Samedi v The Government of Seychelles (CS 95 of 2022) [2024] SCSC 147 (25 July 2024)

PILLAY J:

1. The Plaintiff seeks a judgment in her favour in the sum of SCR 358, 888.28 for damages and loss suffered at the hands of the Defendant’s employees.
2. The disputed claims are as follows:

1.         The Plaintiff was at all material times a student and a patient at the Anse Boileau Health Centre and the Mont Fleuri Health Centre.

 

2.         The Defendant through its Ministry of Health operates a national health care system and provides, operates and administers hospitals and health care services in the Seychelles.

 

3.         On 9^th March 2019, the Plaintiff was involved in an accident at her residence, whereby she fell and sustained some injuries to her right arm.

 

4.         On the same day of the accident, the Plaintiff went to the Anse Boileau Health Centre, and was referred to the Mont Fleuri Health Centre, where an x-ray of her arm was done.

 

5.         Subsequent to the x-ray, the Plaintiff had to wait in agony for five hours before being seen and diagnosed by a doctor.

 

6.         Upon being consulted by a doctor, the name of the doctor is unknown to the Plaintiff. The doctor concluded that the Plaintiff had no fracture and advised the Plaintiff that it was likely a sprain.

 

7.         Despite the Plaintiff complaining of severe pain, and her arm being swollen, the doctor maintained his position and did no further examinations on the Plaintiff.

 

8.         The Plaintiff heeded to the doctor’s advice and returned home, however on the 14^th March 2019, 5 days after having been discharged by the doctor at the Mont Fleuri Health Centre, the Plaintiff went to the private clinic, Panafricare to seek a second opinion.

 

9.         Dr. Dusan Stojilkovic of Panafricare consulted with the Plaintiff and immediately referred the Plaintiff back to the Mont Fleuri Health Centre for another x-ray as the initial x-ray done by the Mont Fleuri Health Centre was only done in one position. 

 

10.       On the same day, 14 March 2019, the Plaintiff’s arm was x-rayed and it was determined by Doctor Thelma Betsy, that there was a fracture of the right radial head, and four days later, an excision of the Plaintiff’s radial head was done.

 

11.       Four days after the excision of the radial head, the Plaintiff began her physiotherapy and complained of extreme pain, however the physiotherapist claimed it was normal.

 

12.       After enduring two weeks of excruciating pain. Post operation, the Mont Fleuri Health Centre decided to do another x-ray, and it was finally discovered that the Plaintiff’s elbow was not only fractured during her fall, but it was also dislocated. The Mont Fleuri Health Centre decided to do a mobilization and reduction of the right elbow.

 

13.       Post, the intervention, the Plaintiff followed the instructions of her Doctor and attended all her physiotherapy sessions, however, her pain persisted and it was at this juncture she was instructed to have another x-ray.

 

14.       Upon the x-ray being made, it was noticed by Month Fleuri Health Centre that the Plaintiff still had a right elbow inveterate dislocation, and the Month Fleuri Health Centre suggested that the intervention be re-done for a second time to rectify the issue.

 

15.       The Plaintiff having lost all faith in the Mont Fleuri Health Centre, declined the offer.

 

16.       On the 27 June 2019, the Plaintiff went to the Pro Medklinik (Seychelles) Limited, now known as the Victoria Health Clinic, for another opinion.

 

17.       Upon the Plaintiff’s with Dr. Ribail Babie Reyes of the Victoria Health Clinic, Dr Reyes confirmed to the Plaintiff the she had a right elbow inveterate dislocation, and determined that the previous surgery conducted by the Doctor at the Mont Fleuri Health Care Centre was unsatisfactory, which resulted in my client having nerve palsy.

 

18.       On the 3^rd July 2019, Dr. Reyes from the Victoria Health Clinic conducted a radius correction osteotomy and elbow arthrotomy surgery, which surgery was successful, and the Plaintiff also conducted her physiotherapy sessions at the Victoria Health Clinic.

 

19.       That in June 2019 the Plaintiff was scheduled to undergo exams for her chartered accountants course with the Association of Chartered Certified Accounts, however, due to the immense pain she was in, the Plaintiff, mid-way through her exams had to withdraw herself from the examination.

 

20.       At all material time, the Defendant was the proprietor and person in custody and control of the Mont Fleuri Health Centre

 

 21.      The Plaintiff avers that due to the negligence/impudence/fault of the Defendant or its employees or agents, she has suffered injury, loss and damage as follows:

 

                        PARTICULARS OF PERMANENT DAMAGE

 

            Due to the actions of the Defendant, the Plaintiff has now been left with permanent radial palsy in her dominant arm, which causes discomfort in her right elbow, her right wrist, right fingers and she cannot do daily activities that she use to do such as, writing or typing for too long, which is a hindrance in her work and her leisure activities such as baking.

