J.Chan Chiang and anor. v. Medical and Surgical Centre

2011 INT 55

IN THE INTERMEDIATE COURT OF MAURITIUS(CIVIL DIVISION)

IN THE MATTER OF:

Joe Chan ChiangMylène Chan Chiang

Plaintiffs

v.Medical and Surgical Centre Ltd

Defendant

CN: 858/2007 JUDGMENT Both plaintiffs are moving for a judgment ordering the defendant to pay to them the sum of RS 500 000 with interest as from the entry of the plaint and costs.

The plaintiffs who are husband and wife aver as follows: plaintiff no. 2 [the patient] was admitted at Clinic Darné [the clinic] during her pregnancy as it is a modern and well equipped medical centre. On 30 October 2006 at 23:00 hrs she went to the clinic as she was in pain and was examined by two nurses and was admitted until examination by a doctor. On 31 October 2006 at 7:00 a.m. she was examined by Dr. Ng Kwet Long [Dr. Ng]. She expressed fear of labour pain and requested for epidural which was administered to her at about 10:30 to 11:00 a.m. but shortly after she was sick and was put on a monitoring machine. She was left unattended for almost an hour until she was examined by Dr. Ng who detected a fœtal distress and decided to perform a caesarian. The baby boy was then attended to by Dr. Atchia, the pediatrician, in the nursery. The health of the baby deteriorated as he was having breathing problems and was gasping for air and was in a bad condition. Dr. Atchia concluded that the breathing conditions had not improved and that he required a CPAP machine. The oxygen tube was taped to the baby's nose and an x-ray showed that his right chest was not receiving air. Dr. Atchia looked for the in-charge of the clinic to get a proper apparatus for the baby but was told that the machine was not operational as there were no qualified nurses. Dr. Atchia reported that he contacted the administration of the clinic to make the apparatus available to him but his request was denied. The Victoria Hospital was contacted and Dr. Bholah agreed to receive the baby who was transported at the ICU by the clinic ambulance with a doctor on board. The baby's condition became critical and blood tests proved that the baby's right lung was not functioning due to the presence of bacteria. The baby remained in hospital for some time and slowly recovered.

1 | P a g e

They aver that their child's health deteriorated due to lack of facilities and CPAP machine at the clinic and that they went through mental trauma due to the "fault, negligence and imprudence" of the defendant; that the defendant has breached its duty to provide for all natal intensive care unit facilities for the labour and natal complication, that the huge advertisement in the press and yellow pages are misleading and dangerous. They further aver that the defendant is at fault in failing to provide proper treatment and/ or just and adequate treatment which resulted into the new born child being in danger of death.

The particulars of the defendant's fault are enumerated in paragraph 15 as follows:(a) Failing to provide a coordinated care and defined responsibility for the patient. No coordination was evident between the Head nurse, Dr. Lee and Dr. Ng during the period leading to the caesarian operation;(b) Failing to make available to Dr. Atchia the basic equipment and skilled operators normally available in a natal intensive care unit, namely a CPAP machine to help new born to sustain an acceptable level of oxygen intake;

(c) Failure to inform and to provide psychological counseling to the bedridden patient whilst in a depressed state and in pain after the caesarian operation. Patient was denied the new born except for ten minutes at his first night after he was born, without any explanation;

(d) Failure to inform patient of risks and pre conditions for epidural shot and the professional status of Dr. Lee, the anesthesist (sic), as an independent consultant to clinic Darné;(e) Failure to inform Dr. Ng, the gynecologist, of the development in the patient and actions taken by the clinic's staff and by Dr. Lee;

(f) Failure to provide close monitoring and leaving patient unattended especially after vomiting when low blood pressure was recorded. Machine was not monitored for fœtal distress during a long and critical period. Dr Ng was surprised to discover fœtal distress when he arrived in labour room;(g) Failure for not placing new born in appropriate breathing apparatus right on day 1 when oxygen assimilation showed a low reading of 89; and

(h) Failure to inform the parents of new born of the baby(sic) critical condition right away instead of postponing till next day for unknown reasons.

The defendant avers that the anesthetist was either retained by the patient herself or by her doctor who are not its employees. It is admitted that the health conditions of the new born baby deteriorated as averred in paragraph 11 but it is denied that the patient was left unattended inasmuch as Dr. Joganah attended to her at 12:05 hrs and Dr. Ng came at 12:30 hrs. It is further averred that Dr. Atchia was kept informed of the situation (of the baby's health) regularly and that the machine was available and could have been used on an urgent basis by Dr. Atchia since he is himself a specialist but it was him who decided to transfer the baby to Victoria Hospital which was done without any problem. It is denied that the use of the clinic machine was denied or that it was not operational due to lack of qualified nurses. The health conditions of the baby at the hospital as averred in paragraphs 13 and 14, is being denied as it is not aware of same. It is further denied by the defendant that it was at fault or

2 | P a g e

that it was imprudent or negligent or that the health of the baby deteriorated due to lack of facilities and CPAP machine at the clinic. The defendant has also denied that it had breached its duty to provide for all natal intensive care unit facilities for labour and natal complication or that the huge advertisements in the press and in the yellow pages were misleading and dangerous. The defendant has denied being at fault in failing to provide proper treatment and/ or just and adequate treatment resulting in the baby being in danger of death (Paragraphs 15, 16, 17, 18 and 19). The defendant therefore avers that it is not liable to the plaintiffs in any sum whatsoever and that the plaint is to be dismissed with costs. It is further averred that the damages claimed are exaggerated and should be reduced.

It is agreed that there is no list of employees of the Medical and Surgical Centre, their names and posts at the Ministry of Health.

• Plaintiffs' case

The material part of the evidence of Dr. Ng Kwet Long is to the effect that plaintiff no. 2 was his patient who was due to deliver her second baby in the month of October 2006. On 31 October 2006 she was admitted with pains at the maternity of Clinique Darné at about 5:00 hrs in early labour. He was informed of her arrival soon after her admission. He checked that everything was fine and she requested to have epidural anesthesia. Following that injection plaintiff no. 2 started to bleed moderately and the heart tracing of the baby was showing signs of distress- which is called a foetal distress. He came to see the patient to assess the situation: the tracing had recovered but as the patient did not progress appropriately he took the decision to have an emergency caesarian in view of the bleeding. He added that the timing of the epidural injection is made in consultation with him. It is a decision of the obstetrician. The actual administration and discussion for epidural is for the anesthetist. The baby was born by caesarian and was normal. He was handed over to the pediatrician, Dr. Atchia, who was present.

