Jacques v Dr. Manoo & Anor (CS 37/2011) [2016] SCSC 354 (25 May 2016);

IN THE SUPREME COURT OF SEYCHELLES
Civil Side:  37/2011

       [2016] SCSC 354


GREG JACQUES

versus

DR. JEWALAL MANOO

THE GOVERNMENT OF SEYCHELLES
2nd Defendant


Heard:            4 February 2015
Counsel:        Mr. J. Camille for Plaintiff
           
            Mr. B. Hoareau for 1st Defendant

            Mr. Kumar for the 2nd Defendant
           
Delivered:        25 May 2016

JUDGMENT

Karunakaran J

 


       
[1] The plaintiff has brought this action against both defendants namely, (1) Medical Doctor Jewalal Manoo, an employee of the Government of Seychelles employed at the Victoria Central Hospital and (2) the Government of Seychelles, the employer of the said Doctor - based on vicarious liability - claiming compensation in the sum of R8,000, 950/- for loss and damage, which the plaintiff suffered as a result of a “fault” allegedly committed by the employees of the defendant through its Ministry of Health. The fault alleged emanated from medical negligence of the doctors/surgeons employed by the defendant at the Victoria Central Hospital. Particularly, the 1st defendant committed acts of medical negligence, while diagnosed, operated and treated the plaintiff for a chronic injury that was discharging sinus over the left lateral thigh of the plaintiff. In fact, the plaintiff was left quadriplegic, completely paralyzed below his neck, due to spinal injuries sustained in a road traffic accident, which had happened about five years ago.
     The facts
[2] The facts as transpired from the evidence on record, are these:
[3]  The plaintiff is a young man, now aged 30. At all material times, he was and is living with his mother in a flat at Harrison Street, Victoria. In 2005, he was employed as a Survey Technician by PMC, a statutory Corporation, engaged inter alia, in property management and housing development in Seychelles. On the 13th July 2005, during the course of his employment he was involved in a fatal road traffic accident in which the driver of the vehicle was killed, whereas the plaintiff, who was then a passenger in that vehicle, sustained serious bodily injuries including a major injury to his spinal cord. The spinal injury resulted him in a lifelong tetra-pelagic condition, which had paralyzed all his limbs permanently. The plaintiff was only 20 years old at the time of the said accident. He lost all sensation below his neck. Since then he has become bed-ridden. He cannot attend to his personal needs and care as he is physically and totally disabled.  Now, he has to completely rely upon someone to manage his day to day life-activities and help physical movements. Consequently, he developed bedsores and other secondary infections. According to Dr Reginald (PW5), Consultant Surgeon, since the plaintiff’s injury has occurred to nervous system, it cannot be reversed. The plaintiff can never be able to get cured or restored to normal life. Since the plaintiff has spinal injury to C4-C5, which left him quadriplegic with a neurogenic bladder. He was put on intermittent catheterization which was being done by mother on daily basis and being followed by an urological check-ups by Dr. Reginald vide Exhibit P1. Dr. Reginald, as urologist constantly making home visits and observing and monitoring the condition of the plaintiff ever since he became quadriplegic and bedridden.

[4]  According to Dr. Reginald, the plaintiff had stayed in the same position for a long time and so he had developed ischemia to the skin with necrosis in his left thigh. As a result of infection, it had opened up small hole, medically called “sinus” on his left thigh and there were discharge oozing out from the hole. For, the bedsore which the plaintiff had developed over years on his back and the hole in his left thigh had connections. This communication between the two holes medically termed “Sinus”. Hence, Dr. Reginald during one of his visits, well before the 4th of February 2010, noticed and diagnosed that the plaintiff had “Septic Arthritis”, which had given rise to fever and discharge. He therefore, immediately, advised the plaintiff to get admitted to the hospital for necessary treated by an orthopaedic surgeon. On the 4th of February 2010, the plaintiff was shifted from home and was admitted in Victoria Hospital. The Orthopaedic surgeon Dr. Ribail Babie (PW6) attended to the plaintiff, made diagnosis and started the treatments.