 

                        PARTICULARS OF LOSS AND DAMAGE

 

            Pain and suffering                                                      SR 50, 000/-

            Permanent damage to the nerve                                 SR 50, 000/-

            Aesthetic loss (Permanent Scarring)                          SR 50, 000/-

            Distress and Inconvenience                                        SR 50, 000/-

            Loss of quality of life                                                  SR 100, 000/-

            Consultation at the Panafricare Clinic                      SR 600/-

            Operation, medication and physiotherapy at

            Pro Medklinik (Seychelles) Limited                           SR 39, 491/-

            Lawyer fees                                                                 SR 15, 000/-

            Forfeiting of chartered account exams                      £216(rate–17.58)

SCR 3, 797.28

            TOTAL                                                                       SCR 358, 888.28

 

3. The admitted facts are that the Defendant through its Ministry of Health operates a national health care system and provides, operates and administers hospitals and health care services in the Seychelles. The Plaintiff on 9^th March 2019 went to the Anse Boileau Health Centre alleging that she had fallen down and sustained some I juries to her right arm. She attended the Anse Boileau Health Centre and was referred to the Mont Fleuri Health Centre, where an x-ray of her arm was done. On 14^th March 2019, the Plaintiff’s arm was x-rayed and it was determined by Doctor Thelma Betsy, that there was a fracture of the right radial head and four days later, an excision of the Plaintiff’s radial head was done. At all material times, the Defendant was the proprietor and person in custody and control of the Mont Fleuri Health Centre.
4. However, the Defendant puts the Plaintiff to strict proof that she is a student. The Defendant avers that the Plaintiff was referred to the Casualty Unit at the Victoria Hospital on the day of the accident. The Defendant further denies paragraphs 5, 6, 7, 8, 9, 11, 12, 13, 14, 16, 17, 18, 19 and 21.
5. The Defendant states in answer that the x-ray done at the Victoria Hospital did not show any significant fracture. Nevertheless, shoulder sling was applied to immobilize the joint and reduce the swelling and the Plaintiff was advised to come back to Casualty Unit again in three days. The Defendant further states that on 11^th April 2019 the Plaintiff was seen at the Victoria Hospital as she was complaining if stiffness in the elbow. The Plaintiff was admitted to mobilize the joint under general anesthesia. This was conducted on the 29^th April 2019. The procedure was successful and there was full elbow range of motion in all planes. She discharged on 1^st May 2019 with advise to resume intensive physiotherapy to keep the range of motion and plaintiff was scheduled to be followed up but defaulted on her appointments.  
6. The Plaintiff’s evidence is that she is 26 years old and currently an accounts executive at Mason’s Travel. On 9^th March 2019 she fell at home and injured her right arm. Soon after her sister’s boyfriend took her to Anse Boileau clinic for a diagnosis by the doctor. The doctor sent her straight to casualty following an examination. Arriving at casualty she was taken straight for an x-ray. She was then taken to casualty to await examination by the orthopaedic surgeon. She waited a few hours until the doctor came and told her that there is no fracture and likely a bad sprain. She was not shown a copy of the x-ray. She subsequently requested for a copy of the x-ray but she was informed that the Health Care Agency did not have a digital copy of the x-ray. The letter for the Health Care Agency, P2, states that due to a technical error in the system it was not possible to recover her old pre-operative digital x-ray films however her post-operative films are available.
7. Her mother who was with her in casualty on 9^th March 2019 complained to the doctor that the Plaintiff was in pain but the doctor did not do any further examinations. He told them to come back in three days if swelling does not go down or if the pain is still consistent. He wrapped a sling around her arm and upper body as evidenced by P3. When she removed the sling to apply the cold compress she saw that the swelling had not gone down. The following week the pain had not subsided so her mother took her to Panafricare for a second opinion. There she was examined and informed she likely had a fracture and was referred to casualty for an x-ray.
8.  The Plaintiff and her mother proceeded to casualty where they were sent over to get the x-ray done after which they went back to casualty and were seen by Dr Betsy some time later. For the second x-ray the technician asked questions and took x-rays in three positions. Dr. Betsy told them that as per the x-ray on her tablet “there was a fracture on the radial head and that the normal procedure is for an excision which means surgery to remove the radial head as it is fractured”. She was told they would need to put a cast on to reduce the swelling as they could not do surgery with the amount of swelling she had.
9. The excision was done on 19^th March 2019 and she was discharged from hospital on 20^th March 2019. She was asked to attend intensive physio which she did at Anse Boileau clinic. Though the physio was very painful the therapist told her its was normal and the pain would subside as the physio went on.
10. Three weeks post-surgery another x-ray was done. That x-ray P12 showed there was a dislocation and a reduction needed to be done. The Plaintiff was informed that she needed to be admitted for a manipulation and reduction. This was done and she was discharged on 1^st May 2019 and asked to attend physio. After a month of physio she was still in pain and the swelling had not improved. She had difficulty with simple tasks such as combing her hair, washing and writing.
11. She kept doing physio until June 2019. Thereafter she was given another referral to go back to casualty for another x-ray, PE14, at which point she was informed that there was another procedure that had to be done. By then she had lost faith in the health service she was being provided and opted for private health assistance. She went to see Dr Ribail at ProMedklinik who informed her she needed to do an x-ray, P15. Same was done and upon reviewing the x-ray Dr. Rhibail informed her that there was a dislocation in her right elbow. Dr. Ribail further took an x-ray of her left elbow as comparison to show how the joint should be. Dr. Ribail informed her that she needed immediate surgery to put the bone back in place and put a pin in to hold it while it heals. She underwent the surgery which cost her SCR 28, 225.00. thereafter she underwent physio from August to October 2019.