Under cross-examination Dr. Ng stated that there was absolutely no problem for the caesarian operation. It was only after the birth that some difficulties were noted. He did not find anything improper as regards the cooperation of the clinic for the delivery. He confirmed that neither the anesthetist nor himself were the employees of the clinic and they had been retained privately by the patient.

He explained also that the clinic usually puts equipments, structures and staff at his disposal and he would give medical instructions to the staff although they are not his employees. All possibilities are discussed with the patient and when a clinic says that it has such and such instrument it does not mean as a guarantee that these instruments are there and functioning. He added that he would not advise any patient to go to a clinic which is not properly equipped but in the present case the clinic had all the facilities.

Dr. Atchia stated that he was the pediatrician for the plaintiffs' baby whom he saw a few minutes after his birth in the nursery on 31 October 2006. He noticed that baby was in mild to

3 | P a g e

moderate respiratory distress. After examination he concluded that the baby was suffering from a collapsed right upper lung. Treatment was given to which the baby responded well. Plaintiff no. 2 was allowed 10 minutes to hold the baby and to feed him. In the morning he noticed a deterioration of the baby's health and he was not fed anymore. Later at around lunch time the baby started to suffer from a moderate to severe respiratory distress. He made a request that the baby be transferred to the neonatal unit for more intensive monitoring. He maintained that there were no signs of sub-costal recession, tracheal tugging or grunting which would have indicated a severe respiratory distress. He added that the baby did not require "intensive care" but "intensive care monitoring", that is a one-to-one nursing (a nurse just to look after the baby) for more privacy and monitoring. That type of care was not possible at the clinic. The administration of the clinic informed him that they were having difficulty in finding a qualified nursing staff to work in the neonatal unit, that is a 12-hour rotation staff. He did not want the baby to be put on any sort of machine. He discussed with the plaintiffs about the need to change the antibiotics and that if the health condition of the baby were to worsen he would require a CPAP machine- which is used to blow pressure in the lungs to keep them open but which does not actually cure him but will make it easier for him to breathe. He found that the baby needed the CPAP and neonatal intensive care that could be provided at "20 minutes down the road". He rang Dr. Bholah who accepted the baby at Victoria hospital. There is a CPAP machine at the clinic but due to lack of staff he took the decision to talk to Dr Bholah. He added that normally the baby would have been transferred by the SAMU which was not operational. He talked to the management of Darné which offered an ambulance with an ICU doctor to accompany the baby to Victoria.

Under cross-examination Dr. Atchia stated that on the day of the birth of the baby there was no necessity of any CPAP machine or neonatal care. He continued to get in touch with the defendant by phone. He wanted a neonatal ICU setting but that was not critical. It was after having spoken to the plaintiffs that he wanted to have the baby on a CPAP machine on a neonatal ICU. He denied that Mr. Gopalla stated that there was a nurse available. He added that in fact Mr. Gopalla and the other nurse would not have been able to provide long term ICU. He admitted having taken upon himself to call Victoria hospital after having spoken to the plaintiffs. He added that he had to take a decision after Mr. Gopalla told him "I haven't had any luck yet". He added that he has had the opportunity of using the neonatal ICU of the defendant’s clinic before and after birth- at least twice during that year. On that day he did not use it as there was no staff to help him.

He stated that he would not have operated the CPAP machine by himself without help from qualified personnel.

Dr Thomas deposed about the admission and the state of health of the baby at Victoria Hospital in the neonatal ICU. He was extremely distressed and in a critical condition. He was placed on a ventilator which is different from a CPAP machine. She agreed that the condition of the baby would have worsened if he had not been given ventilatory support and drugs. The baby was admitted for 10 days before he fully recovered and was feeding.

4 | P a g e

Plaintiff no. 1 deposed to the effect that in view of the pregnancy of his wife, plaintiff no. 2, they selected Clinique Darné which had a good reputation and after having checked the advertisement in the yellow pages of the directory (Doc. A) and on the internet to the effect that the clinic had all the equipments in case of emergency or any problems particularly that it had a neonatal ICU. Since 2006 the advertisement has been amended to remove the mention of the neonatal ICU. His wife was admitted on 30 October 2006 at 11:00 p.m. and was examined by Dr. Ng, the treating obstetrician, on the next morning. He did not know Dr. Lee until he met her at the clinic. When the epidural was administered his wife started to feel unwell. He stated that the decision of the timing of having the epidural was left to his wife. They waited for an hour before a nurse came in and Dr. Ng came at about one o'clock. The baby was born by caesarian.

Dr. Atchia came after the birth. The baby was gasping for air and had to be placed in an incubator. He was told by Dr. Atchia that there was something abnormal. The next day his wife complained to him that she was given the baby for 10 minutes only and was worried. They met Dr. Atchia at around 14:00 hrs who reported to them that the baby's condition has worsened and that he needed to be put on a CPAP machine. He was told by Dr. Atchia that the management of the clinic did not allow him to accede to the machine and that there was no staff to operate the machine. Dr. Atchia told him that he even offered to do it himself but that they would not let him have access to the machine. They told him that they had no staff. He admitted that the clinic was looking for staff for the machine but that there was no one available. Dr. Atchia then suggested that a request be made to the hospital and eventually the baby was admitted to Victoria Hospital in an ambulance prepared by the clinic. He wrote to the clinic for some information which was not provided to him such as the epidural shock and other questions such as the reason for the patient being given breakfast in the morning and the reason the patient being left unattended for an hour before the arrival of Dr Ng.

