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THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

Claim No. CV2015-01556

BETWEEN

SUZANNE DICKSON

(Next Friend of Shanyah Singh and Aaliyah Augustine)

Claimant

AND

DR. STEVE MAHADEO

First Defendant

MEDCORP LIMITED

Second Defendant

Before the Honourable Mr. Justice Robin N. Mohammed

Date of Delivery: Friday 26 June 2020

Appearances:

Mr. Gilbert Peterson S.C. and Mr. Kijana M. de Silva instructed by Ms. Dawn Gillian Seecharan

for the Claimant

Mr. Jonathan Walker instructed by Ms. Debra Thompson for the First Defendant

Mr. Simon de la Bastide instructed by Ms. Tamilee Budhu for the Second Defendant

DECISION ON FIRST DEFENDANT’S APPLICATION FOR SUMMARY JUDGMENT

FILED ON 8 MAY 2018

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I. Introduction and Procedural History

[1] Before this Court is the First Defendant’s Notice of Application dated 8 May 2018, seeking

summary judgment pursuant to Part 15.2 of the Civil Proceedings Rules 1998 (“the

CPR”).

[2] Before dealing with the application, it appears necessary to outline the procedural sequence

of events leading up to the application.

[3] This action was commenced by Claim Form and Statement of Case filed on 14 May 2015

initially against five defendants, namely: (1) Republic Bank Limited; (2) Dr. Anil Kumar;

(3) Dr. Steve Mahadeo; (4) Medcorp Limited; and (5) Dr. Dale Maharaj. In short, the

Claimant claimed (i) damages for negligence and consequential loss suffered by the

Deceased, Stacey-Anne Singh and/or the Deceased’s estate; (ii) damages for loss of

amenities and for pain and suffering occasioned on the Deceased; (iii) damages for the

death of the Deceased; and (iv) special damages. The Claimant thereafter filed an Amended

Statement of Case on 8 September 2015.

Republic Bank Limited, Medcorp Limited (herein after the Second Defendant) and Dr.

Anil Kumar entered their appearances on 11 September 2015, 18 September 2015 and 22

September 2015 respectively.

[4] The Court on 30 September 2015 ordered that it was satisfied that the service on Dr. Steve

Mahadeo (hereinafter the First Defendant) and Dr. Dale Maharaj by service on Medcorp

Limited on 10 September 2015 was deemed an acceptable and satisfactory alternative

method of service pursuant to Part 5.10 (3) of the CPR. Dr. Dale Maharaj and the First

Defendant thereafter entered their appearances on 14 October 2015 and 16 October 2015,

respectively.

[5] Republic Bank Limited filed its Defence on 20 November 2015. The Claimant filed her

Re-Amended Statement of Case on 23 November 2015. The Second Defendant filed its

Defence on 7 December 2015. Dr. Dale Maharaj filed his Defence on 13 January 2016 and

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his Amended Defence on 28 January 2016. Both Dr. Anil Kumar and the First Defendant

filed their Defences on 21 January 2016.

The matter was then assigned to my docket and the Case Management Conference was

fixed for 29 February 2016.

[6] On 3 May 2016, the Claimant filed and served a Notice of Discontinuance against

Republic Bank Limited, Dr. Anil Kumar and Dr. Dale Maharaj. The Claimant and the

First Defendant filed their Lists of Documents on 30 June 2016. The Second Defendant

filed its List of Documents on 15 July 2016, a supplemental List of Documents on 28 March

2017, a further supplemental List of Documents on 7 July 2017 and a second further

supplemental List of Documents on 14 July 2017.

The Agreed Bundle of Documents and the Un-agreed Bundle of Documents were filed on

30 September 2016 and an amended list to the Agreed Bundle of Documents was filed on

24 May 2017.

[7] On 26 October 2016, the Court ordered as follows:

In relation to the Claimant’s Notice of Application filed on 6 June 2016

1. The Claimant be appointed next friend for the minors Aaliyah Italee May Augustine

born on the 4th day of September, 2001 and Shanyah Jada Chelsea Singh born on the

23rd day of November 1998, the children of the deceased;

2. That pursuant to Part 26.7 of the Civil Proceedings Rules 1998 (as amended), that

the Claimant be granted relief from sanctions for failure to comply with Rule 23.7 of

the Civil Proceedings Rules 1998 (as amended).

In relation to the Second Defendant’s Notice of Application filed on 11 July 2016

1. The claim (“the Estate Claim”) made herein by Claimant in her purported capacity as

Legal Personal Representative for injuries and loss caused to Stacey Anne Singh (“the

Deceased”) and for the injuries and loss caused to the estate of the Deceased pursuant

to the provisions of the Supreme Court of Judicature Act Chapter 4:01 be dismissed;

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2. The following portions of the Claimant’s Re-Amended Statement of Case (“the said

portions of the Statement of Case”) be struck out as an abuse of process of the Court

and as disclosing no grounds for bringing this claim:

a. the following words at paragraph 1 – “… is the Legal Personal Representative…”

b. the following words at paragraph 2 – “…for injuries and loss caused to the

deceased by the Defendants and for the injuries and loss caused to the estate of

the deceased pursuant to the provisions of the Supreme Court of Judicature Act,

Chapter 4:01 and…”

c. Paragraph 35 save for the following words: “As a result of the several acts of

negligence recited above…. The deceased died on the 14th May 2011.”

d. Paragraph 36 save for the following words: “As a result of the Defendants

negligence… the dependants of the deceased have suffered and will continue to

suffer loss and damage” and

e. Paragraph 39.

[8] The Second Defendant by Notice of Application dated 14 March 2017 applied to Court for

an order that the Claimant file and serve on the Second Defendant further and better

particulars under paragraph 33 of the Re-Amended Statement of Case. On 5 April 2017,

the Court granted the request of the Second Defendant and ordered that the said particulars

be filed into Court on or before 28 April 2017. The Claimant complied with the Order of

the Court and filed her answer to the request for particulars on 28 April 2017.

[9] The First Defendant filed his witness statement on 20 March 2017. The Claimant filed her

witness statement on 7 July 2017. The Second Defendant filed witness statements of Dr.

Kongshiek Achong Low, Dr. Jose Ramon Burgos Irazabal and Annette Huskisson on 7

July 2017 and a witness statement of Dr. Balmiki Ramsaran on 14 July 2017.

[10] On 5 October 2017, the Court ordered by consent as follows:

1.The Claimant be granted leave to lead expert evidence at Trial from Professor Hubert

Daisley.

2.Permission is granted to the First Defendant to call:

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a. Dr. Robert Macfarlane, Consultant Neurosurgeon as an Expert Witness at the

Trial of the matter and to put into evidence an Expert Report of Dr. MacFarlane;

and

b. Dr. Istvan Bodi, Consultant Neurosurgeon as an Expert Witness at the Trial of

the matter and to put into evidence an Expert Report of Dr. Bodi.

3.Dr. Keith Aleong is hereby appointed as an expert witness in this action.

4.Mrs. Denise Israel-Richardson is hereby appointed as an expert witness in this action.

5.All expert reports from named experts in this Order to be completed and filed into

Court by 31 January 2018.

[11] The Expert Report of Dr. Hubert Daisley dated 30 January 2018 was filed into Court on

31 January 2018 on behalf of the Claimant.

On 31 January 2018, the First Defendant filed the following Expert Reports into Court:

1. Dr. Robert MacFarlane, Consultant Neurosurgeon:

(i) Report dated 14 December 2017;

(ii) Preliminary Report dated 5 December 2015; and

(iii) Letters of Instruction dated 8 November 2017 and 25 November 2015.

2. Dr. Istvan Bodi, Consultant Neurosurgeon:

(i) Report dated 5 July 2016 with updated addition as at 30 January 2018;

(ii) Letters of Instruction dated 8 November 2017 and 17 June 2016.

The Second Defendant filed the Expert Report of Dr. Keith Aleong into Court on 31

January 2018.

[12] The First Defendant thereafter filed his application for summary judgment pursuant to

Part 15.2(b) the CPR on 8 May 2018.

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II. Factual Background

The Claimant’s case

[13] The Claimant is the biological sister of Staceyanne Singh, (hereinafter referred to as “the

Deceased”) and the next friend of Shanyah Singh and Aaliyah Augustine, the daughters

and dependents of the Deceased. The Deceased was an employee of Republic Bank

Limited (hereinafter referred to as “RBL”) and worked as a Customer Service Officer at

the Park Street Branch in Port of Spain. The Deceased died on 14 May 2011.

