IN THE CIVIL DIVISION OF THE HIGH COURT AT LABASA ORIGINAL JURISDICTION. CASE NUMBER: HBC 29 of 2004 BETWEEN:

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1 IN THE CIVIL DIVISION OF THE HIGH COURT AT LABASA ORIGINAL JURISDICTION CASE NUMBER: HBC 29 of 2004 BETWEEN: ADI NOMAI VOTIMAISIRU as administratrix in the ESTATE OF MARIKA SAULAKI PLAINTIFF AND: THE GENERAL MANAGER - LABASA HOSPITAL 1ST DEFENDANT AND: THE PERMANENT SECRETARY - MINISTRY OF HEALTH 2ND DEFENDANT AND: THE ATTORNEY-GENERAL OF FIJI 3RD DEFENDANT Appearances: Mr. P. Lomaloma for the Plaintiff. Mr. Mainavolau for the Defendant. Date/Place of Hearing: Wednesday 13 February to Saturday 16 February, 2013 at Labasa.

2 Date/Place of Judgment: Thursday 19 September 2013 at Suva. Coram: The Hon. Justice Anjala Wati. JUDGMENT CATCHWORDS: MEDICAL NEGLIGENCE- ACTING IN ACCORDANCE WITH A PRACTICE ACCEPTED AS PROPER BY A RESPONSIBLE BODY OF MEDICAL MEN SKILLED IN THAT PARTICULAR ART. Bolam v. Friern Hospital Committee [1957] 1 WLR 582. The Claim 1. The plaintiff's husband was a military officer. He was on tour of duty in 2000 and he returned to Fiji in When he came home he has had pain in his left foot. He resigned from duty due to that pain. He died on 20 November, The wife claims that the husband died due to the negligence of the Labasa Hospital. She thus brings an action against the hospital for medical negligence. 3. In her claim she avers that on or about 21 March 2001 her husband was admitted at the Labasa hospital where he was diagnosed of cellulitis and ulcer of left foot or severe soft tissue infection of the left foot. He remained in hospital until 18 May 2001 and during that time underwent a number of surgical procedures including debridements and amputation of the second toe on his left foot. 4. The 1st debridement was conducted on 23 March 2001 by one Dr. Bale and the second on 26 March 2001 which included a wedge articulation of the 2nd left toe by Dr. Bale. 5. The first laboratory report of 22 April 2001 stated that there was growth of pseudomonas species on the infected area. A skin graft was further performed on the deceased on 9 May On 15 May 2001, the laboratory report further stated that there was heavy growth of pure pseudomonas aeruginosa. 6. On 18 May 2001 the deceased was discharged on crutches to return for review fortnightly as an outpatient. His foot did not heal even though he attended surgical clinic on numerous occasions between 18 May 2001 and December 2001 before finally being re-admitted to the hospital on 12 December 2001 where he went under further debridement and saucerization of the left foot before being discharged on 28 December 2001 to again attend surgical clinic as an outpatient. 7. The plaintiff says that her husband's condition still worsened and he was then advised to continue dressing and offered below knee amputation ("BKA") after being eventually diagnosed with osteomyelitis and calcaneum on or about June 2002.

3 The Defence 8. Her husband was further admitted to the hospital on November 2005 and was suffering from chronic osteomyelitis and septicaemia and chronic ulcer of the right buttock. 9. The plaintiff alleges that the 1st defendant negligently and unskillfully treated the deceased for the said condition and by reason of the negligence the deceased suffered injuries to his person and damages. The deceased continued to be severely infected with pseudomonas aeruginosa which resulted in his suffering from chronic osteomyelitis which in turn resulted in his eventual condition of septicaemia until his eventual death. 10. The plaintiff says that the defendant was negligent in the following ways: o Failing to diagnose the condition of the deceased properly and accurately upon initial presentation. o Failing to immediately recognize any other medical condition in the deceased other than the initial diagnosis. o Failing to recognize the existence of pseudomonas on the wound and acting on it in a professional manner. o Continued to perform a skin graft over an area infected with pseudomonas. o Allowing the deceased to be discharged from the hospital whilst he was infected with a heavy and pure growth of pseudomonas aeruginosa. o Failing to treat the existence of pure pseudomonas aeruginosa in the deceased. o Incorrectly performing the 1st debridement on 23 March 2001 which resulted in the operation of the wedge disarticulation of the 2nd toes on the 26 March o Failing to decrease the patient's physical suffering, pain and discomfort by not recognizing and treating his underlying condition immediately and in the first instance. o Failing to apply further possible means and aids to effective, accurate and early diagnosis and treatment such as the ordering of X-rays sooner than actually carried out. o Failed completely in its duty of care to treat the patient in a professional manner in the circumstances. o Not acting in accordance with the practice accepted as proper by responsible body of medical men skilled in that particular art of medicine. 11. The plaintiff claims special and general damages, interests and costs against the defendants'. 12. The defendants' deny any negligence on their part and state that in March 2001, the plaintiff's husband was admitted to the hospital for doubtful post traumatic infected ulcer on the left foot with severe cellulitis involving the entire foot. The defendants' say that a debridement was conducted on the deceased on 23 March 2001 and 28 March The 2nd debridement did not include wedge disarticulation. The defendants admit that a skin grafting was done to cover the open wound so the wound could heal faster. 13. The deceased was discharged by the hospital on 18 May 2001 to return for review fortnightly as an outpatient. The defendants' say that after the grafting of the