He reported the matter to the Ministry of Health. His reproach to the clinic is that it did not do anything. His wife was admitted during the night and Dr. Ng came to visit her in the morning. He came a second time at about noon and it was then that Dr. Ng appeared worried. As for Dr. Lee he stated that he believed that she was an in-house doctor to take care of emergencies. He also relied on an advertisement in the yellow pages but no neonatal ICU was available contrary to what the clinic had professed. He was not kept informed by the clinic about the state of his baby although his wife and himself had been invoiced for everything that the clinic was supposed to be doing from napkins to a cup of tea. He is therefore claiming from the clinic the sum of RS 500000 as the clinic was at fault for not doing what it was supposed to do, that it did not keep him informed, that it failed to give the required treatment and getting the machine and the necessary personnel.

Under cross-examination plaintiff no. 1 admitted that it was his second child and the first child was born naturally. The defendant was chosen in view of its reputation that the plaintiff’s wife gathered from her colleagues but he was also reassured by the advert in the yellow pages as he had complete information. He does not know whether the advert was removed only to be transferred to the pediatrics advert. He did not know that it was Dr. Ng,

5 | P a g e

on whom he had confidence, who requested that epidural should be administered to his wife. Dr. Ng did not say anything to his wife. He disagreed with the opinion of Dr. Ng that the clinic was efficient. His reproach to the clinic is that his wife was left for a whole hour without anyone to monitor her. There was foetal distress and nobody knew about it until Dr. Ng came in. He was told by Dr. Atchia that he was denied access to the neonatal ICU. He added that his baby was sick and needed help and that the defendant had to have specialized people to take care of him but they were not available. He did not know that Dr. Atchia was at Grand Baie and did not come at all to see the baby. He did not know whether there was a consultation by phone and maintained that there were some problems with his baby, that an X-ray was shown to him by Dr. Atchia who told him that there were some problems with the baby's chest.

Plaintiff no. 2 deposed to the effect that in October 2006 she was admitted to Clinique Darné for the delivery of her second baby and Dr Ng was her gynecologist. She was given breakfast. She does not know Dr. Lee who came to see her and asked whether she required her epidural shot but she was not advised when she should have received the epidural shot. Once the epidural was administered she felt sick. She was placed on a monitor and was told by Dr Ng that her baby was suffering from foetal distress. She was afraid of having a caesarian and complained that no one form the clinic came to see her except for a nurse who examined her. She became aware of the health of the child only on the next day of his admission to the hospital. Her main complaint against the clinic is that it did not keep her informed and that there was lack of coordination.

Under cross-examination she admitted having retained the services of Dr. Ng as her obstetrician. She did not know that it was Dr. Ng who advised on the timing of the epidural shot. She maintained that the clinic was responsible inasmuch as her baby ought to have been adequate care after his birth.

• Defendant's case

Mrs. Pillay was called by the defendant. She is no longer working for the defendant but in year 2006 she was the Operations Manager. She maintained that neither Dr. Ng nor the anesthetist, Dr Lee were the employees of the clinic but that their services were retained by the patient herself. After the birth of the plaintiff's baby boy it was Dr. Atchia, the pediatrician, who took over. Dr. Atchia was also not an employee of the clinic but whose services had been retained by the plaintiffs. Dr Atchia made a report copied to the clinic on 6 November 2006 (Doc C) together with another letter 2 months later (Doc. D). The witness stated that in the first letter Dr. Atchia did not complain about neonatal facilities, CPAP machine or ICU facilities. It is in the second letter that Dr. Atchia complained about Mr. Gopalla who told him that there was no neonatal facility at the clinic. Plaintiff no. 1 also requested for a report which was sent to him (Doc. E and E1). The defendant also received a letter from Dr. Jaipal, Principal Medical Officer asking for details about a complaint made by plaintiff no. 1. She stated that on the material day there was no request for placing the baby in the neonatal ward although the neonatal ICU was available and operational and that proper personnel

6 | P a g e

was also available but she added that it was however important that the pediatrician be present. The baby was transferred to the hospital in an ambulance belonging to the clinic at the request of Dr Atchia.

Under cross-examination Mrs. Pillay agreed that the defendant caused advertisements to be made in the telephone Directory about the availability of neonatal ICU. She stated that she could answer for the clinic but there were certain information that could only be given by the doctors. She agreed that there is a difference as to the time breakfast was served to plaintiff no. 2 (Doc. G). She maintained that it was not for her to question the doctor who is the person entitled to take decisions about the patients and soins. Mr. Gopalla was the nursing coordinator and was the link between the doctors and the services of the clinic. She is aware of the fact that Dr. Atchia wrote to say that he was told by Mr. Gopalla that it was impossible to have qualified personnel or staff for the neonatal ICU. An enquiry was carried out. She maintained that the defendant has all the equipment and staff to give assistance to the baby but the defendant cannot question the decision of the doctor. The necessary equipment was available either to stabilise the child or to keep him at the clinic. In the invoice (Doc. H), Dr. Mahayagar was the anesthetist and ICU specialist who was responsible for the transfer of the baby to the hospital. She added that the ambulance service and the fees for the doctor who accompanied the child were all included in the invoice.

Mr. Gopalah was called by the defendant. He stated that he was on call at Clinique Darne when the baby of the plaintiffs was born. He denied having received a request from Dr Atchia to place the baby in the neonatal ICU or that he told the doctor that no staff was available. It was Dr Atchia himself who took the decision to transfer the child to Victoria Hospital. He maintained that there were at least three persons who were available to look after the baby in the neonatal ICU including himself. He added that once a doctor has taken the decision to transfer a patient to the hospital he cannot intervene but has to comply with the doctor's instructions.

Under cross-examination the witness stated having spoken to Dr. Atchia over the phone on two occasions who was inquiring about the baby. He was told that the ICU would eventually be required and there was a request for a one-to-one nurse to look after the baby- which had already been catered for since the morning by the nurse in charge. There are cases where babies and even adults have to be transferred to the hospital or even abroad depending on the decision of the treating doctors when they feel that the patient requires more than what the clinic has. He denied having informed Dr. Atchia that there was no qualified staff to man the neonatal ICU.

• Basis for the Cause of action- Contract or Tort?

