REPUBLIC OF TRINIDAD AND TOBAGO
IN THE HIGH COURT OF JUSTICE
H.C.A. No. 1111 of 1998
BETWEEN
REHEDA JOSEPH MUNROE
PLAINTIFF
AND
THE MINISTER OF HEALTH
FIRST
DEFENDANT
AND
THE ATTORNEY GENERAL OF
TRINIDAD AND TOBAGO
SECOND
DEFENDANT
Before the Honourable Mr. Justice Gregory Smith:
Appearances:
Mr. Kujifi for the Plaintiff
Mr. Narinesingh for the Defendants
REASONS
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The Plaintiff’s claim was for damages for the negligence of the hospital staff at
the Mount Hope Maternity Hospital consequent upon an aborted pregnancy. The
Defendants denied any negligence and alleged that the Plaintiff was properly diagnosed
and received appropriate treatment during the period she spent at hospital, namely the
30th May, 1997 to the 4th June, 1997.
Summary of the Evidence:
The Plaintiff, who at the relevant time was some three to four months pregnant,
testified that as a result of a suspected rupture of her “water bag” she went to the
hospital around 11.30 p.m. on the 29th May, 1997. After about half of an hour or so, she
saw a doctor and was admitted as a patient into the hospital. The following morning
she was examined by another doctor who told her that there was a chance that her
foetus would survive but that an ultra sound had to be performed; however, he also told
her that the ultra sound machine had broken down and they would have to wait till
Monday for one to be done (this being Saturday). She was told to be still and not move
about. She experienced severe abdominal pain which went unrelieved. Later, a doctor
told her she was experiencing an abortion and on Monday morning she aborted the
foetus by natural means. The nurses removed the foetus from her bed but could not
remove the placenta. She was then informed that she was to have a “D and C”
operation to remove the placenta, but even though she was in pain and had a bad fever,
nothing was done until the following night after her husband came to the hospital “and
made noise”. She eventually had the operation and was discharged. She could not
walk and she was in pain and bleeding. She was told to stay in bed. At home she felt
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“a big pain” and something as big as a child “just dropped out” from her. There was
also severe bleeding. She put the “large mass” in a plastic bag and the following day
took the “mass” to one Dr. Hoyte, who told her that it was a blood clot. Dr. Hoyte
examined her and prescribed antibiotics and painkillers and sent her home. The
bleeding and pain continued for about one week and she returned to Dr. Hoyte; he
examined her and recommended an ultra sound to be performed. This was done and
she again returned to Dr. Hoyte one week after the second visit. The bleeding and pain
had subsided and the doctor recommended more painkillers and antibiotics. This was
the last time she visited Doctor Hoyte for that condition. In cross-examination the
Plaintiff stated that she had had one prior miscarriage. She stated that Dr. Hoyte had
prescribed different anti-biotics and painkillers to those which the doctors at the Hospital
had prescribed. At this point the medical report of Dr. Hoyte was, by consent of the
Attorneys, put in evidence. This report stated that the same antibiotics and painkillers
as prescribed by the doctors at the hospital were prescribed by Doctor Hoyte. In spite
of this revelation, the Plaintiff insisted that she received a different prescription from Dr.
Hoyte. The Plaintiff also stated that the “mass” which she had taken to Doctor Hoyte
could never fit in a bottle and Dr. Hoyte’s report which stated that the “mass” was
brought to him in a bottle, was shown to the Plaintiff; in spite of this, she still insisted
that the mass was not brought to Doctor Hoyte in a bottle and that the Doctor was
probably mistaken.
No other witness was called in support of the Plaintiff’s case.
The Defendants called Dr. Ronald Knowles to testify on their behalf. Dr. Knowles
had been employed at the Mount Hope Maternity Hospital for the last five years. He
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was a House Officer who was currently in the process of doing a post graduate course
to specialize in Obstetrics and Gynaecology. He recalled attending to the Plaintiff on
30th May, 1997. According to Dr. Knowles, the patient had a history of two previous
mid-trimester miscarriages and she complained to the doctor who saw her upon
admission that her waterbag had burst. When Dr. Knowles examined the Plaintiff on
the 30th May, 1997, there was no liquid in the vagina and the neck of the womb had
closed. He diagnosed her condition as an inevitable abortion and he wanted to have an
ultra sound report to confirm the diagnosis; however, he stated that an ultra sound was
not available on week-ends and it would have been performed on the Monday. That
being the case and considering that the Plaintiff wanted a child, he adopted a
conservative approach of bed rest, temperature monitoring and pain relief. The
following morning, the Plaintiff had started to bleed and she developed a temperature
which indicated that the spontaneous abortion process was continuing. The pregnancy
was subsequently aborted by natural means and he later saw the foetus which was of
approximately sixteen weeks’ gestation. She was then slated to have an E.R.P.C.
