Snowden v Emery, Dyer and Bermuda Hospitals Board

• Jurisdiction: Bermuda
• Judgment Date: 25 September 2014
• Docket Number: Civil Jurisdiction 2012 No 350
• Date: 25 September 2014
• Court: Court of Appeal (Bermuda)

[2014] Bda LR 92

In The Supreme Court of Bermuda

Civil Jurisdiction 2012 No 350

Between:

Nanette Snowden

Plaintiff

and

Dr Terri-Lynn Emery

Dr Charles Dyer

Bermuda Hospitals Board

Defendants

Mr M Daniels for the Plaintiff

Mr P Harshaw and Ms A Wilson for the 1^st Defendant

Mr K Musson for the 2^nd Defendant

Mr A Doughty for the 3^rd Defendant

The following cases were referred to in the judgment:

Broadsino Finance Co Ltd v Brilliance China Automotive Holdings LtdBDLR [2005] Bda LR 12

Global Construction Ltd v Hamiltonian Hotel & Island ClubBDLR [2005] Bda LR 81

Kleinwort Benson Ltd v Barbrak LtdELR [1987] 1 AC 597

Waddon v Whitecroft Scovell LtdWLR [1988] 1 WLR 309

Piper v O'BrienBDLR [2000] Bda LR 15

Chappell v CooperWLR [1980] 1 WLR 958

Battersby v Anglo-American Oil Co LtdELR [1945] KB 23

Baker v Bowketts Cakes LtdWLR [1966] 1 WLR 861

Bernstein v JacksonWLR [1982] 1 WLR 1082

Leal v Dunlop Bio-Processes LtdWLR [1984] 1 WLR 874

Ward-Lee v LinehamWLR [1993] 1 WLR 754

Singh v Duport Harper Foundries LtdUNK [1994] 2 All ER 889

Pritam v S Russell & SonsELR [1973] 1 QB 336

Marren v Dawson Bentley & Co LtdELR [1961] 2 QB 135

Spargo v North Essex District Health AuthorityUNK [1997] PIQR P235

Walkley v Precision Forgings LtdWLR [1979] 1 WLR 606

Horton v SadlerELR [2007] 1 AC 307

Cain v FrancisELR [2009] QB 754

McDonnell v Walker [2010] CP Rep 14

Tai Hing Ltd v Liu Chong Hing BankELR [1986] 1 AC 80

White v Conyers Dill & PearmanBDLR [1994] Bda LR 9

Personal injury — Damages — Professional negligence — Application for strike out — Service of writ — No reasonable cause of action — Limitation of actions — Concurrent jurisdiction of tort and contract — Extension of validity of the writ — Amendments to statement of claim

RULING of Hellman J

Introduction

1. The Plaintiff brought a claim for damages against the First and Second Defendants for personal injury. The writ was endorsed:

The Plaintiffs' claim [sic] against the First and Second Defendants damages for negligence and/or breach of duty of care emanating from the surgical procedures and treatment rendered by them to the Plaintiff on the 9^th October 2006 and subsequently thereafter between October and December 2006 at King Edward Memorial Hospital in the Islands of Bermuda, together with interest, costs and such further or other relief as the court thinks fit.

2. The Third Defendant was the subject of allegations of negligence contained in the statement of claim. However as the Third Defendant was not named in the writ it did not accept that its joinder to these proceedings was valid.

3. All three Defendants applied to strike out the Plaintiff's claim pursuant to Order 18, rule 19 of the Rules of the Supreme Court 1985 (‘RSC’) and/or the Court's inherent jurisdiction.

4. The Defendant has accepted that she has no cause of action against the Third Defendant, against whom her claim has accordingly been dismissed. It is therefore unnecessary for me to decide any of the issues arising on the Third Defendant's strike out application.

5. That leaves the First and Second Defendants. The grounds of their applications are:

• i. That service of the writ was ineffective as it had expired before the purported dates of service and had not been renewed.

• ii. The contents of the writ do not comply with the formal requirements for a writ as set out in RSC Order 6. But these are technical defects which can readily be cured by amendment – indeed the Plaintiff has filed an amended writ, albeit without leave, which cures the defects – and are not a good reason for striking it out.

• iii. The statement of claim discloses no reasonable cause of action and/or is frivolous, vexatious or otherwise an abuse of process.

Chronology

6. It will be helpful to set out a brief chronology. During the period which this covers the Plaintiff was admitted on a number of occasions to the King Edward VII Memorial Hospital (‘the Hospital’), where she was treated by, among others, the First and Second Defendants. They treated her at all material times as a private patient. This is important, because it means that their relationship with her was contractual.

7. On 3^rd February 2005 the Plaintiff was admitted to the Hospital complaining of abdominal pain. She underwent surgery to remove an abdominal wall lipoma, which was carried out by the First Defendant.

