Ruth Veapi v Matthew Kaluva in his capacity as the Chief Executive Officer and Others

• Jurisdiction: Papua New Guinea
• Judge: Bre, AJ
• Judgment Date: 28 March 2024
• Neutral Citation: N10707
• Citation: N10707, 2024-03-28
• Counsel: Mr M Koimo, for the Plaintiff,Mr J Bakaman, for the Defendants
• Docket Number: WS 1086 OF 2016
• Hearing Date: 23 October 2023,28 March 2024
• Court: National Court

N10707

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS 1086 OF 2016

Between:

Ruth Veapi

Plaintiff

v.

Matthew Kaluva in his capacity as the Chief Executive Officer, Kundiawa General Hospital

First Defendant

and

Dr. Nassar Gadelkarem

Second Defendant

and

The Independent State of Papua New Guinea

Third Defendant

Waigani: Bre, AJ

2023: 23 October

2024: 28 March

MEDICAL NEGLIGENCE — elements of negligence considered — duty of medical profession to patients — retained surgical instrument — 16.5cm metal retractor — lodged 8months — caused perforations of the bowel and bladder — faeces passing through urinary bladder — enteroversical fistula — second surgery done — medical complications still experienced — needs further surgery abroad — quality of life affected — liability established.

ASSESSMENT OF DAMAGES — considerations — impact of negligence on plaintiff's health and wellbeing — similar caselaw, evidence, economic conditions and reasonable judgment — damages awarded.

Facts

The plaintiff claims the defendants are negligent for pain and suffering caused to her when they carelessly left a 16.5 centimeter metal retractor in her abdomen after operating on her to remove an ovarian cyst. The retained surgical instrument caused perforations to her bowel and bladder causing serious medical and physical issues that required a second surgery to remove the surgical instrument. Her medical complications persist.

Held

The defendants owe a duty of care to the plaintiff to exercise professional medical skills, knowledge, competence, caution and care when performing surgery on 26 July 2014. They breached their duty of care resulting in the plaintiff developing enteroversical fistula, pain and suffering resulting in a second surgery on 16 March 2015. The plaintiff's fistula problems have not healed and she continues to suffer which has adversely affected her quality of life. The defendants' actions and omissions of the 26 July 2014 were reckless, without due care and regard for the sanctity of life and negligent. The defendants are directly and vicariously liable. The plaintiff is entitled to so much of the damages that can be reasonably assessed, considering evidence, case law and reasonable judgment.

Cases Cites:

Papua New Guinean Cases

Albert v Aine (2019) N7772

Figa v Agong (2012) N4707

Jack v Mola (2008) N3537

Jerry Goria v Sergeant Jeffery Simara & Ors (2001) N2066

Kunong v Paradise Private Hospital Ltd (2022) N9698

Limitopa v The State [1988–89] PNGLR 364

Luana v Fleming (2022) N9819

Mek v Kumi (2023) N10394

Moka v Motor Vehicles Insurance Ltd (2004) SC729

Oresi v Marjen (1998) N1784

Seeto v Dekenai Constructions Ltd (2023) N10172

Tirima v Angau Memorial Hospital Board (2005) N2779

Yaman v the State (2022) SC1942

Overseas Cases

R v Bateman [1925] 94 LJK B 791

Legislation

Judicial Proceedings (Interest on Debts and Damages) Act 2015, ss 4 and 6.

National Court Rules O4r7, O8r33(1)(g), O12r (6) (1), O22r11.

Counsel

Mr M Koimo, for the Plaintiff

Mr J Bakaman, for the Defendants

Kipes Law: Lawyers for Plaintiff

Solicitor General: Lawyers for First, Second and Third Defendants

28^th March 2024

1. Bre, AJ: INTRODUCTION: Ruth Veapi was operated on at the Kundiawa General Hospital on 26 July 2014 to remove an ovarian cyst. Six weeks later, she experienced sever pain. It was later discovered through an x-ray done in February 2016, that there was a foreign object in her abdomen. Seven months later, she underwent a second surgery on 16 March 2015, when a metal retractor used by medical doctors in surgical operations was found and removed from her abdomen. She has been experiencing medical complications and claims that the defendants are liable for medical negligence.

BACKGROUND

2. The proceeding has been set down for trial seven times, initially for 26 May 2019 according to the Court File endorsement record due to various reasons. On 12 September 2023, his Honour Makail J, issued directions for the parties to file affidavits and submissions and the trial of the proceeding to proceed on liability and assessment of damages on papers. The last date for any document to be filed was a reply by the plaintiff by 23 October 2023. The Court File was referred to me on 14 March 2023 after it took a while for the file to be located.

