PROF. PRIYANI SOYZA v. RIENZIE ARSECULARATNE

030-SLLR-SLLR-2001-V-2-PROF.-PRIYANI-SOYZA-v.-RIENZIE-ARSECULARATNE.pdf


PROF. PRIYANI SOYZA
v.RIENZIE ARSECULARATNE
SUPREME COURTDHEERARATNE, J.
BANDARANAYAKE, J. ANDISMAIL, J.
SC. APPEAL NO. 89/99
A. APPEAL tyO. 173/94 (F)
C. COLOMBO NO. 13035/MR
3rdMAY2000, 21st, 24th, 25th, 26th, 27th, 28thAND31st JULY2000, 1st,2nd, AND 3rd AUGUST 2000, 6th, 7th, 8th AND 10™ NOVEMBER 2000.
Acquilian action – Father’s claim Jor damages on account of death ofchild – Patrimonial loss – Medical Negligence – Necessity of a nexusbetween negligence and causation – standard of proof.
Suhani, the daughter of the plaintiff was four years of age and consideredto be a normal healtftKehild. She attended St. Bridget's Convent and wasin Nuwara Eliya in iK April 1992 during the school vacation with theplaintiff – respondent (the plaintiff) and other members of the family whereshe appeared to be dragging a leg whilst walking; whereupon, Suhani wasbrought to Colombo. On 18.4.1992 she was committed to the care andtreatment under the defendant – appellant (the defendant) a paediatricianwho made a provisional diagnosis of her ailment as Rheumatic Chorea(R.C.) Thereafter she was treated at Nawaloka Hospital. The defendantordered three tests ASOT, ESR and TELECHEST and prescribed valium,penicillin and multi-vitamin tablets. On 23rd April, the plaintiff had Suhaniexamined by Dr. J.B. Feiris a senior neurologist who confirmed that thesymptoms showed some features of chorea but noted that there were somesymptoms which did not confirm that view. He also made certainsuggestions as to treatment which are not material to this case.
During the entire period Suhani was under the defendant’s care, viz until20.05.1992, the defendant did not maintain a proper record of the illnessin the Bed Head Ticket (BHT). Most entries had been made by the houseofficer in charge. No symptoms discovered by the defendant and no resultsof her clinical examination of Suhani were reflected in the B.H.T. Thedefendant also failed to properly consult Dr. J.B. Peiris regarding thepatient or the diagnosis of the illness.
On 20.05.1992 the plaintiff caused Suhani’s treatment and care taken offfrom the defendant and given to another senior paediatrician ProfessorLamabadusuriya. The same day he noted “clinical features suggestive ofrheumatic chorea…..” He prescribed epilin a drug in the same class of
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valium but stronger. On the 21- night he observed the child asleep anddid not disturb her. The parents thought she had improved. On the 22ndProfessor Lamabadusuriya wrote “unable to sit, tenden jerks brisk” On
the 23rd he wrote “More drowsy today Involuntary movements same…
Continue epilln” On the 24th he wrote “unable to sit uptenden jerks
poor co-ordination" Dosage of epilin was increased. The same day hewrote to Dr. Newton Jayaratne, inter alia, “tenden jerks are very briskand there is ankle clonus which Is unusual for chorea.” He, therefore,requested a CT scan to exclude SOL (space occupying lesion). The CTscan was done on the 26th which disclosed “enlargement of the brain stemfrom the pons down to the medula DIAGNOSIS Brain stem Glioma’ (BSG).Thereafter, on the request of Professor, Lamabadusuriya, Dr. GunasekeraConsultant Neurosurgeon advised that the lesion was in the middle of thebrain stem and inaccessible for biopsy – no surgery possible. He recommendStereotactic Radiotherapy” available at Sheffield C/o Dr. Sri Lai Dias.
On Is* June Suhani was taken to U.K. and shown to Dr. Dias but nooperation was performed. On 12th June she was brought back and admittedto the Neurosurgical Unit of the General Hospital under the care of Dr.J.B. Feiris. On the 18* she was examined by Dr. R.S. Jayatillake oncologistof the Cancer Hospital, Maharagama who found that BSG covered theentire brain stem from the mid brain to the medulla and inaccessible forsurgeiy. The following day the child died.
The plaintiff instituted action against the defendant claiming damages in 5lakhs including for loss of care and companionship by Suhani’s death onthe ground of the defendant’s negligence to correctly diagnose Suhani’sailment. However, both the Trial Court and the Court of Appeal answeredin the affirmative the following issues raised by the defendant:
24(a) was the said child found to be suffering from a rapidly progressiveextremely malignant (cancerous) incurable tumour of the brain stemin an inaccessible site as pleaded in para 2 13(g) of the answer ?
(c) was the death of the child necessarily a part of the nature of thedisease which was never preventable at any stage with an inevitablefatal outcome ?
That view was also supported by recognized medical writings on BSG.
Until 20th May when Prof. Lamabadusuriya commenced investigations,medical evidence regarding symptoms and signs in Suhani was indicativeof both R.C. and B.S.G.
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According to settled principles of medical negligence, a deterioration inthe patient’s condition is probably the most important indication to do ascan and it would be negligent not to investigate a patient who is gettingworse.
Held :
Lex Acquilia permits the grant of patrimonial damage. If loss of careand companionship as such should attract compensation it is for thelegislature to make necessary provision, particularly in view of the1799 proclamation which permitted the administration of justiceaccording to Roman Dutch Law subject to deviations and alterationsto be made by Certain authorities. That proclamation did not authorizedeviations and alterations to be made by the Courts of Law.
Per Dheeraratne, J
“I think we are not entitled, as Judges, to change the material of theRoman Dutch Law, but are only permitted to iron out its creases, wheneverthe necessity arises. Effecting structural alterations to the common lawshould be the exclusive preserve of the Legislature”
The defendant owed a duty to the plaintiff, to treat Suhani, exercisingreasonable raoe and skill as a paediatrician, without causingpatrimonial to him. The ultimate question is whether thedefendant’s conduct conforms to the standard of reasonable caredemanded by the law. That is a question for the court and the duty ofdeciding it cannot be delegated to any profession or group in thecommunity.
The defendant was remis in failing to record in the BHT any symptonsdiscovered by her and the results of her clinical examination ofSuhani. But it has not been established by a balance of probabilitythat this remissness had a nexus with the non diagnosis of the malady.The defendant also failed to property consult, Dr. J.B. Peiris. However,had she done so there was only a possibility as opposed to aprobability in Dr. Peiris ordering a C.T. scan to be taken at that time.
The defendant was negligentjust prior to 20fll May, 1992, in failing toorder a CT scan which would have disclosed BSG. However, theplaintiff failed to prove on a balance of probabilities, that suchnegligence of the defendant caused or materially contrbuted to thedeath of Suhani on 19* June, 1992, and thereby caused patrimonialloss to him.
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Cases referred to :
Mendis u. Dublin de Silva (1990)2 Sri L.R. 249.
limes v. Vlsser 1936 WLD 44 at 45.
Nv.T 1994( 1) S.A. 862.
Clinton – Parker Administrator, Transvasal Dawkings v.Administrator, Transval 1996(2) SA 37.
Bester v. Commercial Union Versekeringmaatskappy Van S A BPK1973 (1)S A 769.
Gibson v. Berkowitz and Another 1996 (4) S A 1029.
Alcock and Others v. Chief Constable of the Yorkshire Police 1991(4) ALL E.R. 907.
Gafoor v. Wilson and Another (1990) 1 Sri L.R. 143.
Union Government (Minister of Railways and Harbours) v. Warneke(1911) SALR 657.
Pamv v. African Guarantee and Indemnity Co. Ltd. 1950 (2) SA(SWA) 132.
De Costa v. Bank of Ceylon (1969) 72 NLR 457 at 461.
Kodeeswaran v. The Attorney-General (1969) 72 NLR 337.
Chissel v. Chapman (1954) 56 NLR 121 at 127.
Wilsher v. Essex Area Health Authority (1986) 3 ALL E.R. 801;(1987) Q.B. 730.
Cassidy v. Ministry of Health (1951) 2 R.B. 348 at 359.
Hall v. Brooklands Auto Racing Club (1933) 1 K.B. 205.
Glasgow Corporation v. Muir (1943) AC 488 (HL) at 457.
S v. Burger 1975 (4) 877 (A).
Bolam v. Friem Hospital Management Committee (1957) 2 ALL
R. 118.
Maynard v. West Midlands Regional Health Authority (1985) 1 ALLE.R. 635.
Sidaway v. Bethlem Royal Hospital Governor and Others (1985) 1ALL E.R. 643.
Administratrix of the estate of Bolitho-deceased v. City andHackney Health Authority (1997) 4 ALL E.R. 771.
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Rogers v. Whitaker (1992) 67 ALJR 47.
Van Wyk v. Lewis 1924 A D 438 at 447.
Fv.R (1983) 33 SASR 189 at 194.
Whitehouse v. Jordan and Another (1981) 1 ALL E.R. 267.
