IN THE SUPREME COURT ACTION NO. CL - 78/20
TURKS AND CAICOS ISLANDS
INTERHEALTH CANADA (TCI) LIMITED
Before: The Hon. Mr. Justice Carlos W. Simons OBE QC
Appearances: Mr. Peter McKnight of McKnights for the Plaintiff
Mr Selvyn Hawkins and Ms Shantae Francis Attorneys of Misick and Stanbrook for the Defendants
Hearing Dates: 19th - 23rd & 26th & 27th July 2021 and 2nd – 4th May 2022
Venue: Court No. 5, Graceway Plaza, Providenciales
Date Delivered: Friday, 13 May 2022 via email
- The Plaintiff resides in Providenciales and at the time of the matters complained of he was the Manager of his father’s metal shop business. He is married to Ewa Gula, and they had two children at the time. They now have a third.
- The Defendant is the Owner and Operator of the Cheshire Hall Medical Center (CHMC), the sole secondary-acute public healthcare facility in the Turks and Caicos Islands (TCI) located, as its name suggests in Cheshire Hall, Providenciales.
- The matters complained of by the Plaintiff, arose between 5 September 2016 and 15 February 2018. On the latter date, following a colonoscopy at the Defendant’s Hospital, the Cheshire Hall Medical Center (CHMC) in Providenciales, a 6cm malignant tumor was discovered in the Plaintiff’s sigmoid colon which resulted in Plaintiff undergoing emergency surgery in the United States.
- The Plaintiff says that the Defendant’s medical staff at CHMC were negligent in not performing a colonoscopy earlier, as suggested by his general practitioners (GPs) Dr. Sam Slattery and Dr. Meghan O’Reilly at Grace Bay Medical Centre (GBMC). This might have revealed the existence of the tumor before it became life-threatening, and at a stage when the procedure for its removal would have been a more routine one and its effects a less life changing experience for the Plaintiff and his family.
- In the event, the failure of the Defendant’s medical staff to diagnose the tumor by performing the colonoscopy for a period of almost eighteen months and after four referrals allowed it time to grow to the point where its removal could only be achieved by major surgery involving the removal of part of the Plaintiff’s colon. As a direct consequence, the Plaintiff endured pain and suffering, loss of amenity, loss of life expectancy and other general and special damages for which he claims compensation.
- The essential facts of the case are not in dispute and are well documented on the papers. What is hotly disputed is the interpretation of those facts and the existence or non-existence of any duty arising from them. Nevertheless, a brief overview of the factual background is required for context – the tapestry as it were against which events have played out. The following, therefore, is a summary of the principal treatment events and the circumstances surrounding each.
- On 5 September 2016, after having presented to his GPs at GBMC complaining of abdominal painsfor some months previously and having not responded to the treatments prescribed by them and having lost weight to the tune of approximately 20 pounds, the Plaintiff was referred to CHMC by Dr. Slattery of GBMC.The referral was marked urgent and requested a consultation for “endoscopy OGD with biopsy? Colonoscopy if negative”. The reason for the referral was given as “gastritis and 2x of 3 fecal occult blood.”
- On 5 December 2016, the Plaintiff’s symptoms having worsened, he attended his GPs at GBMC and was referred again to CHMC, this time by Dr. O’Reilly. The referral mentioned the need for a colonoscopy due to “+ FOB borderline anemia”. The referral was classified as routine, although in her evidence Dr. O’Reilly said she was sure she had classified it as urgent, and that the classification was changed automatically and internally by the CHMC portal that had been made available. In any event, Dr. O’Reilly said in her evidence that she intended a colonoscopy to be performed on an urgent basis and suggested that any Doctor reading the referral would have understood that.
- On 19 December 2016, the Plaintiff attended at CHMC when he was seen by a Dr. Keresztely and following a brief consultation he was told by Dr. Keresztley that he needed to undergo both a colonoscopy and a gastroscopy and that someone from CHMC would contact HIM for scheduling. However, no one did.
- The Plaintiff again attended at CHMC on 8 February 2017. At the time he was suffering from “per rectum ‘mucus’ on and off – no real blood epigastric pain on and off’. This time he was seen by Dr. Bonnie Mauchaza, one of two general surgeons employed at the CHMC by the Defendant. The Plaintiff saw Dr. Mauchaza again on 22 March 2017 and on this occasion a prescription of omeprazole was issued.
- On 22 August 2017, Dr. O’Reilly of the Plaintiff’s GPs, GBMC referred him for a third time to the Defendant’s Hospital for a colonoscopy. The reasons stated – “2/3 + ve FOB fecal calprotectin 244 ongoing abdominal pain.” Eight weeks later, on 18 October 2017, the Plaintiff was seen by Dr. Mauchaza who booked a “non-urgent colonoscopy”. However, following the passage of hurricanes Irma and Maria in September of 2017 and the devastation left in their wake, the Hospital like most public services was operating on an emergency only basis and the Plaintiff’s non-urgent colonoscopy was never scheduled.