4 skin, the deceased's condition was reviewed by the hospital on 31 May His left wound skin graft was healthy and he was called for review after one month. 14. The deceased next came to the hospital on 5 July He was seen in the surgical clinic. He had been ambulating without crutches and had developed unhealthy ulcer on the grafted site. He was then posted for debridement in July in the minor operating theatre. Thereafter the deceased was seen in the clinic on follow-up visits. His left foot was granulating and he was advised to continue saline dressing. The wounds were not healing so the deceased was admitted to the hospital for wider debridement and saucerization of the foot wound. After a wide debridement and necrosed bone was curetted off, the deceased's foot was allowed to heal. He was discharged on 28 December 2001 and advised to continue dressing. 15. His condition was reviewed on 7 January 2002 and his left foot was healthy. His condition was reviewed again after three weeks and it was found that his wound was unhealthy. He was advised to be readmitted and the deceased did not turn up for admission. The plaintiff was next seen in hospital in June 2002 when he was offered BKA in light of the condition of his foot. The plaintiff failed to attend the hospital thereafter. 16. The deceased was further admitted on 7 November 2005 and he was then suffering from osteomyelitis and septicaemia as a result of pressure sores on the right buttock. He died from infected buttock wounds. The swab of 9 November 2005 showed that the bacteria e-coli was present and not pseudomonas. The Agreed Facts 17. The parties have agreed that the deceased was admitted at the Labasa Divisional Hospital in March 2001 and he was diagnosed as non diabetic and suffering from cellulitis and ulcer of the left foot. 18. He underwent two surgical procedures in March during admission to remove necrotic tissue and amputate the second toe of his left foot. During this same admission the deceased also had a skin graft performed in May. A laboratory report dated 21 April 2001 indicated a heavy and mixed growth of staphylococcus bacteria. The second laboratory pathology report of 24 April 2001 recorded a moderate growth of pseudomonas species. A third laboratory report dated 15 May 2001 notes a heavy and pure growth of pseudomonas aeruginosa. 19. The deceased was discharged on 18 May 2001 and thereafter he attended surgical clinic on numerous occasions after that and was readmitted in December 2001 for further treatment of the same condition. 20. His first X-Ray was ordered on 14 December A laboratory pathology report dated 19 December 2001 records a moderate and pure growth of pseudomonas aeruginosa. The deceased was discharged on 28 December 2001 and again attended surgical clinic for some time. 21. In January 2002 he was diagnosed with pyogenic osteomyelitis. In about July 2002 he was offered a BKA. 22. The deceased was further admitted to the hospital on 7 November 2005 and was suffering from chronic osteomyelitis and septicaemia and an ulcer on the right buttock. 23. He died on 20 November 2005 of septicaemia or blood poisoning. Triable Issues

5 24. The issues as agreed by the parties for determination are: 1. Whether the 1st defendant failed to diagnose the condition of the deceased accurately upon initial presentation. 2. Whether the 1st defendant failed to recognize any other medical conditions in the deceased other than the initial diagnosis. 3. Whether the surgical procedure performed on the deceased during the first admission in March 2001 to amputate the second toe of the left foot was a direct result of negligence during the course of the first surgical procedure. 4. Whether the 1st defendant failed to alleviate the physical suffering, pain and discomfort felt by the deceased by not recognizing and treating the underlying condition. 5. Whether the 1st defendant failed to exercise further possible means and aid to effective accurate and early diagnosis and treatment. 6. Whether the 1st defendant prolonged the deceased's condition to the extent where a BKA became the last and only option of treatment remaining. 7. Did the 1st defendant fail in its duty of care and was therefore negligent and liable for the damages suffered by the deceased. The Evidence, the Law and the Analysis 25. The first question for me to decide is whether when the deceased presented himself to the hospital on 21 March 2001 until 18 May 2001, was there negligence by the hospital to diagnose and treat him properly. 26. The plaintiff argues that the hospital was negligent in making a proper diagnosis of the deceased person's condition when he presented himself on 21 March 2001 and that a proper treatment was not provided to him before his first discharge from the hospital in 2001.