Fish v. Kapur (1948) 2 ALL E.R. 176.
Barnett v. Chelsea of Kensington Hospital Management Committee(1968) 1 ALL E.R. 1068.
Kay v. Ayrshire and Arran Health Board (1987) 2 ALL E.R. 417.
Hoston v. East Birkshire Area Health Authority (1987) 2 ALL E.R.907.
Bonnington Castings Ltd v. Wardlaw (1956) 1 ALL E.R. 615.
Me Ghee v. National Coal Board (1972) 3 ALL E.R. 1008.
Wllsher v. Essex Health Authority (1988) ALL E.R. 873.
APPEAL from the judgement of the Court of Appeal.
H.L. de Silva, PC.,Goonesekera, S.C. Crossette Thambiah, Hugo
Antony and A. Aturupana for defendant-appellant.
Romesh de Silva, PC., Palitha Kumarasinghe, Harsha Amarasekera andSugath Caldera for plaintiff-respondent.
December 11, 2000DHEERARATNE, J.
Introduction
This case has attracted much publicity and public attentionas it relates to the unfortunate death of a child and everyonewho hears or reads about it cannot but be moved by the tragedywhich befell on the plaintiff and his family. This is not surprising,as in the eloquent words of Edmund Burke, expressed manyyears ago, “Next to love, sympathy is the divinest passion of thehuman heart.” However, sympathy is not the valid basis fordetermination of the important issues in this case and as judgesit is our responsibility to do justice between the parties accordingto law. The facts of the case are briefly these. The plaintiff -respondent (the plaintiff) along with his wife and two children.
Cur. adv. vult.
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was holidaying at Nuwara Eliya in April 1992; one of the childrenwas the then four year old Suhani, who was considered quite anormal and healthy child. She attended St. Bridget’s Conventtill the school was closed for the April vacation. After a few daysstay at Nuwara Eliya, it was observed that Suhani was dragginga leg while she walked and she was brought to Colombo by herparents, to be shown to a paediatrician. On the 18th April 1992,she was taken to Professor Priyani de Soysa, the defendant-appellant (the defendant), a well-known senior paediatrician,who examined the child at her consultation room at St. Michael’sNursing Home, Kollupitiya. The defendant made a provisionaldiagnosis of Suhani’s malady as Rheumatic Chorea (RC) andshe was referred to the Nawaloka Private Hospital (Nawaloka).In her referral note to the admitting medical officer at Nawalokathree tests, ASOT, ESR and TELECHEST were ordered to betaken and penicillin, valium and multi-vitamin tablets wereprescribed to be given to Suhani. FYom 18th April to 19th May1992, Suhani was under the care of the defendant. On 23rdApril, as arranged by the plaintiff, Suhani was examined by Dr.J.B. Peiris, a senior neurologist. On 18th and 19th May as thedefendant was not available in Colombo, she aranged Dr. D.R.Karunarathne, Director Lady Ridgeway Hospital, another seniorpaediatrician to attend on Suhani in her absence. On the 20thMay, the plaintiff caused Suhani’s treatment and care to be takenoff from the defendant and given over to another seniorpaediatrician Professor Lamabadusuriya. On the 24th a CT scanwas requested to be done by Professor Lamabadusuriya, whichwas done on the 26th, and Suhani’s malady was diagnosed as aBrainstem Glioma (BSG) by Dr. N. Jayaratne, radiologist. Onthe 27th, Professor Lamabadusuriya wrote to Dr. LaiGunesekara, consultant neurosurgeon, seeking his surgicalopinion about father management of the malady. Dr. Gunesekarareplied the same day to say that the lesion in the middle ofSuhani’s brainstem was inaccessible even for a biopsy and assuch no surgeiy was possible. He suggested that StereotacticRadiotherapy was best available at Sheffield, under the care ofDr. Sri Lai Dias, a neurosurgeon. Suhani was then taken to theUK on 1st June and shown to Dr. Sri Lai Dias; but no operation
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was performed on her. On 12th June she was brought back toSri Lanka and on the 16th she was admitted to the Neurosur^calUnit of the General Hospital, Colombo, under the care of Dr.J.B. Peiris. On the 18th, Suhani was examined by Dr. R.S.Jayathilaka, oncologist and Director of the Deparment of ClinicalOncology of the Cancer Institute, Maharagama, who found thatthe BSG covered the entire brainstem extending from the midbrain to the medulla and inaccessible for surgery. The child wasthen at the death’s very door and the following day shesuccumbed to her illness.
On 17th August 1992, the plaintiff wrote to His Excellencythe President, coAgteining that the defendant’s negligence andincompetence in me diagnosis of his child’s sickness broughtabout her untimely demise. He requested that an inquiry beheld into that matter. He also urged him to “give dueconsideration to her (defendant’s) actual competence and herfitness to be a member of the noble profession in consideringher for future appointments” and "even consider appropriateto review the appointments already made because of the dangerof allowing such an irresponsible person to hold public officedischarging public functions.” When the plaintiff received a letterasking him to attend an inquiry on the 9th October in responseto his request made to His Excellency, he attended the inquirybut asked for a postponement of the same on three grounds,one of which being, since sending the letter to His Excellency, hehad “decided to institute legal proceedings and wanted to seeklegal advice.”
In January 1993, the plaintiff filed this action against thedefendant claiming damages on the ground of medical negligenceon her part. It was alleged that Suhani was entrusted to thecare of the defendant and that the defendant owed a duty ofcare to the patientyhat the defendant breached that duty andwas negligent in We discharge of her duties as a medicalpractitioner. It was alleged that in consequence of the defendant’snegligence, there was no diagnosis of the actual sickness andthe child was not treated for the actual malady. It was alleged
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that the child died at a point of time when she need not havedied and the death of the child was directly attributable to thebreach of the duty of care and negligence on the part of thedefendant. The District Court awarded the plaintiff a sum ofRs. 5,000,000. as damages. On appeal to the Court of Appeal,heard before a bench of two judges, both judges agreed on thefinding of the trial judge on the question of medical negligence;but on the question of damages they differed. One judge was ofthe view that the plaintiff was only entitled to medical expensesamounting to a sum of Rs. 250,000, and the other was of theview that the plaintiff was entitled in addition to medicalexpenses, (1) damages on account of mental shock, (2) damagesfor loss of future earnings and support and (3) damages forloss of the care and companionship, all amounting to a sum ofRs. 5,000,000. Damages were not quantified under the differentheads and we do not have the benefit of knowing what legalprinciples were applied to arrive at that figure. Learned counselfor the plaintiff agreed to accept the smaller amount of damages,in order to obviate the delay in bringing the case to a finality,which would have been otherwise caused, by the case havinghad to be re-argued before a bench of three judges of the Courtof Appeal; learned counsel “reserved the right to re-agitate thequestion of the quantum, in the event of the defendant preferringan appeal to this Court,” whatever he may have meant by thatexpression. The defendant was granted special leave to appealby this Court on the following two questions; namely
(1) Did the Court of Appeal err in its finding on professionalnegligence as averred in paragraph 12 of the petition of appeal;and
(2) Is the plaintiff – respondent entitled to be awardeddamages other than medical expenses.
Nature of the Plaintiff’s action and the damagesrecoverable under the law.
It is convenient to deal with the second question relatingdamages initially, by examining the nature of the plaintiff’s action
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alone and that requires no reference to the voluminous evidenceled in the case. The question is purely academic, as no appealhas been filed by the plaintiff; he could not have appealedbecause he was no aggrieved party, his counsel havingconsented to accept the smaller amount of damages, see reaggrieved party, Mendis Vs. Dublin de Silva01. The action hasbeen filed by the plaintiff not in a representative capacity onbehalf of the child’s estate, but as the father of the deceasedchild on account of damages suffered by him. It is axiomaticthat today the delict known as damnum injuria datum createdby The Lex Acquilia has become a general remedy for losswrongfully caused by a another under the Roman Dutch Law.In contrast, under the English Law, the Common Law hasdeveloped a specific delict of negligence (See The History ofNegligence in the Law of Torts – Winfield 1926 42 LQR 184).Requisites of an action under the Lex Aquilia, have beenexpressed by different text writers in different ways; butsubstantially thev are the same. Wickramanayake, gives therequisites as (i). '^p plaintiff must show actual pecuniary loss.An exception is the award of compensation for physical painsuffered by a person injured through the negligence of another,(ii) He must show that the loss was due to the unlawful act ofthe defendant or that the defendant was acting in excess of hisrights, (iii) He must show dolus or culpa on the part of thedefendant (The Law of Delict in Ceylon 1949). Me Kerron, statesthe essentials of liability in the Aquilian action are (i) a wrongfulact, (ii) pecuniary loss resulting to the plaintiff, and (iii) fault onthe part of the defendant (The Law of Delict 1965). Boberg,enumerates four requirements, which are (a) wrongful act oromission; (b) fault, which may consist in either intention ornegligence; (c) causation, which must not be too remote (unlessthis limitation is subsumed under the fault element); and (d)patrimonial loss. (The Law of Delict Vol. 1. 1984). I amconcerned here with the nature of the loss, which the two authorscall pecuniary, while the other calls patrimonial. In the processof deciding what damages are legally due to the plaintiff in theevent of his succeeding in the action, I must remind myself ofthe words of Greenberg J. in the case of Irmes Vs. Vlssert2) said
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of course In a different context, that “The figure of Justice carriesa pair of scales not a cornucopia."
