AB and his wife XY vs Chief Government Medical Officer and Dr Frank Bartolo MD in his own name and as Superintendent of St Luke’s Hospital

Court of Appeal

Chief Justice Vincent Degaetano

Judges

Joseph D. Camilleri

Joseph A. Filletti

12 October 2006

This was an appeal against a judgement delivered in 2002 regarding a woman who was not given proper treatment at St Luke’s Hospital during and after her operation. The defend-ants felt aggrieved by the First Hall’s judgement ordering the payment of Lm4,636.80 in damages and requested the Court of Appeal (COA) to revoke the judgement.

The appellants claimed the following:

The First Hall Civil Court

was incorrect in rejecting the plea that AB lacked legal standing in the case

The consent form signed before the operation was signed by XY (the patient) and not the husband. Hence, the duty of care was claimed to be due only towards the patient.

The COA felt that should it decide to uphold the judgement of the First Hall and agree with the payment of damages, this would make sense due to the Community of Acquests, since plaintiffs were spouses. Consequently, both spouses had rights.

did not examine the evidence adequately in that plaintiffs did not provide enough evidence to support their pleas

The First Hall refused to examine the patient’s medical records although these were available in Court. In these records there was no mention of the alleged gloves tied around the plaintiff’s leg. These records, they claimed, constituted the best evidence.

The COA said that since these records were not formally exhibited in Court, this claim could not be upheld.

The COA argued that even if the gloves were not tied in the manner described, without any doubt the plaintiff’s wound was incorrectly dressed and left so for 48 hours in such a way that, apart from the pain the plaintiff endured, her foot was scarred. Had the patient been looked after properly or attended to immediately she complained of excruciating pain, the consequential scar and pain could have been avoided.

The COA felt that the plaintiff had sufficiently proved that the treatment she had undergone was lacking.

The defendants felt that the First Hall relied completely upon the Court-appointed expert’s report that stipulated that plaintiff was disabled because her veins had been compressed by gloves tied around her foot for more than 48 hours after the operation, inducing permanent injury to the veins.

The appellants criticised this because it reflected the plaintiff’s claims when she obviously had a personal interest. Although the expert reported that her blood circulation, her skin and her muscles were normal and that there was no swelling, he still relied upon her claims that she still feels pain. The medical expert rated her percentage disability at seven per cent.

The appellants claimed that the two reports upon which the First Hall relied were contradictory. While the medical expert claimed that she suffers pain, another medic stated that “… the scar is no longer painful…Her disfigurement is rated at 5 per cent”.

The COA felt that this argument did, in part, hold water. The expert’s report gave insufficient evidence to justify the calculation of seven per cent ultimately given.

was exaggerated in the amount of damages awarded

The COA agreed that the percentage disability calculated initially was excessive. The case Zammit vs. Heidemann Sportswear Ltd (2001) referred to the loss of part of a finger of a factory worker who was given nine per cent permanent disability. This could not be compared to the plaintiff’s case which was more cosmetic and subjective and affected a far less prominent body part.

The COA reduced the percentage disability from seven per cent to two per cent, leading to the reduction of the amount of damages to be awarded to Lm1,324.80.

was incorrect in imputing responsibility upon the defendants and condemning them to pay damages even if the medical staff had to be found as having acted negligently

Dr Bartolo is the hospital superintendent and does not employ the staff. Case law has stated that an employer is responsible for the negligence of his employees only if at the time s/he employed them s/he was aware of their incompetence or had reason to believe their incompetence.

In this, it was never proved that the medical staff was incompetent.

Regarding the claim that the appellants were responsible for staff supervision, in the medical sphere, clinical and medical decisions are taken individually by medical experts. The administration’s obligation is to provide an organised system ensuring that patients receive optimum treatment. Claims that the appellants were liable and that the treatment was unprofessional were unfounded.

The COA partly agreed with the above. In the COA’s opinion, the plaintiffs sued over a lack in the hospital’s system and did not directly attack particular staff members.

However, although the relationship between the government and patient was not contractual, it cannot be said that there was no relationship because the patient, as a tax payer and contributor of social security, had a right to treatment in the state hospital. Hence the government is responsible. The COA agreed that the Chief Government Medical Officer was answerable for damages.

The COA, however, disagreed with the other plaintiff being sued personally apart from being sued as Superin-tendent of St Luke’s. Admittedly, the latter failed to provide the plaintiff with information until it was too late to bring an action. But the COA did not feel that this warranted his being sued personally but only as superintendent and as a government doctor responsible for the flaws in the system.

The COA modified the First Hall Judgement, partly confirming and partly revoking it, particularly in the quantification of damages which it reduced from Lm4,636,80 to Lm1,324.80 with legal interests.

(The First Hall, Civil Court Judgement was reported last Wednesday)