- This then brings us to 15 February 2018 when Dr. Slattery of the Plaintiff’s GPs, GBMC made what Mr. McKnight, the Plaintiff’s Counsel refers to as the 4th referral for a colonoscopy. The request was marked urgent and the reasons for the referral were stated as being “ongoing left side pain with bowel symptoms and change in bowel habits and elevated inflammatory markers and fecal calprotectin.” Dr. Slattery also noted, one imagines with some degree of exasperation, “this patient has been referred since 2016. Colonoscopy deferred by surgical team until December 2017. Still awaiting colonoscopy. Rigid sigmoidoscopy today shows non-inflammatory rectum and lower sigmoid but mucus +++ and Stool.”
- It was then that as described at Paragraph 3 above, the colonoscopy was carried out, the tumor was discovered, and emergence life-saving surgery was undergone at the Cleveland Clinic in Florida. Two post-surgery side effects were the Plaintiff’s intolerance to the chemotherapy treatment that was prescribed – he suffered an anaphylactic reaction after 8 of the 12 sessions that had been prescribed and the treatment had then to be abandoned. And he says he also suffered from retrograde ejaculation which caused him and his wife great stress as the condition threatened their plans for a third child to complete their family. Fortunately, that hurdle had been passed as the couple do now have that third child.
- The Plaintiff’s wife, Mrs. Ewa Gula, his father, Mr. Tibor Gula and his GPs, Doctor Slattery, and Dr. O’Reilly all gave virtually unchallenged evidence in support of the Plaintiff’s version of these events. Mr. Tibor Gula also gave evidence as to the Plaintiff’s loss of earnings and the effect of his illness on the general operation of the business.
- The Plaintiff’s expert witness was Dr. Milo Pulde. Although his credentials were challenged in the area of his expertise, he insisted that he alone among the expert witnesses engaged on either side, had the required knowledge and experience across the range of medical disciplines necessary to render a reliable opinion in the matter. He said the Plaintiff had a tumor and a colonoscopy would have revealed it. The Defendant’s medical staff did not undertake a colonoscopy because they were focused on the upper gastrointestinal system and did not pay sufficient attention to the lower intestine and rectum despite the presence of fecal occult blood, anemia, calprotectin 244 and PR mucus. They were in error and in his view, they were negligent.
The Defendant’s Case on Strike Out
- The first 37 Paragraphs of the Defendant’s Written Closing Submissions are devoted to the argument that the evidence of the Plaintiff’s expert witness, Dr. Pulde should be disallowed on the grounds that the Plaintiff had failed to disclose the totality of his medical records and reports. These the Defendant says would be necessary for the Court to assess quantum. The Defendant also argues that the non-disclosure also diminishes the evidential value of Dr. Pulde’s medical reports as he did not have these records himself in the preparation of those reports. I shall deal with these two points presently.
- The Defendant further does not accept Dr. Pulde as an appropriately qualified and experienced expert witness to comment on the issues in the case and says that both his written reports and his oral evidence should be struck from the record as “expert evidence” because he does not meet the requirements of the Bolam test. The Bolam test derives from the case of Bolam v. Friern Hospital Management Committee  1W.L.R. 583 and requires that the medical practitioner whose conduct is called into question be evaluated by a professional of the same or similar standing.
- At Paragraph 11 of their Closing Submissions the Defendant’s Counsel give a listing of the expertise and experience that they say are relevant to the issues in this case and they say that Dr. Pulde falls short of these. It is important to note that his professional qualifications are not being questioned, just his specialist expertise and experience as they relate to this case.
- In addition to Bolam, the Defendant’s Attorneys rely for their criticism of Dr. Pulde, on the cases of Pantelli Associates Limited  EWHC 3189 (relevant expertise); Armchair Passenger Transport Ltd. v. Helical Bar plc  EWHC 367 QB (expert’s interest in the outcome of proceedings and relevant expertise); and The Queen v. Bonython  38 SASR 45 (when expert evidence is permissible and the knowledge of the proposed expert).
- Having reviewed Dr. Pulde’s CV, and his witness statement and having heard his evidence, I am satisfied that he has the necessary expertise, knowledge, and experience to give expert evidence in this matter (Bolam and Pantelli); that he has no interest in the outcome of the proceedings (Armchair Passenger Transport Ltd.); and that the subject matter of his opinion forms part of the body of knowledge or experience which would render his opinion of value to the Court (Bonython). I therefore decline to strike Dr. Pulde’s evidence from the record as expert evidence or to strike out the Plaintiff’s claim.
