney General & Anor (CS 90 of 2019) [2024] SCSC 120 (26 July 2024)

BURHAN J

1. The 1^st and 2^nd Plaintiffs filed a plaint against the Defendants claiming the following reliefs:

1. Pain and suffering by the 1^st Plaintiff                                    1,000,000.00
2. Pain and suffering by the 2^nd Plaintiff                          500,000.00
3. Moral damages for the 2^nd Plaintiff                             400,000.00

                                                            TOTAL            1,900,000.00

2. The plaint is based on the following cause of action in that the doctors, nurses, employees, servants or agents of the 2^nd Defendant, acting during the scope of their duties, acted or omitted to act prudently in the medical treatment of Miss Meyah Jasmine Faith Benstrong thereby resulting in her death occasioning damage to the Plaintiffs, hence amounting to a ‘faute’ in law, and thereby rendering the Defendants vicariously liable in law to the Plaintiffs. It is further averred in the plaint that the Defendants have up to date failed to pay any compensation to the Plaintiffs in respect of the said loss and damage.
3. The Defendants denied liability and any faute being committed by them.
4. The Plaintiff, Ms Pramilah Laurence the mother of the deceased child Meyah Benstrong, the father Jason Benstrong and Joanna Cecille Nicette gave evidence for the Plaintiffs. Dr Xavier Rose and Dr Edem Hoggar gave evidence on behalf of the Defendants.

Case for the Plaintiffs

5. The Plaintiff, Ms Pramilah Shannon Laurence gave evidence stating she had two children, namely Meyah Jasmine Faith Benstrong (Meyah) and Alex Bijoux. Meyah passed away in the year of 2018, in La Reunion. A copy of a certificate of death of Meyah was produced and marked as Exhibit P1, while her birth certificate was also produced as Exhibit P2. The witness testified that Meyah’s father is Jason Benstrong.
6. On the 08^th September 2018, Meyah was taken to the English River Health Centre as she was having diarrhoea, and she was vomiting. The medical staff put her on IV fluids and sent her back home with salt for her to take. They told the witness that if the diarrhoea and vomiting persisted, she would need to go back to the hospital. In the evening, at around 5-6 p.m., as Meyah was still having diarrhoea and vomiting, the witness took her child back to the English River Health Centre. They had informed her that Meyah needed to be admitted to the Children’s Ward as she was dehydrated. They then proceeded to take her to the Victoria Hospital. Blood and urine tests were done, and Meyah was admitted. She was admitted on the 08^th September 2018. They informed the witness that everything was normal from the blood and urine test. The next day, the 9^th September 2018, Meyah began to have a fever of 40 degrees Celsius at night. A blood culture test was done and while waiting for the results, Meyah stopped having diarrhoea and vomiting.
7. According to the witness on the 10^th September 2018, another blood culture test was done and from the 11^th September 2018, they started giving Meyah an antibiotic, namely Augmentin, because of the high fever. The witness stated that she was not informed why they were giving Meyah, Augmentin. On the 13^th September 2018, the result of the blood culture test taken on the 9^th September 2018 was given, and there was nothing recorded. The medication was changed on the 13^th September 2018, and they had told the witness that they were trying their best but could not explain the cause of the fever. On the 14^th September 2018, the witness stated that the doctors received the result of the second blood culture test, and it was then that they noticed the presence of bacteria. The type of bacteria was Burkholderia Cepacia Complex (BCC).
8. The witness testified that she was not informed what the nature of the bacteria was or its effect. The hospital was only giving Meyah treatment for the dehydration. The witness recalled that the antibiotic, Meropenem was given for that particular bacteria, which she stated had something to do with Amikacin and Ceftazidime. The witness could not recall the other antibiotic that was given. The witness, Pramilah stated that since the 11^th September 2018, when Meyah was prescribed antibiotics, her condition continued to deteriorate, the fever continued to go high, and she was sleeping more than she used to and was weak as she was not eating. On the 14^th September 2018, after finding out that Meyah had this bacteria, the medication was changed. She was still weak and had a fever. This continued, and on the 16^th September 2018, is when the witness recalled that Meyah started to have swelling in her feet. The witness had queried about the swelling feet, the medical staff had told her that it was normal and explained that because they had put a drip in one of her legs, the leg was swollen. The witness then noticed that both feet were swollen but the drip was only in the left leg. On the 17^th September 2018, Meyah’s belly began to increase, and an ultrasound was done, it was noticed that there was a slight enlargement in her liver and medication for gases was given. They had not told the witness what was causing the inflammation in the liver. By the 17^th September 2018, Meyah was put on three types of antibiotics in the morning, in the afternoon and in the evening. Meyah developed a breathing problem on the 17^th September 2018, and the doctor gave her Oxygen. On the 18^th September 2018, her face started swelling. The witness informed the hospital about it, but nothing was done. On the 19^th September 2018, Meyah started having a dry cough with a fever, a centre line was put in her neck and on the 20^th September 2018, the witness noticed that her condition was deteriorating, and Meyah was placed in the Intensive Care Unit (ICU). The witness was informed that this was done because Meyah needed a quiet place for her to relax. The witness stated that the father of Meyah and the witness’s father started to look for help so that they could travel abroad.
9. The witness further stated that she wanted to get a second opinion, but the staff at the hospital did not allow it. She had informed them that she was willing to take Meyah abroad at her expense, but the hospital staff said no as they will treat her because they have the best antibiotic that can help her. On the 20^th September 2018, Meyah’s father, together with the father of the witness, had gone to see the Minister of Health. They had explained to the Minister the situation and asked the Minister if they could travel. The Minister informed them that they needed to talk to the doctor so that the doctor could give permission. On the same day, the 20^th September 2018 in the afternoon, they called the witness and her family and told them that Meyah could be taken to La Reunion as she could travel for only two hours. The doctor phoned the witness and informed them that they could travel on the night of the 21^st September 2018. On the plane, Meyah was sleeping, and they arrived at La Reunion on the 22^nd September 2018 around 2 a.m.
10. When the witness reached La Reunion, they went straight to the ICU and when she entered the ICU, the witness did not have any contact with Meyah. Early that same morning, the doctor came to talk to the witness and told her that she had brought Meyah too late. Meyah’s organs had failed, and she was having a low heart rate. At 9 a.m. they called a witness in, and they told her that Meyah’s heart was stopping, and they needed to do CPR. The doctor had done CPR until 9.45 a.m. and Meyah had passed away at 9.48 a.m. The doctor told the witness that the cause of death was septic shock.
11. The witness stated that Meyah’s father had gone to see the Minister on the 20^th September 2018, in the afternoon and the decision to take Meyah to La Reunion was taken on the 20^th September 2018, which was 12 days after Meyah’s admission to the hospital. She stated that when the doctors had informed her of the bacteria, they had also told her that they had successfully treated an earlier case with antibiotics and Meyah would be okay after the treatment. The witness stated that the staff of the hospital had never informed her that Meyah was critical even though she was in the ward with Meyah from the day she was admitted, and she had queried them. Even when she was taken to the ICU, the hospital staff still told her that Meyah was fine and that they were just placing her in the ICU for her to relax. However, when the witness looked at Meyah, she was not confident that Meyah was fine because she was still having a high fever daily, she was not talking much and was just lying down, sleeping on the bed. Meyah was also not eating and was taking only tiny amounts of fluid.
12. The witness next produced photographs, which she had taken whilst her child was in hospital. She described each photograph she had taken between the 11^th and 20^th September 2018 and explained each, which showed the deterioration of the health condition of Meyah. The witness testified that she had brought this plaint before the court firstly as a representative of Meyah, in which she claims for her pain and suffering SCR 1,000,000.00. The witness is also claiming for herself for the pain and suffering she went through, SCR 500,000.00 for the loss of her child. The witness also claims moral damage in the sum of SCR 400,000.00 for the loss of her child and for the bereavement she is suffering. The witness testified that she was not happy with the treatment her child received and it was due to the negligence and fault of the defendant that her child had died. The witness stated that when Meyah was first admitted to the hospital, she was only vomiting and having diarrhoea and even though they told her they were treating her child with the best antibiotic they kept changing the medication, indicating they did not know what they were doing. They never informed the witness how serious and critical Meyah’s condition was.
13. The witness proceeded to mark the medical report dated 10^th October 2018 as Exhibit P4 and another report dated 18^th September 2018, was produced as Exhibit P5. She also produced the history sheets as Exhibit P6, which are in sequence from 11^th September 2018 up to the 21^st September 2018. The witness also requested the nursing care notes. The medical nursing care plan dated from 8^th September 2018 until 21^st September 2018, together with other annexures such as the ultrasound, BTT PTR chart, the DOB, platelet count, blood count, and clinical laboratory document produced as Exhibit P7.
14. The witness further testified that at La Reunion she was given a series of medical reports. They were in French and produced as follows:

• Rumination Néonatal et Eupentil soin intensif de Néonatalogie Unité Gangorou, unité surveillance continue pédiatrique Document is marked as item no.1.
• Pol de biologie sans site Felix Guyon, Réunion document is marked as item no.2.
• Institue de médicine légal de La Réunion prélèvement post-mortem document admitted and marked as item no. 3.
• Centre hospitalisé régionale Felix Guyon, service de pathologie document is admitted and marked as item no. 4.
• Pol de biologie centre sit Felix Guyon shir Reunion document is admitted and marked as item no. 5.

