Carlos Medeiros v Island Construction Services Company Ltd

• Jurisdiction: Bermuda
• Judgment Date: 06 December 2017
• Docket Number: Civil Jurisdiction 2010 No 55
• Date: 06 December 2017
• Court: Supreme Court (Bermuda)

[2017] Bda LR 135

In The Supreme Court of Bermuda

Civil Jurisdiction 2010 No 55

Between:

Carlos Medeiros

Plaintiff

and

Island Construction Services Co Ltd

1st Defendant

Antwone Leroy Simons

2nd Defendant

Bermuda Hospitals Board

3rd Defendant/3rd Party

Dr Steven Dore

4th Defendant/4th Party

Dr Matthew Arnold

5th Defendant/10 4th Party

Mr C Rothwell for the Plaintiff

Mr J Elkinson and Mr S Pearman for the 1^st & 2^nd Defendants

Mr A Doughty and Ms G Tucker for the 3^rd Defendant

Mr P Harshaw for the 4^th & 5^th Defendants

The following cases were referred to in the judgment:

Williams v Bermuda Hospitals Board [2014] Bda LR 22

Bermuda Hospitals Board v Williams [2016] AC 888

Bolam v Friern Hospital Management Committee [1957] 1 WLR 582

Medical negligence — whether medical treatment exacerbated initial injuries sustained in road traffic accident — Insured driver's negligence

JUDGMENT of Kawaley CJ

Introductory

1. By an Amended Generally Endorsed Writ of Summons issued on 17 February 2010, the Plaintiff claimed damages for the negligence of D1– 2 in relation to a collision on or about 10 March 2006 between a vehicle owned by D1 and driven by D2 and a truck which was propelled into the vehicle being driven by the Plaintiff, thereby causing him personal injuries. Alternatively, the Plaintiff claimed additional damages for the negligence of BHB, the 4^th and 5^th Defendant (“D4” and “D5”) during and after a hernia repair operation on 10 December 2008. The special damages claim alone was for some $3.2 million.

2. D1 and D2 having admitted liability, the Plaintiff relied upon the claim advanced by D1 and D2 against BHB and D4 and D5 based on the premise that the negligence of the Hospital and the doctors who treated the Plaintiff after the hernia repair surgery carried out on 10 December 2008 caused or contributed to the damage the Plaintiff complains of in the present proceedings. D1 and D2 had initially joined BHB as a third party, and BHB in turn joined D4 and D5 as Fourth and Fifth parties.

3. Due in large part to difficulties in scheduling participation of the various medical experts, the trial took place in three phases and some experts gave their evidence before D4 and D5 gave their crucial factual evidence. The three phases were as follows:

• i. February 2017: the case of D1 and D2 opened and closed with oral evidence being given by surgical expert Mr Collin (21– 23 February). BHB opened its case and called his surgical expert Mr Meleagros (23 February. D4 opened his case and called surgical expert Mr Peter McDonald (24 February. D5 opened his case and called his anaesthesia expert Professor Aitkenhead (24 February. D4 and D5 each gave their oral evidence and closed their cases (27 February;

• ii. August 2017: BHB continued its case by calling its former resident Dr Krow-Rodney (21 August) and concluding the evidence of Mr Meleagros (21– 22 August). On 22 August 2007 I granted leave for Dr Winters to submit an amended report and for responsive expert evidence to filed, if necessary;

• iii. November 2017: BHB called its last expert witness, Dr Winters, and closed its case (14 November 2017) and closing submissions were made (14 November 2017)1.

4. By the end of the trial, it was clear that the following main issues required determination:

• i. whether the Plaintiff and/or D1-D2 had proved that D4 and/or D5 were negligent in treating the Plaintiff by failing to ensure that the Plaintiff had corrective surgery without undue delay when complications ensued following hernia repair surgery carried out by D4 on 10 December 2008;

• ii. if yes, whether the Plaintiff and/or D1-D2 had proved that the relevant breach of duty caused or materially caused new damage or exacerbated the injuries the Plaintiff sustained in the road accident which gave rise to the hernia repair surgery carried out on 10 December 2010; and/or

• iii. whether the Plaintiff and/or D1-D2 had proved that BHB had breached its non-delegable duty of care in respect of the Plaintiff's post-operative care and either caused new damage or exacerbated the Plaintiff's pre-existing injuries.

5. Issues (2) and (3) effectively merged into one issue as no or no coherent case was advanced against BHB independently of the alleged negligence of D4 and D5. This was despite the fact that I ruled on the trial of a preliminary issue that BHB did owe a non-delegable duty of care2.

