Julie Jack v Dr. Glen Mola

• Jurisdiction: Papua New Guinea
• Judge: Sevua J
• Judgment Date: 03 December 2008
• Citation: (2008) N3537
• Court: National Court
• Year: 2008
• Judgement Number: N3537

Full : WS 819 of 2002; Julie Jack v Dr. Glen Mola and Dr. Chris Marjen as Chief Executive Officer of Port Moresby General Hospital and The Independent State of Papua New Guinea (2008) N3537

National Court: Sevua J

Judgment Delivered: 3 December 2008

N3537

PAPUA NEW GUINEA

[In the National Court of Justice]

WS 819 of 2002

BETWEEN

JULIE JACK

Plaintiff

AND

DR. GLEN MOLA

First Defendant

AND

DR. CHRIS MARJEN as

CHIEF EXECUTIVE OFFICER OF

PORT MORESBY GENERAL HOSPITAL

Second Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Defendant

WAIGANI : SEVUA, J

2007 : 20 MARCH

2008 : 3 DECEMBER

MEDICAL PRACTITIONERS – Negligence – Pregnant wife – Blood test prior to delivery – Result of blood test HIV positive – Result communicated to plaintiff – Defendants’ failure to conduct another blood test prior to delivery – Plaintiff delivered child – Plaintiff’s child tested HIV negative – Damages – Assessment of.

MEDICAL PRACTITIONERS – Negligence by doctors and medical staff – Plaintiffs subsequent blood test after delivery – Result HIV negative – Plaintiff’s new born child 2

and husband submitted to blood tests – Results HIV negative for plaintiff, child and husband. – Damages – Assessment of.

MEDICAL NEGLIGENCE – Negligence by doctors and medical staff – Failure by defendants to conduct further blood tests on plaintiff prior to delivery – Advices by defendants for plaintiff to undergo counselling without further blood tests – Advice to plaintiff to undertake tubal ligation without further tests – Negligent advice due to no further HIV test on plaintiff’s blood sample – Tubal ligation based on negligence of defendants – Damages – Assessment of.

MEDICAL NEGLIGENCE – Damages – Assessment of – Plaintiff unable to conceive and bear children due to tubal ligation – Desire to have other children – Medically impossible due to sterilization – Plaintiff unable to have children – Opportunities existed for doctors and medical staff to have further blood tests but plaintiff not accorded the opportunity - Counselling and operation based on negligent acts and advices.

DAMAGES – Assessment of - General damages – Non-pecuniary losses past and future - Pain, suffering, loss of amenities, mental distress and/or anguish – Exemplary damages – Aggravated damages – Whether exemplary and aggravated damages should be awarded.

VICARIOUS LIABILITY – Severing the umbilical cord – A thought.

Ms. P. Sawanga/ Ms. A. Tagamasau for Plaintiff.

Held:

1. General damages for past and future non pecuniary losses such as pain and suffering, loss of amenities of life, mental anguish or distress is assessed at K100, 000.000 which is considered an appropriate and justified award.

2. Plaintiff became an innocent and unfortunate victim of the medical doctors’ and staff’s negligence which was quite unreasonable and highly culpable. An award of K175, 000.00 for loss of fertility or inability to conceive and bear children is not unreasonable in the circumstances.

3. Plaintiff is entitled to exemplary damages because the conduct of the servants and agents of the second and third defendants was not only negligent, but outrageous, malicious and done without due regard to the plaintiff’s rights. Legally and medically, the plaintiff was not infected with HIV virus as several tests after delivery of her child resulted in HIV negative results. Such conduct therefore merits punishment by an award of exemplary damages which is assessed at K50, 000.00.

4. The operation or surgery was aggravated by the negligent sampling of the plaintiff’s blood sample which subsequent tests proved HIV negative. The facts and evidence justify an award for aggravated damages as the conduct of the defendants’ servants and agents was an unjustified assault and an affront to the plaintiff’s dignity and rights. Therefore an award for aggravated damages is warranted and is assessed at K50, 000.00.

5. The sum of K490.00 in medical expenses is awarded as special damages.

Cases cited in the judgment.

