Gulf View Medical Centre Ltd v Tesheira (The Executrix of the Estate of Russell Tesheira)
| Jurisdiction | UK Non-devolved |
| Judge | Lord Stephens,Lord Pentland,Lord Reed,Lord Sales,Lord Hamblen |
| Judgment Date | 25 October 2022 |
| Neutral Citation | [2022] UKPC 38 |
| Docket Number | Privy Council Appeal No 0072 of 2018 and 0096 of 2018 |
| Court | Privy Council |
[2022] UKPC 38
Lord Reed
Lord Sales
Lord Hamblen
Lord Stephens
Lord Pentland
Privy Council Appeal No 0072 of 2018 and 0096 of 2018
Privy Council
Appellant (Gulf View Medical Centre)
Mary O'Rourke KC
David Boyle
Joseph Price
(Instructed by Duke Street Chambers (San Fernando))
Appellant (Crisen Jendra Roopchand)
Katherine Deal KC
(Instructed by Charles Russell Speechlys LLP (London))
Respondent
Douglas L Mendes SC
(Instructed by Signature Litigation LLP (London))
Lord Stephens and Lord Pentland (with whom Lord Reed, Lord Sales and Lord Hamblen agree):
The Board has before it two appeals from the Court of Appeal of the Republic of Trinidad and Tobago in proceedings for medical negligence brought against a private hospital (“the first appellant”), a consultant urological surgeon (“the surgeon”), and a consultant anaesthetist (“the second appellant”). The issues raised are essentially factual in nature and concern the application of well-established legal rules to the proven facts. On the critical factual issues, the courts below have made concurrent findings of fact. The appeals do not, contrary to the appellants' submissions, raise any question of wider principle. They turn instead on a correct understanding of the parties' written pleadings, certain aspects of the procedure followed in the High Court and the Court of Appeal, and the expert evidence led on behalf of the claimant, the substance of which went unchallenged at the trial.
On 13 April 2004 the late Mr Russell Anthony Tesheira (“the deceased”) was admitted to the first appellant's private hospital in Gulf View La Romaine, Trinidad, for a type of elective surgery known as a trans-urethral resection of the prostate (“TURP”). The procedure was to be carried out by the surgeon, Dr Lester Goetz, whom the deceased had previously consulted. The procedure is well-known to carry with it a high risk of post-operative bleeding. The deceased was a private patient of the surgeon, who frequently carried out surgery at the hospital. The second appellant, Dr Crisen Jendra Roopchand was the anaesthetist for the procedure. The hospital did not employ either the surgeon or the second appellant. Beyond that bare fact, the details of any contractual or other arrangements between the surgeon, the second appellant and the hospital were not explored in evidence and remain opaque.
The TURP having been completed by about 1.10pm on 13 April 2004, the deceased was taken from the operating theatre to a recovery room where nurses noted that his urine was heavily bloodstained. The bleeding could not be contained and at about 3.30pm the deceased was taken back to the operating theatre where the surgeon and the second appellant (latterly assisted by other doctors) attempted various medical and surgical procedures to try to stop the bleeding. After many hours the bleeding was eventually brought under control, but too late to save the deceased's life. He died on the operating table at 11.30pm while still under general anaesthetic. The cause of death was certified to be “irreversible shock with DIC (disseminated intravascular coagulation)”. At the time of his death, the deceased was 53 years of age.
In 2005 the deceased's widow and executrix, Mrs Karen Tesheira (“the respondent”), issued proceedings in the High Court of Trinidad and Tobago on behalf of her late husband's estate and his dependents against the first appellant, the surgeon and the second appellant. She alleged negligence by each of them in his care and treatment, resulting in his death. After prolonged exchanges and amendments of the pleadings, the filing of witness statements, and a plethora of interlocutory skirmishes, in 2012 the claim insofar as brought by the claimant against the surgeon, was settled on a confidential basis without any admission of liability.
Following the settlement between the respondent and the surgeon, the first appellant applied to have the respondent's claim against it struck out and alternatively to issue an ancillary claim against the surgeon for contribution to any damages that might be awarded. Kokaram J made interlocutory rulings by which he dismissed the strike out application and refused to allow an ancillary claim against the surgeon to be brought. An appeal against these rulings was in due course dismissed.
