Patient wins $375K negligence claim against InterHealth Canada TCI

Source: , Posted On:   20 May 2022

The TCI Hospital has been found negligent in failing to diagnose a malignant tumour in a timely fashion, leading to a recent judgement of $375,438.35 against the institution. 

The patient, Ronald Gula sued the hospital in 2020 for medical issues that arose between September 2016 and February 2018.

In February 2018, following a colonoscopy at the Cheshire Hall Medical Centre (CHMC), a 6cm malignant tumour was discovered in the plaintiff’s colon which resulted in him undergoing emergency surgery in the United States.

The plaintiff brought the medical negligence claim alleging that the defendant’s medical staff at CHMC were negligent in not performing a colonoscopy earlier, as suggested by his general practitioners.

He claimed that this might have revealed the existence of the tumour before it became life-threatening, and at a stage when the procedure for its removal would have been a more routine one and its effects a less life changing experience for him and his family.

In a judgement delivered last Friday, May 13, Justice Carlos Simmons found that it was the hospital’s negligence that caused the damage, loss and pain and suffering of which Mr Gula complained in his statement of claim, and that such damage, loss and pain and suffering was foreseeable. 

The hospital was found to be liable in clinical negligence in respect of its treatment of Mr Gula. 

The judge also accepted the evidence of Mr Gula’s expert and the hospital’s own expert that the tumour would have been discovered earlier had a colonoscopy been carried out.

Having been satisfied of the hospital’s liability in negligence, the judge awarded damages in the sum of $375,438.35, for pain and suffering, loss of amenity, past loss of earnings and for past and future expenses. 

Medical Negligence 

Mr Gula – a resident of Providenciales - was represented in his case against the hospital by attorney Peter Karam, while the Hospital was represented by attorneys Selvyn Hawkins and Shantae Francis. 

The plaintiff says that the failure of the hospital’s medical staff to diagnose the tumour by performing the colonoscopy for a period of almost eighteen months and after four referrals allowed it time to grow to the point where its removal could only be achieved by major surgery involving the removal of part of his colon.

In his judgement, Judge Simmons said the essential facts of the case are not in dispute and are well documented on the papers. 

He said what was hotly disputed is the interpretation of those facts and the existence or non-existence of any duty arising from them, as outlined below. 

On September 5, 2016, after having presented to his doctors at Grace Bay Medical Centre (GBMC) complains of prolonged abdominal pains, no response to the prescribed treatment and having lost 20 pounds of his body weight, Mr Gula was referred to the Cheshire Hall Medical Centre by Dr Sam Slattery of GBMC. 

The referral was marked urgent and requested a consultation for "endoscopy OGD with biopsy? Colonoscopy if negative”. The reason for the referral was given as "gastritis and 2x of 3 fecal occult blood.”

On December 5, 2016, Mr Gula’s symptoms having worsened, revisited his doctors at GBMC and was referred again to the hospital this time by Dr Meghan O’Reilly. This second referral mentioned the need for a colonoscopy due to "+ FOB borderline anemia”. The referral was classified as routine, although in her evidence to the court Dr O’Reilly said she was sure she had classified it as urgent, and that the classification was changed automatically and internally by the hospital’s portal that had been made available.

In any event, Dr O’Reilly said in her evidence that she intended a colonoscopy to be performed on an urgent basis and suggested that any doctor reading the referral would have understood that.

On December 19, 2016, Mr Gula visited the hospital and was seen by a Dr Keresztely and following a brief consultation he was told by Dr Keresztley that he needed to undergo both a colonoscopy and a gastroscopy and that someone from the hospital would contact him for scheduling. 

However, no one did.

The patient again visited the hospital on February 8, 2017, and at the time he was suffering from periodic "per rectum ‘mucus’. This time he was seen by Dr Bonnie Mauchaza, one of two general surgeons employed at the hospital. 

Mr Gula saw Dr. Mauchaza again on March 22, 2017, and on this occasion a prescription of omeprazole was issued.

On August 22, 2017, Dr O’Reilly GBMC referred him for a third time to the hospital for a colonoscopy. The reasons stated – "2/3 + ve FOB fecal calprotectin 244 ongoing abdominal pain.” 

Eight weeks later, on October 18, 2017, Mr Gula was again seen by Dr. Mauchaza who booked a "non-urgent colonoscopy”. However, following the passage of hurricanes Irma and Maria in September of 2017 and the devastation left in their wake, the hospital like most public services was operating on an emergency only basis and Mr Gula’s non-urgent colonoscopy was never scheduled.

Following this, on February 15, 2018, Dr Slattery of GBMC made fourth referral for a colonoscopy. The request was marked urgent and the reasons for the referral were stated as being "ongoing left side pain with bowel symptoms and change in bowel habits and elevated inflammatory markers and fecal calprotectin.” 

In his note to the hospital Dr Slattery also wrote: "This patient has been referred since 2016. Colonoscopy deferred by surgical team until December 2017. Still awaiting colonoscopy. Rigid sigmoidoscopy today shows non-inflammatory rectum and lower sigmoid but mucus +++ and Stool.”

Following this note, the colonoscopy was carried out, the tumour was discovered, and emergence life-saving surgery was undergone at the Cleveland Clinic in Florida. 

Two post-surgery side effects were Mr Gula’s intolerance to the chemotherapy treatment that was prescribed, and which had to be abandoned. The plaintiff also told the court that he also suffered from retrograde ejaculation which caused him and his wife great stress as the condition threatened their plans for a third child to complete their family. Fortunately, that hurdle had been passed as the couple do now have that third child.

In his judgement, Judge Simmons found that the hospital owed Mr Gula a duty of care. 

He said the plaintiff’s complaint is not about treatment, but about a failure to diagnose his condition, a failure to discover the tumour by use of the only procedure that could have revealed it, a colonoscopy so that the proper treatment i.e., removal, could be applied. And this, despite very suggestive and successive referrals from Mr Gula’s doctors at GBMC.

"I find that a body of professional medical opinion that holds that there was no need to carry out a colonoscopy, even out of an abundance of caution, to be illogical, unreasonable, and irresponsible, given the plaintiff’s symptoms, and given the very suggestive and successive referrals from the plaintiff’s General Practitioners at GBMC.

"I therefore find the defendant liable in clinical negligence in respect of its treatment of the plaintiff, and I am fortified in that view by the evidence of the defendant’s own expert, Professor Pat Price who obviously has a familiarity with giving expert testimony in these types of cases. 

"Dr Price was very professional, very dispassionate, and very balanced in her answers to Counsel’s questions. And on two separate occasions when asked, would the tumour have been discovered earlier had a colonoscopy been carried out, her answer was "yes”. 

"When asked whether this constituted negligence she expressly deferred to the Court. 

"That is the crux of the Plaintiff’s case against the Defendant, and the answer could not have been clearer.”

Gula was awarded special damages of $163,484.35; another $58,166.38 for upcoming and future expenses due to loss of earnings; $61,945 for past loss of earnings and for the sexual dysfunction that resulted as well as aggravating facts of the plaintiff’s case, the judge granted him an award of $150,000.

This monetary judgement outlined was the amount awarded before taxes.