[14] On 12 August 2008, the Deceased, whilst at work at RBL Park Street, Port of Spain, was

sitting on a chair which collapsed, causing her to fall to the floor. From this fall she

sustained injuries resulting in RBL directing that she receive treatment from its doctors

located at the Second Defendant’s facility.

On 13 August 2008, the Second Defendant’s medical staff examined the Deceased. The

Deceased’s back pain persisted and she returned to the Second Defendant’s facility where

Dr. Sooknanan examined and referred her to Dr. Anil Kumar.

On 18 August 2008, Dr. Kumar examined the Deceased and advised her that surgery was

not required. He recommended that the Deceased take painkillers and that she proceed on

twenty-one (21) days sick leave. Dr. Kumar referred the Deceased to Sandra Cheong for

physiotherapy. The Deceased began physiotherapy on 21 August 2008 but she continued

to endure severe pain and suffering.

[15] On 12 September 2008, the Deceased returned to Dr. Kumar and he referred her for a

MRI, which she received on 18 September 2008. The Deceased returned to Dr. Kumar

on 29 September 2008; he prepared a medical report and advised that the Deceased’s

injury was minor and surgery was not required. Dr. Kumar sent the Deceased on twenty-

eight (28) sick days leave and referred her to Joy Rodney-Wilkes for physiotherapy.

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The Deceased started physiotherapy on 16 October 2008 and continued into November

2008 but she continued to endure severe pain and suffering. On 6 January 2009, Dr.

Kumar prescribed and performed a Caudal Epidural Steroid Injection on the Deceased.

The Deceased continued to endure pain and suffering; in or around March 2009, Dr.

Kumar discharged the Deceased from his care and referred her to the First Defendant and

also to Dr. Godfrey Araujo, an orthopaedic surgeon at the Fracture and Orthopaedic

Clinic.

On 23 April 2009, the Deceased left leg went numb and she was unable to move it. The

Deceased continued to endure severe pain and suffering. Consequently, she switched

from physiotherapy to hydrotherapy.

[16] By letter dated 6 May 2009, RBL authorised the referral of the Deceased to the First

Defendant and Dr. Araujo. On 7 May 2009, the First Defendant examined the Deceased

and the MRI dated 18 September 2008. The First Defendant diagnosed that the

Deceased’s symptoms were as a result of diseased discs which were coming out of the

socket in her lower back. The First Defendant, accordingly, advised that the Deceased

should have surgery.

On 11 May 2009, the Deceased visited Dr. Araujo who advised her to seek a second MRI

which she obtained on the 13 May 2009. The Deceased returned to Dr. Araujo who

advised her that she required a Lumbar Laminectomy and he referred her to the First

Defendant. On 27 May 2009, the First Defendant examined the Deceased and advised

that surgery be performed. A quotation was prepared for the Deceased for her to submit

to RBL which she in fact submitted on the same day.

[17] The Deceased continued to endure severe pain and suffering. In or around July 2009, RBL

contacted the Deceased and told her that she was required to attend an appointment with

Dr. David Toby on 14 July 2009. The Deceased visited Dr. Toby who also advised that

surgery was required.

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The First Defendant examined the Deceased on 7 August 2009, 19 August 2009 and 9

September 2009. He informed her that the required surgery was not yet approved by RBL.

The Deceased continued to endure severe pain and suffering. On 14 September 2009,

RBL approved the Deceased’s surgery, which was performed by the First Defendant at

the Second Defendant’s facility on 25 September 2009.

[18] Subsequent to the Deceased’s surgery performed by the First Defendant, an x-ray

revealed that a piece of surgical blade or surgical equipment was negligently left in the

Deceased’s body by the First Defendant and/or the medical staff of the Second Defendant.

The Claimant’s particulars of negligence of the First and/or Second Defendant, their

servants and/or agents were listed as follows:

a. Failing to examine the Deceased’s body adequately or with sufficient care or at all

to note the presence of the surgical blade or equipment;

b. Failing to take sufficient care while conducting the surgery;

c. Failing to ensure that no surgical equipment was left in the body of the Deceased;

d. Failing to provide sufficiently experienced staff with sufficient surgical expertise

to examine the Deceased pre-operatively and post-operatively;

e. Leaving piece of the surgical blade or surgical equipment in the Deceased’s body.

[19] After the surgery, the Deceased continued to endure severe pain and suffering. She was

unable to walk for the first three (3) days and thereafter had to use a walking stick in order

to do so. She was unable to bathe for the first five (5) days. She obtained a urinary tract

infection from the catheter. She needed sleeping tablets to sleep. The Deceased could not

feel her left leg and she was required to take painkillers for the severe pain.

The Deceased was required to visit a doctor every week. On 9 November 2009, the

Deceased began physiotherapy with Joy Rodney-Wilkes, however, the Deceased’s pain

and suffering became worse. On 16 December 2009, Dr. Mahadeo examined the

Deceased and administered a steroid injunction for her pain.

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The Deceased continued to endure pain and suffering. On or about 4 January 2010, the

First Defendant referred the Deceased to Total Rehabilitation Centre Limited for

physiotherapy. The Deceased continued this therapy and eventually returned to

employment with RBL during the month of April 2010 and worked for four (4) hours per

day.

[20] By June 2010, the Deceased again began to suffer from severe pain in her left leg. She

was examined by the First Defendant and referred to Dr. Dale Maharaj. On 28 August

2010, Dr. Maharaj performed a venal scan on the Deceased who advised her that she had

a leaking vein in her left leg and that laser surgery was required. Dr. Maharaj performed

the surgery on 30 September 2010.

The Deceased continued to endure pain and suffering. By 11 October 2010, her entire left

leg was black and blue. The Deceased contacted Dr. Maharaj who advised her that those

symptoms were normal. On 15 November 2010, the Deceased received a steroid injection

from the First Defendant for the severe pain. The Deceased had to stop her physiotherapy

because her left leg became worse. On 14 January 2011, Dr. Maharaj examined the

Deceased who assured her that everything was fine. Notwithstanding this, the Deceased’s

condition continued to deteriorate and she continued to endure severe pain and suffering

in her left leg.

[21] On 17 January 2011, the First Defendant examined the Deceased who advised her that

two screws, which were placed in her back from the previous surgery, were broken. He

advised her that she had to undergo further surgery. On 18 January 2011, Dr. Derrick

Lousaing carried out a full examination and assessment of the Deceased.

On 16 February 2011, the First Defendant again examined the Deceased; he advised her

that a steroid injection had to be administered to her left leg. Dr. Roderick Bhagan

administered this steroid injection on 3 March 2011. On 14 March 2011, the First

Defendant examined the Deceased and thereafter, the Deceased was admitted to the

Second Defendant’s facility for surgery on 28 April 2011.

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[22] The Deceased went into a coma on 7 May 2011 and died on 14 May 2011. It is the

Claimant’s case that the death of the Deceased was caused by the negligence of the

Defendants. The Claimant’s particulars of negligence of the Defendants were listed as

follows:

a. Failing to conduct a proper examination of the Deceased;

b. Failing to heed the Deceased’s medical history;

c. Failing to properly observe and analyse the signs and symptoms of the Deceased’s

condition;

d. Wrongly referring the Deceased to physiotherapy;

e. Wrongly concluding that a steroid injection was required for the Deceased’s leg;

f. Administering a steroid injection to the Deceased’s leg;

g. Failing to provide sufficiently experienced staff with sufficient surgical expertise

to examine the Deceased pre-operatively and post-operatively;

h. Failing to take proper precaution during surgery in the circumstances;

i. Wrongly administering anti-coagulant therapy in the circumstances.

The First Defendant’s case

[23] The First Defendant, in response, admitted that the Deceased was referred to him by letter

dated 1 May 2009 from Dr. Kumar and that the Deceased was in his care from 7 May

2009 to 14 May 2011. He further admitted that he examined the Deceased on 7 May 2009

and advised that she should have surgery. The First Defendant, however, denied that he

is a partner, employee or agent of the Second Defendant. He averred that he is an

independent medical practitioner who has been granted practising privileges at the St.

Clair Medical Centre.

The First Defendant contended that he examined the Deceased; took her history and

reviewed her x-rays and a MRI scan that had been performed in September 2008. Upon

completion of this examination and review of the Deceased’s records, the First

Defendant’s diagnosis of the Deceased was a desiccated intervertebral disc at the L5-S1

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level and that there was a central protrusion of the disc into the spinal canal by

approximately 4mm.

The First Defendant further contended that he recommended surgical intervention and

offered the Deceased two options, namely, (i) a simple L5-S1 micro discectomy; and (ii)

Lumbar discectomy and fusion using pedicle screws, rods and cage. However, prior to

conducting any surgery, the First Defendant requested that the Deceased do another MRI

scan. This scan confirmed the Deceased’s diagnosis but went on to show an anterior slip

of L5 on S1 vertebra thus suggesting mechanical instability, which required fusion.