12. During that time the Plaintiff was meant to be taking her ACCA exams but due to the mental stress she failed two exams. She was constantly in pain and uncomfortable so her studies took a really big hit. The pain is still there but better than it was before. She cannot partake in her hobbies of baking and playing volleyball anymore.
13. In cross-examination she insisted that the doctor at casualty on 9^th March 2019 told her that there was no fracture and it was likely a sprain. She accepted though that she was asked to come back in three days. She insisted that P14 was taken at the Victoria Hospital mid-July and added that she was assisted by Anthony Soomery who is a physiotherapist at the Victoria Hospital.
14. Dr. Ribail Reyes testified that he is an orthopaedic surgeon since 2021. He studied in Cuba for his general certificate and thereafter for specialisation. He worked with the Seychelles Hospital from 2008 to 2010. Thereafter he went back to Cuba. He returned to Seychelles in 2013 to work with the private clinic at Eureka at Anse Etoile. He returned to Cuba, then went on to Brazil before returning to Seychelles in 2018 and has been working in Seychelles until now. He is currently working with Future Care clinic.
15. Dr. Ribail testified that the Plaintiff was one of his patients. He first saw her at Pro Medklinik. She came to see him because of her elbow.  It was his evidence that her elbow was swollen with impossibility to move the joint in the elbow, also with the hand it was impossible to extend the wrist and fingers. It was his evidence that there was a problem because of neurological deficit and lower radial palsy. His medical report made on 26^th September 2019 was produced as P20.
16. It was his evidence that when he met the Plaintiff the symptoms she was experiencing was not normal. On examination of the joint, the movement was restricted. The joint was not working as it was supposed to work. There was pronation and supination of the hand. He explained that with a dislocation the ability to twist your palm inside and out is blocked. He further noticed that in the neurological field it was impossible to lift the wrist and extend her fingers which he diagnosed as being nerve palsy. He did an x-ray and confirmed that there was a lateral dislocation of the ulna. He recommended surgery to reduce the dislocation and remove the head of the radius.
17. It was his evidence that a dislocation is an emergency in orthopaedic. The patient has to be brought immediately to the theatre.  It was his evidence that the dislocation was an old dislocation. To confirm the diagnosis even if examination is indicating something an x-ray is needed at least.
18. It was his evidence that P10 talks about a fracture of the head of the radius and does not talk of a dislocation. However, he asserted that in his experience the kind of fall that the Plaintiff sustained would be consistent with a fracture and a dislocation. He stated that in his opinion you cannot remove the head of the radius and get a dislocation after. The dislocation must have happened together with the fracture.
19. It was further his evidence that sometimes patients are taken to theatre a few days after diagnosis because the joint is swollen or inflammation is too much in which case the recommendation is to first diminish the inflammation in order to proceed with the surgery easily.
20. It was his evidence that he would follow the same practice as did the attending doctor had he been faced with the situation. He added that it is really rare to have an x-ray where you see the head fracture but don’t see the dislocation. He explained that in his interview with the Plaintiff she had no symptoms of nerve palsy before she went into surgery. It was after she came out of surgery that she noticed that something had happened. He stated that these things commonly happen when doing surgery in the area of the head of the radius because with manipulation the nerve can be damaged. He stated that nerve injury is only during surgery or with trauma.
21. It was further his evidence that if you don’t remove the head of the radius completely the joint will not be stable and once you remove stabilisation the dislocation will happen again.  He testified that a person with a dislocated arm for 4 months would be in pain every day. But he stated that the Plaintiff was able to move her arm following surgery though there is some restriction.
22. In cross examination he insisted that P15 showed a dislocation and not subluxation. It was his evidence that in the elbow one cannot talk about subluxation. He stated that subluxation is spoken about in relation to the shoulder whereas in the elbow because it has three joints it is dislocation. He insisted that had the diagnosis been made at the right time they could have done a reduction whereby they would have pulled and put the bone back in the right position however when a dislocation is old open surgery is needed.
23. He stated that the Plaintiff came to him with the nerve palsy and accepted that the dislocation could be a cause of the nerve palsy or the surgery. It was his evidence that if there is nerve injury after surgery within a day or three days there will be signs as you will realise that all the functions of the nerve are restricted. He accepted that the effect would have been immediate.
24. Dr Soma Rajasundaram testified that he is an orthopaedic and trauma surgeon at the Victoria Hospital, Ministry of Health. He testified that he was aware of the case of the Shereen Samedi. He produced the Plaintiff’s medical report as D1. He explained that the Plaintiff reported to Defendant on March 2019 following a trauma to her right elbow. X-ray was done which showed no fracture. However, the orthopaedic surgeon was called since the patient was having some pain and swelling in the joint. The patient was immobilized with a sling and some treatment was started to decrease the swelling. After four days the patient reported back to the Defendant with pain in the joint and another x-ray was done. This new x-ray showed a fracture on part of the joint. Patient was explained and treatment was started to reduce the swelling within the joint. After five days surgery was planned to remove the part of the joint that had fractured to improve the injured part. The said surgery, excision of the right radial head was done on 19^th March 2019.  He explained that the surgery was conducted 5 days after admission since as a small state the access to rooms as soon as they are needed is limited and also because sometimes there is soft tissue swelling. He could not say what happened in this scenario but opined it could be for both reasons that the surgery was only done 5 days after admission.