7 | P a g e

Before moving on to the merits of the present case, it can be said that the parties in the present case have hardly been of any assistance to the court. I find it therefore important to deal with the relationship between the defendant and the plaintiffs since the defendant is a private clinic. Such relationship is not the same as with a public hospital. In the case of a public hospital the cause of action must be grounded on tort under articles 1382 et s. of the Code Civil whereas in the case of a private clinic, the cause of action must be grounded on breach of contract. It is amply established, in the present case, that the plaintiffs have themselves chosen that the delivery of their child would be made in a private clinic as opposed to a public hospital. They chose the defendant after having enquired from colleagues and looked at advertisements in the telephone directory. There is evidence from the plaintiffs that they were even charged for napkins, a cup of tea, the ambulance which conveyed their child to hospital as well as for the ICU doctor who accompanied the child in the ambulance. There is between the defendant on the one hand and the plaintiffs on the other hand, a contract which is known as a contrat de soins et d'hospitalisation as aptly described in the following extracts:

In Droit de la Responsabilité et des Contrats, Philippe le Tourneau, 7e édition, notes 4265 et 4275:

"4265. Il est admis qu'un contrat de soins peut se former entre le malade et la clinique ou l'hôpital. La clinique prenant en charge l'intégralité des prestations à assurer. Dans cette hypothèse il n'existe aucune relation contractuelle directe entre le chirurgien et le patient (ou quelque autre membre de l'équipe). Les coéquipiers se trouvent alors réunis, non pas par le patient, ni par l'un de ses membres, mais par la clinique.

"4275. Contrat de soins. Le malade contracte généralement avec le spécialiste, notamment le chirurgien, qui doit soigner ou l'opérer dans une clinique. Mais il peut aussi bien conclure directement avec la clinique un contrat de soins, celle-ci s'en remettant à des médecins pour l'exécution de son obligation (plusieurs arrêts ont retenu expressément la qualification de "contrat d'hospitalisation et de soins"… ce contrat emporte l'obligation de donner des soins attentifs et consciencieux). L'établissement privé de soins est tenu contractuellement du fait des médecins salaries œuvrant en son sein, et non de ceux qui y exercent leur activité de façon libérale (Civ., 1ere, 26 mai 1999, no. 97-15.608) Cette solution est critiquable, car un médecin ne peut être subordonné à quiconque dans l'exercice de son art. Dans cette optique et dans ces circonstances, la victime ne peut assigner pour défaillance contractuelle que le clinique."

There is no evidence as to types of treatment and care (soins) which was undertaken to be provided by the defendant and forming part of the agreement between the defendant and the plaintiffs inasmuch as no document to that effect has been produced. It is to be understood from Dr. Ng, in re-examination, that the clinic "puts equipments, structures, staff" at his disposal and that he functions "by giving medical instruction to the staff and this is the arrangement the clinic gives to me although the staff are not my employees" . The plaintiffs ought to have proceeded for breach of contract only as averred in paragraph 16 but they chose to make an amalgamation of causes of action by further alleging fault, imprudence and negligence in paragraphs 15 and 18 of the prœcipe which bring their action also under

8 | P a g e

the realm of responsabilité délictuelle or tort under a. 1382 et s. of the Code Civil. This is contrary to the règle de non cumul which prevents a party from claiming a remedy both in contract and in tort. If the prayer is one which relates to the contract, the claimant cannot proceed in tort. (see TFP International Ltd. v. S. Itoola [2002 SCJ 147]; The Hong Kong and Shanghai Banking Corporation v. M. S. Sairally [2002 SCJ 22]) It has been stated that even where a claimant has averred in his plaint a faute lourde that does not take the action outside the contractual realm (Air Austral v. Abdool Hamid Ismael Hurjuk [2010 SCJ 202]). It is only where une faute dommageable distincte se joigne à cette violation (d'engagements) that a cumul is allowed. (Savatier, Traité de la Responsabilité Civile, 2ème

édition, Tome I, p. 197).

Since the relationship between the plaintiffs and the defendant is based on contract, the plaintiff’s remedy is only under contract and not in tort which is a basic principle which law students learn when studying French Law of contracts based on the Code Civil. The following extract can be found in Droit Civil, Les Obligations, 10e édition, Alain Bénabent, note 523, p.355, Règle du non–cumul des deux ordres de responsabilité: Définition :

« En raison des différences de régime… il arrive qu’un contractant victime d’un dommage souhaite placer son action sur le terrain de la responsabilité délictuelle qui lui sera plus favorable que la responsabilité contractuelle… La règle du “non cumul” le lui interdit en droit français. L’expression est quelque peu trompeuse car elle pourrait laisser croire que, si l’on ne peut pas cumuler les deux régimes de responsabilité, on pourrait du moins choisir celui qu’on entend invoquer. Or, il n’en est rien : la règle dite du non-cumul est en réalité un principe de non-option en ce qu’elle signifie que la victime d’un dommage dans le cadre contractuel ne peut pas faire appel à la responsabilité délictuelle : « le créancier d’une obligation contractuelle ne peut se prévaloir contre le débiteur de cette obligation, quand bien même il y aurait intérêt, des règles de la responsabilité délictuelle » (Civ.. 1re, 11 janvier 18989, Bull civ., I, no. 3) ou plus sobrement : « L’article 1382 du Code Civil est inapplicable à le réparation d’un dommage se rattachant à l’exécution d’un engagement contractuel ( Civ. 2e, 9 juin 1993, Bull. civ, II, no. 204 ; JCP 1994.II.22264) Le champ d’application de la responsabilité délictuelle se trouve ainsi limité : elle est rejetée du domaine contractuel…un salarié victime d’une maladie professionnelle ne pourra poursuivre son employeur que dans le cadre des règles du contrat de travail et non invoquer une responsabilité délictuelle. Cependant la jurisprudence admet parfois qu’une faute extrêmement grave d’un contractant permettrait de réintroduire dans le cercle contractuel les règles de la responsabilité délictuelle : ainsi en cas de faute dolosive d’un constructeur ou de faute pénalement réprimée».