15. The witness testified that she had the medical report from La Reunion translated into English from French to English by Johanna Nicette, which was itemised as Item 6.
16. Under cross-examination, the witness testified that she is a Senior Administrative Officer at the MLH (Ministry of Lands and Housing) and in 2018 she was working at the Ministry of Finance. The witness admitted she had no training and no education in medical fields and stated she had produced medical reports and test results done in the Victoria Hospital, which she had received from the Ministry of Health. She stated that she was present throughout Meyah’s stay at the hospital. According to the witness, Meyah’s father Jason Benstrong was also present with her at the hospital. On the 8^th September 2018, when Meyah was admitted to the Victoria Hospital, it was late afternoon. In the morning, she had taken Meyah to the English River clinic for vomiting and diarrhoea around 10.00 am. The doctor advised that if Meyah continues to vomit or continues with diarrhoea, she should be brought back to the English River Hospital, which the witness did in the evening. The day after, Meyah was immediately admitted to the Children’s Ward at the Victoria Hospital.
17. The witness admitted that from the day her child was admitted on the 8^th September 2018 until the 20^th September 2018, several tests were done and based on the result of the tests, she was given treatment accordingly and antibiotics were given to Meyah from 11^th September 2018, onwards. She admitted that when the fever developed, the medical team changed the treatment several times as per the medical treatment and the test results received. The antibiotic-sensitive tests were conducted, and it was changed from Augmentin to Ceftriaxone then to Ceftazidime and Meropenem. It was suggested to the witness that the necessity to change the antibiotics so often was because of the organism becoming resistant to the particular antibiotic. She further testified that during the time the witness was with Meyah, the witness’s father and the father of Meyah were in the hospital with her until the day she was transferred along with the witness to La Reunion. She also admitted that the medical team was always in conversation and kept her updated. The witness also signed consent forms to do the ultrasound and for the X-ray and the father of Meyah also signed the clinical reports.
18. The witness admitted that in Exhibit P6, it was stated that the condition and treatment of the patient Meyah Benstrong was explained to the witness and Jason Benstrong (father) who had signed it. The document also states that abdominal pain and the condition of hepatosplenomegaly were explained. The witness admitted that she had signed the clinical report dated 19^th September 2018 at 3.20 p.m., which stated that the parents were made aware of the child’s condition, treatment, and steps to be taken. She admitted that on the 20^th September 2018, Meyah was transferred to the ICU and the last page of this document is the 21^st September 2018, stating that Meyah Benstrong, the patient was transferred by a medical team to the airport and all vital parameters were stable. The patient is discharged and transferred to La Reunion, dated 21^st September 2018, signed, and stamped by Doctor Danny Gonzalez.
19. The witness was shown Exhibit P7 and agreed and admitted the contents of the document which indicates the team of doctors that had visited Meyah between the period 8^th September 2018 and 21^st September 2018. The document, whilst referring to the team of doctors who visited her daily, also indicates the care plan, the tests taken and the condition of the patient during this period. Further, the clinical record notes show the nursing care plan and that on the 18^th and 19^th September 2018, the parents were informed and updated on the child’s conditions and treatment. The parents had also signed the consent form to do the necessary treatment. The family were also allowed to visit the child in the ICU. On being shown document D3, the witness admitted that the collection date for the blood sample from the patient Meyah was on the 11^th September 2018 and after the culture report dated 14^th September 2018 indicated the presence of BCC, the antibiotic was changed to Ceftazidime.
20. The witness agreed with counsel that when a decision was taken to shift Meyah to La Reunion for treatment, arrangements for an air ambulance and all other arrangements were made by the Ministry of Health and all the expenses regarding the air ambulance, the treatment and her return back to Seychelles were all taken care of by the said Ministry. She admitted that her family did not have to spend money in this regard. The witness admitted that as a non-medical person, she could not know the diagnosis and the treatment given by the medical team. The witness was shown Exhibit P4 and testified that this is a medical in confidence she received from the Ministry of Health, signed by Dr Edem Hoggar. The witness was shown Exhibit P5 and stated that she received the medical in confidence given to her by the Health Care Agency on the 20^th September 2018, in reference to her child. The witness was shown Exhibit P6, the clinical note and Exhibit P7, the nursing care plan and agreed that all these documents were provided to her by the Health Care Agency upon her request. The witness testified that she does not know if the Health Care Agency has hidden anything from her and the father of her child. She did, however, not agree with the counsel’s suggestion that the Health Care Agency, the medical team, the doctors, and the nurses employed under the defendant, the Health Care Agency, had not committed any faute or any negligence in treating Meyah Benstrong.
21. In re-examination, the witness testified that her child, the late Meyah Benstrong was transferred to La Reunion on the 22^nd September 2018, and she had accompanied her, and her child was sleeping and was weak during the trip. Within 12 hours of being transferred, Meyah was declared deceased. The witness testified that she did not understand the treatment as she is a layperson. As a parent, she had to give consent for her child’s treatment. If she had refused to consent her child would not have received the treatment whether it was a bad or effective treatment, so she found it a necessity due to the circumstances, to sign. The witness stated that she did not entirely understand what it meant and that before taking Meyah to the ICU, she had asked them if they could get a second opinion, but they assured the witness that they would not need it.
22. The witness was shown D1 (urine report) and testified that this document is dated the 9^th September 2018. This was on the second day that her daughter was admitted and the document states that the culture was negative, that there was nothing that was found. The witness stated this was a report from the laboratory service and soon after Meyah was admitted on the 8^th September 2018 and on the 9^th September 2018, a culture was done. On the 11^th September 2018, the report in respect of the blood culture shows that there was no growth, and she was receiving treatment of Augmentin. If there was no growth, the bacteria or pathogen had not been identified there. The witness stated that there was no diagnosis done between 9^th and the 14^th September 2018. They had not found what the problem was between the 9^th and 14^th September 2018 and Meyah’s conditions continued to deteriorate within that time.
23. The second witness, Jason Benstrong testified that he is 30 years old, lives at Machabee, Glacis and works as an IT Technician. He stated that Pramilah was his previous girlfriend, they had a relationship together and Meyah Jasmine Benstrong was their daughter. The witness was aware that there was a case filed by Pramilah Laurence, on her behalf and also on behalf of Meyah Jasmine Benstrong. The reason the case was filed was because they found that the medical treatment given to his daughter Meyah was not up to standard and there was some lack of attention by the hospital authorities. His evidence concerning the admission of his daughter Meyah Benstrong to the hospital and the gradual deterioration of her condition, until she passed away in La Reunion, was similar to the first witness Pramilah.
24. He testified that he had visited Meyah every day when she was in the hospital and stated that everything happened so fast, and it was very overwhelming as his daughter was not getting better. The witness testified that he was told about the sepsis diagnosis when it was closer to the time that Meyah was about to be transferred to La Reunion. When he saw his daughter’s condition deteriorating, the witness engaged with the doctors and nurse’s multiple times. According to the witness the medication was not working, and she was getting worse. Meyah had inflammation on her hands and feet due to needles being put in. He had asked them how many times they had dealt with such a situation and the witness was told that Meyah was the third case nationally at that time. The first case deceased, the second case deceased, and she was the third and the witness stated that it was clear that they did not have experience to deal with such cases. He had told them to take her overseas for treatment, but they had replied they had the correct antibiotic to treat such a bacteria. They had told the witness that they were in conversation with doctors abroad and they have the medication for such illness here, and if they were going to take her abroad for treatment, it would be the same. The witness stated that he kept on insisting and during her last week before she went to La Reunion, he had spoken to Minister Adam who had told the witness that Dr Govinden has been a doctor with them for so many years and he trusts his judgment and if the doctor says there is no need for overseas treatment, the Minister believed him.
25. The witness admitted that he signed the consent for her treatment several times because at that time they did not consider overseas treatment. His family and Pramilah s family were considering paying on their own to get Meyah overseas, but her condition was not suitable, so the only option they had was Victoria Hospital. The witness was in touch with other doctors overseas and they had told the witness that they have dealt with such a situation before and that the lab needs to be exceptionally good, they have to find what’s sensitive and which treatment is going to be best for Meyah. They had explained to him that this is not an easy situation, but it can be resolved with a particularly good laboratory and good doctors. The witness stated that he felt that if Meyah had been taken earlier to La Reunion, her life could have been saved. He stated they should have considered her for overseas treatment the day they received the result that it was the BCC bacteria.
26. He further testified that the doctors did not want to tell the witness how serious the situation was, and they had told him they were going to put her in the ICU so that she could rest better. The witness stated that he remembered that night, she was not well, and that she was having difficulty breathing. The witness remembered that the doctor from the ICU came, he was furious, and this was when the witness knew that things were extremely bad. The doctor from the ICU also requested to get blood donors fast as the platelets in Meyah’s blood were extremely low. The witness stated that he could see from the expression on the doctor's face that things were not good. This took place on the 19^th September 2018.
27. The witness stated that when Meyah was having difficulty breathing, they had said that she was gasping for air as she was scared when the doctors came near her as they were always putting “things” in her. He had asked Dr Govinden what would happen if they exhausted the list of antibiotics and she did not get better, he had replied and said to hope for the best. The witness further stated that he was there at the airport when Meyah was transferred to La Reunion. At the time that she was being transferred she was unconscious. The last time the witness saw Meyah with her eyes open was the morning before they took her to the ICU. Under cross-examination, he admitted to signing several consent forms for the treatment of Meyah and when the culture report came stating BCC, the doctors had changed the antibiotic. He also admitted that the doctors came twice a day but for such a rare case, it was not enough. The witness admitted that when a decision was taken to transfer Meyah to La Reunion, all expenses regarding the air ambulance and the treatment were taken care of by the Ministry of Health.
28. The witness testified that he and the family were prepared to pay to take her overseas during the second week but the doctors and other personnel at the hospital were telling them they could manage and even if the family was going to pay on their own, they needed the consent from the Ministry of Health. It never came to the point that he had to ask for consent as the doctors always told him that they had the situation under control.
29. The next witness for the Plaintiff, Joanna Cecile Nicette stated she is a qualified and registered sworn translator and identified items 1, 2, 3, 4 and 5. She confirmed seeing these reports and that the reports were translated by her on the instructions of the Plaintiff from French into English. The witness confirmed that the medical report was translated by her as well as items 1, 2, 3, 4, 5, and 6. They were all produced as Exhibit P8. Under cross-examination, she stated she had signed the document, and she had the medical terms checked by a doctor named Dr Jouanneau who is a government doctor employed in the Ministry, as she had no knowledge of the medical terminology.
30. Thereafter learned Counsel closed the case for the Plaintiffs.
31. The Plaintiffs’ Counsel in their written submission confirmed the evidence as given by the Plaintiff and the Plaintiff’s witnesses, in examination-in-chief. The Plaintiffs argue that the doctors, nurses and staff while acting in the course of employment with the Defendants failed to diagnose Meyah’s illness on time, failed to detect that she was suffering from septic shock, failed to conduct the appropriate tests to determine which antibiotic would provide the best treatment, failed to inform the 2^nd Plaintiff as to how critical Meyah’s condition was, hence depriving her of her choice to treat her daughter abroad. Further, the Plaintiffs argue that the defendants violated Article 29 of the Constitution and misled the 2^nd Plaintiff as to why Meyah was committed to the ICU. Lastly, the Plaintiffs argue that the doctors, nurses, and staff while acting in the course of employment with the Defendants, failed to perform their duties in good faith.