Damages claimed by the plaintiff under the head of mentalshock, appear to be recoverable under the Roman Dutch Lawas well as the English Law (if the test of reasonable forseeabilityis satisfied), only if that results In psychiatric illness. Damageson account of emotional shock of short duration, which has nosubstantial effect on the health of a person are not recoverable.See N Vs. T*3> Clinton – Parker Vs. Administrator, Transvaal &Dawkins Vs. Administrator Transvaal,4> Bester Vs. CommercialUnion Versekeringmaatskappy Van SABPK15' Gibson Vs.Berkowitz and another*61 and Alcock and Others Vs. ChiefConstable of the Yorkshire Police*7*.
As regards damages claimed on account of future earningsand support from the deceased child, it is incumbent on theparent claiming such damages, to prove his indigentcircumstances warranting such support. “Contrawise needyparents also must be maintained by their children” – Voet XXV- 3 – 8. Amerasinghe J. has exhaustively dealt with that aspectof the matter in the case of Gafoor Vs. Wilson and another*8*and it hardly requires any labouring at my hands.
Learned President’s Counsel for the plaintiff strenuouslycontended that the plaintiff is entitled to claim damages for lossof care and companionship of the deceased child. He submittedthat, firstly, if the principles of the Lex Aquilia are properlyapplied, damages other than medical expenses are recoverableby the plaintiff. Secondly, he contended that the resilient natureof the Roman Dutch Law is such that it is within the power ofthis Court to extend the application of that law to modernconditions and thereby grant the plaintiff damages an accountof loss of care and companionship of the child. He contendedthat damnum within the meaning of the Lex Aquiliaencompasses eveiy iype of damage caused by the injurious actand that in the religious and social context of Sri Lanka where
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intra – family ties are treasured and cherished; loss of care andcompanionship of a child should attract compensation today.
What damages were recoverable in an action based on theLex Aquilia was carefully consisered in the case of UnionGovernment (Minister of Railways and Harbours) V. Wamekemand it was held that the loss of the comfort and society of theplaintiff’s wife did not constitute calculable pecuniary loss. At
page 665 Innes J. said “it becomes necessary to consider
the fundamental features of this form of action which have abearing upon the matter before us. And we are at once facedwith the fact that it was essential to a claim under Lex Aquiliathat there should have been actual damnum in the sense ofloss to the property of the injured person by the act complainedof (Gruber, p. 233). In later Roman Law property came to meanuniversitas of the plaintiff’s rights and duties, and the object ofthe action was to recover the difference between that universitasas it was after life act of damage, and as it would have been ifthe act had not lien committed (Gruber, p. 269). Any elementof attachment or affection for the thing damaged was rigorouslyexcluded. And this principle was fully recognised by the law ofHolland. As pointed out by Professor de Villiers (Injuries, p. 182),the compensation recoverable under the Lex Aquilia was onlyfor patrimonial damages, that is, loss in respect of property,business, or prospective gains. He draws attention to the clearcut distinction between actions of injuria (where the intent wasof the essence), and actions founded on culpa alone. In theformer case compensation might be awarded by way ofsatisfaction for injured feelings. In the latter all that could beclaimed was patrimonial damage, which had to be explicitlyand specifically proved. The difference between the two formsof relief is emphasised by Voet (44.7.16), who states that whereone and the same act gives ground for both actions, the receivingof satisfaction for the injuria does not bar the claim forpatrimonial loss resulting from culpa. The award ofcompensation for physical pain caused to a person injuredthrough negligence, which was recognised by the Law of Holland,constitutes a notable exception to the rule in question. Professor
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de Villiers has some interesting remarks upon this position,which was probably the result of the influence of Germanic uponRoman Law. But however that may be, there is no warrant forany such exception in the case of mental distress or woundedfeelings causing no physical injury. Damages calculated on thatbasis were wholly outside the scope of the Aquilian procedure….”
Of course compensation for injured feelings arising out ofand flowing naturally from physical hurt done, could be claimedunder the Lex Aquilia. See Pauw Vs. African Guarantee andIndemnity Co. Ltdll0>.
I find a further constraint on me to grant damages onaccount of loss of care and companionship. That is, after theadministration of the Island changed from the Dutch to theBritish rule, on a settled principle of English Law and policy,that colonies acquired by cession or conquest, retain their oldlaw, so long and so far as it remained unaltered by the newruling power, the system of law that prevailed in the Island atthe time of the capitulation of the maritime province to the British,was made to continue. This continuance was later guaranteedby the Proclamation issued by the British Governor on 23rdSeptember 1799, making the Common Law of the Island theRoman Dutch Law, subject to such “deviations and alterations”as the specific authorities might determine; but those authoritiesdid not include the Courts. In De Costa Vs. Bank of Ceylontwat 461, H.N.G. Fernando CJ, having closely examined theProclamation of 1799, observed as follows;-
“The Proclamation of 1799 thus declared that theAdministration of Justice shall be exercised by the Courtsaccording to the Roman Dutch Law subject to deviations andalterations;-
in consequence of emergencies, or absolutely necessaryand unavoidable, or evidently beneficial and desirable;
by the Court of Directors of the East India Company orthe Secret Committee thereof or the Governor of Fort William;
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by Proclamation of the Governor;
by lawful authority ordained.
But the proclamation did not authorise any such deviationsor alterations to be made by the Courts of Law.”
Fernando CJ, having thereafter considered the repeal of theProclamation of 1799 with certain exceptions by Ordinance No.5 of 1835 stated at 462, “What is important for the presentpurposes is that^je Proclamation of 1799 and the Ordinanceof 1835 did not authorise the Courts to alter or deviate fromthe Roman Dutch Law or to apply in Ceylon principles of EnglishLaw which conflict with the Roman Dutch Law. From 1835 atleast such deviations or alterations could be effected only byOrdinance.”
Learned Presient’s Counsel for the plaintiff drew ourattention to the Dicta of Lord Diplock in the Privy Counciljudgment in Kodeeswaran Vs. The Attorney General<12> wherea different view was taken. Lord Diplock equated the commonlaw of this country to the common law of England and statedthat it has not remained static since 1799. Unfortunately, thetext of the 1799 Proclamation referred to by Lord Diplock inKodeeswaran’s case (at page 339), was that which wasreproduced as the Adoption of Roman Dutch Law Ordinance(Chapter 12) of the 1956 Revision of the Legislative Enactmentsand not the text of the original 1799 Proclamation which judgesin De Costa’s case (at page 461) referred to, having obtained itfrom Dr. G.C. Mendis work on the Colebrooke – Cameron Papers.In the 1956 version of the 1799 Proclamation referred to byLord Diplock, in the Preamble cum the first Clause, the crucialwords “subject::,to such directions, alterations, andimprovements, as shall be directed or approved by the Courtof Directors of the United Company of Merchants of Englandtrading to the East Indies, or the Secret Committee thereof, orby the Governor – General in Council of Fort William in Bengal”,were missing. For that reason I would respectfully adopt the
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views expressed by Fenando CJ in De Costa’s case (Supra)which have been reached after a careful analysis of the completeprovisions of the 1799 Proclamation.
Much earlier Gratiaen J. in Chissel Vs. Chapman!131 wasconstrained to remark as follows:- “But those who administerthe Roman Dutch Law cannot disregard its basic principlesalthough (on grounds of public policy or expediency) we maycautiously attempt to adapt them to fresh situations arisingfrom the complex conditions of modern society. But we arepowerless to alter the basic principles themselves, to introduceby judicial legislation fundamental changes in the establishedelements of an existing action.”
I think we are not entitled, as judges, to change the materialof the Roman Dutch Law, but are only permitted to iron out itscreases, whenever the necessity arises. Effecting structuralalterations to the Common Law should be the exclusive preserveof the Legislature and such alterations have been done by theLegislature from time to time as the occasion arose, in severalfields like for instance, in landlord and tenant, inheritance andsale of goods. I entirely agree with learned President’s Counselfor the plaintiff that in the socio – religious backdrop of SriLanka, loss of care and companionship should attractcompensation. The legislature should take such a policy decisionand lay down guideliness on which courts should calculate andassess the quantum of compensation. Those guidelines shouldindicate, for example, in the case of a death of a child attributableto a tortious act, whether compensation should vary accordingto the age of a child; whether brother or sister could claimcompensation; whether the father or mother is entitled to claimmore than the brother or sister; or should loss of the only childattract more compensation; and the like.