Gima Oresi v. Chris Marjen & The State (1988), unreported, N.1784, 5th November, 1998

Jerry Goria v. Sergeant Jeffery Simara & Ors, (2001) unreported, N.2066.

Bullpit v. Gough, Judgment No. 2788, South Australian Supreme Court, 28th March 1991

Abel Tomba v. The Independent State of Papua New Guinea (1997), unreported, SC 518 7th June 1997

Australian Consolidated Press Limited v. Thomas Uren [1969] 1 AC 590

Koimo v. The State (1995), unreported, N.1322, 31st May 1995

More v. Tokam (1997), unreported, N.1645, 26th September 1997

3rd December, 2008

1. SEVUA, J : This is a trial on assessment of damages arising from a medical negligence claim where the plaintiff had undergone a surgical operation known as tubal ligation to prevent her from conceiving and having children.

2. Liability is not in issue and the defendants are not represented even though Court records reveal that the Solicitor General did appear by consent on various dates on behalf of the defendants prior to the date of trial on assessment of damages. This is another case of neglect by the office of the Solicitor General thereby adding a judgment debt to the coffers of the State.

3. It is noted that on 8th April 2005, the plaintiff consented to a notice of discontinuance against the first defendant, Dr. Glen Mola. Therefore the proceedings continued against the second and third defendants only.

4. However from the evidence, the tubal ligation was undertaken on the basis of original advice given by the first defendant and there is evidence against him. In my view the proceedings should not have been discontinued against Dr Mola in the fist place.

5. The facts which are deposed to in the plaintiff’s affidavit sworn on 26th February 2007 and filed on 27th February 2007 are these. These facts are undisputed.

6. The plaintiff was and still is employed as a Customs Officer with Customs Operations at Internal Revenue Commission and was 30 years at the time of assessment of damages on 20th March 2007. She was married to one Albert Kambar an Eastern Highlander who was employed as an Information Technology Manager with the Public Officers Superannuation Fund. They were married by custom and have been married for 7 years to the date of trial on assessment.

7. On or about 20th January 2000 the plaintiff, while in her fifth month of pregnancy, attended the ante-natal clinic at Port Moresby General Hospital where she underwent various checks and a sample of her blood was taken for tests. She was advised to return in a month’s time. In about February 2000, she attended her second ante-natal clinic. While waiting outside a consulting room, she was given a red card which indicated her status as a special case. A nurse by the name of Julie showed her into a room where she saw the first defendant, Dr. Glen Mola.

8. The first defendant then disclosed to the plaintiff that her blood sample taken in January during her first ante-natal clinic had been tested and she had tested HIV positive. The plaintiff said she was “totally shocked” at the news and could not believe what she heard. The first defendant later asked her about her previous relationships and discussed living with HIV with her. She was advised by the first defendant that if she wanted to live longer, given her HIV status, she should seriously consider a tubal ligation surgery 6 after the birth of her first child. The operation would prevent her from conceiving further children and from passing the virus to any child she might have later.

9. The first defendant showed the plaintiff a Consent for Sterilization Form. At this juncture, it is relevant to note what the plaintiff said. She said she looked closely at the form and noticed that the first defendant had crossed out a name and written her name instead. The plaintiff said she also noticed that in the marital status space where the husband or wife’s name should appear, the first defendant had written the word, “unmarried”. He gave the form to the plaintiff to sign, but she did not sign and held onto it and was silent. The first defendant then told her to take the document home and think about it and bring it on her next visit.

10. The plaintiff was asked by the first defendant if she came with anyone and she replied and said she had come with her husband who was waiting outside. She was told to get the husband inside which she did. The first defendant informed the plaintiff’s husband of the plaintiff’s blood test result and recommended that they should seriously consider tubal ligation. The first defendant also advised the plaintiff’s husband to have a blood test so he submitted to a blood test.

11. On 8th March 2000 the plaintiff and her husband returned to the hospital’s ante-natal clinic. They were advised by a Dr Haywood that the husband had tested HIV negative.

12. On 13th May 2000, the plaintiff gave birth to her first child, a...