            Case for the Defendants

32. Dr Xavier Jerry Rose gave evidence stating he was a paediatrician at the Seychelles hospital since 2005. He specializes in paediatrics and neonatology and is registered with the Medical Council Seychelles. There was no challenge to his expertise.
33. The witness testified that he remembered this case well and was acting in the office of one of the consultants at that time in paediatrics. As a consultant in paediatrics, they have consultant-led ward rounds every day and he was part of the team. The medical notes of Meyah Benstrong a female age 4 years were produced by him and marked as Exhibit D5. According to page one of the document, the child had been admitted with a history of vomiting and diarrhoea from the first day and had a bloody stool. She was sent to the local clinic and was given IV fluids and sent home but she returned because she was not tolerating feeds orally. The mother had given the medical history of the patient and there were no risk factors. The child did not have a fever, she had a mild cough and was passing urine well. She had no past medical issues; she was born of a normal delivery; the child had been immunized and the development of the child was adequate. The general appearance of the child was normal, and the vital signs of the child, taken on the date of admission indicated her temperature, heart rate, weight, oxygen in the blood and blood sugar were all normal. She was alert and conscious and there was no neurological deficit. The heart, lungs, abdomen, and central nervous system were normal. The system examination of the child was normal even though there was diarrhoea and vomiting. The diagnosis of the child as indicated on page 5, showed that the child had acute gastroenteritis. He explained that this is an inflammation of the stomach and the intestine, and as a result causes diarrhoea and vomiting. A basic blood test was done, and the medication was administered through IV fluids, as she was not taking many fluids orally. The nurses were told to chart the input of the child and did some basic blood tests, the tests that are usually done to each person who is admitted to the ward, which is a basic full blood count, urine test and stool test. The full blood test revealed that the haemoglobin, white cells, platelets, and electrolytes were normal, the kidney function was normal and the plasma glucose that was sent to the laboratory was normal. All these tests were ordered on admission on the 08^th September 2018. The witness was asked if there was anything in the blood which indicated that there was any infection and when someone has a fever and wants to know whether this fever might be caused by a bacteria or a virus, the CRP and ESR is done. At this stage however, the doctor indicated that this was not necessary as she had no fever.
34. On the 9^th September 2018, the child was observed during the morning rounds, and it was established that she was stable. On the evening of the 09^th September 2018, the child began to develop a high temperature of 40 degrees Celsius. A blood culture was done, and the witness explained that the blood culture was done as it is necessary to know if there is some bacteria circulating in the blood stream. He stated that in a culture some bacteria grow fast, and some are slow growing. It takes around 48-72 hours to culture the bacteria and identify it. Thereafter, when the bacteria is identified, a sensitivity test is done to see what antibiotic can be used in the treatment. He further explained that if there is a need and the child is not getting better, they do something called an ‘empirical’ treatment of antibiotics which is done everywhere in the world including America and England and this is based on the flora (bacteria) that is prevailing in the area. The doctor further explained that antibiotics is medication that is used to treat bacterial infections. He described the terms broad and narrow spectrum antibiotics, and they have to be used rationally. He further stated that one cannot just be giving antibiotics to every child that comes to the hospital and that in this case there was diarrhoea and vomiting, the primary cause of diarrhoea and vomiting in the world are viruses. Anywhere in the world, a child presented with vomiting and diarrhoea, will not be given antibiotics. Most types of infections are caused by viruses and antibiotics are not conducive for viral infections. It is only for bacterial infections.
35. After the patient Meyah was admitted, the witness stated that he took her blood culture on the 9^th September 2018. He explained that it takes about 24-72 hours for the culture report to be received. During that period, the patient was treated with empirical antibiotics. Once the culture report is available, the report will reveal which antibiotic the bacteria is sensitive to. The witness stated that with virus infections there is often also a fever and if there is only one elevation of temperature and the fever goes down, then there is no need for antibiotics. The patient has to be monitored and if the patient’s fever continues, then the decision is made to give them antibiotics. The witness stated that he received the culture reports of Meyah on the 14^th September 2018 and meanwhile they had started her on empirical antibiotics, Augmentin on the 11^th September 2018, which is the third day of admission. Between the 9^th and the 11^th September 2018, Meyah was kept under observation and was regularly monitored. He further stated that although the results of the cultures take up to five days if the technician sees anything growing, he will call and tell the doctor. On the 11^th September 2018, even though nothing was growing on the culture, they decided to give Meyah an empirical antibiotic as her temperature was still spiking. Her urine test (D1) was normal and there was no bacteria in the urine. The dengue test proved to be negative (D2) and on the 11^th September 2018, a second sample of blood was collected for culture and the report was received on the 14^th September 2018 (D3). The witness took a second blood culture on the 11^th September 2018, because the child was still having a fever. The first report they received was on the 14^th September 2018 (D3) and they did not get a report before that date. On the D3 report, dated 14^th September 2018 it showed a bacteria, the BCC.
36. Once the bacteria was identified, the treatment plan was adjusted. When they realized that the child was not getting better on Augmentin, the treatment was changed to another antibiotic called, Ceftriaxone. Ceftriaxone is a wide-spectrum antibiotic. When they got the result of the blood culture it was reported that BCC is resistant to Ceftriaxone. The same day they got that result, they changed the antibiotic to one that the bacteria BCC is sensitive to. He stated they switched from Augmentin to Ceftriaxone on the 13^th September 2018, as Augmentin was not working.
37. The witness, Dr Rose stated that their teams do two rounds in the paediatric ward, one in the morning and one in the afternoon because the children’s conditions can change fast. After they received the report on the 14^th September 2018, they decided to stop Ceftriaxone and start with Ceftazidime which was one of the antibiotics that the bacteria BCC was sensitive to. Thereafter, on the 15^th September 2018, the child’s condition had not changed, it was decided to continue with the same medication because she had just started the Ceftazidime. On the 16^th September 2018, the child was seen at 09:45 in the morning and she was less active, and her fever was 38.4 degrees Celsius, and the treatment was continued. In the afternoon on the 16^th September 2018, the doctor was called to see the child as she was having a bit of swelling in both lower limbs. Upon examination, it was observed that there was slight oedema in the feet. Thereafter, another blood culture was taken on the 16^th September 2018, in the afternoon, because even though Ceftazidime was being given, the child’s temperature was still spiking, and the doctor decided to do another blood culture which report was produced as (D4). The witness stated that on the same afternoon, it was decided to add another antibiotic to the Ceftazidime. The child, Meyah was now on a combination of antibiotics, Ceftazidime and Vancomycin which was started on the 16^th September 2018, 3:15 p.m. The witness stated that the child was still having a fever and they were concerned. This is reflected on the clinical notes dated the 16th September 2018 at 3:15 p.m. The culture report was received on the 20^th September 2018 and showed the presence of the same bacteria, BCC.
38. On the 17^th September 2018, the witness stated in the morning, the child was looking well compared to the previous day. The temperature was normal, and her chest, heart, and abdomen were normal. In the afternoon on the afternoon of 17^th September 2018, the child was looking unwell again. An ultrasound scan of the abdomen was done, and the findings suggested mild hepatosplenomegaly. The witness explained that this meant that the liver and the spleen were slightly enlarged due to the infection she was having. On the 17^th September 2018, at 8:00 p.m., Meyah’s fever was still spiking, the doctor decided to change the antibiotic to a broader spectrum antibiotic named Meropenem because the BCC was also sensitive to Meropenem, and the Ceftazidime did not seem to be working.
39. The other antibiotics were stopped, and Dr Rose explained the different types of bacteria referred to as gram-positive bacteria and gram-negative bacteria. He stated that this antibiotic could not have been administered to the child from the beginning as her symptoms portrayed an infection and such an antibiotic would not be administered for a simple infection. He referred to Meropenem as a reserved antibiotic, a so-called “last line” antibiotic. He explained there is also the third line and the fourth line which is even more reserved. So, it is reserved for infections that do not respond to the first- and second-line antibiotics.
40. On the 18^th September at 08:10 a.m. the child was observed, and a blood transfusion was administered, as the child’s condition was not improving. Meropenem was started on the 17^th September 2018, during the evening and on the 18^th September at 09:46 a.m., during the rounds, it was observed that the child’s condition was not improving, so they decided to do an X-ray of the chest. Further, nutrition was administered intravenously, as the child was not eating, and full nutrition was given to the child in addition to the blood transfusion. It was discussed by the entire team of doctors whether immunoglobulin should be given as it helps to regulate the immunity system to fight the infection. The witness stated the use of immunoglobulin in severe sepsis is still controversial internationally and doctors use their discretion on whether to administer such a treatment or not. According to the doctor's notes, immunoglobulin was going to be administered to the child on the 18^th September 2024, however, the entry on the 21^st September 2024, shows that the doctors decided not to administer the treatment.
41. It was indicated that Total Parenteral Nutrition was given intravenous and, on the 18th September 2018, at 12:00 hrs., the condition of the child was explained to her parents. Jason Benstrong; the father of Meyah, signed the notes. Dr Rose stated this is done because often people say that ‘doctors don’t talk to me; we don’t know what is going on with our child because the doctors in the hospital never speak to anybody.’ He stated that explanations are given to the parents and that this is done in the morning and evening during each round.
42. The witness received the results of the abdominal ultrasound, and the results gave the same finding as before, namely a mildly enlarged liver and spleen. On the 18^th September 2018 at 15.29 hrs, rounds led by Dr Govinden, and quoted by the witness as the following: “Child seen lying in bed appears weak, irritable. No fever today. No diarrhoea or vomiting. Oral intake, poor. Started drinking a little bit of water. 30ml of water. Sufficient oxygen was normal. Needed a bit of oxygen. 1 litre of oxygen but saturating well. On examination, skin colour is normal. Hydration is good and she had a little bit of difficulty breathing. Nasal flaring. CVS is normal. The abdomen enlarged liver as before. Complaints of abdominal pain. Family advised that the abdominal pain may also be due to the discomfort of the enlarged liver. Same management was planned.” On the same day, during the afternoon, the family was spoken to, were advised and the father of the child signed that they understood the current condition of the child.