The Standard of Care
Admittedly, the defendant held herself out as a qualifiedpaediatrician, to whose care and treatment the plaintiff
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entrusted his daughter Suhani; therefore, the defendant oweda duty to the plaintiff, to treat Suhani, exercising reasonablecare and skill as a paediatrician, without causing patrimonialloss to him. Duty of care is not a warranty of a perfect resultMustill J. in Wilsher Vs. Essex Area Health Authority(14>. Ittranspired that the defendant has not charged any fee for herprofessional services, but that does not affect her duty of careto the patient, as that duty arises from the performance of theservices. As statd(j£§by Denning LJ. in the case of Cassidy Vs.Ministry of Health151 at 359 “if a man goes to a doctor becausehe is ill, no one doubts that the doctor must exercise reasonablecare and skill in his treatment of him; and that is so whetherthe doctor is paid for his services or not.” When a person’sconduct falls short of the standard of care the law demandsfrom him, his conduct becomes negligent. The criterion ofnegligence is commonly described as the standard conduct of areasonable man or diligence paterfamilias placed in the samecircumstances as the person whose conduct is in question. Inother words, negligence is, doing or omitting to do something,what a reasonable man would not do or would not omit to do,in a given situation. “The standard of reasonableness is partlyobjective and partly subjective. In so far as the actor is expectedto conform to a standard that takes no account of his individualability, experience or temperament (his personal equation), it isobjective; in so far as the standard conduct of a reasonableman or diligence paterfamilias placed in the samecircumstances as the person whose conduct is in question. Inother words, negligence is, doing or omitting to do something,what a reasonably, man would not do or would not omit to do,in a given situation. “The standard of reasonableness is partlyobjective and partly subjective. In so far as the actor is expectedto conform to a standard that takes no account of his individualability, experience or temperament (his personal equation), it isobjective; in so far as the standard takes account of thecircumstances in which the actor found himself, it is subjective.”(Boberg Vol. 1 269).
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The fictional paragon called the reasonable man, wasinvented by the Roman Law as well as by the English CommonLaw, to suit the requirements of the society. He appears so realin the life of the law, perhaps just like his better known fictionalcounterparts -1 am Fleming’s flamboyant James Bond or SirArthur Conan Doyle’s discerning Sherlock Holmes. Englishjudges described him as “the ordinary man”, “the average man”or “the man on Clapham ominibus.” See Hall Vs. BrooklandsAuto Racing Club1161.
The attributes of the notional reasonable man have beenthe subject of many interesting and vivid judicial descriptions.Lord Me Millan in Glasgow Corporation Vs. Muir1171 at 457,said he treads the middle path being “free from over -apprehension and from over – confidence.” Holmes JA in S Vs.Burger at 897 said of him “One does not expect of a diligenspaterfamilias any extremes such as Solomonic wisdom,prophetic foresight, chamelionic caution, headlong haste,nervous timidity, or the trained reflexes of a racing driver. Inshort, a diligens paterfamilias treads life’s pathway withmoderation and prudent commonsense.” (I may digress her toadd that, while in the eyes of the civil law, the reasonable manis a paragon, in the eyes of the criminal law, he is a potentialcriminal, being prone to grave and sudden provocation – SeeJustice E.EN. Gratiean, KC. The reasonable Man, Law CollegeReview 1950 Vol. XI).
Whenever a person engages himself voluntarily in renderingprofessional services requiring a special skill, knowledge, orcapacity for its proper performance, he is required to manifesta reasonable degree of such skill, knowledge, or capacity. Whenthe conduct of a skilled professional is in question, naturally,the standard of an ordinary reasonable man would be ill-equipped and unsuited to judge his competence; thus thenotional reasonable man is substituted with the notionalreasonable skilled professional. This is not an exception tothe general principle in Roman Dutch Law, but is merely anapplication of it; for the reasonable prudent man will not
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voluntarily undertake to perform a task for which he has notthe requisite knowledge, skill or capacity. The required standardwill be that which, having regard to the general level of skill inthe profession or class which offers the service, may reasonablybe expected. Culpability or blameworthiness will depend oneither the want of skill on the part of the professional or adeficient or ineffective exercise of that skill on his part. This iswhere the standard and the practice of the peers of the skilledprofessional, whose action is impugned, becomes relevant.However, in my view, this does not mean that the Court shouldabdicate its determination of the standard of care required ofthe skilled professional, in favour of the opinions expressed bythe peers of the skilled professional whose action is impugned.
The accepted test currently applied in the English Law todetermine the standard of care of a skilled professional,commonly referred to as the Bolam test, is based on the dicta ofMe Nair J. in his address to the jury, in Bolam Vs. Friem HospitalManagement Committee1191. At page 121 he said “but whereyou get a situation which involves the use of special skill orcompetence, then the test whether there has been negligence ornot is not the test of the man on the Clapham omnibus, becausehe has not got this special skill. The test is the standard of theordinary skilled man exercising and professing to have thatspecial skill. A man need not possess the highest expert skill atthe risk of being found negligent. It is well-established law thatit is sufficient if he exercises the ordinary skill of an ordinarycompetent man exercising that particular art.” Again, at page122 he explained “A doctor is not guilty of negligence if he hasacted in accordance with a practice accepted as proper by a
responsible body of medical men skilled in that particular art
Putting it another way round, a doctor is not negligent, if he isacting in accordance with such a practice, merely because thereis a body of opinion that takes a contrary view.” The Bolam testis a departure from the test of the hypothetical reasonable skilledprofessional. The former places emphasis on the standardswhich are in fact adopted by the profession, while the latterconcerns itself with what ought to have been done in the
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circumstances. (For a critical discussion of the Bolam test, seeMontrose – Is negligence an Ethical or a Sociological concept(1958] 21 Modern Law Review 259). Certain glosses were addedto the Bolam test by some subsequent judgments of the Houseof Lords to which I shall refer.
In Maynard Vs. West Midlands Regional HealthAuthority1201 (decided in May 1983) the House of Lords havingconsidered the Bolam test, held that it had to be recognisedthat differences of opinion and practice existed in the medicalprofession and that there was seldom any one answer exclusiveof all others to problems of professional judgment and thereforealthough the Court might prefer one body of opinion to the other,that was not a basis for a conclusion that there had beennegligence on the part of the defendant doctor. In Sidaway Vs.Bethlem Royal Hospital Governor and others1211 (decided inFebruary 1985), while the Bolam test was approved by theHouse of Lords, it was held by a majority, that it applied notonly to diagnosis and treatment, but also to the doctor’s duty towarn his patient of the risks inherent in the treatmentrecommended by him. Lord Scarman in his dissenting judgmentformulated the Bolam test to mean “a doctor is not negligent ifhe acts in accordance with a practice accepted at that time asproper by a responsible body of medical opinion even thoughother doctors adopt a different practice. In short, the law imposesthe duty of care; but the standard of care is a matter of medicaljudgment." (emphasis added). A further important refinementwas added to the Bolam test by the House of Lords in the caseof Bolltho (administratrix of the estate of Bolitho – deceased)Vs. City and Hackney Health Authority122’. It was held that "adoctor could be liable for negligence in respect of diagnosis andtreatment despite a body of professional opinion sanctioninghis conduct, where it had not been demonstrated to the judge’ssatisfaction that the body of opinion relied on was reasonableor responsible. In the vast majority of the cases the fact thatdistinguished experts in the field were of a particular opinion,would demonstrate the reasonableness of the opinion. However,in a rare case, if ft could be demonstrated that the professional
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opinion was not capable of withstanding logical analysis, thejudge would be entitled to hold that the body of opinion wasnot reasonable or responsible.”
In my view, Bolitho’s case probably brings the Bolam testfairly close to the test of the conduct of the notional reasonable 'skilled professional, in the assessment of the standard of care,by its emphasis that the medical opinion should not be solelydeterminative of the required standard.
In Australia, in the case of Rogers Vs. Whitaker1231 the HighCourt held, at least in relation to cases of non-disclosure ofmedical risks, the Bolam test should no longer be applied. Theplaintiff in that case, decided to get her right eye which wasinjured in her childhood, operated by the defendant ophthalmicsurgeon. There was no doubt that operation was performedwith the required skill and care, but the patient not only lostthe vision of that eye, she became almost totally blind as a resultof a condition known as sympathetic ophthalmia developingin her left eye. The question was whether the defendant wasnegligent in that he failed to warn the plaintiff of such risk ofdamage being caused to the left eye. If the Bolam principle wasapplied, even if a patient asks a direct question about the possiblerisks or complications, the making of that inquiry would be oflittle or no significance, because medical opinion woulddetermine whether the risk should or should not be disclosedand the express desire of a particular patient for information oradvice does not alter that opinion or the legal significance ofthat opinion.
The principal criticism for the application of the Bolam testappears to be that if a medical practitioner is able to get aresponsible body of medical opinion, however small that maybe, to say that the practice adopted by him was in their opinion,one which could be reasonably followed, then the court shouldadjudicate the medical practitioner not negligent, even thougha vast body of medical opinion might take the opposite view.(See Disclosure of Risks in Proposed Medical Treatment – F.A.