[24] The First Defendant admitted that he examined the Deceased on 27 May 2009 and advised

her that surgery should be performed. The First Defendant further admitted that he

examined the Deceased on 7 August 2009, 19 August 2009 and 9 September 2009. He

advised her that the surgery was not yet approved by RBL. On 25 September 2009, the

First Defendant performed the surgery on the Deceased at the Second Defendant’s facility

after RBL’s approval on 14 September 2009.

[25] The First Defendant averred that in the course of carrying out the Deceased’s surgery, a

small piece of the dissecting scalpel blade tip unexpectedly broke off. The First

Defendant, however, denied that said broken portion was negligently left in the

Deceased’s body or that it was only discovered subsequent to the surgery.

The First Defendant instead averred that he immediately noticed that the tip had broken

and attempted to retrieve same. However, he was unable to do so as it became lodged in

the anterior longitudinal ligament whereupon the he ceased all efforts to pursue it as it

carried the risk of it being pushed into the iliac vein or the Deceased’s bowel, either of

which could have had catastrophic results.

[26] The First Defendant further averred as follows:

(i) He was not the manufacturer of the dissecting scalpel;

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(ii) He was not responsible for supplying and did not supply the tools and equipment

for the surgery including the dissecting scalpel;

(iii)He had requested a Becton Dickinson surgical blade for the surgery but unknown

to him, blades from the manufacturer were not available and a different blade from

a generic manufacturer had been procured instead;

(iv) The tip broke notwithstanding the exercise by the First Defendant of all reasonable

care and attention and without any negligence on his part;

(v) The day following the surgery, the First Defendant apprised the Deceased as to

what had happened and gave her the option of a further surgery to remove the

broken tip or to monitor it for 6 months, and in the event of further movement or

other complications to then proceed with the surgery;

(vi) The Deceased agreed to the option of deferring the surgery and monitoring the tip

for any movement or complications;

(vii) Subsequent x-rays showed no movement of the broken tip; and

(viii) The presence of the broken tip resulted in no injury, damage or pain to the

Deceased nor did it cause or contribute to her subsequent demise.

The First Defendant denied that he was responsible for or under a duty to provide staff

with surgical expertise to examine the Deceased either pre-operatively or post-

operatively. He averred that at all material times, the Deceased was properly examined.

[27] The First Defendant contended that there is an average recovery period of approximately

six (6) months following a procedure of this nature, during which a patient will endure

some pain and will require physiotherapy and follow up visits. The First Defendant

admitted that on 16 December 2009, he administered a steroid injection to the Deceased

and that in June 2010, he examined the Deceased again and referred her to Dr. Maharaj.

[28] The First Defendant admitted that he examined the Deceased on 17 January 2011 and

advised her that two screws which were placed in her back were broken. He further

averred that the pedicle screws fractured on account of the failure of the Deceased’s

vertebrae to fuse and occurred without any fault or negligence on his part.

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The First Defendant further admitted that he examined the Deceased on 16 February 2011

and advised that a steroid injection be administered to her left leg. He again examined her

on 14 March 2011. He averred that she was admitted for surgery on 28 April 2011 to the

Second Defendant’s medical facility.

[29] The First Defendant averred that the Deceased started to deteriorate on or around 30 April

2011 and went into a coma on the afternoon of 30 April 2011 and not 7 May 2011 as

claimed by the Claimant in her Re-Amended Statement of Case. The First Defendant

admitted that the Deceased died on 14 May 2011. However, he denied that the death of

the Deceased was caused by any negligence on his part whether as alleged in paragraph

33 of the Re-Amended Statement of Case or at all.

[30] The First Defendant further averred as follows:

(i) At all material times, he conducted a proper examination of the Deceased,

reviewed and heeded her history, properly observed and analysed the signs and

symptoms of her condition in accordance with the practice accepted as proper by

persons skilled in practice of neurosurgery;

(ii) At all material times, his referral of the Deceased for physiotherapy following the

surgery was proper and appropriate and in accordance with the practice accepted

as proper by persons skilled in practice of neurosurgery;

(iii)At all material times, the suggestion and/or administration of a steroid injection

by him was proper and appropriate and in accordance with the practice accepted

as proper by persons skilled in practice of neurosurgery;

(iv) At all material times during the surgery, he took all precautions required and/or

accepted as proper by persons skilled in practice of neurosurgery;

(v) At all material times, the administration of anticoagulation medication post the

second surgery conformed to the practice accepted as proper by persons skilled in

the practice of neurosurgery.

[31] The First Defendant averred that the autopsy report provided by Dr. Daisley does not

accurately record the cause of death of the Deceased and that it contained a number of

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significant errors that impacted its ultimate findings. The First Defendant further averred

as follows:

(i) The opinion expressed in the report was arrived at on the incorrect factual basis

that the surgery was carried out on 5 May 2011 and that the Deceased fell into a

coma on 7 May 2011.

(ii) As a consequence of the above mistake in the timing of events, Dr. Daisley failed

to appreciate and/or consider that there was a period of approximately 2 weeks

between deterioration of the Deceased and her subsequent death and thus has

mistaken findings that occurred secondary to the Deceased’s deterioration with

the primary cause of deterioration.

(iii)Dr. Daisley failed to appreciate that the Deceased had been effectively brain dead

for two weeks prior to her circulation ceasing and that she had developed

secondary organ failure in the interim as a result.

(iv) Dr. Daisley’s diagnosis of primary haemorrhage is inconsistent with the clinical

evidence including (but not limited to) the Deceased initially responding to the

administration of Naloxne; the absence of any complaints of headaches and the

absence of any sign of intracranial haemorrhage in the 2 CT scans performed on

the Deceased prior to her death.

(v) Dr. Daisley’s opinion failed to take any or any proper account of the fact that the

Deceased received the standard and appropriate dose of post-operative

anticoagulant.

(vi) Dr. Daisley’s opinion failed to take any or any proper account of the fact that the

Deceased’s platelets and clotting at the time of her admission to the ICU were

within the parameters expected following surgery and anticoagulation with

Clexane and inconsistent with haemorrhaging.

(vii) Dr. Daisley’s diagnosis failed to take any or any proper account of the fact that

there was no haemorrhaging at the site of the surgery.

[32] The First Defendant further averred that the Deceased’s condition was the result of a

period of hypoxic encephalopathy which occurred through no fault, act or omission on

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his part and that this in turn led to brain swelling with a secondary rise in intracranial

pressure leading to secondary brainstem/cortical infarction.

[33] The First Defendant denies that he was negligent or that the Deceased’s death or any

alleged injury, pain and suffering or loss of amenity was as a result of any negligence on

his part. The First Defendant admitted that the Deceased underwent physiotherapy but

averred that the alleged pain and suffering and the claimed effect on the Deceased’s social

and domestic pursuits (not admitted) were caused by the Deceased’s underlying condition

and not through any act or omission on his part.

III. Application for Summary Judgment

[34] By Notice of Application filed and served on 8 May 2018 supported by affidavit of Debra

Thompson, attorney-at-law for the First Defendant, the First Defendant applied to the

Court for Summary Judgment on the entire Claim or part thereof pursuant to Part 15.2(b)

of the CPR 1998. The application is premised on the ground that the Claimant has no

realistic prospect of success on her claim or that part of her claim against the First

Defendant set out in the Particulars of Negligence at paragraph 22 and/or paragraph 33 of

the Re-Amended Statement of Case.

[35] Ms. Thompson contended that the grounds upon which the Claimant relies in support of

her plea that the First Defendant was negligent are set out in paragraphs 22 and 33 of the

Re-Amended Statement of Case and that the Claimant’s evidence is contained in the

witness statement of Suzanne Dickson and the expert report of Dr. Hubert Daisley.

Ms. Thompson deposed that Suzanne Dickson’s witness statement provides the factual

background which was within her knowledge while the Daisley Report sets out Dr.

Daisley’s medical opinion as to what caused the Deceased’s death. It was contended that

Dr. Daisley opined that the death of the Deceased was attributed to an overdose of the

narcotic Pethidine following the surgery on 28 April 2011. It was, however, stated that

none of the allegations of negligence as it relates to the First Defendant as set out in

paragraphs 22 and 33 of the Re-Amended Statement of Case are neither dealt with in

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Suzanne Dickson’s witness statement nor Dr. Daisley’s report. It was therefore submitted

stated that these allegations are not supported by any evidence led by the Claimant.

