SAMDAYE HARRILAL V SOUTH WEST REGIONAL HEALTH AUTHORITY AND THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO HCA No. S555 of 2003
8.Name of Case: Samdaye Harrilal v South West Regional Health Authority and the Attorney General of Trinidad and Tobago HCA No. S555 of 2003
Type of Medical Negligence: Maternity/Childbirth
Date of Judgment: 28th February, 2008
Judge Presiding: The Honourable Mr. Justice S. Shah
The Plaintiff, who was pregnant, suffered from a congenital heart condition known as Ventricular Septal Defect (VSD). However, her medical condition was able to be managed by the administering of antibiotics during labour.
On 22nd April, 2002, the Plaintiff thought her amniotic bag had burst and at 8am she attended the San Fernando General Hospital’s Casualty Department (hereinafter referred to as “the Hospital”). The child’s birth had in fact been three days overdue.
At about 6:30 pm on the said day, the Plaintiff claimed that she was experiencing pain and requested a doctor on more than one occasion. However, none was available. At about 10:30pm the Plaintiff was informed that she could not be given antibiotics since the nurse required authorization from a doctor to do so. However, sometime later, a nurse administered antibiotics after receiving authorization from one Dr. Tam via the telephone.
At about 11:00 pm to midnight the Plaintiff was hooked up to a monitor while the doctors attempted to pick up a heartbeat and she subsequently gave birth at about 1:06 am on the 23rd April, 2002. However, after the baby was placed in the incubator, the Plaintiff was subsequently informed that the baby had died.
The Plaintiff brought an action in negligence due to the lack of proper care received at the Hospital and alleged that the stillbirth was due to the negligence of Defendant, its servants or agents and claimed damages for the loss of her child, as well as damages for distress, anxiety and inconvenience.
The Defendant however denied that the death of the baby was due to negligence and that the death of the Plaintiff’s foetus due to intra partum asphyxia occurred without negligence by reason of a number of factors.
Since the Defendant was established as a body corporate which manages the Hospital and all the medical staff employed there, when the Plaintiff was admitted to the Hospital, the Defendant owed a duty of care to her. The Plaintiff’s injury was caused by the Defendant’s breach of duty and the injury in respect of which compensation is sought is sufficiently proximate to the Defendant’s breach of duty. Furthermore, the loss of the baby fell within the scope of the duty of the Defendant and said loss should have been and was reasonably foreseeable in the circumstances.
Exemplary damages awarded to the Plaintiff for the loss of her child and the distress, anxiety and inconvenience suffered due to the oppressive, arbitrary and unconstitutional acts by the government servants.
Judgment for the Plaintiff for the sum of $140,000, against the South West Regional Health Authority together with interest thereon at the rate of 6% per annum and costs to be taxed.
THE DECISION WAS APPEALED:
South West Regional Health Authority v Samdaye Harrilal CA
Judges Presiding: Allan Mendonca J.A; Peter Jamadar J.A; Nolan Bereaux J.A
Date of Delivery: 12th May, 2011
There was a proper evidential basis for the trial judge’s finding of a breach of duty of care.
The appeal was dismissed on the question of liability. However, regarding the issue of damages, the appeal was allowed in part.
The general damages awarded were reduced from one hundred and forty thousand dollars ($140,000.00) to one hundred and twenty thousand dollars ($120,000.00) for the Plaintiff’s loss of satisfaction of bringing her pregnancy, confinement and labour to a successful, indeed joyous conclusion as well as for the loss associated with the physical loss of the child.