However, as remarked by the learned author, even in the latter cases the position of the French Courts « semble d’ailleurs en passe d’être abandonnée (Civ. 3e, 27 juin 2001, bull. Civ., III no. 83; JCP 2002.I.124, no. 18) »

Being given that there is a fine line between contract and tort in matters of alleged medical negligence, I shall nevertheless proceed to examine the plaintiffs claim. It is to be noted that there is a string of complaints that are being made against the defendant although some of those complaints ought to have been directed against the treating doctors and some do not form part of the duties of a private clinic. At paragraphs 15 of the prœcipe, the plaintiffs have

9 | P a g e

particularized the defendant's fault from (a) to (h). I shall now deal with each of the complaints.

• Complaints raised at paragraphs 15 (c), (d) and (h).

It is averred that the defendant has failed to keep the patient and the plaintiffs properly informed. Items (c), (d) and (h) can be taken together, namely:(c) Failure to inform and to provide psychological counseling to bedridden patient whilst in a depressed state and in pain after the caesarian operation;(d) Failure to inform patient of the risks and pre-conditions for epidural shot and the professional status of Dr. Lee, the anesthetist, as an independent consultant to clinic Darné and (h) Failure to inform the parents of new born of the baby critical condition right away instead of postponing till next day for unknown reasons.

The short answer to the above complaints can be found in the following extract about the duty of information in:

Droit de la Responsabilité et des Contrats, Philippe le Tourneau, 7e édition, note 4276: "Devoir d'information. Puisqu'il existe un contrat de soins, la clinique est tenue envers ses clients d'une obligation d'information, non pas sur les risques des interventions médicales, mais sur les prestations qu'elle est en mesure d'assurer." (emphasis added).

It is not the plaintiffs’ case that they have not been informed by the clinic of the prestations qu'elle est en mesure d'assurer or of the services it could not offer. From the above quoted extract, I find that it was for each of the doctors retained by the plaintiffs to keep them informed of the medical issues and not for the clinic to do so. There is also no evidence that the plaintiffs or any of the treating doctors having requested the defendant to offer any psychological counseling service or that such care had been medically advised, prescribed or recommended.

At paragraph 5 of the prœcipe, it is averred that the defendant should be held responsible for the acts and doings of Dr. Lee, the anesthetist who administered the epidural shot to the patient inasmuch as she acted unprofessionally in that she administered the epidural to the patient "when she wanted it and not when she should normally receive it, as per a professional appraisal" and that she was given breakfast before the epidural shot. No evidence has been adduced that Dr. Lee was employed by the defendant but on the contrary the plaintiffs themselves have averred at paragraph 15 (d) that Dr. Lee was an "independent consultant to Clinic Darné" and also there is no expert evidence that the serving of breakfast was contraindicated before the administration of epidural.

From the evidence on record Dr. Ng has stated that the request for epidural came from the patient herself. He confirmed that it was the patient herself who had retained the services of Dr. Lee, the anesthetist hence was not an in-house doctor to care about emergencies. It is therefore plainly established that the services of both Dr. Ng and Dr. Lee were retained by

10 | P a g e

the patient herself and that they were not in the defendant's employment. There is between the plaintiffs and each of the doctors, namely Dr. Ng, Dr. Atchia and Dr. Lee, different separate contracts for the provision of specific medical advice and care in their specific field of expertise. Each of them is a médecin libéral who examined the patient and the new born and it was for each of them to inform the plaintiffs of their diagnosis and on medical issues and not for the clinic to do so. There is evidence that it was Dr. Ng himself who decided as to the timing the epidural shot to be given to the patient. In evidence Dr. Ng made it clear that the timing of the epidural injection was made in consultation with him and he pointed out that such a decision "was for the obstetrician". It was only the actual administration of the epidural shot and the discussion for epidural that was for the anesthetist. If the plaintiffs believe that Dr. Lee, Dr. Ng or Dr Atchia did not act in a professional way they ought to have sued each of them separately for breach of contract and not lumping everything on the defendant's shoulders the more so that there is evidence from Dr. Ng himself that the duty of the defendant clinic was to provide infrastructure, apparatus and staff to help the doctors to perform their duties. In support of the above, I shall refer to the following pertinent extract from:

Droit de la Responsabilité et des Contrats, Philippe le Tourneau, 7e édition, note 4239 :4239 : Toutefois, c'est bien du régime de la défaillance contractuelle qu'il s'agit, même si elle résulte de la défectuosité d'une chose. A juste titre, la jurisprudence rappelle que le médecin ne saurait être actionné par son client sur le fondement de l'article 1384, alinéa Ier in fine, du Code Civil: ce serait violer le règle de non option…req. 15 juin 1937, S. 1938, 1, 5.

The test to be applied is that as aptly stated by the learned author at note 4219 as follows:(1) note 4219: L'obligation fondamentale du médecin: donner des soins conformes aux données acquises de la science. La jurisprudence rappelle souvent, dans la lignée de l'arrêt Dr. Nicolas c. Mercier, que le médecin doit prodiguer des soins conformes aux données acquises de la science. Les données acquises à prendre en considération sont évidemment celles de l'époque des soins et non celles qui existent au moment auquel le juge statue.

The same test was applied by the English court and applied in Mauritian cases in the case of Gopee and Others v. State of Mauritius [2007 SCJ 303] and in Boodhoo and Others v. The State of Mauritius [2008 SCJ 167] where the court applied the test laid down in the case of Bolam v. Friern Hospital Management Committee [1957] 1 WLR 582, known as the Bolam test.As regards the responsibility of the anesthetist, Dr. Lee, I shall refer to the following extracts found at notes 4272, 4208 and 4209 of Droit de la Responsabilité et des Contrats, Philippe le Tourneau, 7e édition:

Note 4272: "L'Anesthésiste-réanimateur a aujourd'hui un rôle capital… il répond de sa défaillance contractuelle lorsqu'un contrat s'est formé au moins tacitement avec le client, celui-ci ayant accepté d'être examiné par ce specialiste avant l'intervention. A défaut de contrat entre lui et le patient sa responsabilité est délictuelle. Le plus souvent il sera condamné in solidum, voire solidairement (en cas de délit), avec le chirurgien ou avec l'établissement qui a commis une défaillance contractuelle. Parfois, aucun contrat ne s'est