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Trindade {1993} 109 Law Quarterly Review, where asuggestion is made for the abandonment the Bolam test inEngland). In view of the matters considered above, with regardto the determination of the standard of care, I would prefer tofollow the dicta of Innes J. in Van Wyk Vs. Lewis124’ that ‘Thetestimony of experienced members of the profession is of the
greatest valueBut the decision of what is reasonable under
the circumstances is for the Court; it will pay high regard to theviews of the profession, but it is not bound to adopt them.”
The same idea was expressed more forcefully by King CJ,in the Pull Court decision of the Supreme Court of SouthAustralia in F Vs. Rl25> when he stated “The ultimate question,however, is not whether the defendant’s conduct accords withthe practices of his profession or some part of it, but whether itconforms to the standard of reasonable care demanded by thelaw. That is a question for the court and the duty of deciding itcannot be delegated to any profession or group in thecommunity.” I am in respectful agreement with that proposition.
Was the defendant negligent, in that her conduct did fallshort of the required standard of care ?
It was alleged that the defendant was guilty of several actsof omission and commission amounting to negligence, whichcaused the misdiagnosis of Suhani’s malady as RC and the non-diagnosis as BSG, resulting in the deterioration of her condition,and ultimately leading to her untimely death. We were helpfullyand carefully taken through for several days, the lengthy massof evidence led and the medical literature produced at the trial,by learned President’s Counsel who appeared for either side, todemonstrate that the defendant was either negligent or not. Theevidence for the plaintiff came from the plaintiff himself, Dr. SriLai Dias, neurosurgeon, and M.G.G. Amarasinghe, radiologist.For the defendant, Dr. J.B. Pieris, neurologist, Dr. Shelton Cabral,neurosurgeon, Dr. Joseph Fernando, Secretary of the Ministryof Health, Dr. R.S. Jayathillaka, oncologist, Dr. K.M. Velumylum,Director of Health Services, Dr. Harendra de Silva, professor of
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paediatrics, University of Ruhuna, and the defendant herselfgave evidence.
There is no doubt that the BSG was the cause of Suhani’sdeath on 19.6.1992, although she received treatment at thehands of the defendant for RC, which is also a neurologicaldisease. In the statement made by the defendant on 5.10.1992to the inquiring officer of the Ministry of Health, in response toa petition sent by the plaintiff to His Excellency the President,as well as in her answer dated 15.1.1993, she stated that inthe course of time she too would have ordered a CT scan onSuhani and her BSG could have been diagnosed. Her positionwhen she gave evidence in the original court, was that Suhaniwas suffering from both BSG and RC, but the medical opinionruled out the probability of the presence of both diseasessimultaneously in one person. In any event, I am mindful of thefact that mere misdiagnosis or non – diagnosis of a disease, byitself does not amount to negligence. Attention of both theoriginal Court and the Court of Appeal appears to have beendiverted to many peripheral matters which had no nexus orrelationship to the alleged culpable act of negligence namely,non diagnosis of the BSG, like for instance, the failure of thedefendant to use the knee hammer or the ophthalmascope, forthe clinical examination of Suhani, when no different resultswere yielded when other doctors used them on Suhani. For thesake of convenience and with a view to avoid repetition, I shallexamine several items of relevant evidence led on behalf of theplaintiff to bring home the charge of negligence on the part ofthe defendant, leading to non diagnosis of the BSG, under twobroad heads;- (A) was there a failure to properly attend onSuhani ? and (B) was there a failure to properly investigateSuhani’s illness ?
(A) Was there a failure to properly attend on Suhani ?
It was alleged that the defendant failed to elicit a full historyof Suhani and the medical opinion was unanimous in theimportance of eliciting the history of a patient as a precursor to
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effective treatment. It is significant to note that Suhani waspresented to the defendant’s examination as a child in normalgood health who even attended school on the last day of theterm before the April recess. Much weight was given to thisallegation of not eliciting the history of the patient, because ofthe fact that the plaintiff while giving the history of Suhani tothe Neurological Unit of General Hospital, on 16th June 1992,has stated that in mid February 1992, he noticed in Suhani ‘afunny way of looking'; ‘once in a way head bend to the rightside’ and end of February ‘talking at night while sleeping';‘couldn’t wear slippers’; ‘clumsiness of her limbs’; and ‘whenwalks tendency to fall’. At the time this history was recorded,the BSG in Suhani was diagnosed and admittedly the plaintiffhad read medical literature on Suhani’s malady. The child waspresented to the defendant for examination as a girl in the pinkof her health, except for the dragging of a foot. There was nocritical examination by the Courts below as to whether theplaintiff gave that history to the Neurological Unit from hindsightor whether he was confused due to over-anxiety as to when thosesymptoms manifested. There is no evidence as to whether Dr.J.B. Peiris or Professor Lamabadusuriya elicited those mattersfrom the plaintiff after detailed questioning. I would consider ittoo much to expect a specialist to do extensive questioning fromparents who bring a normally healthy child for examination, onall symptoms of diseases in the book of paediatric pathology.Looking objecively, the inability of a busy specialist to indulgein the time consuming exercise of eliciting the history of a patient,must be viewed from the unfortunate Sri Lankan context, wherea patient is permitted to rush to a specialist, by-passing hisfamily general practitioner, and the specialist being licensed toreadily attend on a patient without even a referral note from ageneral practitioner.
The purpose of a Bed Head Ticket (BHT) is to keep a medicalrecord of a patient. Except for two entries, one calling the nurseto explain why her order to give Valium was not carried out, andthe other requesting Dr. D.R. Karunaratne to look after the childin her absence, the defendant made no entries in the BHT. Most
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entries had been made by the house officer in charge and thedefendant stated that she did not even dictate anything to bewritten on the BHT by the house officer. No symptoms discoveredby the defendant and no results of her clinical examination ofSuhani were reflected in the BHT. Although in the statement ofthe defendant dated 5.10.1992, forwarded to the inquiringofficer of the Ministry of Health, regarding the death of Suhani,
she stated “on examination I found weakness,
involuntary purposeless movements and brisk tendon reflexeswhich led to a provisional diagnosis of rheumatic chorea”,none of those symptoms were recorded or were caused to berecorded in the BHT by the defendant. Strangely, in that verystatement to the inquiring officer, in relation to Dr.Lamabadusuriya taking over the treatment of Suhani, thedefendant stated, “he had the advantage of taking over thepatient after my observations for a month in the same ward”,whereas absolutely no record of her observasions whatsoeverwas available for the benefit of others. Medical opinion was alsounanimous that the proper record of the illness should havebeen recorded in the BHT and it was clear that the defendantwas remiss in that matter. However, I am unable to say that ithas been proved by a balance of probability, that this remissnesshad a nexus with the non-diagnosis of the malady.
It is alleged that the defendant failed to properly consultand follow Dr. J.B. Peiris. The plaintiff arranged Dr. J.B. Peiristo examine Suhani on 18th April and it is right to say that thedefendant quite reluctantly agreed with that arrangement. Thehouse officer had to speak to the defendant over the phone andwrite a note in the BHT requesting Dr. J.B. Peiris to see thepatient. Dr. Peiris having done a thorough neurologicalexamination of Suhani, wrote in the BHT as follows in respectof her.
Prof Priyani Soyza – she has coarse multiplanar, nonpurposive movements of legs which have the features ofchorea, but there are no confirmatory movements in arms ortongue. Knee Jerks brisk and pendular. Suggest Rivotril 0.5
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Mg. EEG (Electro Encephalogram). X-ray Skull – posterior -lateral. Shall review. Thanks’.
I shall refer again to the contents of this entry in the BHTlater in another connection. The EEG was taken and a notewas addressed in the BHT to the defendant again by Dr. J.B.Peiris to say that the EEG ‘shows no significant paroxysmal orfocal abnormility’. Rivotril was not given and the skull X-raywas not taken; those may not have mattered. But the significantfact is that the defendant failed to have any dialogue whatsoeverwith Dr. J.B. Peiris regarding the patient, particularly about theneurological symptoms noted by him and the seemingreservations he had chosen to express; further no opportunitywas given to him to review the diagnosis. The skull X-ray wouldhave revealed nothing, as subsequently it was discovered thatthere was no hydrocephalus which would lead to intra-cranialpressure. Therefore the Court of Appeal was clearly wrong inconcluding that the skull X-ray would have shown intra-cranialpressure and finding fault with the defendant on that score. AllI could say is that on the evidence led, although the defendantcould be faulted for not properly consulting Dr. Peiris, only apossibility as opposed to a probability existed in Dr. Peirisordering a CT Scan being taken, if he was properly consultedat that time.
It was also alleged that the plaintiff persisted in requestingthe defendant to obtain a second opinion from anotherpaediatrician but the defendant refused to do so. The plaintiffsevidence on this matter was devoid in detail. To the letter dated17.8.1992 written by the plaintiff to His Excellency, he appendedmarked ‘A” an “account pertaining to the death” of Suhani.Although reference is made in that statement to plaintiffs makingarrangements to get Suhani examined by Dr. Peiris, not a wordis mentioned about the alleged persistent requests made to thedefendant to obtain a second opinion and the defendant’s refusalto do so. The probabilities are that he did not make such arequest.