- I note that in the Bonython case that is relied on by the Defendant (quoting from Paragraph 16 of the Defendant’s Closing Submissions) that King CJ stated expressly in discussing the suitability of a person to be called as an expert that a consideration to be taken account of “is whether he has acquired by study or experience sufficient knowledge of the subject matter to render his opinion of value in resolving the issues before the court.” I believe Dr. Pulde has acquired such knowledge by study and experience, and I therefore move on to consider the Plaintiff’s claim on its merits.
The Issue of Liability
- To succeed in a claim in medical negligence, a Plaintiff must show that the Defendant owed him a duty of care, that the Defendant acted in breach of that duty, that the breach of duty by the Defendant breach caused injury to the Plaintiff and that he suffered damage as a result. In the Bolam case, referred to at Paragraph 17 above, McNair sitting in the Queen’s Bench Division held that a Doctor who had acted in accordance with a practice accepted at the time as proper by a responsible body of medical opinion skilled in the particular form of treatment in question was not guilty of negligence merely because there was a body of competent professional opinion which might adopt a different technique.
- The Defendant’s reliance on the so-called Bolam test is in my view misplaced. In Bolam what is excused is application of “the particular form of treatment in question”. However, the failure alleged against the CHMC surgeons is a failure to carry out a procedure, namely a colonoscopy that would have revealed the existence of a tumor in the Plaintiff’s colon. Only then could any treatment be applied and the only treatment to be applied would have been the removal of the tumor, which the Plaintiff had done in Florida.
- The Plaintiff’s complaint against the Defendant is therefore not about treatment at all, but about a failure to diagnose the Plaintiff’s condition, a failure to discover the tumor by use of the only procedure that could have revealed it, a colonoscopy so that the proper treatment i.e., removal, could be applied. And this, despite very suggestive and successive referrals from the Plaintiff’s GPs at GBMC.
- The case of Bolitho v. City and Hackney Health Authority  4 All ER 771 is also relied on by the Defendant. There in the House of Lords, Lord Browne-Wilkinson delivering the judgment of the panel held that a Doctor could be liable for negligence in respect of diagnosis and treatment despite a body of professional opinion sanctioning his conduct, where it had not been demonstrated to the Judge’s satisfaction that the body of opinion relied on was reasonable or responsible.
- In most cases the learned Judge said, the fact that distinguished experts in the field were of a particular opinion would demonstrate the reasonableness of that opinion. However, in a rare case, “if…the professional opinion was not capable of withstanding logical analysis, the Judge would be entitled to hold that the body of opinion was not reasonable or responsible.” So, the professional opinion then must be logical in the view of the Judge. This nuance on Bolam by the House of Lords, is sometimes referred to as the “Bolitho gloss”.
- In my view, Bolitho also does not assist the Defendant either for the same reason that Bolam doesn’t i.e., because Bolitho was primarily a case of treatment and not diagnosis, which is what the Plaintiff in the instant case complains of. So, the simple question the Defendant must answer is, would the Plaintiff’s tumor have been discovered earlier had a colonoscopy been carried out, not what treatment would have been proper to be applied after the tumor was discovered.
- To the extent that Bolitho applies at all, I find that a body of professional medical opinion that holds that there was no need to carry out a colonoscopy, even out of an abundance of caution, to be illogical, unreasonable, and irresponsible, given the Plaintiff’s symptoms, and given the very suggestive and successive referrals from the Plaintiff’s GPs at GBMC.
- I therefore find the Defendant liable in clinical negligence in respect of its treatment of the Plaintiff, and I am fortified in that view by the evidence of the Defendant’s own expert, Professor Pat Price who obviously has a familiarity with giving expert testimony in these types of cases. Dr. Price was very professional, very dispassionate, and very balanced in her answers to Counsel’s questions. And on two separate occasions when asked, would the tumor have been discovered earlier had a colonoscopy been carried out, her answer was “yes”. When asked whether this constituted negligence she expressly deferred to the Court. That is the crux of the Plaintiff’s case against the Defendant, and the answer could not have been clearer.
- Dr. Pulde, who gave expert evidence for the Plaintiff and whose evidence I have refused to strike out and must therefore weigh, was much more emphatic. He said (paraphrasing) there is no question but that a colonoscopy would have revealed the presence of the tumor and that the failure of the Defendant’s surgeons to carry out a colonoscopy at an earlier stage was one of medical negligence.
- I further find that it was the Defendant’s negligence that caused the damage, loss and pain and suffering of which the Plaintiff complains in his Statement of Claim and I find that such damage, loss and pain and suffering was foreseeable.
