Permitting letter from MOH to ROC Taiwanese Ambassador as evidence, determining lost wages damages under domicile

Beia v Attorney General [2010] KIHC 36;

Civil Case 176 of 2009 (15 March 2010)

IN THE HIGH COURT OF KIRIBATI

CIVIL JURISDICTION

High Court Civil Case 176 of 2009

HELD AT BETIO

REPUBLIC OF KIRIBATI

BETWEEN:

TAATU BEIA

Plaintiff

AND:

ATTORNEY GENERAL

iro Ministry of Health and Medical Services

Defendant

For the Plaintiff: Mr Banuera Berina

For the Defendant: Ms Tumai Timeon

Date of Hearing: 15 March 2010

JUDGMENT

The plaintiff, kaain Abaiang, is now aged 48, married with five children. In 2003 he

was a seaman, fit and healthy. He slipped on a boat when he was carrying a load of

fish. The fall brought up a lump on his right lower leg not far below the knee. The

lump was painful. He went to the Tungaru Central Hospital. The diagnosis, cancer:

the treatment, amputation above the knee. The plaintiff refused to accept the treatment

and went home to Abaiang. The discomfort persisted and worsened. In 2008 he went

back to the TCH. A biopsy was taken. After a delay of two months the specimen was

sent to Australia. The report, another two months later, was of a giant cell tumor. [Dr

Harry Tong explained that a giant cell tumor is a rare condition but as a rule not

malignant]. In the meantime the wound from the biopsy became infected. Finally the

Minister arranged for the plaintiff to go to Taiwan for treatment. It was too late. The

infection had done irreparable harm: there was no alternative to amputation. Carried

out in Taiwan.

That is a brief layman’s history. The history is much better, professionally set out in

the report dated 24 August 2009 (Exhibit P3) of Dr Harry Tong to whom the plaintiff

went for a second opinion. Dr Tong reviewed the patient and reports from the

Hospital (Exhibit P2). Ms Timeon did not challenge Dr Tong’s qualifications and did

not cross examine Dr Tong on his report. I accept Dr Tong’s report and opinion:-

(1) Mr Beia first presented to Tungaru Central Hospital (TCFH) with the small

lump in front of his right leg just below his knee in 2003.

(2) Dr Alolae Cati, together with one Chinese doctor saw him.

(3) Both doctors concurred on the diagnosis of right tibial bone tumor.

(4) Without further investigation to establish the nature of the tumor, above knee

amputation (AKA) was advised.

(5) Mr Beia declined the AKA and went home, only to return to TCH in 2008.

Comment

Dr Cati is a well known senior medical doctor at TCH. His decisions are

respected and taken seriously. Omission to carry out biopsy of the bone tumor in

2003, resulted in the failures:

• To establish the correct nature of the tumor whether it is cancer or not.

• To provide proper advice on the correct and effective treatment option.

• That caused inappropriate decision to do AKA.

Excision of the tumor lesion in 2003 would have been the best opportunity for

effective surgical treatment.

(1) During the interim period of 5 years the tumor had grown in size.

(2) About June 2008, Mr Beia returned to TCH to see Dr Abel Valdez Diaz, the

orthopedic surgeon from Cuba.

(3) On June 12th 2008, Dr Abel did tumor biopsy.

(4) By August 12th 2008 Dr Abel discovered that the biopsy specimen taken in

June was still sitting in TCH laboratory.

(5) The orthopedic surgeon could not proceed with any definitive treatment

because of lack of biopsy report.

(6) As a result Dr Abel presented the case to the Medical Referral Committee

(MRC) in order to obtain approval for expert management overseas, in June

13th 2008.

(7) Unfortunately, the MRC rejected the case for referral, pending availability of

biopsy result.

(8) The biopsy result, after about 4 months delay, came back on 9th October

2008.

(9) Meanwhile, biopsy wound persisted, unhealed and already acquired

infection.

(10) Biopsy report was carelessly interpreted as malignant Giant Cell tumor

(Cancer).

(11) Further deliberation for referral, therefore, all came to a complete halt,

because cancer case is not referable.

(12) While the case remained in limbo, infection continued to ravage the tumor

cavity and bone marrow of the tibial bone.

(13) Mrs Beia refused to accept the "hopeless" situation of her husband and

sought for second opinion on interpretation of biopsy report.

(14) On the 10th October 2008, the initial interpretation of the biopsy report was

found to be incorrect and therefore was amended.

(15) The Giant Cell tumor did not show malignant cellular changes.

(16) In other words, the tumor was not cancer.

