AB and XY vs Chief Government

Medical Officer and Dr. Frank Bartolo M.D. in his own name and as Superintendent of

St. Luke’s Hospital

First Hall, Civil Court

Judge: Raymond C. Pace

12 December, 2002

(Appeal Judgement ? October, 2006)

In this case, the defendants were condemned to pay damages due to a permanent disability that XY suffered as a result of an operation for bilateral varicose veins in her legs performed on her at St Luke’s Hospital in August 1994.

For the first 48 hours after the operation, the plaintiff suffered excruciating pain in her left leg, which she was assured was normal. A doctor testified that when the dressings and bandages on the left leg were removed, two surgeon’s gloves were found actually rolled up like a rope, (and not fitted “like when putting a glove on the hand”).

This rope was tied tightly around the left foot like a torniquet, at the site where laces are normally tied. A knot was present on the lower outer surface of the foot at this site. Due to this “rope” there was a painful area running across the dorsal aspect of the left foot. This was painful, tender and red. The toes were white while there was a swelling of the foot above the rope. This area persisted as a reddish brown scar.

On examination, there remained a scar running transversely across the dorsal aspect of the left foot for 3.5 inches, tapering towards the outer part for a further one inch. The scar was situated 5.5 inches from the tip of the big toe. The plaintiff could no longer wear any shoes she liked because only certain shapes of footwear could cover this scar.

The plaintiff suffered a five per cent permanent disability.

Allegedly, a doctor told the plaintiff that what had happened was a mistake. The plaintiff also claimed that the operation itself was not successful because some veins were not removed.

The Court heard many doctors before reaching a conclusion. These are the comments that arose:

• There was no medical reason for this procedure taking place but should this procedure have taken place for a specific reason, it was so as to protect the part of the leg operated upon from any microbes present on the other part of the leg.

• When an operation is carried out on the leg, the rest of the body is covered, including the foot. It is possible that a surgical glove is used. If the glove is left on, it could cause pain and can affect blood circulation.

• The gloves were used and tied in a non-conventional manner to protect the rest of the leg being operated upon from microbes.

• When gloves are used as such, these are placed and removed by the surgeon.

The Court-appointed expert stated that the plaintiff was disabled because her veins had been compressed for more than 48 hours after the operation, inducing permanent injury to the veins

The difficulty in identifying who was involved in the plaintiff’s operation and post-operative care was a cause for concern. The defendants’ principal objection seemed to be that the scar did not trigger off any real damage but was cosmetic.

The Court felt that the plaintiff had adequately shown the link of causality between the medical procedure and care and the disability suffered. She was the victim of serious negligence during and after her operation in the way:

• her leg was tightly tied with gloves;

• such situation lasted 48 hours, despite the plaintiff’s complaints of pain, while at the same time being assured that such pain was normal;

• that once the gloves were found, these were removed by the nurses and not by the consultant who put them there in the first place;

• The plaintiff’s case was not carefully monitored after the gloves were cut off;

• The plaintiff’s case was not taken seriously: she was only examined once by a professor many months later.

It was immaterial that the damage caused was cosmetic.

The plaintiff had no option but to take legal action.

The defendants were res-ponsible for decisions taken by their, staff including bad and negligent decisions.

The Court defined this as a clear-cut case of malpractice and negligence in relation to the plaintiff’s medical care.

Articles 1031 and 1032 (Civil Code) state:

Every person… shall be liable for the damage which occurs through his fault.

A person shall be deemed to be in fault if, in his own acts, he does not use the prudence, diligence, and attention of a bonus paterfamilias.

Case-law clarified that employers remain answerable for the negligence and incompetence of their employees.

This operation took place under the National Health Scheme, for which the Chief Government Medical Officer is responsible – his duty is to choose a fit and proper staff for the hospitals, ensuring that citizens entitled to medical care enjoy treatment of the highest quality and ensuring that mistakes due to negligence and carelessness are avoided. The defendants were responsible for malpractice, irrespective of whether or not the medics and staff directly involved and responsible in the case were identified.

This officer’s function does not stop at selecting staff but extends to monitoring such individuals, and where such individuals fail in their duties, it is he who must make good the damage.

The superintendent failed to give the plaintiff the individual names of all the persons involved in the operation and it was only after the two-year prescriptive period to bring an action against such individuals had expired that the information was passed on, ie when it was too late to take such action.

The First Hall declared the defendants responsible for causing a permanent incapacity to the plaintiff and condemned them to pay Lm4,636.80 in damages with interest and expenses.

This judgement was appealed. The appeal

judgement, delivered on 12 October, 2006, will be reported next Wednesday.