BREACH OF DUTY IN BABY’S DEATH COURT SAYS WHY IT DISMISSED APPEAL:

One year after dismissing an appeal lodged by the South-West Regional Health Authority (SWRHA), questioning a High Court judge’s decision to award more than $.3 million in damages to a Penal woman, the Appeal Court yesterday gave written reasons for dismissing the appeal.

The panel,which comprised of Justices Allan Mendonca, Peter Jamadar and Nolan Bereaux, in a 38-page ruling, outlined the reasons for dismissing the appeal brought by the SWRHA against Samdaye Harrilal, who levelled allegations of negligence against the SWRHA following the death of her baby.

The judges were also critical of the law “on medical negligence in T&T”, describing it as “still being in the early stages of development, and no case has yet been brought on behalf of any child injured by antenatal medical negligence, or during childbirth”.

The judges said if such action were to be exercised, the “difficulty has always been in obtaining medical evidence”.

On April 22, 2002, Harrilal, 40, who was three days past her due date, went to the San Fernando General Hospital to deliver her baby when her water bag burst.

The court heard Harrilal sat on a bench for two hours outside the maternity ward. During the wait, a nurse informed her that no doctor was on the ward. The court heard that the nurse told Harrilal although she was overdue, a doctor’s authorisation was still needed to administer antibiotics. A few hours later, Harrilal was hooked up to a monitor, and at about one o’clock the following morning, she gave birth to a dead baby boy.

The judges said in the present case, “The foetus died in utero and had no legal status. But the respondent (Harrilal) carried a healthy foetus to full term, only to lose the child during childbirth due to the negligence of the hospital.”

Adding, in T&T, “Neither the Compensation for Injuries Act, Chap 8:05, nor the Supreme Court of Judicate Act, Chap 4:01, provides for damages for bereavement”, and as such, “damages for bereavement are not recoverable in T&T”, the judges said.

Noting the birth of a child is “very much a matter of great anticipation, joy and celebration”, the judges said “it (birth) is, in fact, a celebration of the renewal of life and, indeed, the baby’s presentation is very much representative of the successful conclusion of a long, confining and sometimes painful pregnancy.”

The SWRHA, in its appeal, alleged, inter alia, then justice Shahfeyei Shah failed to analyse its defence, which included the judge wrongly compensated Harrilal for nervous shock when there was no evidence of her having suffered it and the judge was also wrong to have awarded exemplary damage.

In its defence, the SWRHA contended doctors in its employ had withdrawn their services from the San Fernando General Hospital and would, without notice, or at very short notice, not take up duty as rostered.

The SWRHA contended in those circumstances, it made use, as best as it could, of its available personnel and gave public advisories as to its limited and compromised ability to provide or guarantee medical services to the public at large.

In its ruling, the judges said, “There are many persons in T&T who, in any event, cannot afford private medical care and would have had little choice but to have subjected themselves to the health care then available at the hospital, however capricious.”

On the basis of negligence, the panel said, “There was proper evidential basis for the judge’s findings of a breach of duty of care.

“Certainly, at the close of the respondents’ (Harrilal) case, there was a prima facie case of breach of duty raised against the hospital. In our judgment, having regard to the defence pleaded, this was well neigh impossible.”

Extracted From: Trinidad Express Newspaper

Published on May 19, 2011

 

 

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