[5] His medical report dated 5th May 2010, in exhibit P2, reads thus (in verbatim):
RE: Mr. Greg Jacques-Bel Ombre
The above named patient was involved in a road traffic accident on July 2005 and it resulted in him being tetraplegic (C5 ASIA) for which he underwent anterior repair and fixation in Reunion.
He was admitted in Doffay ward on the 4th February 2010 by the Urologist service with diagnosis of Neurogenic Bladder and anaemia (HGB 4.99g/dL). He was referred to orthopaedic specialist because of a chronic fistula with smelly discharge in the Left Hip Trochanteric region. X-ray was done and showed head of femur and acetabulum irregularity, Architecture, sclerotic reaction and head sub dislocation. On the 5th February 2010, Debridement and drainage was done. Micro-culture and sensitivity report staphylococcus, sensitive to Rocephin and the blood test shows HGB 7.1g/dL, one unit of blood transfusion was given. He continued to have purulent drainage from the drain over next few days.
On the 4th March 2010, examination showed left inferior limb shorter than the right and hip joint unstable, X-ray was done and showed Hip dislocation, head of the femur irregular architecture with lytic changes and periosteal sclerotic reaction generalize with diagnosis of left septic arthritis with head osteomyelitis. He was brought back to the theatre for debridement and possible head of femur excision. The family was informed. Arthrotomy, Debridement and bone curettage was done and preserve part of the femur head. He needed to go back to the Operating Theatre several times for dressing and change of irrigation tissue with satisfactory evolution.
Surgical days for dressing and drain changes: 11/03/2010, 13/03/ 2010, 15/03/2010, 24/03/2010.
On date 23rd March 2010 the pus discharge was increased with bad smell, dressing was done and the next day smelling was increasing with discharge. He went back to the Operating Theatre on 27tn March 2010 for dressing and change of drain. During the operation joint pus and a dark colour of the femur head was detected and bone architecture destruction. We decided to excise the head and the specimen were sent for histological study and micro-culture and sensitivity was done. The result shows Bacterial Osteomyelitis and swab report staphylococcus aureus ++ and coliform ++.
CT Scan done on 30th March 2010 shows left hip septic arthritis with Osteomyelitis, left head of femur was not visualized, left Ischium sclerosis with irregularity of surface, septic wounds at ischium and sacrococygeal region. The following days it improved gradually with less discharge without smell. He went to the Operating Theatre every week for change of dressing and drain (05/04/2010, 13/04/2010, 20/04/2010, and 27/04/2010)

On 05th April 2010 Micro-culture and sensitivity was repeated and inform Actinotobacter, Bauman II ++ resistant to Ceftriaxone, Augmentin, Ceftaxidine,Gentamicin, Amikacin and ciprofloxacin. His case was discussed in a meeting with the ICU doctors and suggest to start with lecofloxacine and vancomycin continuation for two weeks, last micro-culture done on 23rd April 2010 shows coliform + sensitive to Augmentin, Ceftaxidine, Gentamicin, Amikacin and ciprofloxacin. The antibiotic treatment with Rocephin and gentamicin combination started on 27th April 2010 after Operating Theatre dressing and closed the surgical wound.

The following days he improved and on the 3rd May 2010 the drain collection was empty. We are planning to remove the drain and do the dressing on 4th May 2010. His last HGB 9.9g/dL, WBC 5.6x103 Creatine 63, sodium 139mmol/l, potassium 4.1 mmol/l.

[6] Mrs. Herachandra, (PW2) a theatre nurse testified in essence, that the 1st defendant Dr Manoo attended to the plaintiff when he was first brought to hospital in February 2010. The plaintiff was first taken to the theatre simply for incision in order to drain the discharge from the plaintiffs left thigh affected by “septic arthritis”. She was present in theatre that time presumably on the 5th February 2010, when Dr. Manoo was draining the discharge from the hole in the wound. According to her, it was the normal practice for any doctor, even a general physician to take the patients into the theatre for draining the discharge from the wounds or injuries of this nature. Dr Manoo also did the same procedure with the plaintiff that day, which any other doctors in his position would do in similar cases. PW3, one Ms. Muriel William, a senior staff nurse testified that the plaintiff’s mother did sign a consent form on behalf of the plaintiff to drain the discharge and dressing the wound. Another senior staff nurse one Lucille Mathiot also testified that the plaintiff had been admitted in male medical ward in the beginning of 2010 as he had some problem with his wound and that he signed a consent form to undergo an operation on the 18th April 2010, which was performed by Dr. Ribail Babie, the Orthopaedic surgeon. Consultant Surgeon and urologist Dr. Reginald, who had been fully conversant with the medical history and condition of the plaintiff as well as the Orthopaedic Surgeon Dr. Ribail Babie, who performed Arthrotomy, Debridement and bone curettage and all surgeries in relation to “Septic Arthritis” including the hip surgery on the plaintiff testified that there were no acts of medical negligence on the part of any medical officer in diagnosing, treating and performing surgical operations on the plaintiff for “Septic Arthritis” and in draining of the discharge from the wound on his left thigh. All medical officers did their best to give a good medical treatment to the plaintiff for the injury.  According to both surgeons, the plaintiff developed bedsores and consequently the “Septic Arthritis”, which are secondary infections developed due to the prolonged bedridden and other conditions at home. These infections can no way be attributed to any medical negligence on the part of any doctor or surgeon or medical officer or staff employed by the 2nd defendant.
    