6 27. There is no evidence before me to suggest that the treatment given to the deceased as per his medical folder was improper, inadequate or incorrect. The doctors carried out a wound test immediately after the admission and gave the deceased the appropriate antibiotics to address the bacteria present in his wound. I find that debridement was necessary as well and so that was carried out. There is no evidence to suggest that the debridement was not necessary. What is suggested is that the debridement was done negligently. 28. The plaintiff states that the hospital was negligent in carrying out the first debridement of the deceased person's foot. The allegation is that the hospital debrided the left foot of the deceased negligently and cut the artery which supplied blood to the various parts of the body. This resulted in the cutting off the blood supply and resulting in the second toe of the deceased to die and thus requiring amputation. The plaintiff contends that when arteries are involved, care and precaution ought to be exercised when debridement is carried out and in no case shall the debridement of the arteries occur. 29. Dr. Jaogi gave evidence that when tissues, blood vessels and muscles are dead, all need debridement as there is no purpose of keeping it. The dead tissue blocks the function of the live tissues. The doctor also stated that practically the tissues, vessels and muscles are intertwined and thus care needs to be exercised when debridement occurs but it is in reality very difficult to separate the vessels from dead muscles and tissues. The doctor admitted that the second toe of the plaintiff needed amputation after the first debridement. 30. There is no contrary medical evidence before the Court that the deceased did not have dead tissues, blood vessels and muscles which needed debridement. There is further no medical evidence to suggest that if the blood vessel was not debrided, the deceased would not have lost the second toe. If the blood vessels were dead, eventually it would have resulted in the second toe being dead as well. The question is why was the second toe still active until the first debridement. I find that the loss of function of various parts of the muscles and tissues and blood vessel were eventual. The removal of the blood vessel which were dead and needed removal eventually completely cut off the blood supply leading to death of the second toe needing amputation. 31. The plaintiff has also failed to prove that the death of the second toe was as a result of the loss of blood supply to it. The deceased's foot was infected and as a result most tissue and muscles and blood vessels became dead. All these had to be debrided. If it was not, more damage would have occurred to the left foot and toes. It is for the plaintiff to prove on a balance of probability that the second toe died as a result of the blood supply being cut off to it and the plaintiff has not proved that on the balance of probability. Even if debridement did not occur, the 2nd toe would have died at some point because the blood vessels were dead too and it was affecting the live muscles. To save the live muscles, debridement had to be done. 32. The plaintiff states that if the hospital had treated the deceased properly, it would have detected at the first diagnosis that the plaintiff was suffering from osteomyelitis. 33. Dr. Jaogi stated that when the deceased was seen on 21 March 2001, an X-Ray was also ordered and if there was osteomyelitis the X-Ray report would have disclosed that. There is no contrary medical finding that proper medical tests were not ordered to reveal whether or not osteomyelitis existed and that the X-Ray report was not properly read to a proper diagnosis. The plaintiff's bare allegation is not enough to establish a case of medical negligence.