- I accept the Defendant’s contention that the Plaintiff’s GPs at GBMC were in no position to issue directives to the Defendant’s surgeons and that the referrals were at best requests to review and provide further medical assessment or treatment of the Plaintiff. I have referred to these referrals at Paragraph 24 above as suggestive and successive of the Plaintiff’s GPs’ intentions. However, all three of Dr. Braithwaite, Dr. Mauchaza and Dr. Burgess in giving evidence for the Defendant made it clear that it is the attending physician’s own clinical judgment that directs and informs diagnosis and treatment regimens, and that this judgment is based upon the how the patient presents and what ailments he complains of.
- However, the Defendant’s liability here is founded upon the failure of its surgeons to undertake the one procedure that could have revealed the presence of the tumor the symptoms of which were consistent with his ailments and which they were requested to undertake on the face of the referrals. The failure to do so considering Professor Price’s answer to the question whether a colonoscopy would have revealed the presence of the tumor earlier appears to me to be an error of clinical judgment, and therefore negligent.
The Defendant’s Criticisms of the Plaintiff’s Pleadings
- At Paragraphs 43 to 50 of their Written Closing Submissions the Defendant’s Counsel set out various criticisms of the Plaintiff’s pleaded case, none of which I consider to be of sufficient substance to have prevented the Defendant from knowing what case it was required to meet at trial. Of interest however is the way Paragraph 49 is framed. The discussion there is based upon a question I asked regarding misdiagnosis. However, the finding of liability that I have made proceeds from and is informed by the failure of the Defendant’s surgeons to conduct a colonoscopy and thereby to discover the tumor. It is not based upon a mistaken diagnosis of gastritis for the tumor.
- Having been satisfied of the Defendant’s liability in negligence, I now move on to the heads of damage to be allowed and quantum. The Plaintiff’s loss and damage are in my view adequately pleaded at Paragraphs 29 through 39 of the Statement of Claim. The documents offered in support of the claim comprise a very comprehensive Schedule of Special Damages attached to the Statement of Claim at the time of filing in June 2020 and a no less comprehensive Amended Schedule of Special Damages updated as at June 2021. In addition, the underlying invoices and receipts are presented in Trial Bundle #4 at Tab 38 to 45 over pages 1130 to 1410. Finally, Mr. McKnight has very helpfully given an overview of general damages for pain and suffering, and loss of amenity based the Judicial College Guidelines and cases where in similar circumstances awards were made.
- I say at the outset that I do not allow the claim for loss of life expectancy. I base this decision on the evidence of Professor Price, who was adamant that the Plaintiff would be expected to continue to recover and that there would be no measurable loss of life expectancy and so no lost years claim.
- Taking next the Plaintiff’s Special Damages claim as set out at Paragraphs 51 to 53 of the Plaintiff’s Closing Submissions, I allow the sum of $163,484.35. This is the total of Table 1, Past and Future Losses, less 50% approximately of the item upcoming/projected expenses of $58,166.38. Notwithstanding that treatment giving rise to such expenses has not so far been medically prescribed, it is not unlikely, given the nature of the Plaintiff’s injuries, both physical and mental that in the fullness of time, issues might arise that require care and treatment. In its discretion and in pursuance of its overarching objective of achieving justice between the parties, the Court considers that the Plaintiff should have a hedge against such an eventuality, and that the award falls squarely within the scope of the standard “further or other relief” item of the prayer for relief.
- I allow the past lost loss of earnings claim in the sum of $61,945.00 based upon the items listed in Table 2 and their values.
- As I have said, based on the evidence of Professor Price, I deny the lost years claim.
- The Plaintiff’s claim for general damages for pain and suffering and loss of amenity is itemized at Paragraphs 47 to 50 of the Plaintiff’s Closing Submissions. I consider that both bowel injury and degradation of the reproductive system as manifested in retrograde ejaculation are properly claimed on the facts and on my findings.
- I accept Mr. McKnight’s approach at Paragraph 50 of his Closing Submissions and so, applying the JC Guidelines and adjusting the figure (GBP 80,466.00, USD $103,801.00) in the case of Connelly v. Cardiff and Vale University Health Board (Lawtel 2016) and adjusting that figure upwards to allow for the fact that it is six years old, and also to reflect the sexual dysfunction issue and the aggravating facts of the Plaintiff’s case I allow an award of $150,000.00 under this head.
- Based upon the above allowances, the Plaintiffs total award of damages to be paid by the Defendant would therefore amount to $375,438.35.
- The Plaintiff shall have his costs of the action on the standard basis, such costs to be taxed if not agreed.
Counsels’ diligence, assistance, and courtesies on both sides, especially given the time constraints, have been very much appreciated.
Hon. Carlos W. Simons OBE QC
Judge of the Supreme Court
13 May 2022