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(B) Was there a failure to properly investigate Suhani’sillness?
Powers and Harris on Medical Negligence (1994), underthe subtitle “Space occupying lesion” at 778 states “Thecommonest medico-legal problem in this category results fromdelay in diagnosis; the subsequent management is rarely aproblem. Early cases of subdural haematoma or a gliomacan be very difficult to diagnose and it is not negligent to beunable to reach a diagnosis at the initial consultation.However it is important to consider this diagnosis even if it isonly a remote possibility as it might be in the case of a patientwith a single attack of epilepcy. With modem CT scanning amoderate sized tumour or subdural haematoma will bedemonstrated but this does notfollow for small lesions whichcan be missed. The injection of contrast material during theradiology increases the sensitivity of the test but does not makeitfully reliable. In the absense of definitefocal signs a normalCT scan may occur in the early stages of the lesion andtherefore follow – up is important. (Bouchez, Assaker,Hautefeuille, Combelles, Arnott 1986). CT scans may not bequickly available and it can be important to Judge the besttime to do the scan. A deterioration in the patient's conditionis probably the most important indication to do a scan or torepeat it and it would be negligent not to investigate fully apatient who was getting worse. ”
Admittedly the only way of diagnosing the existence of aBSG is through a CT scan and the evidence of the plaintiff atthe trial was that he was aware of this significant fact. Oneallegation made against the defendant was that she failed toorder a CT scan when she was expressly requested to do so bythe plaintiff. The Courts below have not considered in thisconnection, as to why the plaintiff failed to mention thissignificant fact in the petition he sent to His Excellency, andwhy he failed to make the same request to Dr. Peiris or toProfessor Lamabadusuriya, whose disposition towards him wasquite friendly, according to him. Viewed in the context of thosecircumstances, the probabilities are that the plaintiff did not
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make such a request, and the defendant cannot be faulted onthat score.
There appears to be no negligence on the part of thedefendant in arriving at the initial provisional diagnosis ofSuhani’s malady as RC. Chorea is described in Nelson’sEssentials of Paediatrics (1999) at 744 as “Hyperkinetic, rapid,unsustained, irregular, purposeless, nonpatterned movement.Muscle tone is decreased. Choreiform movementabnormalities may be congenital, familial, metabolic, vascular,toxic, infectious, or neoplastic in origin. The movements mayoccur alone or as a part of more extensive disorder (eg.Sydenham chorea, Huntington chorea, celebral palsy, Wilsondisease, reaction to toxins and drugs). Fidgety behaviour,inability to sit still, clumsiness, dysarthia, and an awkwardgait may occur. The exact site of disfunction within theextrapyramidal system is unknown.’’ Medical opinion is thatit takes a minimum of six weeks for RC to run its course.
There is no question that the controlling of the involuntarychoreiform movements required the patient to be sedated andrested and the defendant prescribed Valium for Suhani. I amunable to agree with the finding of the Court of Appeal, aconclusion unsupported by any medical opinion, that thedefendant was responsible for “masking” the symptoms of BSGby heavy sedation of the child. Medical literature shows thatthe BSG is presented with an insidious onset of symptoms andsigns, therefore it is of utmost importance to observe whatsymptoms and signs manifested in Suhani, when she was underthe care of the defendant. Both Courts below have proceeded toexamine the question of negligence of the defendant on the basisthat the following symptoms of the BSG were manifested inSuhani and they manifested almost simultaneously and werestaring in the face of the defendant, who most callouslyoverlooked them. As described by the Court of Appeal, theywere:-
Brisk knee jerks (ii) Ankle clonus (iii) Choriformmovements (iv) Inability to walk – involving motor tract (v)
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Inability to sit up – involving the motor tract (vi) Inability to usearms (vii) Eyes becoming red – involving cranial nerves 4 and 6(viii) Salivating – involving cranial nerve 7 (ix) Inability to holdhead up – involving the motor tract (x) Slurred speech – involvingcranial nerve 7; and (xi) Response to Babinski test.
As regards (xi) referred to above there is no evidence ofanyone having done that test. Of the above symptoms, regarding(iv), (v), (vii), (viii) and (ix), only the plaintiff spoke of them andno confirmation of the presence of those symptoms came fromthe evidence of Dr. Peiris or from the notes of ProfessorLamabadusuriya or from any other source. The Plaintiff’sevidence as to when those signs he deposed to manifested,appears to be quite vague. Evidence disclosed that Suhani didhave red eyes and that she was treated by the defendant forconjunctivitis. But, there was no evidence to show that theredness of the eyes persisted. Suhani did not have red eyes evenat the time she was admitted to the Neurosurgical Unit of theGeneral Hospital on 16th June. The only witness who could havepositively spoken of what symptoms manifested at the time,Professor Lamabadusuriya took over the care and treatment ofSuhani on 20th May 1992, was Professor Lamababusurtyahimself and the plaintiff has starved the case of that vitalevidence by not calling him to testify, although he was listed ashis witness. It is right to presume, that this evidence which couldhave been and was not produced, would if produced beunfavourable to the party who withheld it, particularly, in respectof the symptoms which the plaintiff alone deposed to. (Seesection 114 illustration {/} of the Evidence Ordinance). In thisconnection, I am unable to subscribe to the view that generally,a member of the medical profession in Sri Lanka, is reluctantto give truthful evidence before a Court of Law, merely becausesuch evidence, will conflict with the personal interests of acolleague. To take such a view of professional camaraderie, wouldprobably be as unreasonable as to agree with George BernardShaw’s hyperbole that “all professions are conspiracies againstthe laity” (Sir Patrick in Doctor’s Dilemma -1906). At the sametime I think it is my duty, in that connection, to indicate the
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same concern expressed by Lord Wilberforce in the case ofWhitehouse Vs. Jordan and another1261 for the benefit of boththe Medical and Legal professions. Lord Wilberforce said at 276"While some degree of consultation between experts and legaladvisers is entirely proper, it is necessary that expert evidencepresented to court should be, and should seen to be, theindependent product of the expert, uninfluenced as to the formor content by the exigencies of litigation. To the extent that isnot, the evidence is likely to be not only incorrect but selfdefeating."
The evidence unequivocally points to the presence of thefollowing symptoms and signs in Suhani, when she was underthe care of the defendant (1) Brisk Knee jerks (2) Ankle clonus
Choreiform movements which includes inability to use armsand (4) slurred speech. As regards brisk knee jerks, both Dr.Pieris and Professor Lamabadusuriya noted them, but Dr. Peirisdid not think they were inconsistent with RC. Dr. Cabral andDr. Sri Lai Dias were however of the view that they were indicativeof the presence of a lesion in the brain. With regard to ankleclonus, it was the evidence of Dr. Peiris, that there was nothingdiagnostic about clonus and at the same time its presence wasunusual for RC. The medical evidence regarding choreiformmovements and slurred speech – dysarthia – is that they aresymptomatic of both RC and BSG.
In addition to the eleven matters mentioned above, the Courtof Appeal was of the view that there were several other featuresin Suhani’s sickness which were Inconsistent with the diagnosisof RC. They were:- (a) the child being four years and one monthold; (b) the absence of a history of rheumatic fever; (c) the ASOTbeing high; (d) sleeping pulse being high; (e) temperature of thechild being normal; and (f) absence of confirmatory movementsin arms and tongue as recorded by Dr. Peiris.
There was no expert evidence to indicate that a child offour was immune from RC. According to the Oxford Text Bookof Medicine (1988), RC affects children and adolescent between
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the ages of 3 and 20, (b) The Oxford Text book of Medicineagain shows that ‘rheumatic fever is rare in patients under fouryears of age, most cases occurring in the 6-15 age group’, (c)According to Dr. Peiris, the raised ASOT was consistent withSuhani having had rheumatic fever as it was indicative of anearlier streptococcal infection. The enlargement of the heartshown in the Telechest was also according to him indicative ofRC. However, the defendant hereself admitted that the raisedASOT was unusual for RC. (d) The medical evidence regardingthe raised sleeping pulse given by Dr. Peiris is equivocal and itcannot be said with any degree of certainty that his evidencesupports that it was inconsistent with RC. But ProfessorHarendra de Silva has testified to the fact that in RC the sleepingpulse is normal, (e) The Oxford Textbook of Medicine statesthat in RC the child usually has no fever, although Dr. Peiris hasexpressed the view that it is inconsistent with RC. (f) As regardsthe absence of confirmatory movements in the hands and tongueas observed by Dr. Peiris on 18th April, although evidencedisclosed that the child could not hold objects and her speechwas slurred, there was no indication as to what Dr. Peiris meantby those observations and that Dr. Peiris was given anopportunity to review his diagnosis. At the most, therefore, thereappears to have had some features unusual with diagnosis ofRC, that being the raised sleeping pulse and raised ASOT; butthere is no justification for the Court of Appeal to have come tothe conclusion that there was evidence of the presence of severalfeatures inconsistent with RC, and therefore bring home thecharge of negligence on the defendant on the basis that sheoverlooked them.