7 34. The plaintiff also alleges that the hospital should not have released the deceased from the hospital on 18 May 2001 which was the first discharge after the first admission. The plaintiff bases her case on the two swab results of 24 April 2001 and 15 May The swab result of 24 April 2001 indicated that there was moderate growth of pseudomonas aeruginosa and the report of 15 May indicated that there was heavy and pure growth of pseudomonas aeruginosa and having known that the hospital should have not released the patient from hospital. 35. Dr. Jaogi gave evidence that the patient was first admitted on 21 March The swab results of 24 March indicated that there was pseudomonas aeruginosa in the plaintiff's wound as a wound swab was done. A sensitivity test was carried out which indicated that when the deceased came to the hospital with pseudomonas aeruginosa, that bacteria was sensitive to the antibiotic named gentamycin. It was also sensitive to other drugs which were restricted and not available in Fiji markets. Subsequently, the doctor stated that a skin grafting was done and it was taken well which meant that the grafting healed. If there was presence of pseudomonas aeruginosa in the wound, it would not have healed. The plaintiff's witness doctor Bharti also stated the same thing. She stated that if a wound looks clean and healthy, the doctors can proceed to skin grafting. Doctors do not go out looking for bacteria but if there is bacteria present and grafting is done then the patient will have infection and fever. Fever will appear within 24 or 48 hours. 36. The plaintiff complains that if the result of 24 April showed that there was presence of pseudomonas, the doctors should not have proceeded to grafting. Dr. Jaogi explained this by saying that the result of 24 April 2001 does not state whether the bacteria was in the wound or the pus. He stated that the result of 15 May 2001 definitely stated that the bacteria was from the pus as the swab culture says that it is a pus swab. The doctor stated that that bacteria was acquired from the hospital as it was resistant to gentamycin and bacteria resistant to gentamycin is normally hospital acquired bacteria as when bacteria is exposed to a particular drug for a time, it acquires resistant to that drug. This indicated that the patient needed to go out of the hospital. The doctor further stated that the hospital may have obtained the wound swab result from the grafting before proceeding to perform skin grafting but unfortunately the results are not available on the medical folder. 37. I find that there was no impropriety on the part of the hospital to perform skin grafting on the patient. There is nothing to suggest that there was presence of bacteria in the patients wound before the grafting took place. Indeed as doctor Bharti says, the clinical assessment of wound and satisfaction that it looks clean and healing can result in skin grafting. The report of 24 April 2001 does not state that there was a wound swab and that bacteria was present in the wound. The swab result of 15 May definitely was not a wound swab so that cannot in any event conclude that there was bacteria in the wound. 38. If there was bacteria present in the wound, it would not have healed and the deceased would have started developing fever as a result of the infection but the medical folder notes post grafting indicates that the deceased had his vitals check and no abnormality was recorded. 39. Pus from wound is exposed to a lot of surface and can acquire bacteria such as pseudomonas. That necessarily does not mean that the deceased would have bacteria in the wound and grafting should not have been performed on the same. 40. The question then is: should the patient have been released from the hospital on 18 May 2001? The sensitivity test of 27 April and 15 May both indicated that the bacteria pseudomonas was resistant to gentamycin when it previously was not. That

8 led the doctors to believe that the bacteria was acquired from the hospital and the patient needed to be sent out. There was no available drug which could have been given to the plaintiff. 41. There is no contrary medical evidence presented to me to say what the doctors decided in the circumstances of the case was not the proper medical practice accepted as proper by a responsible body of medical men skilled in that particular art: Bolam v. Friern Hospital Committee [1957] 1 WLR I find that the doctors did not fail to analyse the report but that there was evidence that there was no bacteria in the wound because the skin grafting had taken well and that the only bacteria that was present was in the pus, which could acquire bacteria from the hospital surface and the doctors properly believed that the pus had bacteria acquired from the hospital due to its resistance to gentamycin, the patient needed to be released from the hospital. There was no available drug to discharge the patient with and if the patient was kept in the hospital there would not be any difference but more exposure to hospital acquired bacteria. 43. In the circumstances I find on a balance of probability that it was the only solution in the circumstances to release the deceased from the hospital. 44. The plaintiff again reported to the hospital in November, 2002 with infected wound in the same foot. He told the doctors that he was walking without crutches and applying warm compressors on the wound. 45. The plaintiff alleges that if the deceased had not been released from the hospital in May 2001 without being properly treated by pseudomonas aeruginosa then the wound would not have surfaced again in 2002 leading to the bacteria going to the bone of the left foot and causing osteomyelitis. 46. The plaintiff herself gave evidence that the deceased used to work on the farm with the bandage around the wound. She was inconsistent in her evidence when she initially in examination in chief stated that the deceased covered the front portion of his left foot and the heels were exposed but under cross-examination she retracted and stated that the heel used to be covered as well. 47. Dr. Jaogi and Dr. Bharti both gave evidence that pressure is not meant to be applied on skin grafted area unless the surgeon advises that the skin grafted portion is normal for use. Dr. Bharti stated that the graft is not as normal as the original portion. 48. I find from the evidence of Dr. Jaogi that the deceased was advised by the surgeon that he was not to expose his feet to surface and walk without crutches. The medical folder notes also indicate that the deceased was only to be released from the hospital after he was trained by the physiotherapist on crutches and indeed the physiotherapist trained the deceased. The deceased had to take care of the feet and his exposure to work on the farm re-infected the feet and caused the feet to be wounded again. If the wound had not healed from the initial discharge the deceased would have come back to the hospital immediately after but in this case nearly 3 months passed when the deceased came back to the hospital. This in itself makes me draw an inference that the second infection was as a result of the deceased neglecting medical advice and bad management of his wound. 49. The plaintiff also seems to complain that the skin grafting should not have taken place at the heel because that is the place where a lot of pressure is put on the foot. Dr. Bharti gave evidence that normally skin grafting does not take place at the heel but for cosmetic reasons it is done. When the skin was grafted, it was done to close the open wound and there was no negligence when the wound was grafted as the grafting healed as well and if the deceased managed it well, the second infection would not have occurred.