11 | P a g e

formé entre le malade et l'anesthésiste, désigné par le chirurgien: celui-ci répond alors des actes de ce specialiste…"

Note 4208: Le régime de la responsabilité médicale résulte pour l'essentiel d'un arrêt célèbre de 1936 [Civ., 20 mai 1936, Dr. Nicolas c. Mercier, D.1936, 1, 88].. Il en découle ceci: Un véritable contrat se forme entre le médecin libéral et le patient, excluant par la même la responsabilité délictuelle. En revanche il ne se noue pas de contrat entre le malade et l'hôpital… lorsque le patient est hors d'état d'accepter les soins et que son entourage n'a pas pu être touché, il est clair que le régime applicable est celui de la responsabilité délictuelle, a l'exclusion de la défaillance contractuelle

Note 4209: Puisque l'obligation médicale est de moyens, il appartient au client de prouver la faute du praticien et pas simplement l'absence de résultat, et que cette dernière a été la cause du préjudice invoqué.

At paragraph 7, it is being complained that the patient was left unattended for almost one hour between 12:00 a.m. to 12:45 p.m. until the arrival of Dr. Ng. I find that such a complaint has not been established by evidence. Plaintiff no. 1 himself said that his wife: "was put on a monitor and that for a whole hour, only one person came into the room and she felt the vagina and then left". It cannot be said therefore, on plaintiff’s own words that the patient was left unattended since he himself stated that he was told him that the birth was not going to happen for a while but it was best to keep her at the clinic. There is no evidence that the requirement for constant monitoring by a dedicated nurse by the patient's side formed part of the contract for services to be offered by the defendant clinic nor has it been shown that the clinic has departed from a practice accepted as proper by a body skilled in that particular art.

• Complaints at paragraph 15 (g)

At paragraph 10, the complaint is to the effect that the new born baby was left with the patient, his mother, for only 10 minutes and at paragraph 15 (g) it is being complained that the defendant failed to place the new born in appropriate breathing apparatus right on day one when oxygen assimilation showed a low reading of 89. Those complaints ought to have been directed against Dr Atchia, the pediatrician whom the plaintiffs have retained: From the evidence on record the defendant acted on the instructions of Dr. Atchia. Indeed Dr. Atchia found that the new born baby had some mild to moderate respiratory distress and oxygen was administered by means of a nasal cannula and he was fed by means of a drip in addition to the administration of two antibiotics. It was not until the baby responded well to the treatment that Dr. Atchia gave instructions that the newborn be fed by his mother for 10 minutes. I am left to wonder how the baby could have been brought to the patient when he was connected to a tube, a drip and under medication and secondly when the pediatrician himself gave clear instructions to allow the mother to feed the baby for 10 minutes only after he has been satisfied that he responded well to the treatment. It was the decision of the pediatrician to give a specific treatment which was followed by the defendant. Dr. Atchia himself has deposed to say that he advised that the newborn be given oxygen via a nasal cannula and hence there was no prescription for the newborn to be placed in a breathing apparatus. I am left to wonder how the plaintiffs, who are not experts in the medical field can

12 | P a g e

pretend that the new born ought to have been placed in an appropriate apparatus the more so that they have adduced no independent expert evidence to that effect.

I fail to see how the clinic could be held responsible for having followed the instructions of Dr. Atchia and should there be any complaint to the effect that Dr. Atchia acted in a manner departing from the practice accepted as proper by a responsible body of medical men skilled in that particular art then the plaintiffs ought to have sued him for breach of contract and not the defendant. It was for the plaintiffs to contact their pediatrician to be informed of the state of health of the baby, the staff of the clinic are not medical specialists and cannot either speak in the name and on behalf of a doctor or take any decision contrary to the instructions given by Dr. Atchia. (v. supra notes 4208 and 4209).

• Complaints at paragraphs 15 (e) and 15 (f)

At paragraphs 15 (e) and (f) the defendant is being blamed for “failing to inform Dr. Ng, the gynecologist, of the development in the patient and actions taken by the clinic's staff and by Dr. Lee" and for "failing to provide close monitoring and leaving the patient unattended especially after vomiting when low blood pressure was recorded" It is further averred that the "machine was not monitored for fœtal distress during long and critical period. Dr Ng was surprised to discover fœtal distress when he arrived in labour room."

Dr. Ng himself, when invited to comment about the defendant, stated that he did not find anything improper as regards the cooperation of the defendant for the delivery of the baby and that he was informed of the patient's arrival soon after her admission. He checked that everything was fine and the patient requested to have epidural anesthesia. Following that injection the heart tracing of the baby was showing signs of distress, he came to see the patient to assess the situation and he took the decision that an emergency caesarian was required. The above testimony given by Dr. Ng is in contradiction with the averments of the plaintiffs who have complained about the lack of monitoring and have averred that it was Dr. Ng who discovered that there was fœtal distress. In fact plaintiff no. 1 stated that Dr. Ng came back at about noon or one o'clock and that "I think they must have called him". The above evidence amply establishes the fact that there has been proper and close monitoring and that Dr. Ng was duly informed of the developments occurring in the patient and that he decided to come and assess the situation. As regards the actions taken by Dr. Lee, the matter has been amply discussed above and Dr. Ng could not have been clearer when he stated that he took the decision for the epidural injection and its timing after consultation with her. Although plaintiff no. 1 is not versed in the art of obstetrics he took the liberty of commenting on the efficiency of the defendant on this matter. He is contradicted by his own witness. Dr. Ng stated, without any hesitation, that he was fully satisfied with the clinic and services provided.

• Complaints at paragraphs 15(a) and 15(b)

13 | P a g e

We are therefore left with paragraphs 15 (a) and (b) of the prœcipe where it is averred that the defendant failed "to provide a coordinated care and defined responsibility for the patient. No coordination was evident between head nurse, Dr. Lee and Dr. Ng during the period leading to the caesarian operation." and for "failing to make available to Dr. Atchia the basic equipment and skilled operators normally available in a natal intensive care unit- namely a CPAP machine to help newborn to sustain an acceptable level of oxygen intake.". Paragraph 15 (b) can be taken together with paragraphs 16 and 18 in which it has been averred that the defendant "has breached its duty to provide all natal intensive care unit facilities for the labour and natal complication. The huge advertisement in the press and yellow pages of the directory are misleading and that defendant failed "to provide proper treatment and/or just and adequate treatment which resulted into the new born child being in the danger of death that he had to be transferred to Victoria hospital."