[36] Ms. Thompson stated that from the documents in the Agreed Bundle and in particular the

Physician’s orders and the medication records, the following can be gleaned:

(a) There were two instances in which the First Defendant gave an order or instruction

that concerned pethidine. They were: (i) at 8.25am on 29 April 2011 when the First

Defendant directed that the PCA (the pump controlled by the Deceased to self-

administer) be replenished twice. However, it did not direct the dosage but it was

soon followed by an instruction from Dr. Benjamin that indicated the dosage; and

(ii) on 30 April 2011 when the First Defendant directed that the PCA was to be

discontinued and thereafter the Deceased was to be given pethidine on an “as-

needed” basis for pain no more than 4 hourly (i.e. every four hours); and

(b) No pethidine was administered to the Deceased on 30 April 2011 following the

discontinuation of the PCA.

[37] Ms. Thompson further deposed that the Claimant has led no evidence that the First

Defendant prescribed or administered any dosage of pethidine that caused or contributed

to the Deceased’s death. Further or in the alternative, the Claimant has led no evidence

that the First Defendant breached any standard of care; that the evidence upon which the

Claimant relied falls woefully short of identifying any standard that ought to have been

observed but was not observed.

It was stated that Suzanne Dickson’s witness statement does not address this nor does the

Dr. Daisley’s report suggest (or set out a clear basis from which it could be inferred) that

no responsible medical practitioner skilled in the field of neurosurgery would have

prescribed pethidine for pain in the dosage that was prescribed in the instant case.

Ms. Thompson deposed that in the circumstances, the Claimant’s claim is not supported

by any evidence and such evidence as has been led by the Claimant does not establish

any breach by the First Defendant of the standard of care that he owed to the Deceased.

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[38] Ms. Dawn Seecharan, attorney-at-law for the Claimant, in response, stated that the

evidence contained in Suzanne Dickson’s witness statement and Dr. Daisley’s report raise

a prima facie inference that the accident was caused by negligence on the part of both

Defendants and that it is for the Defendants, if they choose, by their evidence to provide

an adequate answer to this prima facie inference.

It was stated that paragraph 33(a), (b), (c) and (g) of the Re-Amended Statement of Case

are addressed in Dr. Daisley’s Report at paragraphs 31, 32, 33, 34, 45, 46, 47, 49, 50, 54,

55, 56, 58, 60 and 63. It was further stated that Dr. Daisley at paragraph 68, observed that

the symptoms of pethidine overdose were observed as early as 29 April 2011 and at

paragraph 63, he observed that the First Defendant thereafter ordered by telephone the

administering of the drug Narcan which is known to reverse the effects of pethidine.

Therefore, the First Defendant’s conduct at this material time has therefore been raised

by Dr. Daisley and is an issue for determination by this Court.

[39] Ms. Seecharan further deposed that even if no pethidine was administered to the Claimant

on 30 April 2011, this does not negate the findings of the Dr. Daisley Report since it

appears that a more aggressive approach to reverse the fatal effects of the administration

of this drug ought to have been undertaken and that these are issues which ought to be

fully interrogated during the course of a trial.

It was further stated that the allegations set out in paragraph 33 concern the medical

treatment provided to the Deceased while she was under the care of both Defendants.

Therefore, an overdose of medication while under their care must be a relevant issue for

determination and is to be drawn from the available evidence as to the probable causes of

the death of the Deceased.

Ms. Seecharan further stated that the Court will be asked to determine whether it was the

responsibility of the First Defendant to observe, treat and reduce the impact of the

overdose of pethidine. Accordingly, the Court will only be able to make this

Page 18 of 40

determination on a full enquiry of all the evidence including the evidence presented by

the First Defendant and on his behalf.

[40] In accordance with the directions of the Court, written submissions were filed by the First

and Second Defendants on 29 June 2018 and by the Claimant on 6 July 2018. Response

submissions were filed by the First Defendant on 23 July 2018 and by the Second

Defendant and Claimant on 24 July 2018.

IV. Submissions

On the part of the First Defendant

[41] Counsel for the First Defendant, Mr. Jonathan Walker, submitted that the allegations of

negligence set out in paragraph 22 of the Re-Amended Statement of Case are not linked

to any of the damages claimed by the Claimant in paragraphs 35 to 39 of the Re-Amended

Statement of Case. He further submitted that there is no evidence to support the claims at

paragraph 33 of the Re-Amended Statement of Case and the related damages as set out in

paragraphs 34 to 39 of the Re-Amended Statement of Case.

[42] Counsel advanced that some of the allegations in paragraph 33 of the Re-Amended

Statement of Case are broad, particularly 33(c) which states there was a failure to properly

observe and analyse the signs and symptoms of the Deceased’s condition. It was

submitted that this allegation does not identify with any sufficient particularity, the signs

and symptoms that the First Defendant failed to observe. He added that this allegation

must be viewed in the context of the pleadings, in particular the reliance on the autopsy

report of Dr. Daisley attached to the Re-Amended Statement of Case.

Counsel submitted that the pleaded failure to observe the Deceased’s signs and symptoms

could only relate to the use of anti-coagulant therapy since the autopsy report concluded

the cause of death was brain stem haemorrhage as a consequence of the usage of anti-

coagulant therapy. He submitted that it cannot be contended that the Claimant was

advancing a case of negligence as a result of the use of pethidine.

Page 19 of 40

[43] Counsel contended that the only evidence proffered by the Claimant in support of the

allegation that the death of the Deceased was caused by negligence is found in Dr.

Daisley’s medical report. In this report, Dr. Daisley concluded that the Deceased suffered

“brain death” which occurred as a result of a hypoxic brain injury caused by severe

respiratory depression arising from an overdose of pethidine.

[44] Counsel for the First Defendant submitted that none of the claims of negligence advanced

against this Defendant has a realistic prospect of success on the grounds that (i) the

Claimant has led no evidence in support of the allegations of negligence that were set out

in the Re-Amended Statement of Case as it relates to the First Defendant; (ii) the matters

advanced in the expert evidence filed by the Claimant do not fall within the Claimant’s

pleaded case; and (iii) in any event, it is insufficient to support a finding that the First

Defendant breached any standard of care.

Counsel advanced that there are three issues which the Court will be required to determine

in resolving this application, namely: (i) whether there is evidence to support the

Claimant’s pleaded case; (ii) whether the matters contained in Dr. Daisley’s report fall

within the pleaded case; and (iii) whether there is sufficient basis for the Court to find that

the First Defendant was negligent, i.e. whether there is evidence that the First Defendant

fell below the required standard of care.

[45] Counsel submitted that the Claimant must lead evidence to support the various allegations

of negligence that were advanced in her pleadings. He submitted that the Claimant has

failed to do so since neither the witness statement of Suzanne Dickson nor the medical

report of Dr. Daisley supports any of the claims pleaded in the Re-Amended Statement

of Case against the First Defendant. He contended that the Court must consider each of

these allegations to see if they are supported by the contention in Dr. Daisley’s report that

the death of the Deceased was caused by an overdose of pethidine.

Counsel considered each allegation of paragraph 33 of the Re-Amended Statement of

Case. It was submitted that there is nothing in Dr. Daisley’s report which supports the

Page 20 of 40

allegations made at paragraph 33(a), (b), (d), (e), (f), (g), (h) and (i) of the Re-Amended

Statement of Case.

He, however, submitted that the only allegation of negligence that has the potential to be

relevant is the allegation at paragraph 33(c): “failure to properly observe and analyse the

symptoms of the Deceased’s condition” before pethidine was prescribed and/or

administered. However, he added this allegation was advanced in the context of and/or

was supported or explained by the autopsy report dated 17 May 2011 attached to the Re-

Amended Statement of Case, which concluded that the death of the Deceased was a brain

stem haemorrhage as a consequence of the usage of anti-coagulant therapy. He contended

that this conclusion was abandoned by Dr. Daisley in his medical report dated 30 January

2018 wherein he concluded that the cause of death was due to an overdose of pethidine.

[46] Counsel contended that this new allegation in the medical report was not covered by

paragraph 33 of the Re-Amended Statement of Case. It was submitted that the Claimant

did not mention “pethidine” nor did she advance any criticism in respect of the

administration of pethidine to the Deceased anywhere in the Re-Amended Statement of

Case. The only reference to pethidine was in the autopsy report where the Deceased’s

medical history was recounted and it stated that her pain was temporarily relieved with

pethidine and that her cause of death was as a result of another drug.

[47] Counsel submitted that Dr. Daisley, in his medical report, does not attribute the breaking

of the surgical blade as being connected with the death of the Deceased nor does he say

that the broken surgical blade was as a result of any fault or failure on the part of the First

Defendant. Counsel contended that Dr. Daisley wrongly assumed that the surgeon did not

realise that the tip had broken and does not provide any view as to whether no reasonable

surgeon would have left it in place in view of the significant risks involved in attempting

to remove it.