43. On the 18^th September 2018 at 17:00 hrs, the doctor was called to say the child was de-saturating, meaning the oxygen level was going down and was recorded at 76-80. That was what the doctor was told. On arrival, the child was noticed to be stable. The oxygen saturation at that time was 98%, which is normal. The witness stated when the child gets agitated, she de-saturates. Meyah’s fever spiked around 16.30 hrs. and she received ibuprofen. This medicine is administered to reduce fever and as a result, her fever went down. Her fever spiked again around 18:00 hrs. and the doctor requested to take another blood culture on the next fever spike because the child was still having a fever regardless of the treatment she was receiving.
44. On the 19^th September 2018, a cough was reported which made it difficult for Meyah to breathe, however, her cardiovascular system was normal. The abdomen was distended as before, and it was observed that the patient's face was puffy, and both were feet swollen. It was then decided to put a central line to be able to better administer the antibiotic and nutrition. This was done in the theatre and the dose of Meropenem was doubled which is done as a result of serious infections and another antibiotic, Amikacin, was administered to which BCC is sensitive. A CT scan of the brain was also done, and the result of the CT scan was that there was no significant pathology. A full scan of the body was done, as when a fever does not reduce, usually checks for the presence of an abscess are done, however, no abscess was found.
45. During the evening of the 19^th September 2018, the child Meyah was less distressed than in the morning. The family referred to it as she had a moment of “betterness.” She spoke and had some cornflakes and milk and at that moment was affable. That means, she had no fever and had passed stools and urine. There was some small moment of “betterness” in the child at that stage. A normal cardiovascular system was noted, although her breathing was still with a bit of discomfort and her oxygen saturation was 96%. The abdomen was distended and there was no oedema, which means no swelling in the limbs. The anaesthetist had managed to put in the central line and the blood result showed the haemoglobin had increased. The anaemia was 7.4 and now it is 9.4, but the platelet level was still quite low. Her Electrolytes, Sodium, Potassium, Magnesium, and Calcium levels were normal, and she had normal liver function, despite the increase in the swelling of the liver. The kidney function was normal, and she had a normal Albumin level, however, a bit on the low side, of 27.
46. On the 20^th September 2018, during the morning rounds, Paediatrician Dr Eva, another paediatrician who was working with the team of doctors observed Meyah to be more distressed than the day before. The witness stated that the mother had informed that she had a fever the night before and the morning temperature was 38.4 degrees Celsius. The patient had one watery stool the previous day and a small amount of oral intake. Her face and legs were swollen a bit. It was also observed that her chest was clear, her nose was flaring, and her abdomen distended. There was not much of a change compared to the previous days on examination. At that stage, because the patient still had a fever and there was no abscess, the team decided to give an antifungal treatment namely, Fluconazole. The witness stated when the immunity of a person decreases, the person can get a fungal infection, which is an opportunistic infection.
47. On the same day 20^th September 2018, after adding the antifungal treatment around 10:00 a.m., the patient was given some platelets concentrate because her platelet count had decreased. The doctors then decided that she needed some ICU support because her respiratory distress was increasing. The patient’s haemoglobin and platelet levels were low, and the albumin was still on the low side. It was decided to transfer the child to the ICU on the 20^th September 2018, at 10:05 a.m.
48. On the 20^th September 2018, the witness received the blood culture result, exhibit D4, which was taken on the 16^th September 2018, and it still showed the presence of BCC. Once the child was transferred to the ICU on the 20^th of September 2018, she was put on respiratory support, and a ventilator. The antibiotic and the antifungal treatment remained the same. The witness further stated that even when the child went to La Reunion, they did a culture, and the culture revealed the child had BCC. They continued with the same treatment, but the child had passed away as the BCC was not responding to the antibiotic treatment.
49. Dr Rose explained what sepsis meant as Meyah's death was caused by septic shock. He stated that sepsis is an extremely complicated medical concept, and the definition thereof is constantly changing. The one that stands now which most people agree as a definition for sepsis, is a life-threatening condition that causes a “dysregulated host” response to infections. That means the body responds in a very abnormal way to an infection, resulting in organ dysfunction. This is why the mortality of sepsis, even in developed countries, is still quite high. He further stated the same protocol and principles followed by the NHS; the American Academy of Paediatrics is followed in the Seychelles. He explained that the bacteria, BCC is found in several places such as in soil, water, surfaces, outside and inside the hospital. He stated people can get infected by it and it will not cause problems and remain dormant but the moment your immune system becomes compromised (immune-compromised), then severe infections are caused by BCC. It is difficult to say the exact incubation period because it is normally a colonizer. The incubation period can be anything from a week to a few weeks. It takes some time before you start developing an illness or get symptoms from it.
50. The witness indicated that for this specific bacteria to show its symptoms or incubation period, it takes days starting from a week or so. The witness explained that the blood culture results on Meyah taken on 9^th September 2018, indicated that the blood culture had no growth, and no BCC was present, which means no bacteria was growing in the culture at that time. This result was released on 15^th September 2018 and was marked as exhibit D6. As the sample taken on 09^th September 2018, just two days after she arrived and was negative for BCC, the witness concludes that it is likely that the child got this bacteria outside the hospital as she had the symptoms of fever on the 9^th September 2018, the second day after hospital admission. He further stated that if there was BCC in the hospital, you would expect more people to be infected as in a hospital setting it spreads easily. At the time, they did not have anybody else in the hospital having this bacteria and nobody was getting infected with BCC.
51. Dr Rose further testified that once a child is in ICU, the ICU team takes over the care of the patient. The primary care of the patient is done by the ICU, but the medical team plays a consultancy and supportive role by providing information in respect to the doses for paediatric patients for nutrition and antibiotic doses. Dr Rose further testified that when the child was taken to La Reunion, the hospital in La Réunion also identified the same bacteria and continued the same treatment as it was administered here in Seychelles. Dr Rose stated that the date shown in D3 as collection is 11^th September (11/9) and cannot be 9^th November (9/11), which has no bearing on the facts of this case as the patient was in hospital only during the month of September.
52. The witness was shown exhibits P6 and P7 and explained the clinical notes on the morning of the 21^st September 2018 at 6.00 a.m. This is a note from when Meyah was in the intensive care unit. The witness stated the following, “Morning Progress – clinically the child still stable, acceptable vital parameters, she still artificially ventilated, 100% FIO2. The ventilator was showing 98 to 100%, this is the real oxygen saturation of the child.” The patient was transferred by the medical team to the airport for transfer to La Reunion Island and at that time she was transferred all vital parameters/signs namely respiratory rates, heart rates, the oxygen level in blood and blood pressure were stable.
53. When the witness was asked what P7, the nursing care plan, meant, the witness testified that the nursing care plan is when the doctors do the rounds with the nurses, the nurses involved with the rounds will also write the relevant and essential information. The entry on the 11^th September 2018 stated, “seen by Dr Rose and Team, asleep, meaning the patient is asleep. Blood culture No. 2 was taken, and the child started on Augmentin 500mg, intravenous 3 times a day.” The witness stated that the “flora” in Seychelles which means the kind of bacteria that they have in Seychelles that give infections, are well known. Augmentin has been a medication that they have used with incredibly significant effect, not only in the past but even now and is usually the first line treatment. He further proceeded to explain in detail the facts set out in P7, which is the chart where the nurses record vital signs, temperature, heart rate, and respiratory rate. At the bottom, they also include entries like oxygen saturation, stools, and sugar which is the vital sign chart. The normal body temperature is 37 degrees Celsius, and the chart depicts the spikes in fever and increased heart rate which occurs with an increase in temperature.
54. The second witness, Dr Edem Hoggar, a general practitioner in the paediatric ward stated that he has worked there for the past eleven and a half years. He stated he was also involved in the treatment of the late Meyah Benstrong. He produced his report as P4. The witness’s expertise was not challenged.
55. The witness identified the medical report of Meyah Benstrong (P4), that had been written by him on the 10^th of October 2018. The report had been verified by the consultant in charge of the paediatric ward who was Dr Govinden and the Director of the Health Services and both individuals had countersigned it. He had written the report to set out the treatment they had given Meyah, who had been a patient in the paediatric ward. He confirmed the fact that the child was admitted on the 8^th of September 2018 with provisional gastroenteritis with symptoms of vomiting and diarrhoea. The blood tests were taken, and all came back with normal readings signifying viral gastroenteritis. The next day, the 9^th September 2018, vomiting and diarrhoea stopped. As the child was not taking fluids, the IV fluids continued and in the evening the child’s fever spiked from the virus. A blood culture was taken on 9^th September 2018 and on the 10^th September 2018, a decision was also taken to do the dengue rapid test. On the 11^th September 2018, as Meyah’s temperature was not decreasing, a full blood count was done again. It was repeated with the ESR this time as she had a fever, and after the second blood culture, the child was started on antibiotics even though they did not have any of the results from the blood culture because it usually takes 3 days or more to get the results. He also described the procedure of how a culture is developed and tested for antibiotic sensitivity.
56. Antibiotics were administered because the medical staff was using their clinical judgment even though they did not have any supporting lab results to prove she had a bacterial infection. Meyah was looking more ill, than if she had a viral illness and her blood count was higher. They started Meyah on medication, an antibiotic, which Dr Rose described as an empirical antibiotic, Augmentin. When the full blood count came back, the readings including the ESR were normal. On the 13^th September 2018, they called the lab, and the lab told them that the blood culture taken on the 09^th September 2018 was normal but the child was still spiking fever, so it was decided to change the antibiotic because she had been given 3 days of the antibiotic Augmentin and was not getting better and according to the protocol that they use in the ward, it is the correct procedure to follow. The antibiotic was changed to Ceftriaxone.