I find it difficult to accept the submission made on behalf ofthe appellant that Dr. Peiris confirmed the diagnosis of Suhani’smalady as RC, firstly, because of the reservations he had chosento express in the BHT and secondly, because he got noopportunity to review the diagnosis as suggested by him. Thataccounts for why Dr. Peiris told the plaintiff that it was “probablyrheumatic chorea.” As far as Dr. Karunaratne was concerned,he came to medically look after the child, in the defendant’s
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short absence, at her request, with no observations of thesymptoms of the disease recorded by her on the BHT, but withthe firm request “to look after the child with rheumatic chorea.”In those circumstances one can hardly contend that Dr.Karunaratne too confirmed the diagnosis made by thedefendant.
I shall now recount briefly the events leading to the discoveryof the BSG in Suhani. On 20th May 1992, the plaintiff wrote theletter produced marked P10, to the sister-in-charge of thepaediatric unit of Nawaloka, conveying his decision to transferthe care of the child from the defendant to ProfessorLamabadusuriya since his daughter “has not made muchprogress since her admission to Nawaloka on 18.4.92.” LearnedPresident's Counsel for the defendant made a point of thisplaintiff’s statement, quite rightly, to submit that the child’scondition had not dramatically deteriorated, as it was attemptedto be made out by the plaintiff, warranting the defendant toorder a CT Scan. As observed earlier Professor Lamabadusuriyawas not called as a witness, nevertheless, what he did as regardsthe treatment and management of Suhani from the 20th May, inmy view assumes great significance in the determination of thequestion of the defendant’s negligence.
I shall set out the important entries made by ProfessorLamabadusuriya in the BHT at Nawaloka from the 20th. On the20th, he wrote “Clinical features suggestive of rheumaticchorea. All tendon jerks very brisk with ankle clonus.“ Heprescribed Epilin, a drug in the same class as Valium, butstronger. On the 21st night, when he saw the child, she was asleepand he did not want to disturb her, but he wrote “Parents thinkinvoluntary movements are less and speech is better.” On the22nd, he wrote “Condition same as yesterday. Hypotonia +speech same, unable to sit. Tendon jerks brisk.” On the 23rd,he wrote “More drowsy today and less alert. Involuntarymovements same. Pupils (normal). Continue Epilin.” On the24th, he wrote “Involuntary movements less. Speech same.Unable to sit up. Fundi – cannot visualise the optic discs.
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Tendon Jerks – could not elicit knee jerks. Poor co-ordination.”Dosage of Epilin was increased. On the same day ProfessorLamabadusuriya wrote to Dr. Newton Jayaratne, consultantradiologist to say that “This patient is under treatment forRheumatic Chorea since mid April 92.1 took over the patientonly few days ago. Her tendon jerks are very brisk and thereis ankle clonus which is unusual for chorea. I cannot visualisethe optic discs to see whether there is papiledema. Could youplease do a CT Scan of the brain to exclude the possibility ofa SOL (Space occupying lesion).”
The CT Scan was done on the 26th and according to thereport sent by Dr. Jayaratne addressed to ProfessorLamabadusuriya “The size, shape and position of the ventriclesare normal. There is enlargement of the brain stem from thepons down to the medulla. An irregular enhancing mass isseen in the brain stem. Appearances are most likely due to abrain stem glioma. The possibility of a tuberculus infection isless likely. DIAGNOSIS, Brain Stem Glioma.” On the 27thProfessor Lamabadusuriya wrote to Dr. Lai Gunasekara,consultant neurosurgeon to say that "This patient who has beentreated as a case of rheumatic chorea for one month cameunder my care last week. In addition to choreiform movements,
I noticed that all tendon jerks were brisk and there was ankleclonus. As the brisk jerks persisted and the response to sodiumvalporate was not optimal a CT Scan was done yesterday,which revealed a S.O.L. in the brainstem suggestive of aglioma. I would very much value your surgical opinion aboutfurther management”. The same day Dr. Gunasekera replied“The lesion is in the middle of the brainstem and inaccessiblefor a biopsy. No hydrocephalus. As such no surgery is possible…” He added a postscript to say that “StereotacticRadiotherapy which is the best is available at Sheffield c/oDr. Srilal Dias”.
We are thus in possession, as to why ProfessorLamabadusuriya, a senior paediatrician himself ordered the CTScan. True, he did not rush to order the Scan to be taken on
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the 20th itself or order that to be taken on the 24th “immediately”,as he could have done. He watched for the response to sodiumvalporate (Epilin) as seen by his memorandum to Dr.Gunasekera. He belongs to the same class of medical specialiststo which the defendant belongs and in fact succeeded thedefendant as the professor of paediatrics at the Medical College.The reasons why he ordered the Scan is specified in his letteraddressed to Dr. Jayaratne and that was to exclude thepossibility of a SOL, because tendon jerks were brisk and therewas ankle clonus, which were unusual for RC. Although thepresence of ankle clonus is not recorded in the skimpy BHT atNawaloka before the 20th of May, that symptom could not havesuddenly sprung up on the 20th for the benefit of ProfessorLamabadusuriya’s examination of Suhani. I have already heldthat the defendant was remiss in not setting out or causing toset out symptoms of Suhani’s illness in the BHT. Was thedefendant negligent in not ordering the Scan either to confirmher initial diagnosis or to arrive at a differential diagnosis whenthose two symptoms were present in addition to choreiformmovements? In my view what Professor Lamabadusuriya didin the circumstances was demonstrative of the standard of careand skill required of an ordinary skilled person exercising andprofessing to have that special skill namely that of a specialistpaediatrician. Ordering a CT scan be taken on Suhani wassomething reasonably required by a specialist paediatrician toreach a differential diagnosis at that stage. In my view, thedefendant’s conduct fell short of that standard of care and shewas therefore negligent.
Causation
Nelson – Essentials of Paediatrics (1999) on Oncology givesthe following description at page 601;-
"Tumor/Site – Brain stem glioma
Manifestations – Onset between 5 and 7 yr of age; triad ofmultiple cranial nerve deficit (Adi, ix, x, v, vi) pyramidal tract,
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and cerebellar signs; skip lesions common; IncreasedIntracranial Pressure is late.
Treatment – Excision impossible; radiotherapy is palliative;corticosteriods to reduce tumor edema; experimentalchemotherapy.
Comments – Small size but critical location makes the tumorhighly lethal”.
The mere proof of the fact that the defendant was negligentin not ordering a CT scan on Suhani, (which led to the non-diagnosis of the BSG), does not make the plaintiff becomeentitled to damages. The plaintiff must further prove that suchnon-diagnosis caused or materially contributed to thedeterioration and death of Suhani which caused wrongful lossto him. If the death would have occurred in any eventunconnected with the defendant’s breach of duty, the defendantis not liable in damages. In other words, the plaintiff must proveon a balance of probabilities the existence of the causalconnection between the defendant’s breach of duty and thedamages he suffered. In this connection, there were certainspecific issues raised at the trial on behalf of the defendant,and they were:-
24. (a) Was the said child found to be suffering from a rapidlyprogressive extremely malignant (cancerous) incurable tumourof the brain stem in an inaccessible site as pleaded in para 213(g) of the answer?
Was the death of the child necessarily a part of the natureof the disease which was never preventable at any stage andwith an inevitable fatal outcome?
If either (a) or (b) is answered in the defendant’s favourcan the plaintiff maintain this action against the defendant?
Both Courts below answered the above mentioned issues24(a) and (b) in the affirmative in favour of the defendant, and
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proceeded to answer the consequential issue 24(c) also in theaffirmative, but in favour of the plaintiff. Strangely, the Court ofAppeal, having answered the issue 24(b) in the affirmative (tothe effect that the death of the child was a necessarily a part ofthe nature of the disease which was never preventable at anystage and with an inevitable fatal outcome) went on to addcontradicting that position – “With proper diagnosis andtreatment it could have been prevented or postponed”.
In respect of causation, I shall set out in full at this stage,all what the Court of Appeal was pleased to express beforeanswering the three issues in the manner mentioned above.
“ The damages claimed in an action would be in relation to theeffect brought about by the act or omission of the defendantand will have a direct relationship to the cause. In this instancethe negligence of the defendant which was caused by the non-diagnosis of a brain stem glioma in the child Suhani around
04. 1992 and most probably the wrong diagnosis ofrheumatic chorea, both resulted in the child not being treatedin time for the brain stem glioma. If treated in the time themedical evidence confirmed that there was a possibility of thechild living for some more time. The early death of the child on
06. 92 therefore was a direct result of the non-diagnosis ofthe defendant. The death of the child therefore could beattributed to the negligence of the defendant. Thus negligenceof the defendant was the cause and the death of the child wasthe result”.