Paragraph 15(a) has already been dealt with in detail above. On the evidence on record especially on the evidence adduced on behalf of the plaintiffs, it cannot be said that there has been any lack of co-ordination and that the responsibilities have not been defined. On the contrary, as stated by Dr. Ng, he was kept informed of the developments in the patient who was placed on a monitoring machine. There is evidence that the epidural injection was given by Dr. Lee in consultation with Dr. Ng. The latter was in a better position to judge whether there had been proper coordination and defined responsibilities and who dealt with all issues prior to the caesarian operation. On this score, Dr. Ng unequivocally stated under cross-examination that he has no complaint whatsoever against the defendant and did not find anything improper.

• Refusal to allow access to neonatal unit and lack of qualified staff

As regards paragraph 15 (b), the complaint relates to the fact that the defendant has failed to make available to Dr. Atchia the basic equipment and skilled operators normally available in a natal intensive care unit- namely a CPAP machine to help newborn to sustain an acceptable level of oxygen intake", that the defendant "has breached its duty to provide all natal intensive care unit facilities for the labour and natal complication and that the huge advertisement in the press and yellow pages of the directory are misleading so that the defendant has failed "to provide proper treatment and/or just and adequate treatment which resulted into the new born child being in the danger of death that he had to be transferred to Victoria hospital."

Dr. Atchia, plaintiffs' own witness, as well as the witnesses for the defendant have all confirmed that there is a neonatal intensive care unit at Clinique Darné. In fact in a letter (Doc. D) sent to plaintiff no. 1, Dr. Atchia wrote: "I can confirm that Clinic Darné do (sic) have a fully equipped Neonatal ICU". He even went as far as saying that "should a sudden deterioration in Anthony's (plaintiffs' newborn) condition have arisen then the neonatal ICU would have been made available on an emergency basis as is always the case." It cannot be said therefore that the advertisement in the yellow pages of the telephone directory was misleading. The issue is whether such a unit was up and functioning. In order to determine

14 | P a g e

whether the defendant failed to provide the necessary assistance to Dr. Atchia, it would be relevant to set down the chronology of the events as can be obtained from the evidence of Dr. Atchia himself. He is adamant that the neonatal ICU was not required on the day of the birth of the baby and treatment was administered and he showed signs of positive response.

On the next day of the birth, on 1st November, Dr. Atchia stated that there was still no necessity of any CPAP machine but he wanted to have the baby transferred to the neonatal unit for more intensive monitoring, and clearly not to be placed on any CPAP machine. Indeed, later in the course of his examination in chief, he stated that the newborn required only intensive care monitoring, that is a one-to-one nursing for more privacy and more intensive monitoring on his own in an intensive care. He then made a request for the baby to be placed in the neonatal ICU and spoke to the administration. He was then told that there is some difficulty in finding a qualified nursing staff and he requested, in the meantime to have the one-to-one nursing in the nursery itself and “this was possible”. In fact, under cross-examination Dr. Atchia agreed that the defendant did provide one-to-one service to the baby and that up to that there was nothing wrong and that he has no reproach to make. There was, at this stage no requirement for the baby to be placed on a CPAP machine as he stated that he “did not want Anthony (the newborn) on any sort of machine” as at that moment he was only suffering from moderate to severe respiratory distress but not a severe respiratory distress as such in view of the fact that Anthony had no signs of sub costal recession, tracheal tugging or grunting that are indications of a severe respiratory distress. He made it a point to stress that the baby did not require any "intensive care" but "intensive care monitoring"- which he explained, in cross-examination, as not having asked that the baby to be placed in a neonatal ICU but that he wanted a neonatal ICU setting (see pages 34 and 35).

It was only after having spoken to the plaintiffs at around lunchtime that the health situation of the baby deteriorated and that he required CPAP support. Dr. Atchia stated that he received confirmation that the defendant was not successful in finding staff after Mr. Gopalla had told him "I haven't had any luck yet". At this stage the doctor stated that he did not want support staff just for five or ten minutes but staff in rotation of 12 hours. He decided that the baby needed CPAP as well as neonatal intensive care and he “elected to ring the consultant in charge Mr. Bholah”. It is not denied that the health conditions of the newborn worsened and had to be transferred to Victoria Hospital.

At no time has Dr. Atchia stated that access to the neonatal ICU CPAP machine was denied to him by the defendant or that the machine was not operational as averred in paragraph 12 of the proecipe. In fact it is clear from his testimony and his letter to plaintiff no. 1 (Doc. D) that the neonatal ICU would have been made available on an emergency basis as is always the case. In fact Dr. Atchia was looking for a certain type of personnel that would have been in a position to provide long term ICU which he described as a "12-hour staff after staff 12 hrs after 12 hours"(sic) and he stated that Mr. Gopalla and the other nurse- who were available- would not have been able to provide such long term ICU. He also said that “they might have worked in it for 5 minutes, 10 minutes before the ambulance came but we never

15 | P a g e

had this discussion.” He admitted having taken upon himself to call Victoria hospital after having spoken to the plaintiffs as he had to take a decision. It is to be noted, at this stage, that at the time of his request for qualified staff for long term ICU he had not yet taken the decision to have the baby placed on the CPAP machine in the neonatal ICU. What he requested was merely a neonatal ICU setting for intensive care monitoring. It was only after having spoken to the plaintiffs that he took the decision, in view of the deterioration of the bay's health, that the CPAP and neonatal ICU were no longer an option.

