Dr Kong Sheik Achong Low v Brian Lezama (Administrator of the Estate of Karen Lezama, Deceased)
| Jurisdiction | UK Non-devolved |
| Judge | Dame Nicola Davies |
| Judgment Date | 09 May 2022 |
| Neutral Citation | [2022] UKPC 15 |
| Docket Number | Privy Council Appeal No 0105 of 2018 |
| Court | Privy Council |
[2022] UKPC 15
Lord Hodge
Lord Kitchin
Lord Leggatt
Lord Burrows
Dame Nicola Davies
Privy Council Appeal No 0105 of 2018
Privy Council
Appellant
Ian L Benjamin SC Pierre Rudder (Instructed by Charles Russell Speechlys LLP (London))
Respondent
Theresa Hadad Patricia Dindyal (Instructed by Nera Narine (Trinidad))
This is an appeal from the Court of the Appeal of the Republic of Trinidad and Tobago which determined that the death on 6 April 2003 of Mrs Karen Lezama was due to the negligence of the appellant, a specialist obstetrician and gynaecologist. On 26 July 2012 Rahim J gave judgment for the respondent on the issue of liability and directed damages to be assessed by a master. On 27 March 2018 the Court of Appeal (N Bereaux, R Narine and M Mohammed JJA) dismissed the appeal. The court found that the trial judge had made material errors but determined that his conclusions were correct and that the appellant's treatment of the deceased fell below the standard of care enunciated in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 (“ Bolam”) and was the cause of her death. On 15 October 2018 the Court of Appeal granted the appellant final leave to appeal to the Judicial Committee.
The appellant is a specialist obstetrician and gynaecologist in private practice in Trinidad. He also had privileges at Stanley's Clinic Ltd, a maternity centre.
Mrs Karen Lezama was born on 10 April 1965 and was employed as a data entry operator. She was married to the respondent and was the mother of their three children.
At the core of the appeal is the contention made on behalf of the appellant that the Court of Appeal failed to analyse properly the evidence of fact and expert opinion and, in so doing, erred in finding that, in treating Mrs Lezama immediately following the stillbirth of her child, the appellant did not diagnose that she was suffering from amniotic fluid embolism (“AFE”) which led to post-partum haemorrhage (“PPH”) and to disseminated intra-vascular coagulopathy (“DIC”) and her death. It further erred in finding that the more likely cause of Mrs Lezama's death was PPH caused by uterine atony which led to DIC and her death. We disagree. We are satisfied that the court carefully analysed the facts and the evidence of the experts and properly concluded on the evidence that the appellant was negligent in his treatment of Mrs Lezama when she suffered a PPH caused by uterine atony which led to DIC and which was the likely cause of her death.
Mrs Lezama was a gestational diabetic who in April 2003 was under the care of Dr Weithers at Stanley's Clinic. An ultrasound performed in early April showed a macrosomic foetus at 36.5 weeks. On 6 April Mrs Lezama was readmitted to Stanley's Clinic and was treated by the appellant as Dr Weithers was abroad. The appellant examined Mrs Lezama and informed her that her baby would be stillborn. At approximately 4:53pm the appellant delivered of Mrs Lezama a stillborn macerated male foetus. The respondent and Dr Manning-Alleyne, a paediatrician, were present at the delivery.
Immediately upon delivery significant bleeding ensued. Mrs Lezama's blood was initially thick and red, it became pale pink and watery as the bleeding continued. The appellant directed the nurse to massage Mrs Lezama's fundus. At around 5:00pm 20 units of Syntocinon were administered, its purpose being to stop the bleeding. Fifteen minutes later, a further 20 units of Syntocinon were added. At 5.15pm Mrs Lezama was given one litre of Ringer's lactate (a volume expander) and one unit of Haemaccel (a colloid). Mrs Lezama's blood pressure was dropping. At 5.15pm it was recorded at 46/25 and she was observed to be in shock. At 5.45pm her blood pressure was recorded at 114/54.
Dr Manning-Alleyne collected additional Syntocinon from the Port of Spain General Hospital. At 6:30pm one litre of Ringer's lactate and 20 units of Syntocinon were given. At 6:40pm a second unit of Haemaccel was commenced. Mrs Lezama's blood pressure dropped to 35/22. Blood was taken from Mrs Lezama for crossmatching. At 7:00pm Mrs Lezama's blood pressure was recorded at 60/30.