I shall now refer to a few decided cases that illustrate theprinciple of causation. In the case of Fish Vs. Kapur<27>, it washeld that there was no loss which flowed from the defendantdentist’s failure to diagnose a broken jaw, because even if hediagnosed it, there was no treatment which could have beengiven. There was no proof of any damage following on the failureto diagnose. In Barnett Vs. Chelsea & Kensington HospitalManagement Committee,28>, it was held that the hospital’scasualty officer was negligent in his failure to see and examinethe deceased, but even if the deceased was examined, medicalevidence showed on the balance of probabilities, that he would
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still have died; and negligence was not the cause of death. Inthe more recent case of Kay Vs. Ayrshire and Arran HealthBoard<29> a child who suffered from meningitis was negligentlyinjected thirty times the correct dose of penicillin. Immediatelyremedial treatment was given when the mistake was realised.The child recovered from the short term toxic effects of theoverdose, but was subsequently found to be deaf. In the actionbrought against the defendant for damages in respect of thedeafness, evidence was led on behalf of the defendant to theeffect that in no recorded case, had an overdose of penicillincaused deafness, while deafness was a common sequela ofmeningitis. In appeal to the House of Lords, it was contendedon behalf of the child that the overdose had created an increasedrisk of neurological damage which in fact resulted in deafness.It was further contended on the child’s behalf that the defendantwas liable on the principle that if the defendant engaged in aconduct which created or increased the risk of injury, and thechild was injured, the defendant was then to be taken as havingcaused the child’s injury, even though the existence and extentof the contribution by the defendant’s conduct to the child’sinjury, could not be ascertained. But the House of Lords heldthat, where two competing causes of damage existed, the lawcould not presume in favour of the patient that the tortiouscause was responsible for the damage, if it was not first provedthat it was an accepted fact that the tortious cause was capableof causing or aggravating such damage.
In Hotson Vs. East Berkshire Area Health Authority1301, itwas held that the crucial question of fact which the judge hadto determine, was whether the cause of the plaintiff 13 year oldboy’s injury, was his fall or the Health Authority’s negligence inmaking an incorrect diagnosis and delaying treatment, since ifthe fall had caused the injury the negligence of authority wasirrelevant in regard to the plaintiff’s disability. That questionwas to be decided on the balance of probablities. Accordingly,since the judge had held that on the balance of probabilities,given the plaintiff’s condition when he first arrived at the hospital,even correct diagnosis and treatment would not have prevented
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the disability from occurring, it followed that the plaintiff hadfailed on the issue of causation. The issue of quantificationconsidered by the judge therefore never arose, because thequestion concerning the loss of a chance could not arise wherethere had been a positive finding that before the duty arose, thedamage complained of had already been sustained or hadbecome inevitable.
Learned President’s Counsel for the plaintiff submitted thatit was sufficient if it was proved that the tortious act materiallycontributed to the damage or materially contributed to the riskof damage. He relied on the judgements of Bonnington CastingsLtd. Vs. Wardlaw1311 and Me Ghee Vs. National Coal Board1321.He submitted that although in Wilsher Vs. Essex HealthAuthority®31, it was held by the House of Lords, that Me Gheewas wrongly decided regarding the shifting of the burden of proofto the defendant, it is still good law subject to the formalrequirement that the burden of proof remains with the plaintiff.
If I may advert to the facts of those two cases, inBonnington,(supra) the plaintiff workman sued his employerfor damages caused by negligence. He worked for eight yearsfor the employer in the dressing shop of a foundry, producingsteel castings and contacted the disease called pneumoconisisthrough inhaling silica dust. The main source of this dust wasfrom pneumatic hammers, one of which the plaintiff operated.There was no known protection against dust produced by thissource. Part of the offending dust came from operationsconducted at swing grinders, as a result of ducts of the dustextraction plant for those grinders not being kept free fromobstruction by the employer, as provided for by law. It was heldthat the proportion of silica dust coming from the latter sourceand inhaled by the plaintiff, had been shown on the evidencenot to have been negligible and had contributed materially forhis contacting pneumoconisis. In Me Ghee, the plaintiffworkman was employed by the defendant employer to cleanout brick kilns and he contacted the disease known asdermatitis. The plaintiff claimed damages on the ground of
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negligence on the part of the defendant. Medical evidencedisclosed that dermatitis had been caused by the workingconditions in the brick kilns as the workman was exposed toclouds of abrasive brick dust. The evidence was that as theemployer failed to provide the washing facilities, after work, theworkman had to exert himself further by bicycling home, withbrick dust adhering to his skin, which added materially to therisk of developing dermatitis. It was held that the defendantwas liable in damages as the breach of duty by it materiallycontributed to the injury, notwithstanding that there were otherfactors for which the defendant was not liable, which hadcontributed to the injury. The principle laid down in bothBonnington and Me Ghee was that if the defendant’s negligenceis partly contributory to the injury caused to the plaintiff, thatpart should materially contribute to the injury or the risk ofdeveloping that injury, for the defendant to be liable. That isundoubtedly good law, but the material contribution to the injuryor the risk of injury should nevertheless be proved on a balanceof probabilities.
It appears to me that neither the original Court nor theCourt of Appeal gave adequate consideration to the question ofcausation. In any event, the Court of Appeal was clearly in errorwhen it concluded that the defendant was negligent in non-diagnosis of the BSG around 18th April. I have already given myreasons for holding that the defendant was not negligent in herinitial non-diagnosis of the BSG. The negligence of the defendantin not ordering the CT scan which would have led to thediagnosis of BSG, in all probability occurred just prior to the20th of May, when the choreiform movements, brisk knee jerksand ankle clonus simultaneously manifested themselves. NeitherCourt could have fallen to this error, if as observed by me earlier,a proper evaluation of the evidence was made, as to whatsymptoms of the malady manifested and when they didmanifest.
On the question of causation, the plaintiff relied on thetestimony of Dr. Sri Lai Dias, neurosurgeon, the important parts
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of whose evidence on this crucial issue, I shall quote verbatim.It must be borne in mind that he examined Suhani after thediagnosis of the BSG was made and therefore at the time hegave evidence he had sufficient hindsight. Before I deal with theevidence of Dr. Dias, I must refer to what the plaintiff chose toset out in his Annex A sent along with his letter dated 17. 08.1992 to His Excellency, purpoting to be the view of Dr. Dias,“any form of interventional therapy either surgery or radiotherapy (conventional or stereotactic) has limited scope in anydefinitive treatment of the lesion, as the possible benefits wouldbe marginal and unlikely to provide any improvement of qualityof life”.
In examination-in-chief Dr. Dias testified as follows:-
“Q. Why was surgery not done at that time?
A. At the time the child was presented to me disability mostlyin terms of physical disability would certainly not haveimproved. Even if surgery had been successful at that stage,she was extremely depressed and any attempt at surgery wouldnot have been an improvement at that time to the patient andin view of that it was decided after discussion that any attemptof surgery would not be carried out.
Q. You decided that surgery should not be carried out atthat time, because even if surgery was successful there wouldnot have been much improvement in the condition of the child,but if surgery was contemplated at an earlier point of timesurgery may have been done with success?
A. Yes.
Q. If this child was presented to you at an earlier time whenher condition was better and the lesion less could surgery havebeen performed with a lesser risk of success?
A. Yes.
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Q. If the child was presented to you earlier when she was ina better state and the lesion less, if surgery was done you wouldhave expected her to live for a period of time thereafter?
A. fes.”
Some details of the quality of life the child would have led,like attending school were elicited from Dr. Dias, on thehypothesis of the child being operated on when her conditionwas ‘better’ and the lesion was ‘less’, and I fail to see the force ofthe probative value such evidence would carry to establishcausation. Again the following question has been asked:-
“Q. If the child was presented to you earlier when the lesionwas less and the surgery was done” the child would have livedfor a particular period of time?
A. That is indeed true”.
This answer was again followed by the quality of life thechild would have led, if surgery was done under those imaginarycircumstances and conditions. Dr. Dias was rightly not cross-examined on those matters, and the evidence if any on causation,rested purely in the realm of conjecture. This is in all probability,why the Court of Appeal observed ‘If treated in time, the medicalevidence confirmed that there was a possibility of the childliving for some more time’.
In view of this unsatisfactory evidence on causation, learnedPresident’s Counsel for the appellant submitted, that thedefendant’s liability for negligence should not be based on amere possibility as distinct from probability and that allegationhas to be established upon a preponderance of probability andnot on a mere speculative theory. He is correct in that submission.
I hold that the plaintiff has failed to prove on a balance ofprobabilities, that the negligence of the defendant just prior to20th May 1992, caused or materially contributed to the deathof Suhani on 19th June 1992, and thereby caused patrimonialloss to him.
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ConclusionFor the above reasons, I allow the appeal, set aside thejudgements of both Courts below and make order dismissingthe plaintifFs action. The defendant will be entitled to taxedcosts of the action in all Courts.
BANDARANAYAKA, J. •1 agree.
ISMAIL, J.- I agree.
Appeal allowed.