25. Following the surgery, a sling was applied for two days. The doctor explained that the goal is for the joint not to be immobilized for too long when it able to be fully moved. Physio begins as soon as possible.
26. Five days after the surgery she was sent home. Photos and x-rays were seen and they were found to be good.  One month later, on 11^th April 2019, she was seen in the clinic and found to have a bit of stiffness within the joint. She was asked to do intensive physio therapy to improve the joint movement.
27. The intensive physio therapy was not of much help. She was admitted to move the joint under anaesthesia. This was done on 29^th April 2019 and she was found to have full range of motion of joint under anaesthesia. She was sent home the day after on 1^st May 2019, and told to keep up with intensive physio therapy to improve and keep the range of motion. Patient was supposed to follow up in the clinic but she has not followed up since then.
28. He testified that on the x-ray request form produced as D3 has been marked with “no significant fracture”. He explained that the treatment plan is what he would have done as well. Since the x-ray showed no fracture and the patient is in severe pain, the symptoms have to be controlled first. He stated that he would have prescribed painkillers and asked her to keep the arm in the sling for 5 days and return then as it takes time for the swelling to go down at which time he would have asked for new x-rays as well.  It was his evidence that this is the global standard of care for patients with this sort of trauma.
29. He explained that there were three reasons that the fracture would not have been visible; it was a small or insignificant fracture, there was swelling obscuring the view or the fracture was un-displaced. He further explained that it is always best to immobilize the joint in a sling because it will reduce the pain and the swelling. He went on to explain that when you have a fractured bone it can be fixed or removed. For the particular fracture that the Plaintiff presented with it was decided as a team that it would be better to remove it.
30. It was his evidence that a patient can be given a good strong sling which does the same function as a cast. He added that usually a cast is not put for elbow post-operatively.
31. It was his evidence that there was no dislocation of the Plaintiff’s elbow. He explained that he made a mistake on the discharge sheet. He further explained that dislocation is very clear cut. There is no grey area as there is with a fracture. A dislocation can be seen on x-ray if there is one. He insisted that there was no dislocation. It was his evidence that a dislocation cannot be missed on an x-ray so much so that even a lay person can spot a clear cut dislocation on a simple x-ray.
32. Dr. Soma asserted that a dislocation and fracture can happen at the same time but a dislocation would be staring you in the face. It was his evidence that there was no dislocation seen on the x-ray of the Plaintiff. He asserted that what was seen on the Plaintiff’s x-ray is a sub-laxation. He explained that sub-laxation as opposed to dislocation is when the joint surface doesn’t sit perfectly as opposed to be away from each other. He further insisted that there was no nerve palsy.
33. In cross examination Dr Soma stated that he has been working with the Victoria Hospital for 4 and a half years. He started on 1^st May 2019 and in fact he was the one who wrote the discharge note for the Plaintiff.  He accepted that he was not there when Dr. Li wrote his note but he asserted that he had been working with the Ministry of Health since 2016. When he would come home on breaks he would work part-time with the Ministry of Health. It was his evidence that he had worked with Dr. Liu before he went to train and during his breaks.
34. He accepted that he had not seen the x-ray Dr Liu relied on but determined that what Dr. Liu said is correct based on his notes. He further stated that the fracture may have been missed or it may not have been missed.
35. It was his evidence that if a person falls and has a fracture and a dislocation, the priority would be the dislocation but he asserted that a dislocation would be very obvious on an x-ray.
36. The Learned counsel for the Defendant in her submissions summarised the evidence led. She submitted that “even though the Plaintiff led several pieces of evidence to try and make a claim that there was a failure to make a proper diagnosis and provide a better treatment plan by the doctors at the Seychelles Hospital as indicated above…the Plaintiff did not in her Plaint make any claim based on a failure of diagnosis or a wrong treatment plan.” She submitted that the only reference is to the permanent nerve palsy that the Plaintiff claimed was because of the negligence and fault of the Defendant.
37. It was further her submission that given the evidence of Dr. Ribail and Dr. Soma the Plaintiff has failed to demonstrate how the doctors at the Seychelles Hospital are responsible for the nerve damage that she has sustained and therefore could not have caused the nerve palsy.
38. Learned counsel relies on the case of Nanon & Anor v Health Services & Ors [2015] SCCA 47, Stella Hertel v Government of Seychelles Civil Appeal SCA 2/2014, Kilindo v Health Care Agency & ors (CS 22 of 2021) 2022 SCSC 730 (24 August 2022).
39. The Learned counsel for the Plaintiff submits that on a balance of probabilities the evidence shows that the Defendant and its agents have failed to provide the proper and necessary care to her and that the Defendant’s doctors or medical practitioners caused damage and harm by their act, negligence and impudence.
40. Let us start with the issues for the Court to consider. In effect what is the Plaintiff’s claim?
41. Indeed, I have to agree with the learned counsel for the Defendant. There is no express claim for failure to diagnose properly or for a wrong treatment plan. It has to be said that the drafting of the Plaint leaves much to be desired. However, what is made out is a claim that due to the negligence/impudence/fault of the Defendant or its employees or agents the Plaintiff has suffered injury, loss and damage which includes but is not limited to nerve palsy. As I understand the Plaintiff’s claim nerve palsy is the injury and permanent damage she suffered but not the only damage and loss she sustained as a result of the actions of the doctors who attended to her at the Victoria Hospital.
42. On that basis the Plaintiff’s claim therefore is based on the vicarious liability of the Defendant, pursuant to Article 1383 and 1384 of the Civil Code of Seychelles.
43. Article 1383 provides that:

A person is liable for harm caused not only by his or her actions but also by his or her negligence or imprudence.

 

44. Article 1384 provides in part that:

3.(a)       Employers are liable for harm caused by their employees acting within the scope of their employment.

 

(b)       A deliberate act of an employee contrary to the express instructions of the employer and which is not incidental to the service or employment of the employee does not render the employer liable.

 

45. As was found in the case of Nanon & Anor v Ministry of Health Services & Ors (SCA 5 of 2012) [2015] SCCA 47 (17 December 2015)

The burden of proof in civil cases rests with the plaintiff. Under the Civil Code of Seychelles, he who avers must prove (see Article 1315 thereof). Three elements must be proved, fault, injury or damage and the causal link. This was affirmed in the case of Emmanuel v Joubert SCA 49/1996, LC 117

 

46. The Court went on to add that:

As is evident in the provisions of Article 1382-1383(supra), in a delictual claim by a patient against a doctor, the patient has to show that the doctor did not act as a prudent person in the special circumstances in which the damage was caused. The patient must show that the doctor or the medical practitioner caused damage or harm by either an act, negligence or imprudence.

 

[20]     In cases of skilled professional such as a doctor or a medical practitioner, the reasonable person test should not be used but rather the test is the standard of ordinary skilled person exercising and professing to have that special skill.

 

[21]     In 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. In a practical sense, this means proving one of two things:

 

The doctor did not include the correct diagnosis on the differential diagnosis list, and a reasonably skilful and competent doctor under similar circumstances would have.

The doctor included the correct diagnosis on the differential diagnosis list, but failed to perform appropriate tests or seek opinions from specialists in order to investigate the viability of the diagnosis.

 

47. In the case of Kilindo v Health Care Agency & Anor (SCA 17 of 2022) [2023] SCCA 32 (25 August 2023) the Court emphasized the principle laid down in Nanon & Or V Health Services & Ors 2015 SCCA 47, citing the case of Emmanuel Vs Jubert SCA 49/1996, LC 117 that he who avers must prove the three elements viz, fault, injury and damage and the casual link. 
48. In the case of Stella Hertel v Government of Seychelles, SCA 2 of 2014, the Court said that:

“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 Arret 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”.

49. In deciding the appeal in the case of Stella Hertel v Government of Seychelles, SCA 2 of 2014 the Court of Appeal was guided by the principles espoused in the case of Nanon above that: “In 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.”
50. In the case of Nanon & Anor v Ministry of Health Services & Ors (SCA 5 of 2012) [2015] SCCA 47 (17 December 2015) His Lordship MacGregor PCA cautioned against judges being influenced by their emotions in cases where effectively one sees the underdog Plaintiff against the mighty power of the medical professionals;

 

This is no doubt a sad case. The appellants who appear to be ordinary people gave evidence which had to be contrasted by that of trained, experienced and sophisticated medical personnel of the Respondents. The appellants offered no expert evidence to counter the evidence of the respondents. The Court must guard not to be the ‘expert’. It must remain impartial and decide the case without any influence of emotion. We borrow the words of Marais JA in the matter of Broude v McIntosh and Others 1998 (3) SA 60 SCA that –

 

“When a patient has suffered greatly because of something that has occurred during an operation a court must guard against its understandable sympathy for the blameless patient tempting it to infer negligence more readily than the evidence objectively justifies, and more readily than it would have done in a case not involving personal injury. Any such approach to the matter would be subversive of the undoubted incidence of the onus of proof of negligence in our law in an action such as this.”