[7] In the circumstances, the plaintiff, being dissatisfied with the said surgical interventions and treatments, felt that those treatments did not bring the desired result because of the fault of the doctor, especially Dr. Manoo who treated him for the wound on his left thigh. According to the plaintiff, the said surgical operations were wrongly and negligently performed and diagnosed and treated by the 1st defendant or the 2nd defendant’s preposé. Hence, by a plaint dated 9th February 2011, the plaintiff filed the instant suit against the defendants for the consequential loss and damages. In the plaint, he claimed compensation for loss and damage, which he suffered due to a “fault” allegedly committed by the 1st defendant, the employee of the 2nd defendant. The alleged fault that gave rise to the cause of action in the instant suit emanated from medical negligence on the part of the employees of the 2nd defendant, who
(1) failed to insert a drain after the surgery to allow the flow of the discharge
(2) dressing was attended by the urologist Dr. Manoo instead of orthopaedic
(3) Discharge occurred without proper medication
[8] The plaintiff was not given the required standard of care and medical attention. The doctors/surgeons committed a “fault” in their medical diagnosis, operation and treatment given to the plaintiff for the injury. In that paragraph 6 and 7 of the plaint read thus:
“After the said operation and as a result of the poor medical attention administered onto the plaintiff, the plaintiff’s injuries were further aggravated and the said plaintiff had to be attended on several occasions in the operation theatre for further dressing irrigation and change of drain”

“the said injuries were caused by the fault of and/or negligence of the 1st defendant and were compounded by the fault and/or negligence of the 2nd defendant whether by itself, its servants or agents”  

[9] Moreover, the particulars of the injury, loss and damage, which the plaintiff claimed in the plaint, under paragraph 7 read thus:
Particulars of injury, Loss and damage
i) Gross negligence                        Rs 3,000000/-
ii) Loss of head of femur                         Rs500,000/-
iii) Limitation for rehabilitation                    Rs3,000000/-
iv) Moral damage                            Rs500,000/-
v) Loss of articulate joint/posture                Rs1,000000/-
vi) Medical Report, Radiology CT Scan and
MRI Examination Reports                    Rs950/-
      Total                                 Rs8000,950/-         

[10] It is the case of the plaintiff that the first operation was carried out by Dr. Manoo negligently. As a result, the plaintiff had to undergo subsequently a number of operations for the same wound. However, there was no improvement. Since then, the condition of the injury has deteriorated. The plaintiff claims that subsequent operations were to be carried out because of the first faulty operation of Dr. Manoo, who failed to insert a drain after the surgery to allow the flow of the discharge, in that he failed to make a proper diagnosis and give proper treatment to the plaintiff as well as failed to provide the required standard of medical care.  According to the pleadings in the plaint the cause of action arose as and when Dr. Manoo committed the negligent act on the 4th February 2010, but the plaintiff came to know about it after seeing recommendations for a radiographer report commissioned by a private doctor.
[11] Therefore, the plaintiff now claims that the defendant is liable to compensate him for the consequential loss and damage hereinbefore particularised.

The defence case
[12] On the other side, the defendant has averred in the statement of defence that although the plaintiff was medically treated by the employees of the defendant at the Victoria Hospital, neither the 1st defendant nor any other employee for that matter committed any act of medical negligence in treating the plaintiff for the injury. They did not commit or omit anything that amounts to a ‘‘faute” in law. Therefore, the defendants totally deny medical negligence, liability and so dispute the claim of the plaintiff for consequential loss and damages.