57. On 14^th September 2018, they received the blood culture that they had done on 11^th September 2018. The lab called the hospital and informed them that it was BCC growing, and it was resistant to the Ceftriaxone that was being administered. This Ceftriaxone, which they had just started for one day was stopped. They decided to change it to an antibiotic the bacteria was sensitive to which were, Ceftazidime, Gentamycin, Amikacin and Meropenem. They decided to change to Ceftazidime as a progressive treatment. This means that the treatment commenced with the first line antibiotic then to the second line, and the third line. They started the antibiotic Ceftazidime, and the child remained the same. On 16^th September 2018, they began to notice some swelling of the feet and there was also some redness at the cannula site. On the 16^th September 2018, another blood culture was done. Urea and electrolyte tests were done, and it was noticed that her Potassium was low at 2.7. The lowest limit is about 3.2.  Potassium and Calcium were given and as her Calcium level was also low, it was 2.03 when it should be 2.5. These were supplements given as the child was not drinking and everything had to be given intravenous.
58. On the 17^th September 2018, the swelling was not only on her hands and feet but also palpated her abdomen and caused abdominal swelling. A decision was taken to transfuse some albumin and an ultrasound was done of the abdomen which confirmed that the liver and spleen were slightly enlarged. The patient’s fever was still spiking, as a result, the medical personnel decided to give the next line of antibiotics which was, Meropenem.
59. On the18^th September 2018, the blood test was repeated, and the HB (haemoglobin) was now 7.2 meaning that the blood count and the red blood cell count were getting lower than normal showing that the infection was continuing and not improving. They noticed the red blood cells were reducing in number and the white blood cells were not increasing to fight the infection. The child was transfused, an X-ray was taken, and according to this witness, immunoglobulin was started. The decision was that the child’s immune system was lacking, and a booster was needed. By then, it was almost 8-9 days of being on IV fluids and the patient was without lipids and other micronutrients that you get from food. The doctors then decided to give Total Parenteral Nutrition to supply all the micronutrients needed.
60. On the 19^th September 2018, during the evening, they received a complaint from the mother of the child that she was coughing at night and had episodes of difficulty breathing, and they had to give her some oxygen. She was still dependent on it. During the morning rounds, it was decided, as the child was not improving, to insert a central line as one has to only change it every 10 to 11 days and the peripheral line was removed as it has to be changed every 3 to 4 days, resulting in the child being pricked more often. The doctors now added the antibiotic Amikacin. He described that in antibiotic therapy, you start with monotherapy i.e. start with one antibiotic then you change to another and as they had got to Meropenem which is one of the highest for the treatment of BCC and as it was not working, they had to add a second antibiotic to try to make the treatment more effective. A CT scan of the brain, the chest and everything revealed the brain was normal, but the chest showed that there was moderate bilateral pleural effusion. Pleural effusion is when there is some fluid water in the base of the lungs. The abdomen scan indicated there was marked hepatosplenomegaly (enlargement of the liver and spleen) with free fluid in the pelvis, upper abdomen and also in the abdominal wall.
61. On the 20^th September 2018, the child was noticed to be more distressed and was moaning. Moaning is a sign of being severely unwell and she was still having a fever. There was now not only the oedema of the hands and feet but there was also facial oedema. It was decided by the team to give fungal treatment as none of the other treatments had been effective. Another reason is that when prolonged antibiotic treatment is given it also increases the chance of a fungus growing. They needed to ensure the child was being treated for every possible ailment, so they added antifungal treatment and decided to transfer the child to the Intensive Care Unit (ICU) because the child had been dependent on oxygen for 24 hours and therefore there might be a need to intubate her. The patient was transferred from the ward to the ICU. On the 20^th September 2018, it was decided that she should be sent to La Reunion because at that point, the highest antibiotic, 2^nd line antibiotic they had for the treatment of BCC had been exhausted and her condition had not improved. It was agreed that it is the best option that the child should be transported elsewhere. Dr Hoggar too stated that when she left the ICU on the 20^th September 2018, she was transferred to La Reunion, as her parameters and vitals were all stable.
62. The witness was asked if the bacteria BCC is transmissible and testified that this bacteria is an opportunistic bacteria. It takes the opportunity of either viral infections or bacterial infections that primarily cause illness. Then after the first bacteria have reduced the immunity of the child, it now infects the child. The immunoglobulin was administered to Meyah; to increase her immunity and they also gave her antifungals as well. The witness stated that for a period of nine and a half years, he has been working here, they have just had about 3 or 4 cases of BCC. Twice it was from the same person who had cystic fibrosis. Therefore, they knew why he was having it, but it was not a bacteria they see often in the ward. The witness testified that cystic fibrosis is a genetic problem that causes them not to produce mucus and results in infections in the lungs primarily.
63. Under cross-examination, he confirmed that BCC is an opportunistic bacteria. A prolonged viral infection or bacterial infection can reduce your immunity and then the infection from BCC can occur. He stated if the child had immunity problems, they would give her immunoglobin which was done as immunoglobin was given during her treatment for her infection. The witness was cross-examined on length in respect of the platelet count being 7 (7000) on the evening of the 20^th September 2018, when she was taken to the ICU and the entry stated “very urgent” at the time the patient was sent from the ICU to La Reunion. His reply in re-examination he stated that she had been given a transfusion and the platelet count had risen to 35,000 at 10.a m on the 21^st September 2018 and the clinical notes dated 21 September 2018 at 10 a. m, confirm this fact. This was just before the child left for La Reunion. The last page states that the patient was transferred by the medical team to the airport, and further states that “All vital parameters are stable. Discharged.” That was the last entry by Dr Danny Gonzalez.
64. He stated he had not put this in his report because he was giving the paediatric ward report and not the ICU report. He further stated that before you can take a child abroad and let the child be transported, you have to give the treatment that you have done. They cannot give the child one antibiotic and say it is not working and say the child should be taken somewhere else. They have to give what they have, and then after that only can they allow the child to be sent abroad. After trying their final line of antibiotics, Meropenem together with Amikacin and as they had done all that they could, it was decided to allow the parents to take the child abroad. The witness testified that today if you allow him and his team to treat a child who has come with this same infection, they will not do anything different. On the 17^th September 2018, they could not send her abroad as they had just started their last line of antibiotics, which was Meropenem, and they had to give time for it to work. When Meyah’s parent signed those documents, they were in reliance on what the doctors, nurses and other people stated but they have every right to either accept or refuse, but it was in their best interest to accept. Every morning and afternoon when they go for rounds in the paediatric ward, they are incredibly careful and do two ward rounds in a day. He stated that all intravenous needles and feeding tubes are sealed in the hospital and BCC cannot enter the bloodstream intravenously.
65. The witness further stated they have not had BCC as a hospital-acquired infection in Seychelles. They have had other bacteria like Klebsiella. The witness further stated that they have had four cases like hers, twice in the same person and that one was in his mucus and one person who needed no treatment because, by the time they sent the person home, they got the results and the child had recovered. During this case, it was the first time that they had to go through the treatment process. That is why they thought that there might be a primary problem which they do not know. He mentioned the several tests done to check her immunity and to rule out causes that would compromise her immune system. He further stated they had done the Cerebro Spinal fluid test on the 20^th September 2018. All tests done to check whether she was immune compromised bore negative results. All these tests were done in the hospital before the child was transferred to La Reunion.
66. Dr Rose was recalled and a document (D7) comprising 14 pages was marked and produced through him. The witness confirmed that these documents had been provided to him by the Health Care Agency. He proceeded to explain the contents of each page of the document which were in French. The document included the declaration of death in reference to Meyah Jasmine Faith Benstrong. The ‘authorization to close the coffin’ by the Mayor of St. Denis, La Reunion, a document for the transport of the body and the declaration of death from the hospital of Felix Guyon, La Reunion, St. Denis. On page 5 the doctor certified that the child has passed away and it states the child Meyah Benstrong was hospitalized on 22/09/2018 and passed away on that same date and he says that she does not present any contagious disease. Page 6, contains the identity number from a bank and page 7, is in respect for the repatriation of the body to Seychelles and the amount to pay, €4027. All the amounts were in euros. Page 8 is another bill addressed to the Ministry of Health, Botanical Garden to pay for medical services, in the amount of €2670. The Ministry of Health in Seychelles had to pay for this. The body was lifted to La Reunion by an air ambulance. The witness had tried to get the payments and documents related to these and spoke to the director of the hospital who was there at the time and who knew about these transfers from Seychelles, Dr Kenneth Henriette. He stated that evacuations like this cost around fifty-four thousand dollars because the plane has to come from South Africa, then come to Seychelles and then goes to La Reunion and back, so that in Seychelles rupees is more than seven hundred thousand rupees. The other pages contain information on payments to be made by the Ministry of Health and the authorization given to transport the body from La Reunion to Seychelles on the 27^th of September 2018. This is to obtain the authorization to transport to Seychelles the body of Meyah Benstrong, the postmortem report, and other payments. The witness stated that as far as he knows and understands all treatments and transportation of the child Meyah were borne by the Ministry. The cost involving the air ambulance both ways was borne by the Ministry.
67. The Defendants closed their case thereafter and time was given for both parties to tender written submissions. Having thus carefully set out the evidence, this Court will now proceed to analyse the evidence based on evidence led by the Plaintiff, the evidence led by the Defendants, the facts elicited in the cross-examination of the witnesses and the submissions tendered.