At a time between 7.00–7.30pm the appellant asked Dr Manning-Alleyne and Mrs Lezama's brother to go to St Clair Medical Hospital to collect two units of blood. At around 7:30pm Dr Manning-Alleyne called Dr Harold Chang, an anaesthetist, requesting his assistance in the treatment of Mrs Lezama. Between 7.30–7.36pm CPR (cardiopulmonary resuscitation) was commenced but Mrs Lezama was not responding. The appellant then administered the first unit of blood obtained from St Clair. At around 7.50pm Dr Chang attended the delivery room. He observed that one of the two IV drips was not working and that Mrs Lezama was comatose and had suffered a cardiac arrest. He carried out the ABCs of resuscitation with the available facilities. At about 8.25pm a defibrillator was applied to Mrs Lezama. At 8:30pm the second unit of blood was administered.
Mrs Lezama's condition continued to deteriorate leading to another cardiac arrest and her death at 10.10pm.
On her death certificate the appellant identified DIC as the primary cause of death and PPH as the secondary cause of death.
On 1 September 2009 the respondent filed proceedings against Dr Weithers (which were later discontinued by consent) and the appellant.
The allegations of negligence as against the appellant were contained in para 10 of the Statement of Claim, which pleaded, inter alia, that:
“The defendants who treated and attended to the deceased at all material times and who knew or ought reasonably to have known that the deceased was a ‘gestational diabetic’ and/or a ‘known bleeder’, were guilty of negligence and failed to use reasonable care, skill and diligence in or about the said treatment, attendance and advice which they gave to the deceased and as a result of which she suffered much pain and distress and ultimately died.
PARTICULARS OF NEGLIGENCE
(1) Failed to heed that the deceased was a ‘known bleeder’ and to request, consult or to have due and/or any regard for the medical record of the deceased;
(2) Failed to do or to have done any blood investigations;
(3) Failed to have any or any sufficient quantity of blood on hand in the event of any need for such blood and particularly so in the instant care as the deceased was a ‘known bleeder’;
(4) Failed to administer any or any sufficient medication to stop the bleeding;
(5) Failed to take urgent and immediate or any reasonable steps to stop the haemorrhage once it had started;
(6) Generally, failed to exercise all due care and diligence in the treatment of the deceased in all circumstances of the case.”
In his Defence, the appellant accepted that Mrs Lezama was a gestational diabetic but denied that she was a “known bleeder”. He denied that he was negligent and/or that he failed to use reasonable skill, care or diligence in his treatment of Mrs Lezama. The appellant averred that Mrs Lezama suffered AFE and, despite his treatment to stop her haemorrhaging, which was at all times in accordance with the practice accepted and recognised as proper by the body of medical practitioners skilled in the field of gynaecology and/or obstetrics, she died as a result of AFE. It was averred that the appellant was able to and did obtain the necessary amounts of blood required by Mrs Lezama. Causation was denied.
At the trial before Rahim J, three expert witnesses in the field of obstetrics and gynaecology gave evidence: Dr Singh-Bhola on behalf of the respondent; Dr Jibodh on behalf of the appellant and Dr Persad who provided a report for Dr Weithers but was called by the appellant. Professor Daisley, a pathologist, also gave evidence for the respondent.
Rahim J made the following findings:
(i) the cause of Mrs Lezama's death was PPH; the judge made no determination as to the possible cause of PPH;
(ii) there was no causal link between Mrs Lezama's status as a gestational diabetic and the risk of haemorrhaging post-delivery;
(iii) Mrs Lezama was not a “known bleeder”;
(iv) the appellant was neither unreasonable nor negligent in not having blood on hand in anticipation of Mrs Lezama's delivery;
(v) the appellant ought to have taken on board the representation of Dr Manning-Alleyne that the deceased suffered from PPH and acted consistently with the accepted practice in those cases and as a result, the appellant ought to have requested blood at an earlier stage than he did;
(vi) the appellant was negligent in failing to take urgent or reasonable steps to stop the haemorrhage once it started;
(vii) the appellant was negligent in failing to administer sufficient medication (Syntocinon) to stop the bleeding;
(viii) the appellant ought to have enlisted assistance earlier than when Dr Chang was called;
(ix) the appellant was negligent by failing to ensure better intravenous access and thus, failed to exercise due care and diligence in the treatment of Mrs Lezama;
(x) it was more likely than not that the omission to administer more blood and blood products in a timely fashion resulted in the death of the deceased from PPH.
On 27 March 2018 the Court of Appeal unanimously dismissed the appeal and found that the appellant's treatment of Mrs Lezama fell below the Bolam standard and was the cause of her death. In his judgment Bereaux JA found that the trial judge had made errors of fact in:
(i) failing to decide whether the appellant did diagnose AFE and whether such a diagnosis was reasonable thereby failing to consider a major part of the appellant's case;
(ii) holding that Dr Manning-Alleyne's statement...
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