8. On 7^th November 2005 the Plaintiff was admitted to the Hospital having been diagnosed with dysfunctional uterine bleeding. She underwent a hysteroscopy and dilation and curettage, which was carried out by the First Defendant.

9. On 23^rd January 2006 the Plaintiff was admitted to the Hospital, where she underwent a hysterectomy. This was performed by the First Defendant.

10. On 9^th October 2006 the Plaintiff was admitted to the Hospital where she underwent an operation to remove an ovarian cyst. Preston Swan, Vice President in charge of Quality and Risk Management for the Third Defendant, has sworn a Second Affidavit dated 15^th August 2014 in which he reviews the Plaintiff's medical records. From these, he concludes that the Plaintiff's ovary was removed under the care of Dr Emery with the assistance of Dr Emma Robinson and that Dr Christopher Johnson performed separate reconstructive surgery. Neither Dr Robinson nor Dr Johnson has been named as a defendant in these proceedings.

11. During the course of the operation to remove the cyst, the Plaintiff's left ureter was accidentally transected or cut across. Although the medical records state that the ureter was repaired by the Second Defendant, it is not obvious from the medical records by whom it was cut. Mr Swan states at paragraph 10 of his Second Affidavit, summarising the Plaintiff's case notes:

‘The next entry which I see on the following page is signed by Dr Dyer and states that he conducted a repair of the left transected ureter. Beneath that entry, on the same page I also see a note by Dr Emery which describes the procedure which took place noting that the left ureter was transected. It is then recorded that Dr Dyer repaired the ureter.’

12. Following surgery, the Plaintiff experienced fever and severe abdominal pain. She was readmitted to the Hospital on several occasions as a private patient under the care of the Second Defendant. A stent was inserted in her left ureter and subsequently replaced.

13. On 16^th December 2006 the Plaintiff attended the Hospital for a procedure to insert a nephrostomy tube. The medical records exhibited to the Third affidavit of Preston Swan dated 15^th August 2014 state that after a couple of attempts at nephrostomy, which were carried out at the Second Defendant's request by Dr Rajah Koppala, the procedure had to be abandoned as the patient complained of enormous pain during the procedure. Dr Koppala advised the Plaintiff that she undergo the procedure under a general anaesthetic.

14. The Plaintiff elected instead to be treated overseas, and was for this purpose referred by Dr Johnson to Massachusetts General Hospital (‘MGH’) in Boston. She underwent further treatment there and on 21^st June 2007 her kidney was removed.

15. In an affidavit dated 22^nd May 2014, which is in fact her Fourth Affidavit although it is wrongly described as her Third, the Plaintiff states that she remained a patient at MGH from 19^th December 2006 until 21^st January 2008, ‘when it was communicated to me that I had a legitimate cause of action against the Defendant for medical negligence’. It is not clear from her affidavit at what point during this period the communication took place. She adds that she consulted Canadian counsel about her injuries in or about 2007.

16. On or about March 2008, the Plaintiff's Canadian attorneys contacted the Bermudian law firm Lynda Milligan-Whyte and Associates (‘LMW’) with a view to instructing them to represent the Plaintiff in connection inter alia with a dispute between the Plaintiff and the Defendants in relation to medical malpractice. The attorney with whom they dealt at LMW was Paul Harshaw, who now acts for the First Defendant. The Plaintiff has applied for an order that he be prohibited from doing so, but I have not yet heard argument on that application. It appears to be in dispute whether LMW were ever formally retained by the Plaintiff in connection with her personal injuries claim.

17. Mr Harshaw left LMW at the end of 2008 to set up his own law firm. The Plaintiff's files remained with LMW. Although there was some further contact between the Plaintiff's Canadian attorneys and Mr Harshaw, they did not retain him to act for the Plaintiff.

18. The Plaintiff states in her Fourth Affidavit that in or about September 2009 she concluded that her professional relationship with Mr Harshaw had broken down and that she decided to seek alternative Bermudian counsel. She states that she approached a number of different law firms, but that they declined to represent her because of a perceived conflict of interest.

19. The Plaintiff eventually identified a Bermudian law firm, Charter Chambers Bermuda Ltd (‘Charter Chambers’), her current attorneys, which was prepared to act for her. She formally retained them on 14^th September 2012.

20. A generally endorsed writ of summons was issued on 5^th October 2012. It has not been renewed.

21. On or about 27^th September 2013 the Defendants were served with a letter before action from Charter Chambers. This included an extract from a report by one Dr Wilfred Steinberg setting out the actions of the First and Second Defendants which were alleged to amount to medical malpractice.

22. On Friday 4^th October 2013, Charter Chambers instructed a process server, Evernell Davis, to serve the writ on the Defendants. Ms Davis states that she was unable to effect personal service on the First Defendant until Tuesday 8^th October 2013 because the First Defendant was in the operating room performing surgery. It is...