In 2014 the first appellant instructed new lawyers, as did the second appellant. Until that point those parties had been jointly represented. At the outset of the trial in November 2014 the first appellant sought to amend its defence, but withdrew the application. Thereafter the case proceeded based on the original joint defence for the first and second appellants.
The action against the first and second appellants went to trial before Kokaram J between November 2014 and February 2015 over several non-consecutive days. The respondent led expert evidence from two witnesses, in the fields of anaesthesia and haematology. At the end of the respondent's case both appellants made similar submissions of no case to answer and were put to their election by Kokaram J in accordance with established practice where such a submission has been made. This meant that the appellants had to decide whether to insist upon those submissions as, in effect, submissions after the close of the evidence or to call evidence themselves. The appellants elected to maintain their submissions. Accordingly, they led no evidence.
In a detailed and comprehensive judgment handed down in March 2015 Kokaram J found that negligence on the part of the two remaining defendants (the present appellants) in their management of the risk of post-operative bleeding was established. He awarded substantial damages, which were to be paid after deduction of the ex gratia sum paid by the surgeon.
Kokaram J summarised his conclusions in paragraph 11 of his judgment as follows:
“In my judgment I am of the view that the evidence adduced by [the respondent's] expert witnesses of a haematologist Dr Altheia Jones-Lecointe and an anaesthetist Dr Phyllis Pitt-Miller properly demonstrates that the [second appellant] failed to determine if the deceased was taking aspirin before performing the TURP, failed to properly treat [the deceased's] hypovolemic shock and prevent the onset of the condition of DIC and failed to properly monitor and manage his blood transfusions. The experts also satisfactorily demonstrate on a balance of probabilities that [the first appellant] failed to monitor his post operative recovery, failed to have on site and to make suitable arrangements for sufficient blood products appropriate for transfusions for dealing with excessive bleeding and the problems attendant with excessive bleeding. These actions led and materially contributed to [the deceased's] death caused by DIC. The only expert evidence as to the steps that ought to have been taken to deal with the foreseeable risks and complications arising from post operative bleeding which is acceptable as proper practice by a responsible body of anaesthetists and hospitals (has) come from these experts. Despite the rigorous cross examination, their scientific knowledge was not questioned and they have sufficiently set out a reasonable body of medical opinion which suggests on a balance of probability that there was negligence on the part of both [the first and second appellants] in the preoperative and post-operative care of [the deceased]. The [respondent] for the reasons set out in this judgment is therefore entitled to judgment. Her damages have been assessed in the sum of $18,034,772.33.”
Both appellants appealed to the Court of Appeal, the first appellant filing more than 50 grounds of appeal. By a 109-page judgment issued in November 2017 the Court of Appeal reversed a number of findings (factual and of negligence) made by Kokaram J, but dismissed the appeals.
The appellants were granted conditional leave to appeal to the Board in December 2017 and final leave in June 2018.
Before the Board, the parties were at odds as to the meaning of one passage in the pleadings, on the basis of which the case went to trial. The disputed averments were contained in paragraph 23 of the amended statement of claim (this is set out in para 56 below). In the joint defence both appellants admitted the contents of this paragraph without qualification. In her oral submissions before the Board, Ms O'Rourke KC for the first appellant said that the admission had been a mistake. The respondent maintained that this pleading amounted to the acceptance of a nondelegable duty of care owed by each of the appellants to the deceased. The appellants contended that no non-delegable duty was admitted.
At the trial, the respondent led expert evidence from two witnesses: Dr Phyllis Pitt-Miller, a retired professor of clinical anaesthesia and intensive care at the University of the West Indies and Dr Altheia Jones-Lecointe, a consultant haematologist and head of the department of para-clinical sciences at the Faculty of Medical Sciences at the same University. As already explained, the testimonies of these two witnesses comprised the entirety of the medical evidence before the judge and was accepted by him. The experts spoke to the standards of care that ought to have been met by reasonably competent medical professionals in the specialist fields of anaesthetics and haematology.
The expert evidence given at the trial may be summarised as follows.
Both experts...
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