Analysis of the Evidence and the Law   

68. When one considers the evidence of Dr Rose who testified for the Defendants, he categorically denies under cross-examination that the 2^nd Defendant, the Health Care Agency in Seychelles, failed to diagnose Meyah’s illness. He also denies vehemently the allegation whereby the doctors, nurses and staff acting during the course of employment with the Defendant, the Health Care Agency had failed to perform their duties in good faith.
69. Whilst denying these allegations, he explains that from the blood culture taken from Meyah on the 11^th September 2018, they had identified the bacteria as BCC on the 14^th of September 2018 and immediately from then on commenced with treatment on a scientific basis, on antibiotics to which the bacteria was declared sensitive to by the laboratory. His evidence indicates that they followed the international protocol from the NHS and guidelines from the NICE in the treatment of the child. They had started with the 1^st line of antibiotic Ceftazidime on the 14^th September 2018 and when the fever continued spiking on the 16^th September 2018, they decided to add another antibiotic to the Ceftazidime namely Vancomycin which was started on the 16^th September 2018 at 15:15 hrs. Dr Rose in his evidence also states that an antibiotic must be given 24 to 48 hours to act. The witness stated that even though these antibiotics were being given to the child, the child was still having a high fever, and as a result they were concerned. Once again on 16^th September 2018, a further culture report was taken. This is reflected on the clinical notes dated the 16^th September 2018 at 17:15 hrs. On 17^th September 2018, during the morning the child’s condition seemed to have improved but her fever spiked in the evening, and they decided to give her the next line of antibiotics, a broad-spectrum antibiotic to which BCC was sensitive, Meropenem. The culture report of the sample taken on the 16^th September 2018 was received on the 20^th September 2018 and it still showed the presence of the same bacteria, BCC. Meanwhile, it is clear that even before the report of 20^th September 2018, on 17^th September 2018, the evening her fever was not subsiding, the doctors decided to change to the next line of antibiotic, Meropenem. However, on the 19^th September 2018, as the fever was still not coming down, even after the 48 hours given for the antibiotic to act, they decided to put a central line to be able to administer the antibiotic and nutrition better and the dose of Meropenem was doubled, which is done with serious infections and another antibiotic Amikacin, to which BCC, was sensitive was added.
70. In addition to the antibiotic treatment, it is the evidence of Dr Rose that the child Meyah was being visited by the team of doctors twice a day and all support medication was given depending on the symptoms she displayed. It is clear from the entries made and documents tendered, the child was being closely monitored and the necessary support treatment was given to her as and when required. Blood tests and cultures were taken very regularly, and when they noticed her electrolytes, Potassium, and Calcium were going down, supplements were given intravenously as the child was not taking anything orally. When the blood test indicated the haemoglobin level was incredibly low and the red blood cell count was getting low, they gave her a blood transfusion. The doctors and staff decided to give Total Parenteral Nutrition to supply all the micronutrients the child needs. Thereafter when she developed symptoms of having difficulty breathing, she was given Oxygen and transferred to the ICU as she needed to be intubated and required a ventilator. Further, as prolonged antibiotic treatment increases the chance of a fungal growing and as they needed to cover the child at every point, they added an antifungal treatment. Dr Rose vehemently denied that the doctors nurses and staff did not act in good faith and emotionally stated that every day they leave their houses and families to come to work in the hospital to help treat people. Nobody comes to work with the intention of hurting anyone and what they do they do it from their heart and they are professionals.
71. It is clear from the evidence before the Court that all these procedures and treatment were given in a timely manner by the 2^nd Defendant targeting existing symptoms and based on laboratory reports which were produced as evidence. From the above facts taken as a whole, the doctors nurses and support staff were acting in good faith and with the interests of the child foremost in their minds. Therefore, the Court in the absence of any medical evidence to the contrary cannot come to a finding that the doctors were acting on a trial-and-error basis as all steps taken by them were based on scientific tests and reports they received from the laboratories in the hospital. There is no medical evidence of another expert before the Court to indicate what they did was erroneous, incorrect, unnecessary, or dangerous to the child. The evidence of Dr Rose is corroborated by the evidence of Dr Edem Hoggar, another experienced doctor in the paediatric unit in Seychelles.
72. Regarding the allegation that the doctors, nurses and staff acting in the course of their employment with the 2^nd Defendant that is Health Care Agency, failed to inform the second Plaintiff, that is the mother of Meyah as to how critical the 1^st Plaintiff condition was hence depriving her of the choice to treat her daughter overseas. Dr Rose testified that they do ward rounds every day and the witness further stated he does not think there is any ward in the hospital that sees patients as often as they do. Every time they do the rounds they speak to the parents or the guardian or the people who are there with the children every day and are made to sign the notes. He produced documentation that the parents had signed on several dates affirming this and granting consent for treatment and tests. Regarding allegations made by the Plaintiff against the doctors, nurses, and staff of the Health Care Agency in that they breached the constitutional rights of the Plaintiffs as they failed to disclose the actual state of health of the child to the mother. Dr Rose denied the same and stated that the parents were informed that the child was being taken to the ICU as she needed a ventilator as she was having respiratory distress. He stated this was done after informing the mother who was aware that her condition was deteriorating and therefore needed more support at a higher level which is the ICU. To say that the mother was told that she was taken as she needed rest, and a quieter place is not correct as the ICU is not a place to go because it is quiet but because they need ICU care. It is clear from the documents tendered that the parents had signed on numerous occasions indicating that they were regularly informed of the child’s progress.
73. It was further suggested that the child had been infected by the bacteria whilst she was undergoing treatment in the hospital. Dr Rose denied this and reasoned out and explained to the Court that the incubation period for BCC was a week or more. The child started having a fever on the 9^th September 2018, the evening, a day after she was admitted to the ward, and it continued until the 22^nd September 2018. A culture was taken on the 9^th September 2018 and the report (D6) that arrived on the 15^th September 2018, indicated no bacteria present. A further culture was taken two days later on the 11^th September 2018, and this proved positive for the bacteria BCC. Dr Rose contends that considering the incubation period for BCC is one week, as the symptoms had shown itself 11^th September 2018, i.e. before one week had lapsed and just three days after her admission on the 8^th September 2018, it could not be said that she had got it from the hospital. Further, the fact that she had a negative culture from a sample taken a day after she arrived i.e. 9^th September 2018 does not mean that she did not have the BCC in her body when she came to the hospital, and this does not prove that the child got the infection in the hospital.
74. The term “incubation period” has been defined as, and I quote: “the period between the infection of an individual by a pathogen and the manifestation of the illness or disease it causes”[1] In other words, it is the period it takes for an infection to develop after a person has been exposed to a disease-causing organism. The first witness indicated that in his professional opinion, the incubation period for BCC is ‘anything from a week to a few weeks.’ Therefore, Meyah would have been infected before she entered the hospital on the 8^th September 2018, as it was on the 11^th September her symptoms developed.
75. Another issue raised in cross-examination was that she contracted this illness due to an infection occurring from the taking of samples from her. Dr Rose and Dr Hoggar stated there was a collection of blood, urine, and faecal samples. These are samples that are collected for culture and the nurses are the ones that collect the samples, and it is always done in an aseptic manner. They have a way of taking aseptic procedures according to their teaching, according to the protocols. The witness was not the one who collected the sample and when samples are collected the nurses are the ones doing the collection, if there is anything that they need to document about it, they are the ones who do it. The nurses’ protocol procedures are nursing care considerations. Once the sample is collected, they will write on the Kardex that the sample was collected and sent to the laboratory. The witness testified that sample collection procedures are always documented, and these procedures are always followed by the nurses. Dr Rose admitted he could not confirm whether the nurses were following protocols because he was not there all the time to see them when they were collecting the samples. The sample is collected and sent to the lab and then they get the result. Dr Edem Hoggar affirmed this fact and further stated that all intravenous needles and feeding tubes are sealed in the hospital and it is not possible for BCC to enter the bloodstream intravenously. The evidence also indicates there were no other cases detected in the hospital during this period indicating it is very unlikely that the patient got the BCC from the hospital. As no evidence exists to the contrary and as the fever had commenced prior to the incubation period of BCC, soon after her admission as set out above, this court is satisfied that the BCC in the child was not as a result of contamination from the hospital. The Court does note that there is a discrepancy between the defence witnesses' testimony with respect to the administration of the immunoglobulin.