(Evacuation of Retained Products of Conception, which is the same as a “D and C”) and
this was done by another doctor on the following day. He saw the Plaintiff after the
E.R.P.C. was performed at which time she had very little vaginal bleeding, so, in
accordance with standard procedure, she was discharged and given a prescription of
five days’ supply of antibiotics and two days’ supply of painkillers. Dr. Knowles was
aware that the Plaintiff claimed to have passed a large clot of blood subsequent to her
discharge from the hospital and opined that since the vagina can act as a sack for blood
and that blood can clot within seconds of its discharge, when these factors were
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combined with a patient on bed rest (as was the Plaintiff), the chances of blood draining
out decreased, therefore a clot developed. Nevertheless, Dr. Knowles stated that once
a post operation examination revealed little vaginal bleeding, a patient was discharged
from the hospital. Dr. Knowles also stated that post delivery bleeding can occur for up
to six weeks and that it took about the same time for the womb to return to normal. He
also recalled that, in this case, while the Plaintiff was in hospital, she was given the
strongest painkiller that the hospital had, namely pethidine, which is a morphine
derivative, which was to be given on demand. Cross-examination of Dr. Knowles
fortified his testimony in chief, as he was then able to expand upon his diagnoses and
treatment of the Plaintiff. It was of note that he clarified that he had discharged the
Plaintiff from hospital because she had very little vaginal bleeding and no blood clots.
He was also at pains to point out that there was a difference between a “large mass”
and a blood clot. A mass could be anything depending on its site, size, shape, surface,
consistency and contents and that it was not a correct medical diagnosis to describe
something as a large mass without a conclusion. Dr. Knowles looked at Dr. Hoyte’s
report where he pointed out the words “At home she (the Plaintiff) had pain and
bleeding and passed a large mass” and noted, correctly, that this was the Plaintiff’s
description and that Doctor Hoyte correctly stated that “the mass brought in a bottle
appeared to be mainly blood clot”. Doctor Knowles also confirmed that there was a
standard way to perform a “D and C” operation and that it reduced the risk of a large
mass forming. He also stated that since about 1997 he had performed about 5 to 10 of
these operations per week and that he never heard a patient come back to complain of
a large mass.
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Dr. Knowles was the only witness to testify on behalf of the Defendants.
In presenting her evidence the Plaintiff appeared to be honest but confused at
times, and in cross-examination her testimony was contradicted by the report of Dr.
Hoyte. On the other hand Dr. Knowles was a straightforward, candid and helpful
witness and his credibility remained unshaken by cross-examination; in fact, as was
pointed out above, cross-examination fortified his evidence in chief. In the
circumstances, I accepted the evidence of Dr. Knowles, as being a truthful
representation of the facts and circumstances in this case.
Submissions:
Counsel for the Defendants submitted that no case of negligence was made out
against the Defendants. The evidence of Dr. Knowles which was credible and
unshaken showed that standard procedures were followed from the admission of the
Plaintiff to hospital to her discharge therefrom. Counsel urged the court to accept that
what occurred in this case was merely a blood clot, which on the explanation of Dr.
Knowles, can occur as a natural phenomenon, and which, it was submitted was not
indicative of negligence. The only other medical testimony was a report from Dr. Hoyte,
whose testimony was not tested by cross-examination; in any event this report
supported the testimony of Dr. Knowles that the Plaintiff passed a blood clot and, in fact,
Dr. Hoyte did nothing medically to the Plaintiff, he merely examined her and even
prescribed the same drugs as did the doctors at the hospital. Counsel cited the
authority Whitehouse v Jordan (C.A.) 1980 1 All E.R. 65a at page 658, 659 and 651
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and, H. L. (1981) 1 WLR 246 at page 241 and submitted that the standard of proof of
negligence as against medical practitioners is based on a high degree of probability and
that there was no proof of negligence to the standard of a high degree of probability.