It was further contended that Dr. Daisley’s report does not aver criticism of the way the

first operation was conducted by the First Defendant or the decision to leave the broken

Page 21 of 40

tip in place. Dr. Daisley only suggested that leaving the broken tip would have contributed

to her pain and discomfort without any medical support. As such, Dr. Daisley does not

give any opinion to support the allegation that the First Defendant was negligent owing

to the breaking of the surgical blade.

[48] Counsel, therefore, submitted that neither Suzanne Dickson’s witness statement nor Dr.

Daisley’s report contains evidence that supports a finding that the First Defendant is guilty

of negligence as alleged in paragraphs 22 and 33 of the Re-Amended Statement of Case.

As such, the Claimant has no evidence to prove that the death of the Deceased was caused

by the negligence of the First Defendant.

[49] Counsel advanced that the matters set out in Dr. Daisley’s report do not fall within the

Claimant’s pleaded case and as such cannot be considered by the Court. He submitted

that Dr. Daisley, in his medical report, opined that the Deceased suffered from brain

damage caused by a lack of oxygen which resulted from an overdose of pethidine. It was

submitted that the pleadings do not contain any allegation regarding the administration of

pethidine let alone that there was an overdose. Furthermore, there is no scope for an

inference from the pleadings that the First Defendant acted negligently in the

administration of pethidine or that there was any issue of an overdose of pethidine.

Counsel contended that the Claimant must be held to her pleaded case and to allow the

Claimant to pretend that the specific allegation made in Dr. Daisley’s report was covered

by the broad allegation made in paragraph 33 of the Re-Amended Statement of Case

would be to allow for trial by ambush more so when one considers the contents of the

autopsy report. Therefore, since there is no pleading regarding the prescription or

administration of pethidine, the Claimant cannot proceed to rely on any such evidence as

against the First Defendant.

[50] Counsel, however, submitted that even if the Court finds that any of allegations made by

the Claimant could include the prescription or the administration of pethidine, the

Claimant’s case still stands no realistic prospect of success. This is so because the

Page 22 of 40

Claimant has not adduced any evidence that pethidine was administered to the Deceased

due to any act or omission on the part of the First Defendant.

It was contended that (i) neither Suzanne Dickson’s witness statement nor Dr. Daisley’s

report suggests that the First Defendant prescribed or administered pethidine to the

Deceased; (ii) the Claimant has led no evidence that the First Defendant prescribed or

administered any dosage of pethidine that caused or contributed to the Deceased’s death;

and (iii) the First Defendant did give directions which involved or concerned pethidine

on two occasions, however, the First Defendant had no involvement in the dosage of

pethidine to be administered. Thus, there can be no question of the First Defendant being

responsible for any alleged overdose.

[51] Counsel submitted that to have any prospect of success, the Claimant must plead and

prove not only that the First Defendant owed a duty of care to the Claimant but that (a)

the First Defendant breached that duty of care by failing to meet the relevant standard of

care; and (b) the Claimant suffered damage as a result of this breach. It was further

submitted that the Claimant has the burden of adducing evidence from which the Court

can conclude that the First Defendant failed to act in accordance with the standard

accepted as proper by a responsible body of medical practitioners skilled in the field of

neurosurgery.

[52] Counsel contended that if there is evidence that pethidine was administered to the

Deceased by or on instruction or direction of the First Defendant, there is no evidence

that the First Defendant breached any standard of care. The matters set out in Susan

Dickson’s witness statement do not address the standard of care nor does it suggest that

no responsible medical practitioner skilled in the field of neurosurgery would have

prescribed pethidine either at all or in the dosage that was prescribed in this case.

Counsel submitted that while Dr. Daisley’s report touches on pethidine, he does not

explicitly suggest that no responsible medical practitioner skilled in field of neurosurgery

would have prescribed pethidine at all or in the dosage that was prescribed in this case.

Page 23 of 40

He added that there is no information from which the Court could safely imply or infer

that no responsible medical practitioner in the field of neurosurgery would have

prescribed pethidine for pain in the dosage that was prescribed. Furthermore, it does not

provide what would be the standard dose of pethidine in these circumstances. As such,

the Court is left to guess what amounts to the overdose.

[53] Counsel also contended that there is nothing in the medical report that suggests or

supports any accusation that the breaking of the blade was due to negligence. It did not

address whether any responsible medical surgeon would have decided to not remove the

broken tip given the location in which it had become lodged.

He added that Dr. Daisley did not support his contention that the piece of surgical blade

would have contributed to the Deceased’s back pain. He also did not address the question

of whether the breaking of the blade could be contributed to negligence on the part of the

First Defendant nor the decision not to interfere with the broken blade.

[54] Counsel, therefore, submitted that the evidence falls short of the type of evidence required

to raise a prima facie case far less prove on a balance of probabilities that the First

Defendant acted negligently.

On the part of the Claimant

[55] Counsel for the Claimant submitted that Dr. Daisley’s report is very relevant to a

determination of the issue of the First Defendant’s liability. Counsel asked that the Court

considers the witness statement of Dr. Jose Ramon Burgos Irazabal (witness of the

Second Defendant) and the witness statement of the First Defendant and the likelihood of

the evidence relevant to the issue of liability being elicited under cross-examination.

[56] Counsel contended that Dr. Daisley, in his medical report, outlined the observations made

by the First Defendant regarding the deteriorating condition of the Deceased prior to her

demise. Counsel further contended that the role played by the First Defendant in the

Deceased’s post-operative care is a live issue (captured by paragraph 33 of Re-Amended

Page 24 of 40

Statement of Case) and one which is supported by the evidence and the documents

presently before the Court.

He also added that the particulars outlined in paragraph 33 of the Re-Amended Statement

of Case are not only relevant but they are live issues having regard to all the evidence that

is currently before the Court. It was contended that an overdose of medicine and failure

of the First Defendant to recognise the changing condition of the Deceased and the

symptoms stemming from such an overdose is a real issue for determination. It was

submitted that a fair assessment of this issue and all evidence before the Court can only

be undertaken at trial.

[57] Counsel advanced that paragraph 33 of the Re-Amended Statement of Case had made

clear the general nature of the case against the First Defendant. Paragraph 33(c) of the

Re-Amended Statement of Case alleges that the First Defendant failed to properly observe

and analyse the signs and symptoms of the Deceased’s condition. Dr. Daisley’s report

provides further amplification to this allegation. As such, the First Defendant’s

application ought to be dismissed.

On the part of the Second Defendant

[58] Counsel for the Second Defendant, Mr. Simon de la Bastide, was granted permission, if

he wished, to provide submissions on the First Defendant’s application dated 8 May 2018.

Counsel for the Second Defendant submitted that the Court must take into account not

only the evidence filed in respect of the present application but also the witness statements

and expert reports filed herein, in determining the First Defendant’s application – in

particular, the issue as to whether the Claimant has a realistic prospect of success.

[59] The Second Defendant agreed with the First Defendant that there is nothing in the witness

statements or in the expert reports filed by the Claimant nor in the evidence filed by the

Claimant in opposition to the Application that suggests that the surgical blade fragment

was left in the body of the Deceased by virtue of any negligent act or omission on the part

of the First Defendant, Second Defendant or its medical staff.

Page 25 of 40

Counsel submitted that if the only allegation of negligence was that pleaded at paragraph

22 of the Re-Amended Statement of Case, then the Claimant’s claim against both

Defendants would have no reasonable prospect of success and both Defendants would be

entitled to summary judgment. However, the Court notes that the Second Defendant has

not filed an application for summary judgment on any part of the Claimant’s Claim before

this Court.

[60] Counsel, however, submitted that based on Dr. Daisley’s report, it can be reasonably

expected that there will be some evidence available at the trial to support the Claimant’s

allegations of negligence set out at paragraph 33 of the Re-Amended Statement of Case.

In the absence of cross-examination and/or any comment of the Defendants’ experts on

Dr. Daisley’s report, the Court is not in a position to say at this stage of proceedings that

the Claimant has no realistic prospect of success.

[61] Counsel further contended that Dr. Daisley in his report opined that the Deceased’s death

resulted from an overdose of pethidine. It was contended that paragraph 70 of Dr.

Daisley’s medical report supports the Claimant’s pleaded case at paragraph 33 of the Re-

Amended Statement of Case that the Deceased’s death was caused by the negligence of

the Defendants in (a) failing to conduct a proper examination of the Deceased; and (b)

failing to properly observe and analyse the signs and symptoms of the Deceased’s

condition.