It is unclear whether Dr. Atchia had made any express request to the defendant for the CPAP and neonatal ICU after having spoken to the plaintiffs. When he met Mr. Gopalla in the corridor just behind the nursery at lunchtime and was told that staff was being looked for, was it before or after having spoken to the plaintiffs. If he was so told before his meeting with the plaintiffs then no decision was yet taken for CPAP and neonatal ICU (only a request for neonatal ICU setting and monitoring was made at that moment). In fact it would appear that when he met Mr. Gopalla in the corridor he concluded that there was no qualified staff to operate the CPAP machine and neonatal ICU when, in fact, that was not the case inasmuch as there is evidence that Mr. Gopalla, one Mrs. Latreille, a nurse midwife and Mrs. Agnoo, a midwife were available and could have operated the unit even for 5 or 10 minutes. In spite of the uncertainties, I shall proceed to examine whether it has been established that the defendant failed to provide qualified staff.

• Test to be applied

In Droit de la Responsabilité et des Contrats, Philippe le Tourneau, 7e édition, note 4279, one can find the following regarding the responsibilities of a private clinic which is one of de moyens only and not de resultat:

"4279: La responsabilité des cliniques est une obligation de moyens. A la victime de prouver la défaillance de l'établissement ou, plus exactement, de ses préposés, dont elle est responsable en tant que commettant… Réciproquement, la clinique ne sera pas responsable si la victime n'arrive pas à démontrer sa faute."

The same can be found in Répertoire de droit civil, Dalloz, V° Médecine, notes 213 et 216 :

213.« La clinique est tenue de fournir les moyens nécessaires à la bonne exécution des soins. Notamment, la clinique engage sa responsabilité si elle ne met pas à la disposition de ses clients et des médecins qui les soignent un personnel suffisant en nombre et possédant la qualification requise pour le poste qu'il occupe (Cass. 1re civ. 1er juin 1976 et CA Orléans, 9 janv. 1975). Il s'agit ici d'une obligation de résultat. »

216.« Les cliniques sont tenues de fournir aux patients qu'elles accueillent les soins paramédicaux que nécessite leur état. L'exécution de ces soins relève normalement, comme les actes médicaux eux-mêmes et sous réserve des mêmes exceptions d'une obligation de moyens (Cass. civ. 6 mars 1945; Cass. 1re civ. 5 févr. 1963, D. 1963. 417, note R. Savatier, Gaz. Pal. 1963. 1. 274). »

16 | P a g e

As indicated in the above extract, l’exécution des soins by the defendant is comparable to the actes medicaux eux-mêmes, and hence the test that has to be applied is one that has been aptly laid down at note 4219 of Droit de la Responsabilité et des Contrats, Philippe le Tourneau, 7e édition, namely:

(1) note 4219: L'obligation fondamentale du médecin: donner des soins conformes aux données acquises de la science. La jurisprudence rappelle souvent, dans la lignée de l'arrêt Dr. Nicolas c. Mercier, que le médecin doit prodiguer des soins conformes aux données acquises de la science. Les données acquises à prendre en considération sont évidemment celles de l'époque des soins et non celles qui existent au moment auquel le juge statue. ,

Furthermore in the case of Gopee and Others v. State of Mauritius [2007 SCJ 303] and in Boodhoo and Others v. The State of Mauritius [2008 SCJ 167] the court applied the test laid down in the case of Bolam v. Friern Hospital Management Committee [1957] 1 WLR 582, known as the Bolam test as follows:

"Where you get a situation which involves the use of some special skill or competence, the test as to whether there has been negligence or not is not the test of the man on the top of the Clapham Omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing that special skill.

A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art…he is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art…putting it another way round, a man is not negligent if he is acting in accordance with such practice merely because there is a body of opinion who would take a contrary view.”

What is medical negligence then? It is simply: failure to exercise the ordinary skill of a doctor. In Hunter v Hanley 1955 SLT 213, it was held that even a deviation from ordinary professional practice is not evidence of negligence. For negligence it must be established that the course the doctor adopted is one which no professional man of ordinary skill would have taken if he had been acting with ordinary care. (vide S.K.S. Auckloo v. State of Mauritius [2004 SCJ 312])• Application of the test

The question is whether there was any requirement to have the type of staff which Dr. Atchia was looking for, that is staff in a position to provide long term ICU "12 hours after 12 hours" in a neonatal ICU or is it an "accepted proper practice" in a private clinic to have staff in a position to provide assistance for 5 or 10 minutes? The clinic would be responsible where it has failed to put at the disposal of the doctor sufficient qualified staff. The defendant has adduced evidence that Mr. Gopalla, a nurse midwife, one Mrs. Latreille and a midwife, Mrs. Agnoo were available and that all three are properly qualified as having been trained by the Ministry of Health. Dr. Atchia agreed that Mr. Gopalla and the other nurse might have worked in it for 5 minutes, 10 minutes hence admitting that adequate qualified personnel were available. That was not the requirement of Dr. Atchia. What he wanted is to have some kind of dedicated nursing staff to run a “long term ICU”. There is no expert evidence to the effect that according to the données acquises de la science (1) it was a requirement to have "12-

17 | P a g e

hour staff after staff 12 hrs after 12 hours" for the running a long term ICU in a neonatal ICU in a private clinic and (2) that qualified nurses and midwives providing assistance "for 5 or 10 minutes" were below the standard.

In addition, applying the Bolam test which has been applied by the Supreme Court in a number of cases to which I have already alluded above, I find that there is no evidence as to what the "accepted proper practice" would have been and still less is there any evidence from any “responsible body of medical men”. The test remains whether the defendant had acted below the standard of professional care and skill to be reasonably expected from ordinarily competent clinics. Even Dr. Atchia who was lengthily examined in chief has not given any evidence of what the accepted norm in any neonatal ICU is so that this court is not in a position to conclude that there was indeed a lack of skilled operators normally available in a natal intensive care unit. I therefore find that the averments of the plaintiffs have not been established.

• Conclusion

In view of the foregoing and the reasons given above, I find that the complaints leveled by the plaintiffs against the defendant are baseless. They have failed to prove any imprudence or negligence or any faute, whether contractuelle or délictuelle, on the part of the defendant. They have therefore failed to establish their case against the defendant on the balance of probabilities.

The present plaint is dismissed with costs.

P. M. T. Kam SingMarch 17, 2011

18 | P a g e