9 50. The deceased had also consented to the grafting. There is no issue regards this so I will not delve into why the grafting was done. 51. The plaint also extends to indicate that the hospital did not manage the wound properly initially when the infection spread to the patient's legs which led to the death of the deceased. 52. The plaintiff's husband returned to the hospital on 7 November He came to the hospital after 3 years. In July 2002 the doctors had advised him for a BKA and the deceased according to the medical notes had refused such option. I accept that this option was put to the deceased and having refused that he never returned to the hospital. When he returned he had pressure sores on the buttocks and the deceased had contracted quite an unrelated bacteria of e-coli and the deceased developed septicaemia and I accept Dr. Jaoji's evidence that the situation was beyond salvage then. There was no medical evidence to contradict Dr. Jaoji's evidence. It is clear from the notes of that day that the doctors had advised that the deceased should then in 2005 undergo AKA and the deceased had finally agreed and whilst the hospital according to its standard practice of giving 3 units of blood to the deceased waited for donors, the deceased died. 53. I have no reason and contrary evidence to disbelieve the evidence of Dr. Jaogi that although finally the deceased was offered AKA, his condition was beyond salvage and the hospital could do nothing within its control to save his life. 54. I do not find that the death of the deceased was to do with his initial condition or treatment in I rely on the medically uncontroverted report prepared by Dr. E.D. Talonga which was tendered by the defendants'. The report succinctly states that the plaintiff's husband died from a condition which was not related to his initial condition. The report reads: "On I had the chance to visit Labasa Hospital and requested that Mr. Saulaki's medical report and X-Ray films be made available to me. The report by Dr. Ogale (27/7/05) noted a grossly deformed left foot with tophic ulcers and osteomyelitis of the underlying bones. There is wasting of the muscle with a foot drop. These are findings of a neurological condition. They are usually painless with gross deformity from an underlying neurological condition. This would be the primary pathology and with loss of sensation to the foot, skin breakdown and secondary infection is a common complication. The first debridement of the left foot ( ) was for a severe soft tissue infection over the sole of the foot. Repeat debridement was done 3 days later together with amputation of a gangrenous second toe. Further surgery to the foot for debridement ( ) and skin grafting (9.5.01) were carried out. Osteomyelitis could be diagnosed clinically by the operating surgeon or by radiological changes on X Rays which usually takes 10 days to 2 weeks to appear. At that point in time there was no ulcer over the heel and perusing through the operating notes on 12/12/01, the area of the initial infection and skin graft was away from the heel under which osteomyelitis

10 of the calcaneum developed. In fact I had seen him in 2002 and had adviced on a below knee amputation. The intial wound swab grew Stalp aureus. The subsequent swabs showed Pseudomonas aeruginosa. Stalp aureus is a common cause of infection of the soft tissue whilst Pseudomona is not. Whether it is causing the infection which is a clinical diagnosis or it is merely colonizing the wound. The testing of the Pseudomonas cultures showed sensitivity to Gentamycin for which the patient was given drug as recorded in his drug chart. Mr. Saulaki's last admission was on The history noted that he was bed-ridden for more than three months. He was on a very sick state on admission presumably septicaemia. There was a large (8cm x 8cm) foul smelling ulcer which subsequently grew E-coli on culture. A repeat swab (10/11/05) grew E-coli and Beta-hemolytic Streptococcus (group G). Interestingly the swab of the left foot (14/11/05) did not grow any organism. In my opinion Mr. Saulaki's unfortunate demise was most likely to septicaemia from E-coli and Streptococcus from an infected pressure ulcer on his buttock. These are more virulent organism rather than Pseudomonas which if it causes the infection is of a chronic type. Anyway there was no growth from the left wound on this final admission". Final Orders 55. I have assessed all the alleged negligence on the part of the hospital and I come to the finding that the plaintiff has failed to prove on a balance of probability that the hospital was negligent in diagnosis of the plaintiff and negligent in treating him. 56. The trial took four days and 3 witnesses gave evidence. It was a very time consuming exercise for the defendants to compile all its documents and present its case. A lot of resources of the state have been consumed in this trial. The state is thus entitled to costs of the proceedings. 57. In the final analysis I do not find that the plaintiff has established its case on the balance of probability and thus I dismiss the claim.

11 58. I order that the plaintiff pays costs to the defendants' in the sum of $ So ordered. Anjala Wati Judge To: 1. Mr. P. Lomaloma for the plaintiff. 2. Mr. Mainavolau for the Defendants. 3. File: Labasa HBC 29 of 2004.