 

51. With the above in mind, the case for the Plaintiff, as I understand it, is that she suffered injury, damage and loss as a result of the Defendant’s employees’ failure to properly diagnose her and give her effective treatment.
52. According to the Plaintiff she fell down on 9^th March 2019 and all she remembers is that she was in extreme pain. It was her evidence that the attending doctor on the night in question informed her that there was no fracture but was possibly a bad sprain. Her evidence was as follows:

Q:        okay, so after the many hours that you waited, who came to see you?

A:        The orthopaedic surgeon came. I do not remember his name at the time. But he finally came to review the x-ray that was in.

 

Q:        Alright. Can you describe this surgeon?

A:        Yes, he was of Asian descent and quite short, wearing glasses.

 

Q:        Okay. So when you finally saw him, what happened?

A:        He took a look at the x-ray that was on his phone. He has taken from the x-ray room and told us that the x-ray as per what he was seeing did not show any fracture. So it was most likely a very bad sprain.

 

53. Much was made of the fact that there was no x-ray from the 9^th March 2029 available. Dr Soma explained that there was problem with the system at the Hospital wherein for a period of time all images were lost. It is unclear whether the lost images were occurring over a period of three months or they lost images from a three months’ period. Either way what is relevant is that there was a problem with the system and no images were therefore available.
54. In any event, the Plaintiff’s evidence above adds credence to the evidence of Dr. Soma in that an x-ray was indeed done and was reviewed by Dr. Liu. Furthermore, it is noted that the Plaintiff stated that Dr. Liu looked at the x-ray on his phone and Dr. Betsy looked at the x-ray on her tablet. The issue then would not be whether an x-ray was done but whether a proper diagnosis was done on the basis of the x-ray that was done and reviewed?
55. Dr Soma RajaSundaram was forthright. He stated that according to the medical report there was no obvious abnormality. He explained that the note at the top of D4 reading “no significant fracture” meant that the fracture was very small and insignificant. He explained that as being so tiny and not obvious to the eye. One then wonders if x-rays are to see obvious fractures or to see the obvious and the not so obvious factures as well? However, he explained that the view of the x-ray is important. The angle of the arm that the x-ray was taken in, hence the reason why the patient was asked to return in three days for check-up. 
56. It is further noted that as per the evidence of Dr. Soma, and as noted on D4, the Plaintiff was asked to return to casualty after 3 days. This he noted is the global standard of care for patient of this trauma and is important to return after a couple of days after the swelling is down for a repeat x-ray to see if the second x-ray picks up something small. However, the Plaintiff returned after 5 days, on 14^th March 2019, and she did so as she was in pain. It is further noted that according to D5 she reported to the casualty at 1125 hours. This was in fact after she had been to Panafricare clinic on that same morning at 9am per P6. From the evidence it would seem that the Plaintiff from the very start was not happy with the treatment she received at the hands of the doctor at casualty on 9^th March 2019.
57. It was then that she was diagnosed with a fracture on the radial head and an excision was deemed necessary with said procedure being done on 19^th March 2019.
58. Though Dr Ribail was careful to say that possibly the procedure to remove the head of the radius was successful he opined that if you keep the head of the radius the joint will not be stable. He qualified his evidence by making clear that he was not there in the surgery. He made clear though that the whole head of the radius had to be removed in order to ensure no dislocation in the future.
59. As for the dislocation which he saw on the Plaintiff’s x-ray, PE14 and PE15, Dr Ribail’s evidence was that the dislocation was an old dislocation. It was his testimony that you cannot tell from the x-ray whether it is an old dislocation. You know it is an old dislocation because you read all the information from the patient. However earlier in his testimony he explained that:

…dislocation is a medical term when you have the joint lost all the normal relation of a joint surface. The two bones lost a relation. This is an emergency in orthopaedic they saying when we have dislocation we have to bring the patient immediately to theatre or to try to do a resolution in a room with all the …When you don’t do that all the muscles and joint ligament all these thing get a new position and then get a reduction to try to do this is close to impossible. That is why we had to open and do the operation try to do a reduction under aneathesia and then when it’s old one usually we have to do reduction then to do a fixation of the joint at least to try to preserve the condition of the joint…

 