Counsel for the Plaintiff cited Mahon v Osborne (1939) 2 K. B. 14 (C.A.) and
Collins v Hertfordshire County Council (1947) K. B. D. 598 in support of the proposition
that medical men were expected to live up to a certain standard and that it was possible
to infer negligence in a medical man from the testimony of Doctors called for the
defence even if no doctors were called for the Plaintiff. Counsel went on to submit that
there was some evidence in this case from which it could be inferred that the doctor
who performed the “D and C” operation (not Dr. Knowles) had done the same
negligently. At this point Counsel for the Defendants objected that this was a new case
being raised and that his case was prejudiced since he did not call the doctor who had
performed the “D and C” operation as a witness. While I accepted the correctness of
the objection by Counsel for the Defendants, I allowed Counsel for the Plaintiff to
develop the submission de bene esse. Counsel for the Plaintiff contended that based
on Dr. Knowles’ statements at the close of his cross-examination that there was a
standard way to perform a “D and C” operation which reduced the risk of a large mass
forming and that he had never heard a patient come back to complain of a large mass, it
could be inferred that the fact that the Plaintiff had a “large mass” which turned out to be
a blood clot, post-operatively, suggested that the surgeon who performed the “D and C”
operation must have done the same in a negligent manner. Counsel for the Defendants
responded that assuming this was a submission which could be made in this case,
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there was no proof of there being a “large mass”, only a mass that was a blood clot,
which clotting was not proved to have occurred due to the negligence of anyone.
Findings:
In paragraph 5 of the Statement of Claim, it was alleged that “due to the
negligence of the medical and nursing staff at the Hospital by the 1st June, 1997 the
Plaintiff contracted a high fever and suffered pain and aborted her pregnancy. The
placenta was retained. On the 3rd June, 1997 a “D and C” (sic) operation was
performed on the Plaintiff who was discharged on the 4th June, 1997”.
Particulars of Negligence were filed on the 26th November, 1998. It is necessary
to set them out here:
“1. The medical and Nursing-Staff were negligent in that:-
A. They did not properly and professionally diagnoise the medical condition
of the Plaintiff and so treat her in order to avoid the loss of the pregnancy.
B. They did not properly and professionally diagnoise the medical condition
of the Plaintiff to ensure that after her discharge on the 4 th June, 1997 she
would not continue to experience severe pain and suffering.
C. They did not properly and professionally diagnoise the medical condition
of the Plaintiff to ensure that the Plaintiff would not have retained in her
system the “large mass” which she passed on 5th June, 1997 while at
home and which turned out to be a blood clot.
D. They did not properly and professionally diagnoise the medical condition
of the Plaintiff to ensure that upon her discharge the Plaintiff would not
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experience (a) excessive bleeding, (b) much pain in lower abdomen while
passing urine.”
On the pleadings, there was no allegation that the doctor who performed the “D
and C” operation did so in a negligent manner. The submission of Counsel for the
Plaintiff to this effect was, in my view, a new case being propounded in the addresses.
This case was not even put to the witness for the Defendants. In addition, the manner
in which the case was pleaded by the Plaintiff severely prejudiced the presentation of
the Defence since no allegation of negligence was squarely made against the doctor
who performed the “D and C” operation and so the Defendants did not foresee the need
for this witness; in that case it would have been highly unfair to the Defence to allow the
case to proceed on this submission.
In addition, it could not be seriously argued that the allegation that it was the
doctor who performed the “D and C” operation who was negligent was one that was
necessarily included in the Pleadings as expanded upon by the particulars. The
allegations therein contained related to a claim that the staff at the hospital did not
properly diagnose the medical condition of the Plaintiff so as to cause (a) the loss of the
pregnancy (b) to cause the Plaintiff to experience severe pain and suffering after her
discharge from hospital (c) to cause the Plaintiff to retain a large mass after her
discharge from the hospital (d) to cause the Plaintiff to experience excessive bleeding
and pain after her discharge from the hospital. A definition of the word diagnose in the
Concise Oxford dictionary 7th ed is - “to infer the presence of specified disease etc from
symptoms”. It was difficult to see how claims that there was an improper diagnosis of a
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medical condition must necessarily have included a claim that the performance of an
operation was negligent.
In the circumstances, an examination of the claim for negligence as expanded in
the particulars revealed the following.
Firstly, (see particular ”A” above) it was alleged that the medical and nursing staff
did not properly diagnose and treat the Plaintiff so as to avoid the loss of the pregnancy.
On the evidence, this case was not made out since Dr. Knowles did properly diagnose
the Plaintiff as having an inevitable abortion and treated her accordingly. It was not
even suggested in evidence that Dr. Knowles did anything incorrectly or negligently in
this regard.
Secondly, (see particular “B” above) it was alleged that the staff did not properly
and professionally diagnose the medical condition of the Plaintiff to ensure that after her
discharge she would not continue to experience severe pain and suffering. Based on
my acceptance of Dr. Knowles’ evidence that he followed standard procedure in
discharging the Plaintiff, who was experiencing very little bleeding and no clotting, this
allegation could not succeed. Further, it was not even suggested in the evidence nor in
the submissions that in the circumstances of this case, Dr. Knowles acted negligently in
discharging the Plaintiff from hospital.