It was also submitted that Dr. Daisley’s opinion that the medical records reflect that the

surgeons managing the Deceased prescribed pethidine for the Deceased and/or

administered same to her in the face of her presenting symptoms of a pethidine overdose

“may” on the face of it constitute evidence of a failure on the First Defendant’s part to

conduct a proper examination and failure to properly observe and analyse the signs and

symptoms of the Deceased’s condition. Furthermore, his opinion that the Deceased’s

death was caused by a pethidine overdose is evidence which supports the Claim that the

alleged negligence of the First Defendant in prescribing pethidine for the Deceased and

administering same to her caused her death.

Page 26 of 40

[62] Counsel contended that although the Claimant does not plead in her Re-Amended

Statement of Case that the Deceased suffered from a pethidine overdose, the fact is

pleaded in the further and better particulars filed by the Claimant on 28 April 2017 in

response to a request for Further and Better Particulars from the Second Defendant.

It was advanced that it is true that the Claimant did not plead that the First Defendant was

negligent in administering or prescribing a pethidine overdose. Nonetheless, the Claimant

pleaded that the Defendants were negligent in failing to analyse or observe the Deceased’s

condition, that is to say, the condition of being overdose with pethidine. Accordingly, Dr.

Daisley’s report is evidence that it is in the context of the Defendant’s negligence in

failing to determine that the Deceased was overdosed with pethidine that the First

Defendant prescribed pethidine to the Deceased.

[63] Counsel submitted that the applicable standard of care, which the First Defendant was

required to meet in prescribing pethidine to the Deceased, was the standard of the ordinary

competent physician or specialist whose expertise or specialty is in prescribing

medication such as pethidine as part of the post-surgical treatment for patients.

Counsel contended that if there is no evidence contradicting Dr. Daisley’s report that the

medical records indicate that the First Defendant prescribed pethidine for the Deceased

at a time when she presented symptoms of pethidine overdose, the Claimant may not be

required to adduce evidence that the reasonable competent physician would not prescribe

pethidine in order to establish that fact, as same could be reasonably inferred.

[64] Counsel contended that in such a case, the onus lies on the First Defendant to adduce

evidence to establish that he was acting in accordance with a practice accepted as proper

by a responsible body of men in prescribing pethidine for a patient notwithstanding the

patient appeared to be overdosed with that medication. However, it is open for the Court

to hold the First Defendant negligent under the Bolitho principle on the basis that that

practice was not reasonable or responsible.

Page 27 of 40

[65] Counsel thus contended that it cannot be said that the Claimant has no realistic prospect

of success in establishing the claim simply because there will be no direct evidence at the

trial that the relevant ordinary competent physician would not have prescribed pethidine

for the Deceased at the time she was showing symptoms of pethidine overdose.

It was further contended that the issues as to whether the Deceased suffered a pethidine

overdose or died from a pethidine overdose and the related issue as to whether the First

Defendant acted in breach of the duty of care owed to the Deceased can only properly be

determined by the Court after the witness statements and expert reports filed for all parties

are tendered into evidence and is tested by way of cross-examination.

[66] Nevertheless, Counsel emphasised that the Second Defendant denies and disputes the

allegations that the Deceased suffered a pethidine overdose, showed symptoms of such

an overdose and that pethidine was administered to the Deceased at a time when she was

suffering from a pethidine overdose.

V. Issue

[67] The main issue arising for determination is as follows:

1. Should the Court award summary judgment pursuant to Part 15.2(b) of the CPR

against the Claimant on the basis that the Claimant has no realistic prospect of

success on her Claim and/or the Particulars of Negligence at paragraph 22

and/or paragraph 33 of the Re-Amended Statement of Case?

In answering this question, the Court will consider:

(i) Has the Claimant shown in her Re-Amended Statement of Case and/or any

medical report before the Court, any reasonable evidence upon which

negligence could be attributed to the First Defendant for the cause of death of

the Deceased as particularised so as to sustain an action in medical negligence

against the First Defendant?

Page 28 of 40

VI. Law and Analysis

[68] The application for summary judgment is governed by Part 15 of the CPR. Part 15.2

provides as follows:

“The court may give summary judgment on the whole or part of a claim or

on a particular issue if it considers that—

(a) on an application by the claimant, the defendant has no realistic

prospect of success on his defence to the claim, part of claim or issue; or

(b) on an application by the defendant, the claimant has no realistic

prospect of success on the claim, part of the claim or issue.”

[69] The basic principles of summary judgment have been well-established and settled in case

law. The authority of Western United Credit Union Co-operative Society Limited v

Corrine Ammon1 which referred to the decisions of Toprise Fashions Ltd v Nik Nak

Clothing Co Ltd and ors2 and Federal Republic of Nigeria v Santolina Investment

Corp.3, is often cited for its comprehensive outline of the basic principles as follows:

(i) “The Court must consider whether the defendant has a realistic as

opposed to fanciful prospect of success: Swain v Hillman 2001 2 All ER

91;

(ii) A realistic defence is one that carries some degree of conviction. This

means a defence that is more than merely arguable: ED & F Man Liquid

Products v Patel 2003 E.W.C.A. Civ 472 at 8;

(iii) In reaching its conclusion the court must not conduct a mini trial: Swain

v Hillman;

(iv) This does not mean that the court must take at face value and without

analysis everything that a defendant says in his statements before the

court. In some cases it may be clear that there is no real substance in

1 Civ App No 103 of 2006 [3] per judgment of Kangaloo JA 2 3 (2009) EWHC 1333 (Comm) 3 (2007) EWHC 437 (CH) Page 12 of 18

Page 29 of 40

factual assertions made, particularly if contradicted by contemporaneous

documents: ED & F Man supra at 10;

(v) However in reaching its conclusion the court must take into account not

only the evidence actually placed before it on the application for summary

judgment, but also the evidence that can reasonably be expected to be

available at trial: Royal Brompton Hospital NHS Trust v Hammond No.

5 2001 E.W.C.A Civ 550;

(vi) Although a case may turn out at trial not to be really complicated, it does

not follow that it should be decided without fuller investigation into the

facts at trial than is possible or permissible on summary judgment. Thus

the court should hesitate about making a final decision without trial, even

where there is no obvious conflict of fact at the time of the application,

where reasonable grounds exist for believing that a fuller investigation

into the facts of the case would add to or alter the evidence to a trial judge

and so affect the outcome of the case: Doncaster Pharmaceuticals Group

Ltd v Bolton Pharmaceutical Co 100 Ltd 2007 F.S.R. 63.”

[70] Both Counsel for the First Defendant and the Claimant cited the case of Three Rivers

District Council v Governor and Company and Bank of England No 34 wherein Lord

Hope explained a judge’s duty in respect of the test in summary judgment applications in

the following way:

“The rule… is designed to deal with cases which are not fit for trial at all’;

the test of ‘no real prospect of succeeding’ requires the judge to undertake an

exercise of judgment; he must decide whether to exercise the power to decide

the case without a trial and give summary judgment; it is a discretionary

power; he must then carry out the necessary exercise of assessing the

prospects of success of the relevant party; the judge is making an assessment

not conducting a trial or a fact-finding exercise; it is the assessment of the

case as a whole which must be looked at; accordingly, ‘the criterion which

4 [2001] UKHL 16

Page 30 of 40

the judge has to apply under CPR Pt 24 [our Rule 15] is not one of

probability; it is the absence of reality.”

[71] Both Counsel also cited the case of Swain v Hillman5, where Lord Woolf MR opined

that the term “no realistic prospect of success” was self-explanatory and needed no further

amplification and further that the Court must determine whether there was a “realistic”

as opposed to a “fanciful” prospect of success.

[72] The law is clear that in medical negligence cases, the burden of proof rests on the

Claimant to prove, on a balance of probabilities, medical negligence on the part of the

Defendant. As such it is for the Claimant to not only show that the death of the Deceased

was caused by the First Defendant, but further, that it was a result of medical negligence

on the part of the First Defendant in his treatment and management of the Deceased.

To prove a claim in negligence it must first be established that a duty of care existed

between the parties, i.e. a duty of care was owed to the Deceased by the First Defendant.

There must also be a breach of that duty followed by damage or injury caused to the

Deceased as a direct result of the breach, thereby creating the necessary causal link.

[73] It is not contested that the First Defendant owed a duty of care to the Deceased. However,

difficulty arises with regard to whether there was a breach of that duty owed to the

Deceased by the First Defendant.