The Plaintiff's case against D1– 2

6. The Plaintiffs case against D1– 2 was set out in paragraphs 1– 8 of his Amended Statement of Claim. These paragraphs were admitted by D1– 2 in paragraph 1 of their Amended Defence. The Plaintiff's injuries were particularised in paragraph 9 of the Amended Statement of Claim. The injuries included multiple fractures in each leg, a ruptured spleen and a ventral hernia. He was in skeletal traction for 8 weeks and underwent an emergency splenectomy. On 10 December 2008 the Plaintiff underwent hernia repair surgery. Complications thereafter required him to be transported by air ambulance to Massachusetts General Hospital.

7. The Amended Defence of D1– 2 responded to this aspect of the claim as follows:

“3. If the Plaintiff did suffer the pain, injury, loss and damage to the extent set out in paragraph 9 of the Statement of Claim (which is denied) then the Defendants say that the said pain, injury, loss and damage was suffered and/or contributed to by reason of the negligence of a Third Party, the Bermuda Hospitals Board, its servants or agents.”

8. The trial accordingly focussed on the liability of the medical Defendants in relation to the medical treatment the Plaintiff received after the road traffic accident occurred. The Plaintiff had hernia repair surgery on December 10, 2008. The result of a second surgery on 11 December 2008 was to undo that repair. The central controversy was whether the medical response to post-operative complications after the 10 December operation was negligent and either exacerbated the injuries the Plaintiff suffered in the road traffic accident or, alternatively, broke the chain of causation between D1– 2's negligence and his post-10 December 2008 injuries altogether.

The Plaintiff's case against the medical Defendants

9. The Plaintiff's case against the medical Defendants was pleaded as follows in the Amended Statement of Claim:

“11. If the First and Second Defendant are not wholly liable for damages as above, the Plaintiff claims his personal injuries, loss and damages were caused by the First and Second Defendants and caused and/or exacerbated by the negligent treatment and care of the Plaintiff by one or more of the Third Defendant (which includes its servants or agents), Fourth Defendant and Fifth Defendant during and after his hernia repair operation on or about 10^th December 2008.”

10. It was in particular alleged that:

• • D4 negligently delayed emergency follow-up treatment from 1.50 pm on 11 December 2008 and “failed to diagnose and/or properly respond to the Plaintiff's symptoms of massive blood loss and/or abdominal compartment syndrome”;

• • D5 failed from 5.35pm on the same day “to diagnose the Plaintiff as suffering from abdominal compartment syndrome or take steps to have the patient admitted to the operating theatre to undergo emergency surgery”;

• • BHB breached a “direct non-delegable duty of care to ensure that reasonable care was at all times taken in relation to the medical, nursing and other care with which the Plaintiff was provided by or on behalf of the Third Defendant…The Third Defendant was negligent in failing to return the Plaintiff to the operating theatre before midnight on the 10th of December 2008 for the evacuation of blood already lost and for the arrest of further haemorrhage… was negligent in failing to operate on the Plaintiff to arrest further bleeding until very late evening of the 11^th December 2008 …”

11. The BHB Defence to the Amended Statement of Claim:

• • averred that D4 was hired by the Plaintiff and that no duty was assumed to the Plaintiff by BHB;

• • averred that BHB's employees acted solely under the instructions of D4– 5;

• • averred that D4– 5 acted appropriately in any event.

D1– 2's Third Party Notice

12. D1– 2 served an Amended Third Party Notice on BHB which broadly corresponded to the Plaintiff's claim against BHB. BHB's Re-Amended Defence as Third Party alleged that BHB acted appropriately in the support it furnished to D4 and D5 (the First and Second Fourth Parties, for these purposes). Accordingly, despite the fact that the central thesis advanced by the only expert called by D1 and D2 was that that D4 and D5 failed to promptly diagnose post-operative internal bleeding, there was an alternative pleaded case as well. It was complained that the doctors failed to promptly diagnose abdominal compartment syndrome as well.

BHB's Re-Re-Amended Fourth Party Notice

13. BHB alleged as against D4– 5 as First and Second Fourth Parties that:

• • at all material times its servants and/or agents met the requisite standard of care in relation to the Plaintiff; and

• • D4– 5 were granted hospital privileges on express terms that they would afford BHB absolute immunity for any potential liabilities.

D4– 5's Defence

14. D4– 5 admitted the facts recorded in BHB's records relating to the Plaintiff's condition during the period he was under their care. The following significant averments were however made:

• • it was denied that the Plaintiff displayed “determinative signs of ACS” before 8.00pm on 11 December 2008 when he entered respiratory distress;

• • D4 denied recalling being told by Dr Krow or anyone that the Plaintiff was suffering from kidney failure, although he was aware of developing renal insufficiency which was dealt with appropriately;

• • D5 admitted being aware of the possibility that the Plaintiff was suffering from increased pressure in his abdominal cavity from 4.30pm but denied negligently failing to diagnosis ACS;

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