Thirdly (see particular “C” above) it was alleged that there was no proper or
professional diagnosis of the medical condition of the Plaintiff to ensure that she would
not have retained a large mass which turned out to be a blood clot. Again I accepted
Dr. Knowles’ testimony that he properly diagnosed the medical condition of the Plaintiff
before discharging her from the hospital and this allegation could not succeed. Also, as
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in the case with particular “B” above, there was no suggestion in the evidence that the
Plaintiff’s medical condition on discharge was not properly diagnosed or that it was
negligent to discharge the Plaintiff in her condition. Further, the medical evidence did
not suggest that the Plaintiff “retained” a “large” mass which turned out to be a blood
clot. Rather, I accepted Dr. Knowles’ testimony that a clot probably developed post
operatively after the Plaintiff’s discharge from the hospital.
Fourthly, (see particular “D” above) a similar allegation as in “B” and “C” above
was made. It was alleged that the staff did not properly diagnose the medical condition
of the Plaintiff to ensure that upon her discharge she would not continue to experience
excessive bleeding and pain in the lower abdomen while passing urine. For similar
reasons as set out in dealing with particulars “B” and “C” above, this allegation could not
succeed.
In all the circumstances, the Plaintiff failed to prove any negligence of the
Defendants as was alleged in the pleadings and/or proved by the evidence.
In the event that I was wrong in not accepting that the Plaintiff could properly
have advanced a case based upon some alleged negligence of the Doctor who
performed the “D and C” operation, then I accepted as correct the statement of the law
as set out in Whitehouse v Jordan (supra) that the standard of proof in negligence
against medical practitioners is based on a high degree of probability.
As was stated above, it was submitted that the case for negligence in the
performance of the “D and C” operation was based on an inference from statements
made by Dr. Knowles to the effect that there was a standard way to perform such an
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operation which reduced the risk of a large mass forming and that in Dr. Knowles’ years
of performing the operation, he had never heard a patient complain about a large mass
forming. I accepted the submission of Counsel for the Defendants that there was no
medical proof of a large mass having been passed by the Plaintiff. What the report of
Dr. Hoyte confirmed was that there was a mass which was mainly a blood clot;
therefore the substance of the complaint of there being “a large mass” which had been
formed was not medically proved. In any event, the case for negligence in the operation
was, at best, based upon one of several possible inferences from the evidence. It could
also possibly be that Dr. Knowles himself never received a complaint even though
someone else may have suffered clotting; it could also possibly be that there was
another probable cause for the clotting as a result of some other procedure (e.g. an
examination post operation); it could also possibly be that the clotting was caused by
another medical condition existing in the Plaintiff; it could also possibly be that the
clotting was a natural occurrence to the Plaintiff, as a result of her aborted pregnancy.
That being the case, the possible inference of negligence, was not nearly proof on a
high degree of probability as is required in this area of negligence (see Whitehouse v
Jordan supra); neither could it be said that the clotting was itself proof of negligence in
the performance of the operation.
In the event that I set the barrier too high with respect to the standard of proof of
negligence, I considered the following factors to determine whether negligence in the
performance of the operation was proved on a balance of probabilities:
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Dr. Knowles, whose evidence I accepted as being correct, testified that bleeding
can occur post delivery for up to six weeks; he also stated that clotting may occur within
seconds especially if a patient is on bed rest; these factors suggested that the bleeding
and clotting which occurred here may very well have been natural phenomenon and not
linked to any negligence or fault in anyone.
Dr. Knowles also testified that his post operation examination revealed very little
bleeding and no clotting; these factors suggested that the operation itself was done
according to standard practice which reduced the risk of a large mass forming.
Dr. Hoyte, who saw the Plaintiff post operatively, did no corrective procedure nor
did he recommend a change in prescription; this suggested that there was no need for
any correction as a result of the surgery since it was not done negligently.
The ultra sound recommended by Dr. Hoyte revealed no retained products in the
uterus or swelling in the fallopian tubes; this suggested that the operation caused no
unusual injury to the Plaintiff.
In the circumstances, I also found that on a balance of probabilities, the case for
negligence in the performance of the “D and C” operation was not proved.
In all the circumstances, the Plaintiff’s claim was dismissed and the Plaintiff was
ordered to pay the costs of the Defendant. Upon the Attorneys for
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the Defendants undertaking not to tax a bill of costs before the expiration of six weeks
from my decision, no stay of proceedings was ordered.
Dated the 7th day of September, 2001
…………………………..
Justice Gregory Smith
JUDGE
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