As submitted by the First Defendant, in considering whether the evidence adduced by the

Claimant passes the required threshold for establishing a breach of the duty of care, the

Court ought to consider the learning set out in Bolam v Friern Hospital Management

Committee6 which is now commonly referred to as the Bolam test. In this case, McNair

J stated as follows:

“How do you test whether this act or failure is negligent? In an ordinary case

it is generally said, that you judge that by the action of the man in the street.

5 [2000] 1 All ER 91 6 [1957] 2 All ER 118

Page 31 of 40

He is the ordinary man. In one case it has been said that you judge that by

the conduct of the man on top of the Clapham omnibus. He is the ordinary

man. But where you get a situation which involves the use of some special

skill or competence, then the test whether there has been negligence or not,

is not the test of the man on the top of a Clapham omnibus, because he has

not got this special skill. The test is the standard of the ordinary skilled man

exercising and professing to have that special skill. A man need not possess

the highest expert skill at the risk of being found negligent. It is well

established law that it is sufficient if he exercises the ordinary skill of an

ordinary competent man exercising that particular art. I do not think that I

quarrel much with any of the submissions in law which have been put before

you by counsel. Counsel for the plaintiff put it in this way, that in the case of

a medical man, negligence means failure to act in accordance with the

standards of reasonably competent medical men at the time. That is a

perfectly accurate statement, as long as it is remembered that there may be

one or more perfectly proper standards; and if a medical man conforms

with one of those proper standards then he is not negligent. [Emphasis

mine]”

[74] The essence of the Bolam test was distilled by Lord Scarman in the House of Lords case

of Sidaway v Board of Governors of Bethlem Royal Hospital7 in the following

statement of the court:

“A doctor is not negligent if he acts in accordance with a practice accepted

at the time as proper by a responsible body of medical opinion even though

other doctors adopt a different practice.”

[75] The Bolam test was applied with approval in this jurisdiction by the Court of Appeal in

Dr. Patricia Deonarine v Rana Ramlal8. Consequently, the Court must look at the

expert evidence and determine whether, in all the circumstances of the case, the requisite

professional standard of care was not reached. This requires firstly, that the medical expert

7 [1985] AC 871 8 Civil Appeal No. 28 of 2003

Page 32 of 40

evidence should demonstrate what should have been done, and secondly, that what was

done fell below this standard. In that regard, the witness statement of Suzanne Dickson

would be irrelevant as it does not contain any medical evidence but rather the factual

background surrounding the death of the Deceased from within her knowledge and

observations.

In the case at bar, the Court must examine whatever medical expert evidence has been or

may be put before the Court to ascertain whether the First Defendant’s duty of care owed

to the Deceased fell below the professional standard required of it in all the circumstances.

Accordingly, the Claimant must, in a medical negligence case of this nature, have the

medical evidence to support the claim in respect of a breach of duty, without which a

Claim could not succeed.

[76] In the case at bar, the allegations of negligence against the First Defendant are set out in

paragraphs 22 and 33 of the Re-Amended Statement of Case. The general nature of the

Claimant’s case is that the Deceased died as a result of medical negligence on the part of

the Defendants. The medical expert evidence likely to be placed before the Court in

support of the Claimant’s case is the medical report of Dr. Daisley dated 30 January 2018

which also includes the autopsy report of the Deceased dated 17 May 2011.

Paragraph 22 of the Re-Amended Statement of Case

[77] With regard to paragraph 22 of the Re-Amended Statement of Case, I am minded to accept

the First Defendant’s submissions that there is nothing in the medical report that suggests

or supports the allegation that the surgical blade fragment was fractured and left in the

body of the Deceased by virtue of any negligent act or omission on the part of the First

Defendant or that it contributed to the death of the Deceased.

Dr. Daisley in his medical report merely stated that piece of the surgical blade was found

to be lodged in the Deceased’s back after the surgery on 25 September 2009 and that it

would have contributed to the back pains of the Deceased. He further stated that the

broken blade should have been discovered by the scrub nurses and surgeons at the time

Page 33 of 40

of the operation and retrieved since the broken blade would cause pain and discomfort to

the Deceased. This was the extent of the Claimant’s evidence as it relates to the broken

blade left in the Deceased’s body after the surgery on 25 September 2009.

The Court finds that Dr. Daisley, in his report, does not allude to what the standard of a

reasonably competent medical man is, at the time of the surgery in this instance. There is

no medical evidence from the Claimant which demonstrates what should have been done

on the part of the First Defendant in the circumstances and whether he fell below that

standard. Furthermore, there is no evidence which supports the allegation that the broken

surgical blade contributed to the death of the Deceased.

[78] In this claim for medical negligence, the burden of proof rests on the Claimant to show

that there was an actual breach of the duty owed to the Deceased by the First Defendant.

The Claimant has failed to produce any such evidence.

[79] Notwithstanding that the burden of proof lies on the Claimant, the First Defendant has

filed into Court the medical reports of Mr. Robert MacFarlane and Dr. Istvan Bodi in

support of his case that there was no fault on his part when the Deceased was in his care.

Robert MacFarlane, in his medical report, stated that it is evident that the First Defendant

identified that the tip of the surgical blade was broken off and lodged in the Deceased’s

anterior longitudinal ligament at the time of the surgery. Attempts were made to remove

the fragment of the blade but the decision was taken that the risk of removal outweighed

the risk of leaving it in situ.

Mr. MacFarlane stated that provided that the metal fragment was not in a place where it

might migrate and impinge upon a nerve root, it is not the case that leaving a small

fragment posed any material risk to the Deceased. He further stated that “if the risks of

removing the fragment exceeded the potential benefit of doing so, as Dr. Mahadeo

concluded at the time, and with the risk of it causing subsequent problems being close to

nil, then it was entirely appropriate that it should be left in situ. The fact that it could not

be removed suggests that it was firmly lodged and, therefore, unlikely to migrate.”

Page 34 of 40

Dr. Istvan Bodi’s medical report does not refer to the broken fragment of the surgical

blade left in the Deceased. Therefore, his medical report is not helpful on this issue.

[80] Dr. Keith Aleong, in his report filed on behalf of the Second Defendant, stated as follows

as it pertains to the presence of the blade fragment within the body of the Deceased after

the first surgery:

“As to whether it contributed to her death, I would have to say a definite “No”

if I am to stand by the diagnosis of massive pulmonary embolism. Professor

Daisley in his report did not mention that it was a contributory cause of death,

nor is there any mention that he had located it in the course of the autopsy.”

[81] In that regard, I am of the view that it cannot be said at this stage that the First Defendant

has fallen below the professional standard of care owed to the Deceased. There is no

evidence to establish medical negligence on the part of the First Defendant on the non-

removal of the broken surgical blade after the first surgery on 25 September 2009 or that

it contributed to her death.

Accordingly, the Claimant’s claim against the First Defendant on this part (Paragraph 22

of the Re-Amended Statement of Case) has no realistic prospect of success and therefore,

the First Defendant ought to be entitled to summary judgment on this part.

Paragraph 33 of the Re-Amended Statement of Case

[82] With respect to paragraph 33 of the Re-Amended Statement of Case, the Claimant pleaded

that the death of the Deceased was caused by the negligence of the Defendants. The

Claimant thereafter sought to particularise the alleged acts of negligence on the part of

the First Defendant as aforementioned at paragraph [22] above.

However, the Claimant did not specifically plead what was the cause of death of the

Deceased. Nevertheless, the Claimant under “Particulars of Injuries” included brain stem

haemorrhage and brain death which was concluded in the autopsy report dated 17 May

Page 35 of 40

2011 of Dr. Daisley as a consequence of the usage of anticoagulant therapy during her

medical management. One of the particulars of negligence against the First Defendant is

“wrongly administering anti-coagulant therapy in the circumstances”. In that regard, it

can be reasonably inferred that the case against the First Defendant is that the First

Defendant wrongly administered anticoagulant therapy in the circumstances, which

resulted in the death of the Deceased. This is the case the First Defendant was called upon

to answer.

[83] In determining whether the Claimant has a successful claim in medical negligence on the

part of the First Defendant, the Claimant must prove that the First Defendant breached

the appropriate standard of care of a reasonably competent medical man at that time by

wrongly administering anticoagulant therapy in the circumstances, which resulted in the

death of the Deceased.

The Court finds that Dr. Daisley’s medical report does not state what the standard of a

reasonably competent medical man is at the time of the post-operative care of the

Deceased. Further, there is no evidence in Dr. Daisley’s medical report to support or

suggest that the First Defendant failed to act in accordance with the standard of a

reasonably competent medical man at the time.

Furthermore, the autopsy report does not support or suggest that the First Defendant was

negligent in the administration of anticoagulant therapy in the circumstances. It does not

indicate what should have been done on the part of the First Defendant in the

circumstances or that what he did fell below the accepted standard of the reasonably

competent medical man.