76. In regard to the allegation that when the 1^st Plaintiff was admitted to the hospital, the doctors, nurses and staff, acting during the course of employment with the Defendant, repeatedly reassured her that the hospital had the appropriate medication to treat the 1^st Plaintiff and that they have dealt with similar cases and were hence able to handle the 1^st Plaintiff’s illness, despite the 2^nd Plaintiff’s wish to seek a second opinion and send her to La Reunion. Dr Rose in his evidence stated that a decision was taken to send Meyah to La Reunion in order to see whether they could get more help for her condition because her condition was not improving no matter what they were doing. She was not sent earlier because they have had cases like this and have treated them before. The reason the child was not referred to more specialised treatment abroad at that time is because they had not exhausted the treatment they could do here in Seychelles. The witness stated under cross-examination that the reason they did not decide to send her to La Reunion was because they were dealing with a serious condition in the patient. The witness testified that there are things that they can do for the patient in Seychelles. If every child who comes to the hospital with a fever and on the first day of diagnosis BCC is sent to Reunion, it would not be in line with the procedures adopted. As Seychelles has a hospital and has treated many children for sepsis successfully, all attempts must be made to cure the child in the Seychelles hospital which had the antibiotics and facilities for the treatment. Dr Hoggar too stated they have to give what they have, and then after that only can they allow the child to be sent abroad. After trying their final line of antibiotics, Meropenem together with Amikacin, and as they had done all that they could, it was decided to allow the parents to take the child abroad. Witness testified that today if you allow him to treat a child who has come with this same infection, they will not do anything different.
77. Dr Rose further stated there is less than five children die from sepsis, which is a small number. He stated that they have had a lot of extremely ill children with bad sepsis that they have treated, and their condition has improved, and the treatment has been successful. He stated that all the children with severe sepsis are not put on a plane and sent abroad. This is not something that is done. The patient was stable and in general, she was maintaining her vitals well apart from the sepsis. When her condition was still not improving, they decided to try to get help from somewhere else. The decision to send her away was taken by the consultant in charge, with the input of the ICU team. Before the decision was taken, there were always discussions on the patient’s condition and treatment even when she was in the ICU. They had just put her on Meropenem, and one has to give at least 48-72 hours for the antibiotics to work before you put the child on a plane to go elsewhere for treatment. He further stated that in the human body, there are a lot of processes going on and the doctors are trying to find the cause of the sepsis and what is the interaction that happens between the antibiotics, the bacteria, and the patient. Unfortunately, the patient did not positively respond to the treatment given, no matter how hard the medical team tried.
78. When Meyah was transferred to La Reunion, she was on Meropenem, Amikacin and she was also on an antifungal medicine called Fluconazole. Meyah had passed away in La Reunion as a result of septic shock. He explained that due to severe infection, one gets organ dysfunction resulting in blood pressure dropping and the body being unable to maintain the pressure for circulation resulting in septic shock. He stated Meyah was not in this position and her blood pressure never went down as when she left here, her blood pressure was 103/73 and it never went down to shock level in Seychelles. He stated that all the treatment given was in accordance with international treatment protocols they have in a book and apart from this, they also use the protocols from internationally reputed organizations like the CDC (Centre for Disease Control) and the NICE (National Institute for Clinical Excellence guidelines) from England. In Meyah’s treatment the same protocols were used and the NICE Guidelines as well. They also followed the protocols dealing with the management of infections and sepsis in children. This evidence was corroborated by the evidence of Dr Edem Hoggar. It is clear that all the doctors in the Seychelles in this case did what was expected of them to be done in such a situation and based their treatment on internationally recognised principles and guidelines. As no evidence exists to the contrary and the fact that the said evidence is corroborated by the evidence of Dr Hoggar. I will proceed to accept the same.
79. In regard to report P7 stating that on 9^th September 2018 at 18:00 hrs, the patient was passing urine with whitish particles. Dr Rose explained that is why the urine was sent to the laboratory to rule out whether there was a urine infection. He explained that concentrated urine means that the child is not well hydrated, and this occurs generally when the child does not drink much water.
80. The witness was asked about the confusion in the dates of the (D3) where it is written as 11/09 and 09/11. The witness testified that this is just the way the dates are written. It cannot be the 09^th November 2018. The child was admitted in September not November. Therefore, the sample was taken on the 11^th September 2018 and not the 9^th November 2018. There is some confusion in respect of the report D3. The report gives the date of collection of the sample as 09/11/2018 11 .46am. This date is the American format of writing the date Month/ Day/ year. The date as per the English format should read as 11/09/2018. Day/ Month/ Year. The month and the date in the collection date and sample date are therefore the same though written in two different formats. The date could not be the English formatted date as the child was admitted to the hospital only during the ninth month of September and not November. Therefore, it could be safely concluded that the sample was collected on the 11^th September 2018 and the report was given on the 14^th of September 2018. Therefore, D3 is the culture report for the sample collected on the 11^th of September 2018.
81. When questioned as to why Meropenem was not given in the first instance, Dr Rose explained that Meropenem was not given first as according to international protocols one cannot straight away give a third-line antibiotic, if that is done, later on when the patient needs it the antibiotic will not work. People who are immune compromised, meaning that the immune system is not working, get BCC and there are tests which can be done to check the immunity level in a patient but when you have a child with infections like Meyah’s, you get some false negative results in the blood tests. He further stated under cross-examination that Meyah was moved to the ICU because she needed respiratory support due to the infection she had. He further explained that the doctor in the ICU had the impression it was a viral infection on the fifth line, which is not necessarily correct. He admitted there are known viruses that cause diarrhoea and fever rotavirus. They did not think that the child had a virus and there was no indication for them to do a virus test. It was clear from the blood cultures that she had BCC. He reiterated that international protocols were followed when doing her treatment. Dr Edem Hoggar further corroborated his evidence in this regard. In the absence of evidence to the contrary this Court will accept the evidence of Dr Rose and Dr Edem Hoggar on all these issues.
82. Dr Rose denied the suggestion that there were lapses in the treatment by the personnel of the Ministry of Health and Health Care Agency in the treatment of Ms Meyah Benstrong. The witness testified that the child was monitored very well. They followed the protocol that they usually follow with every child with a severe infection. The treatment was given on time. There was no delay in the treatment. It is just that the child would not respond to the medicine that they were giving to her. The witness disagreed that there was any lapse in the treatment and believed that everything was done according to how they should have treated this child. He stated that even though the mother was imploring him to send her to Reunion for treatment if the child were not responding to the antibiotics in Seychelles, she would not respond to them even in La Reunion. He further stated that even in La Reunion they had made the same diagnosis and started her on the same antibiotic. Dr Rose stated the international protocols were being followed in the treatment of Meyah in the Seychelles and the same antibiotics would have been given elsewhere and they too would have followed the same procedure done by the Seychelles team. He further stated that science was followed in the case, unfortunately, it did not save the child, but they never lost hope.
83. I am of the view that considering the evidence in its entirety, it cannot be said that the Plaintiff was mistreated or not properly treated in respect of her illness.
84. Concerning medical liability, it is Article 1382 (2) of the Code that is the most relevant legislation and since Seychellois civil law is based on French law, it is the law of delict that applies in negligence cases, including those of medical negligence. This was reiterated in the case of Omath v Charles (2008) SLR 269.