60. Though he was adamant that there was a dislocation at the time that the Plaintiff presented herself to the doctor initially, I found that Dr. Ribail was hesitant to say that the orthopaedic surgeon was wrong in the manner he dealt with the situation that was presented to the them on the 9^th March 2019.  When asked if it was normal for 11 days to go by before a patient is operated on, Dr Ribail’s answer was to the effect that “if they get the diagnosis the day of the injury the same day they can do it but some time we will do it a little bit later few days after or something like that the joint is too swollen then inflammation is too much and then it is recommended first to diminish the inflammation for us to be able to proceed with the surgery easily and also for the patient to have a better recovery, faster recovery time.”
61. Of interest though is his evidence that “they cannot remove the head of radius and then get a dislocation after.” He added that “the dislocation don’t happen spontaneously. It was no during first trauma then it was during the procedure, during the surgery something happen then.”
62. According to him a person with a dislocated arm would be in pain every day.
63. Dr Soma explained that a cast is used when they fix something with plate and screw. Because they want to protect what has been done, in those circumstances a cast would be used as immobilisation with a cast is stronger. In the case of the Plaintiff there is no evidence that a plate or screws were used to secure or set the bone. Rather it was an excision that was made hence it required gentle immobilisation with sling.
64. In terms of the issue of nerve palsy Dr Soma denied that there was any nerve palsy at the time the Plaintiff was discharged from hospital on 1^st May 2019. His evidence was as follows:

Nerve palsy happens when the nerve gets traumatized by either a fall or a blow or you accidentally cut the nerve during surgery and the nerve gets damage and the nerve cannot do the function it is supposed to do, we call that nerve palsy. Usually nerve palsy is immediate after surgery, after surgery we take the patient to theatre, you realise that the patient is not able to extend his rate, unable to extend the thumb, cannot feel the skin – those are assigned as nerve palsy. Patient did not have any of that after we took her out of theatre twice.

 

65. In his evidence Dr. Ribail accepted that nerve palsy can be caused by trauma or surgery. He further stated that nerve palsy will be obvious the next day after surgery. Dr. Ribail stated that with nerve palsy it is impossible to lift the wrist and to extend the fingers. In order for the Defendant to be liable then the Plaintiff has to show that the nerve palsy complained of occurred as a result of the misdiagnosis or the surgery. According to D4 when she presented herself to Casualty on 9^th March 2019 there was no indication of weakness in her arm or hand other than “pain in right elbow, palpitation unable to move”. However, on 14^th March 2019 when she went to Panafricare, according to P6, the Plaintiff was already complaining of “inability to rotate or flex the arm, even weakness in the hand.”
66. Much fuss was made about the fact that Dr. Soma was not present for the interventions that the Plaintiff went through. However, the same can be said for Dr. Ribail.
67. Dr. Soma in examination in chief when asked if the procedure adopted by Dr Vladimir who performed the excision on 19^th March 2019 was the normal procedure, he stated that “the way he mentioned it would not be perfect way the way done it but more or less, it is correct the way he has done it.”
68. I have considered the evidence of Dr Soma and found him to be credible. He explained his opinions and the different procedures clearly, without any hesitation. He further accepted that there is a possibility that the fracture was missed but also could not discount that it was not missed. It was his evidence that “in hindsight because the second x-ray we did showed that there was a fracture. So in the first x-ray for us to have not seen the fracture, it must have been something very tiny and something not obvious to the eye for us to have missed it…”
69. However, of concern is the alleged mistake on the discharge sheet, that the Plaintiff had been attended to for a dislocation. As much as I can accept that mistakes are made, in this current matter the claim of the Plaintiff is that there was a dislocation in the first instance that was not addressed correctly.
70. As regards his evidence that P14 showed a subluxation as opposed to a dislocation in view of his explanation that “sub-laxation as opposed to dislocation is when the joint surface doesn’t sit perfectly as opposed to be away from each other” what is staring me in the face is a joint that is not sitting perfectly as it should. To my mind it is irrelevant at this stage whether it is a subluxation or a dislocation. The fact of the matter is that the joint is not sitting perfectly as it should have been following the surgery on 19^th March 2019 per P14 and P15.
71. According to Dr Ribail if the diagnosis was done at the right time and the reduction of the dislocation was done at the right time then excision would not have been necessary. However, he did not address the issue of the fracture on the radial head, if indeed the dislocation had been dealt with on 9^th March 2019 how would the fracture have impacted the said reduction?
72. In any case I have no reason to doubt Dr. Ribail’s testimony that the head of the radius was not excised completely and that there was a resulting dislocation. Looking at P14 and P15, even to my untrained eye it is evident on P14 and P15 that there is a dislocation or sub-luxation which Dr. Ribail states would not occur had the excision been done properly.
73. In consideration of the above it cannot be said that the doctors failed to properly diagnose and treat the Plaintiff when she attended Casualty on the 9^th March 2019. What is clear to my mind however, is that the doctors attending to the Plaintiff on 19^th March 2019 failed to conduct a proper excision of the radial head resulting in a dislocation and further pain and suffering as well as a need for further surgery to properly excise the radial head. As a result, the Defendant is liable for the said failures. So I find.
74. On the evidence, however, I am satisfied that the nerve palsy was not a result of the operation but a result of the fall itself in view of P6 and the evidence of both doctors.
75. In view of the above finding what is the Plaintiff entitled to?
76. In Octobre v Government of Seychelles (CS 17/2012) [2016] SCSC 941 (24 November 2016) the Plaintiff fell and injured his right knee in May of 1999, while working as a soldier with the Seychelles Defence Forces (SPDF). After the injury the Plaintiff went to ‘the clinic’, he was treated with pain killers and analgesic. In August of 1999, the Plaintiff obtained arthroscopy surgery to investigate the continued discomfort in his knee. After this examination the Plaintiff continued to experience difficulty in his right knee. He came into the clinic for a check-up in November of 1999. Dr. Chetty testified that this check-up determined that while there was full range of motion in the Plaintiff’s knee he was suffering from ligament damage. This resulted in instability in the ankle joint and possible nerve damage. The Plaintiff was referred for physiotherapy. In May of 2000 the Plaintiff underwent open surgery in order to rectify the issues with the ligament in his knee which had caused him to walk with crutches. When the surgery began, the doctors found that there was a torn ligament present. This injury existed prior to the surgery. They sutured the ligament and completed the operation. However, they did not work on his nerve damage in his ankle because, as described by Dr. Chetty, “the nerve injury w[ould] recover” over time. The Plaintiff was discharged on 2 June, 2000 in good condition and was given a knee brace. By July he was re-examined and the doctors found that there was a positive test for ligament damage. Later, in September, the medical notes show that his knee’s flexion was only at 90 degrees and he no longer had a full range of movement. The discomfort continued for the Plaintiff and despite being referred for physiotherapy the Plaintiff’s knee was stable but his quadriceps were weak, indicating in his opinion that he had not been going to his physical therapy appointments. His right leg was left effectively paralysed.
77. Finding the Defendant liable the Court proceeded to consider quantum as follows:

 … in both Cable and Wireless v Michel (1966) SLR 253 and Fanchette v Attorney-General (1968) SLR111, the court stated that although it might be difficult to assess damages due, this should not be a bar to making an award.

 

 In respect of delicts, damages are compensatory and not punitive. Hence the Plaintiff should not make a profit but at the same time not suffer any loss (See Mambe v Pomeroy (1970) SLR 54, Bristol v Sodepak (2005) SLR123, Jacques v Property Management Corporation (2011) SLR 7). The aim is to make the Plaintiff whole again from a monetary perspective.

 

The case of Rosalie and anor v Duane and anor (1987) SLR 121 is instructive on the award of moral damages.

 

In Ventigadoo v Government of Seychelles (2007) SLR 242, Karunakaran J conducted an overview of other awards for personal injury cases and reiterated the view held by Perera J in Larame vs. Coco D’Or (Pty) Ltd SC 172 /1998 that when the claim is for a loss of an organ or a limb, the substantial award should be made for such loss and that on the other hand, in claims for fractured legs or arms from which a claimant recovers completely, the substantial award should be made for pain and suffering.

 

78. Following that discussion, the Court “looked at recent awards to come to a fair decision on this issue. In Fanchette v Dream Yachts Charters CS 153/2008 (decided in 2015) an award of only SR140, 000 was made. In Tucker and anor v La Digue Lodge SC 343/2005 SR190, 000 was awarded. In Bristol v UCPS SC 225/2005 for a similar injury Renaud J awarded the sum of SR 211,456. In Farabeau v Casamar Seychelles Ltd (2012) SLR 170, SR 350, 000 was awarded” and ultimately awarded the Plaintiff

the global sum of SR550, 000 made up as follows: SR250, 000 for injury to his knee and ankle, SR100, 000 for permanent disability, SR100, 000 for moral damages and SR100, 000, for the loss of his quality of life.

 

79. I see no reason to depart from the reasoning adopted in Octobre as concerns quantum. In the circumstances the Plaintiff is awarded the sum of SCR 146, 888.00.

Pain and suffering                                                       SR 30, 000/-

Aesthetic loss (Permanent Scarring)                          SR 15, 000/-

Distress and Inconvenience                                        SR 30, 000/-

Loss of quality of life                                                 SR 30, 000/-

Operation, medication and physiotherapy at

Pro Medklinik (Seychelles) Limited                          SR 38, 091/-

Forfeiting of chartered account exams                       £216(rate–17.58)

SCR 3, 797.28

80. I decline to award any lawyers’ fees as these are part and part parcel of party and party costs to be taxed.
81. I accordingly enter judgment in favour of the Plaintiff in the sum of SCR 146, 888.00 with costs of the action.

 

Signed, dated and delivered at Ile du Port on …………

 

____________

Pillay J