3. The Court issued directions for the plaintiff to rely on the affidavits listed in her Notice to Rely on Affidavits filed on 15 January 2019, the affidavit of Dr Sidney James filed on 02 March 2023 and his further affidavit filed on 18 September 2023. The defendants did not rely on any affidavits. The plaintiff was to file and serve her written submissions by 02 October 2023, the defendants to file their written submissions by 16 October 2023, with the plaintiff to file any reply by 23 October 2023.

4. The plaintiff's lawyer filed submissions on 01 October 2023, two days late. The defendants have not filed any submissions. I do not consider two days delay a material detriment and some four months have passed since the plaintiff filed her submissions with still no submissions filed by the defendants, I accept the plaintiff's submission and proceed to determine the issues.

PLAINTIFF'S CLAIM

5. The plaintiff's claim is one of medical negligence by the second defendant and the first and third defendants being vicariously liable by virtue of their employment of the second defendant. Dr Nassar Gadelkarem is alleged to have performed the operation to remove the ovarian cyst on 26 July 2014 which the plaintiff alleges left the metal retractor in her abdomen.

6. The plaintiff filed this proceeding two years after, on 29 August 2016. Excerpts of the Statement Of Claim pertaining to the cause of action and the relief sought are reproduced below:-

“1. The second defendant is, at all material times, an employed doctor for the Kundiawa General Hospital and is a medical specialist in Oncology and Gynaecology. He also heads the Obsteristic and Gynaecology at Kundiawa General Hospital. He is the employed doctor of the first and third defendants and is sued in his official employed capacity.

2. The third defendant is the Independent State of Papua New Guinea. It is the owner and operator of the Kundiawa General Hospital. Therefore, it is the employer and principal of the first and second defendants including any or all personnel employed by the Kundiawa General Hospital. Therefore, according to the Wrongs (Miscellaneous) Provision Act, it assumes all liabilities arising out of any acts or omissions committed by its servants and agents. It is sued pursuant to section 1 of the Wrongs (Miscellaneous) Provisions Act.

Particulars Of Duty Owed By The Second Defendant As Servant And Agents Of The First And Third Defendants

1. The second defendant owed a duty to the plaintiff to exercise all reasonable care, skill, diligence and competence as a medical doctor while conducting the surgery on the plaintiff.

2. It was an implied term of the plaintiff's contract as the patient of the second defendant that the plaintiff will be given professional surgical operation.

Particulars Of Negligence And Breach Duty By The Second Defendant As Servant And Agent Of The First And Third Defendants

1. The second defendant failed to ensure that all the medical instruments or tools used for the purpose of operation was removed from the plaintiff's abdomen before stitching the surgery area.

2. Because of the negligence by the second defendant in ensuring that all medical instruments or tools used for the purpose of operation was removed from the plaintiff's abdomen, the plaintiff suffered medical conditions pleaded in paragraph 13 above including sever pain and discomfort she endured all along.

3. The plaintiff has also suffered physical and emotional injuries and sustained; loss and damage as follows.

The Plaintiff Claims

a) Damages pleaded in paragraphs 13, 24, and 25 of the claim

b) General Damages

c) Special Damages

d) Interest

e) Costs

f) Any other order this Honourable Court deems proper.”

DEFENDANT'S CLAIM

7. The defendants filed their Notice of Intention To Defend on 21 October 2016 and Defence on 07 November 2016. The defendants admit to performing the operation on 26 July 2014 but deny negligently leaving the metal retractor in the plaintiff's abdomen.

PARTIES EVIDENCE

Plaintiff's evidence

8. According to the Court directions of 12 September 2023, the plaintiff relies on her affidavits outlined in her Notice to Rely on Affidavits filed on 15 January 2019 and those as stated in the directions of this Court:-

1) The Affidavit of Ruth Veapi filed on 08 May 2017

2) The Affidavit of Ruth Veapi filed 19 June 2017

3) The Affidavit of Dr Sidney James filed on 28 May 2017

4) The Affidavit of Dr Sidney James filed on 25 September 2023.

9. Dr Sidney James performed surgery on the plaintiff on 16 March 2015 to remove a medical metal retractor used in surgeries from the plaintiff's abdomen. He provides expert evidence about the plaintiff's medical condition and his findings and impact of medical complications on the plaintiff.

Defendant's evidence

10. The Court directions indicated the defendants will not rely on any evidence. The plaintiff has the burden of proof. The defendant did not file submissions.

PARTIES SUBMISSIONS

Plaintiff's submissions

11. Counsel for the plaintiff submits that liability has been proven by the evidence of Dr Sidney James and admissions by the first defendant to settle the matter. The defendants are negligent in not observing care, skill and diligence to operate on the plaintiff which has resulted in her suffering long-term medical complications that has greatly reduced her enjoyment of life and has adversely affected her usual way of life. The plaintiff contends, she has been recommended to undertake a major operation overseas and...