85. In the case of Stella Hertel v Government of Seychelles Civil Appeal SCA 2/2014 a case concerning medical negligence, Justice Twomey JA referred to the case of Nanon & Or v.

  Health Services & Ors [2015] SCCA 47, MacGregor PCA, stated that:

“[i]n a medical malpractice case based on diagnostic error, the patient must prove that a doctor in the special circumstances, that is, in a similar specialty, under similar circumstances, would not have misdiagnosed the patient's illness or condition.”

Twomey JA at paragraph [11] further stated in Hertel:

“It is our view that in parallel, in cases of medical intervention, the patient must prove that a doctor in the special circumstances, with a similar specialty, under similar circumstances would not have mistreated the patient. As was pointed out in the Arrêt Mercier (Cass. civ. 20/05/1936), the doctor in treating a patient is not expected to perform a cure but rather is charged with the duty to provide the most conscientious and attentive care which conforms to scientific knowledge and data.”   

86. In this instant case before me, the evidence of the Defendants clearly indicates that the doctors and staff treating her, and the hospital authorities had performed their duty to provide the most conscientious and attentive care which conforms to scientific knowledge and data.
87. In normal situations, it is an obligation de moyens on the part of the medical practitioner that is triggered (that is, the obligation of deploying the best efforts and skills to attain an objective without guaranteeing it) burdening the Plaintiff with the duty to prove negligence. In this instant case, I am satisfied with the facts before the court that the doctor and the staff of the 2^nd Defendant deployed their best efforts and skills in the handling of the 1^st Plaintiff’s medical condition.
88. Further, it was held in the case of Octobe v Gov of Sey CS 17/2015 [2016] SCSC 941 that:

“the courts in Seychelles have determined that it is necessary for the plaintiff to utilise expert witnesses to adduce evidence of these medical accidents since the plaintiff will be otherwise unqualified to testify on his own behalf as to the actions of medical professionals.”

89. The Plaintiff did not rely on any medical expert testimony to establish that the Defendants acted negligently or in bad faith. I am also satisfied that the Plaintiff has failed to establish that they did not do so and/or were negligent or that the patient was contaminated with the bacteria BCC whilst undergoing treatment in hospital.
90. It was recently held and affirmed by the Fernando, PCA in the case of Kilindo v Health Care Agency & Anor (SCA 17/2022) SCCA 32 (25 August 2023) before the Court of Appeal that:

“The negligence set out in paragraph 2 above were essentially matters to be established through expert medical evidence and the burden was on the Appellant to prove them. They were not matters that could have been established merely on the oral testimony of the Appellant. As emphasized in Nanon & Or V Health Services & Ors 2015 SCCA 47, citing the case of Emmanuel Vs Jubert SCA 49/1996, LC 117; he who avers must prove the three elements viz, fault, injury and damage and the casual link.”

91. For all the aforementioned reasons, I am satisfied that the Plaintiffs have failed on a balance of probabilities to prove their case. I therefore proceed to dismiss the plaint. Considering the circumstances of this case, I make order that each party bear their own costs.

Signed, dated, and delivered at Ile du Port on 26 July 2024.

____________

M Burhan J