Moreover, the conclusion on the cause of death in his medical report has changed to an

overdose of pethidine, which is not the case against the First Defendant. In the medical

report, there is no evidence that the anticoagulant therapy administered was done as a

result of negligence on the part of the First Defendant nor that it contributed to the

Deceased’s death.

Page 36 of 40

[84] The evidence likely to be placed before the Court on the First Defendant’s behalf are the

medical reports of Dr. Robert MacFarlane and Dr. Istvan Bodi.

Dr. Istvan Bodi, in his medical report, stated that according to the hand written medical

notes, at 8:25am on 29 April 2011, the patient was given Clexane 20mg and TED anti-

embolism stocking was applied. He stated that Clexane injection contains the active

ingredient enoxaparin, which is a type of medicine called a low molecular weight heparin.

It is used to stop blood clots forming within the blood vessels. This is commonly

administered to patients after spinal or epidural anaesthesia to prevent deep vein

thrombosis and pulmonary embolism. He further stated that the coagulation tests were

within normal limits on 30 April 2011, 2 May 2011 and 6 May 2011. He further stated

that “the anticoagulation therapy was entirely justified” though ineffective to prevent

pulmonary embolism as found in the post mortem report.

[85] Dr. MacFarlane, in his report, stated that the management of the anticoagulant protocol

instituted by the First Defendant in administering Clexane 20mg subcutaneously the day

after the surgery conforms to best practice after spinal surgery. Dr. MacFarlane attached

three articles to his report dating from around the time of the Deceased’s management as

it relates to anticoagulation. Dr. MacFarlane also referred to the British National

Formulary information sheet in relation to Clexane “Dose: Prophylaxis of deep vein

thrombosis especially in surgical patients by sub-cutaneous injection, moderate risk, 20

mg (2000 units) approx. 2 hours before surgery then 20mg (2000 units) every 24 hours.”

Dr. MacFarlane opined that the Deceased received the standard and appropriate dose of

post-operative anticoagulant and that her platelets and clotting were assessed on

admission to ICU and were found to be within the parameters expected following

surgery/anticoagulation with Clexane.

[86] The expert report of Dr. Keith Aleong filed on behalf of the Second Defendant also

supports the evidence of the First Defendant’s expert witnesses in that the anticoagulant

Page 37 of 40

Clexane administered to the Deceased did not cause the brainstem haemorrhage or her

death for the following reasons:

a. The dose of Clexane administered on April 29 was low (20mg) and there have

been no reports in the medical literature of such a single low dose causing

intracranial bleeding;

b. The effect of a single dose does not last for longer than one day, at most;

c. No evidence of intracranial bleeding was present in the brain CT examinations

of May 2nd and 6th respectively; and

d. The deceased did not report any symptoms, e.g. headache, or show any signs

attributable to intracranial bleeding prior to her admission to the High

Dependency Unit, nor did she receive any additional doses of Clexane in the

High Dependency Unit.

Furthermore, Dr. Aleong confidently excluded Clexane as the cause of the brainstem

haemorrhage and as the cause of death since the area of subarachnoid haemorrhage found

at the autopsy would have developed after the second CT scan and at least six days after

the administration of Clexane and admission to the Intensive Care Unit.

[87] On the likely evidence of the expert witnesses of the First and Second Defendants before

the Court, it is evident that the First Defendant acted in accordance with the standard of a

reasonably competent medical man at the time of the post-operative care of the Deceased

when he administered the anticoagulant therapy to the Deceased.

Moreover, there is no evidence from the Claimant in support of her Claim of negligence

on the part of the First Defendant which resulted in the death of the Deceased. In this

regard, the Claimant’s claim has no realistic prospect of success against the First

Defendant on this part (Paragraph 33 of the Re-Amended Statement of Case) and

therefore, the First Defendant ought to be entitled to summary judgment on this part.

[88] Furthermore, the Court accepts and agrees with the First Defendant that there was no

specific pleading of any prescription and/or administration and/or overdose of pethidine

in the Claimant’s Re-Amended Statement of Case as one of the allegations of negligence

Page 38 of 40

against the First Defendant. However, the Claimant submitted that the allegation at

paragraph 33(c) of the Re-Amended Statement of Case, “failing to properly observe and

analyse the signs and symptoms of the deceased’s condition” includes the administration

of pethidine.

[89] The Claimant has a duty to set out her case of medical negligence against the First

Defendant in accordance with Part 8.6 of the CPR which provides:

“(1) The claimant must include on the claim form or in his statement of case

a short statement of all the facts on which he relies.

(2) The claim form or the statement of case must identify or annex a copy of

any document which the claimant considers necessary to his case.”

[90] Blackstone’s Civil Practice (2016) at para 24.20 states as follows:

“A good claim or defence should enable the parties and the court to narrow

down and identify the central issues in dispute. This has always been the

case. For example, a defendant is entitled to know not merely the cause of

the action against him but also the manner in which it is alleged that he

was in breach of his duty, thereby causing the claimant to seek redress

against him. To achieve that objective requires no more than a properly

detailed set of particulars (as opposed to evidence) thereby allowing him

to set out his case in response. [Emphasis mine]”

[91] In that regard, the Re-Amended Statement of Case ought to contain a properly detailed

set of particulars of negligence on the part of the First Defendant so that he is better able

to set out his case in response. The Court is of the view that the First Defendant is able to

ascertain that the cause of action against him is medical negligence. However, the

allegation at paragraph 33(c) of the Re-Amended Statement of Case does so generally; it

does not specify the conditions of the Deceased which the First Defendant ought to have

been observing; specifically that it included the administration of pethidine.

Page 39 of 40

I am of the opinion that any allegation of negligence in the administration or prescription

of pethidine against the First Defendant is a particular and/or fact which ought to have

been specifically pleaded in the Re-Amended Statement of Case so that the First

Defendant would have been better able to defend and/or answer the Claim. The First

Defendant was only able to answer the Claim against him as it relates to the wrongful

administration of anticoagulant therapy in the circumstances.

[92] In any event, the allegation of an overdose of pethidine was only advanced against the

Second Defendant and not the First Defendant. This was particularised in the Further and

Better Particulars of the Claimant filed into Court on 28 April 2017 in answer to the

Second Defendant’s request for further and better particulars of the pleaded acts of

negligence.

As a consequence, the Court agrees with the First Defendant that the Claimant cannot

now use these pleadings as a basis for leading evidence of any overdose of pethidine

against the First Defendant.

[93] In these circumstances, in the absence of documentary evidence to support her pleaded

case of medical negligence on the part of the First Defendant, it would be difficult for the

Claimant to prove her Claim at trial. It is highly unlikely that the Claimant would be able

to prove that the First Defendant breached his duty of care owed to the Deceased which

resulted in her death.

VII. Disposition

[94] Given the analyses and findings above, the Court is of the view that the Claimant’s Claim

discloses no realistic prospect of success against the First Defendant and therefore ought

to be dismissed pursuant to Part 15.2(b) of the CPR.

[95] On the question of costs of the Notice of Application filed on 8 May 2018, the general

rule on the award of costs is that the Court must order the unsuccessful party to pay the

costs of the successful party: Part 66.6(1) of the CPR.

Page 40 of 40

[96] Although this general rule is now considered to be the starting point and that the Court

must take into account all the circumstances including the factors set out in Part 66.6(4),

(5) and (6) of the CPR before deciding where costs should be allocated, this Court can

find no justification for departing from the general rule. Accordingly, the Court considers

that the Claimant should bear the costs of the application to be assessed in default of

agreement as well as the costs of the Claim as against the First Defendant.

[97] Accordingly, the Order of the Court is as follows:

ORDER:

1. Summary Judgment be and is hereby awarded in favour of the First

Defendant against the Claimant on his Notice of Application filed on 8 May

2018 pursuant to CPR Part 15.2(b) on the basis that the Claimant has no

realistic prospect of success on her Claim against the First Defendant.

2. The First Defendant is entitled to recover assessed costs of the Notice of

Application filed 8 May 2018 in accordance with CPR Part 67.11 as well as

prescribed costs on the Claim pursuant to CPR Part 67.5(2)(c), to be

quantified accordingly, in default of agreement.

3. In relation to the Second Defendant, this matter is fixed for a Pre-trial Review

on 13 October 2020 at 11:00 am in courtroom POS 22.

4. In the event that there is no settlement, the trial against the Second Defendant

is fixed for the 11 and 12 days of November 2020 each day from 10:00 am to

2:30 pm in courtroom POS 08.

___________________

Robin N. Mohammed

Judge