Supreme Court judge found InterHealth Canada/Cheshire Hall Medical Center guilty of clinical negligence and ordered the hospital to pay a patient $375, 438 in damages.
In a judgment handed down on Friday, May 13th, 2022, His Lordship Mr. Justice Carlos Simons, QC, awarded Roland Gula (the owner of Tibor's Machine Shop) damages for "pain and suffering, loss of amenity, past loss of earnings and for past and future expenses".
Following a colonoscopy at the Cheshire Hall Medical Center (CHMC) in Providenciales, a 6cm malignant tumor was discovered in Gula's sigmoid colon which resulted in him undergoing emergency surgery in the United States.
Gula brought a medical negligence claim alleging that the medical staff at CHMC were negligent in not performing a colonoscopy earlier, as suggested by his general practitioners, including Dr. Sam Slattery.
The judge ruled that this might have revealed the existence of the tumor 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 Gula and his family.
Judge Simons found that it was the hospital's negligence that caused the damage, loss and pain and suffering of which Gula complained in his statement of claim and that such damage, loss and pain and suffering was foreseeable.
The judge also ruled that the hospital is liable in clinical negligence in respect of its treatment of Gula, while accepting the evidence of the patient's expert and the hospital's own expert, that the tumor would have been discovered earlier had a colonoscopy been carried out.
According to the facts of the case, on February 15th, 2018, following a colonoscopy at the Cheshire Hall Medical Center the malignant tumor was discovered which resulted in Gula undergoing emergency surgery in the United States.
Gula, through his lawyer, Peter McKnight of McKnights International law firm, said the medical staff at CHMC were negligent in not performing a colonoscopy earlier, as suggested by his general practitioners (GPs) Dr. Sam Slattery and Dr. Meghan O’Reilly at Grace Bay Medical Centre (GBMC). This, McKnight said, might have revealed the existence of the tumor 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 Gulas his family.
The court document said that the failure of the hospital's medical staff to diagnose the tumor by performing the colonoscopy for a period of almost 18 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 Gula's colon. As a direct consequence, Gula endured pain and suffering, loss of amenity, loss of life expectancy and other general and special damages for which he claims compensation.
Mr. Justice Simons said the essential facts of the case are not in dispute and are well documented on the papers. What is hotly disputed, he said, is the interpretation of those facts and the existence or non-existence of any duty arising from them.
The court judgment said that on September 5th, 2016, after having presented to his doctors at GBMC complaining of abdominal pains for some months previously and having not responded to the treatments prescribed by them and having lost weight to the tune of approximately 20 pounds, Gula was referred to CHMC by Dr. 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 5th, 2016, Gula's symptoms having worsened, he attended his doctors at GBMC and was referred again to CHMC, this time by Dr. O’Reilly. The referral mentioned the need for a colonoscopy due to “+ FOB borderline anemia”. The referral was classified as routine, although in her evidence Dr. O’Reilly said she was sure she had classified it as urgent, and that the classification was changed automatically and internally by the CHMC 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 19th, 2016, Gula attended at CHMC when he 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 CHMC would contact him for scheduling. However, no one did.
Gula again attended at CHMC on February 8th, 2017. At the time he was suffering from “per rectum ‘mucus’ on and off – no real blood epigastric pain on and off’. This time he was seen by Dr. Bonnie Mauchaza, one of two general surgeons employed at the CHMC. The patient saw Dr. Mauchaza again on 22 March 2017 and on this occasion a prescription of omeprazole was issued.
On August 22, 2017, Dr. O’Reilly referred Gula 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 18 October 2017, Gula was 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 Gula's non-urgent colonoscopy was never scheduled.
On February 15th, 2018 when Dr. Slattery made what Mr. McKnight, Gula's lawyer refers to as the 4th 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.”
Dr. Slattery also noted: "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.”
It was then that the colonoscopy was carried out, the tumor was discovered, and emergence life-saving surgery was undergone at the Cleveland Clinic in Florida.
Two post-surgery side effects were Gula's intolerance to the chemotherapy treatment that was prescribed – he suffered an anaphylactic reaction after 8 of the 12 sessions that had been prescribed and the treatment had then to be abandoned.
According to the court document, Gula said 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, the judgment, said, that hurdle had been passed as the couple do now have that third child.
The judgment added that Gula's wife, Mrs. Ewa Gula, his father, Mr. Tibor Gula and his doctors, Dr. Slattery, and Dr. O’Reilly all gave virtually unchallenged evidence in support of Gula's version of these events. Mr. Tibor Gula also gave evidence as to his son's loss of earnings and the effect of his illness on the general operation of the business.
Judge Simons noted that Gula's expert witness was Dr. Milo Pulde, who, although his credentials were challenged in the area of his expertise, insisted that he alone among the expert witnesses engaged on either side, had the required knowledge and experience across the range of medical disciplines necessary to render a reliable opinion in the matter.
He said Gula had a tumor and a colonoscopy would have revealed it and the hospital's medical staff did not undertake a colonoscopy because they were focused on the upper gastrointestinal system and did not pay sufficient attention to the lower intestine and rectum despite the presence of fecal occult blood, anemia, calprotectin 244 and PR mucus. They were in error and in his view, they were negligent.
Judge Simons noted that to succeed in a claim in medical negligence, a Plaintiff must show that the Defendant owed him a duty of care, that the Defendant acted in breach of that duty, that the breach of duty by the Defendant breach caused injury to the Plaintiff and that he suffered damage as a result.
He stated: "I therefore find the (hospital) liable in clinical negligence in respect of its treatment of the (patient), and I am fortified in that view by the evidence of the (hospital'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 tumor 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 (Gula's) case against the (hospital), and the answer could not have been clearer.
He added: "Dr. Pulde, who gave expert evidence for the Plaintiff and whose evidence I have refused to strike out and must therefore weigh, was much more emphatic. He said (paraphrasing) there is no question but that a colonoscopy would have revealed the presence of the tumor and that the failure of the Defendant’s surgeons to carry out a colonoscopy at an earlier stage was one of medical negligence. I further find that it was the Defendant’s negligence that caused the damage, loss and pain and suffering of which the Plaintiff complains in his Statement of Claim and I find that such damage, loss and pain and suffering was foreseeable. I accept the (hospital's) contention that (Gula's doctors) at GBMC were in no position to issue directives to the (hospital's) surgeons and that the referrals were at best requests to review and provide further medical assessment or treatment of the (patient).
However, all three of Dr. Braithwaite, Dr. Mauchaza and Dr. Burgess in giving evidence for the (hospital) made it clear that it is the attending physician’s own clinical judgment that directs and informs diagnosis and treatment regimens, and that this judgment is based upon the how the patient presents and what ailments he complains of."
Selvyn Hawkins and Shantae Francis of Misick and Stanbrook were the lawyers for the hospital.