     Medical negligence
[13] Before one proceeds to analyse the evidence, it is important to identify and ascertain the law applicable to cases of medical negligence as it stands in our jurisdiction and jurisprudence. Obviously, this action is based on Article 1382(2) of the Civil Code, which defines fault as “an error of conduct which would not have been committed by a prudent person in the special circumstances in which the damage was caused. It may be the result of a positive act or omission.” In this respect, Amos and Walton in “Introduction to French Law” states-
 “It also indicates the standard of care required of persons exercising a profession. A prudent man knows he must possess the knowledge and skill requisite for the exercise of his profession, and that he must conform at least to the normal standards of care expected of persons in that profession”
Standard of Care
[14] On the question of the standard of care and the principles governing medical negligence, I would like to restate what I have enunciated in Charles Ventigadoo Vs. The Government of Seychelles - Civil Side No: 407 of 1998 – Judgment delivered on 28th October 2002, and followed in Gabriel V Government of Seychelles (2006) SLR 169 endorsing the formula, which Perera, J. originally applied in Nathaline Vidot Vs Dr. Joel Nwosu - Civil Side No: 12 of 2000.
[15] Tindal CJ while summing up to a jury in Lanphier V. Phipos (1838) 8. C. & P.475, in a medical negligence action, formulated the following principle-
[16] “Every person who enters into a Learned Profession undertakes to bring to the exercise of it, a reasonable degree of care and skill. He does not undertake, if he is an Attorney, that at all events you shall gain your case, nor does a Surgeon undertake that he will perform a cure, nor does he undertake to use the highest possible degree of skill. There may be persons who have higher education and greater advantages than he has, but he undertakes to bring a fair, reasonable and competent degree of skill and you will say whether, in this case, the injury was occasioned by the want of such skill in the defendant.”
[17] In Cassidy vs. Ministry of Health (1951) 2. KB348 at 359, Denning LJ stated thus:
“lf a man goes to a doctor because he is ill, no one doubts that the doctor must exercise reasonable care and skill in his treatment on him; and that is so whether the doctor is paid for his services or not”.

[18] The accepted test currently applied in English Law to determine the standard of care of a skilled professional, commonly referred to as the “Bolam” test, is based on the dicta of Mc Nair, J. in his address to the jury in Bolam v. Friem Hospital Management Committee (1957) 2. All. E. R 118, at 121. He stated-
“… But where you get a situation which involves the use of special skill or competence, then the test whether there has been negligence or not is not the test of the man on the Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill A man need not possess the highest expert skill at the risk of being found negligent. It is well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art”
[19] This test is a departure from the previous test of the hypothetical “reasonable skilled professional”, which placed emphasis on the standards adopted by the profession. The “Bolam test” concerns itself with what ought to have been done in the circumstances.
[20] The principles thus enunciated in these authorities have one thing in common with the French Law of delict. That is, the relevant test is that of the reasonable or prudent man in his own class or profession, as distinct from the ordinary man in the street or Clapham. This is the test, which in my view, ought to be applied to the case on hand. It is on this basis that the defendant’s liability has to be determined in this action.
[21] Now, I will proceed to examine the merits of the case applying the above principles to the facts of the case on hand. Firstly, the case of the plaintiff herein, is that the following two material facts constitute medical negligence on the part of the defendant and which amounts to a “fault” in law. They are:

i) Dr. Manoo, when first operated the plaintiff failed to insert a drain after the surgery to allow the discharge;
ii) The employees of the defendant failed to make proper diagnosis and give proper treatment to the plaintiff; and
iii) they also failed to take proper medical care and attention to the required standard   
[22] First of all, there is no evidence at all on record to show that the first defendant conducted any surgery on the alleged date on the plaintiff. The evidence of the other two surgeons reveal that the plaintiff had already developed “septic arthritis” and “necrosis” even before he was admitted in hospital and treated by Dr. Manoo for the said wounds. On the 4th February 2010, Dr. Manoo had simply incised the wound drained out the discharge and did dressing in theatre. Obviously, there was not any act of medical negligence on the 1st defendant. In any event, the medical experts Surgeons Dr. Reginald and Dr. Ribail Babie, who treated the plaintiff for the “septic arthritis’ stated that there was no medical negligence on the part of any doctor or surgeon or any employee of the 2nd defendant in treating the plaintiff for the “septic arthritis” which is the secondary infection he himself had developed due to prolonged bedridden condition, bedsore and home-environment.  I find that the allegation of medical negligence levelled against Dr. Manoo is baseless; there is no evidence on record or testimony by any competent witness to substantiate this allegation. The plaintiff has wrongly believed and acted on his own medical opinion, when he had no specialised knowledge, qualification or competence in that field. Unfortunately, the suit is based on his guesswork on medical negligence and some hearsay recommendation by a radiographer, who is simply a technician, having no medical qualification or competency in medical field. Hence, I find that the plaintiff has miserably failed to establish any act of medical negligence on the part of the 1st defendant Dr. Manoo or any other medical officer or employees of the Government of Seychelles, who in one way or the other had involved in the operation or medical treatment given to the plaintiff at the Victoria hospital for “septic arthritis”.     
[23] As regards the allegation of “improper or wrong diagnosis’, obviously, there is not even one iota of evidence on record to show that the surgeons either Dr. Ribail Babie or Dr. Reginald or Dr. Manoo, who performed the operations or incision for draining or dressing the wound or treating the plaintiff for Septic Arthritis made any wrong diagnosis at any point in time in their surgical procedure or operation or medical treatment given to the plaintiff. I totally accept the evidence of the expert witness, the Orthopedic Surgeon, Dr. Ribail Babie - PW6 - in that there has been no professional negligence on the part of the surgeons in treating the plaintiff for the injury. Their diagnostic procedure and decisions were correct even though they had to repeatedly operate and drain the wound because of its chronic nature and occurrence of continuous discharge from the wound. In the absence of any other evidence to the contrary, I accept the expert opinion of Dr. Ribail Babie and Dr. Reginald and so find that there had been no medical negligence in respect of the surgical treatment the plaintiff received from the defendant for the injury. It is also pertinent to note that development or condition of necrosis and septic arthritis are inherent and due to the nature of the injury, prolonged bedridden condition and therefore, frequent drain of discharge was inevitable. Nothing could have prevented its development. The surgical intervention of the surgeon has nothing to do with it nor can this be attributed to any medical negligence on the part of the surgeon. In Hotson v East Berkshire Health Authority [1987] 2 All England 909 the claimant suffered an injury and was referred to hospital where a doctor negligently failed to diagnose his condition. The House of Lords rejected the claimant’s claim because the vascular necrosis which developed was found to have been inevitable and there was nothing that could have been done even had the Defendant made a correct diagnosis.
[24] Having said that I note that an allegation of negligence against medical personnel should be regarded as serious and that the standard of proof should therefore, be of a high degree of probability per White House vs. Jordan (1980) All E R 650. I find the evidence of Dr. Ribail Babie or Dr. Reginald is uncontroverted, strong and credible in every aspect of the case for the defence. In my judgment, the surgeons, doctors and other medical personnel who operated and medically treated the plaintiff for the injury did exercise reasonable care and the necessary skills required of them in their treatment on the plaintiff. As I see it, the development of septic arthritis, necrosis and sinus that necessitated the revision of surgeries, drain of discharge and the resultant clinical symptoms such as fever pain etc. were occasioned not through medical negligence of the employees of the defendant at the Victoria Hospital or by the want of any skill in the surgeon who treated the plaintiff for the injury. In fact, as a consequence of Hotson supra, in many medical negligence actions the dispute between the parties is whether the defendant’s negligence has, on a balance of probabilities, had a material effect on the outcome of the claimant’s injury/disease or not. In the present case, even if one assumes, for the sake of argument that the defendant had been negligent in providing surgical treatment and medical care, still there is no causal link between the “development of necrosis/ septic arthritis” and the “medical negligence”. Indeed, necrosis and discharge is the outcome of the plaintiff’s injury and his physiological constitution due to chronic wound, and not that of any medical negligence on the part of the surgeons or any other employee of the defendant, who treated the plaintiff for the injury in question and so I conclude.
[25] In the final analysis, I find that the plaintiff has failed to show on a preponderance of probabilities that either the 1st defendant or any of the employees of the 2nd defendant namely, surgeons, doctors, and staff of the Victoria Central Hospital, who treated the plaintiff for the injury, committed any negligent act or omission in the course of medical or surgical treatment given to the plaintiff during the relevant period. Therefore, the suit is dismissed. I make no order as to costs.


Signed, dated and delivered at Ile du Port on 25 May 2016

D Karunakaran

Judge of the Supreme Court

 


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