(17) About April 2009 Mr Beia finally got referred to Mackay Memorial

Hospital, Taiwan.

(18) Further tumor tissue examination in Taiwan, failed to show cancer cell in

tumor.

(19) At this point however, the damages already caused by both infection and the

tumor itself were irreversible.

(20) AKA became unavoidable.

Comment

Mr Beia was fully ambulatory without assistance.

Without infection and with non malignant type of Giant Cell tumor, curettage of

the tumor lesion would have been the next best effective surgical treatment.

However because of undue delays such as

(1) Biopsy specimen being kept for too long in the laboratory – over 2 months,

(2) Careless initial reading of the biopsy report led to the wrong diagnosis of

cancer for the second time and the case stagnated in limbo,

The opportunity for effective surgical treatment was missed,

and irreversible damages caused by the chronic infection to

the affected body parts supervened.

As a result AKA became necessary to rid off the tumor,

chronic infection and the discomfort.

The negligence of the hospital, so clearly shewn in Dr Tong’s report,

is confirmed in a letter, dated 16 February 2009 written personally

by the Minister of Health to the  Taiwanese  Ambassador. The

letter was discovered by the defendant and Ms Timeon did not

object to its tender. Dr Kautu Tenaua is himself an experienced

medical practitioner:-

Mr Taatu Beia is about 47 years old healthy looking

gentleman. He was first presented in 2003 with a small limp

about 3cm across found on the right leg interiorly just below

the right knee joint. The doctor at that time diagnosed the

tumor as malignant without taking the biopsy. The patient

was advised to have above knee amputation.

Mr Beia has been seen on and off here at Tungaru Central

Hospital for five years now. In 2008 the first biopsy was

taken and giant cell tumor was confirmed and no signs of

malignancy established.

In view of the unfortunate wrong diagnosis made in 2003

the patient has suffered greatly. I feel it is my duty and

responsibility to give this patient the best care possible

since our doctor are responsible for the undue delay in the

proper management of this patient.

I would not allow Ms Timeon to call medical evidence. My notes on

the file shew my reasons:-

15 Jan 10: Plaintiff already has an expert report: will give a copy to AG

next week. Tekanene undertakes to provide plaintiff with his

report well before 29 Jan .....

29 Jan: Undertaking not honoured: the Court insists on a written

report from defence expert in advance of the hearing:

otherwise he may not be heard .....

12 Feb: Still no report. Bruce warned that if no written report has

been handed to Berina at least 7 days before the hearing no

expert evidence will be received from the defendant. Priority

hearing for Monday 15 March.

Ms Timeon told me it was late in the afternoon of last Friday, 12 March, before

reports were received in the Attorney General’s office. They were immediately given

to Mr Berina. By then it was too late to conform with my direction. [I remark that if

the evidence had been allowed we would have had the curious situation of employees

of the Ministry contradicting their Minister].

The evidence of negligence is overwhelming, even without the acknowledgment of it

by Dr Kautu Tenaua. The defendant is liable in damages to the plaintiff.

The plaintiff was not happy in 2003 with the diagnosis and recommended treatment

so the doctor said to try local medicine. He went home to Abaiang:

Had to pay school fees: earned some: help from relatives. Pain still there on and

off. I had noticed a lump below my right knee. Doctors said it was a boil. Every

time I did a heavy job I had pain. With pain could not do anything. Pain getting

worse. Back to hospital in 2008 – pain killing me – getting too much. Lump.

Doctors cut open the lump ..... After that pain did not change, getting worse.

Dressing it. Blood coming out, watery blood. In TCH – surgical ward. Shewed

doctors: pain killers. No treatment of wound.

Asked about specimens – there about two months – sent in August.

9 October report from Australia: they told me t was cancer: amputate leg .....

Pain has gone sometimes comes back. Cannot do things – used to cut toddy, fish,

clear land – babai pits.

The plaintiff has endured pain and suffering. He has lost a leg. He has lost his ability

to do most kinds of work: lost his ability to earn income. He has lost much of the

enjoyment of life.

I said in Tekina Nabuange v Maea Kautunteabike (judgment delivered

20 February 2007):

The level of damages awarded in Kiribati is very substantially less than in many

other places. I must keep that in mind and not award nearly as much as I would

have awarded in Australia.

Detail of the plaintiff’s pain and suffering is sparse: likewise anything about his

earnings living on Abaiang. [From his not returning to the sea after the accident I

assume in the absence of evidence to the contrary he did not intend to go to sea

again.]

In assessing damages all I can do is to "wield the broad axe".

He would have earned something, I guess not much, in money both up to now and for

some years to come. I can only make from my own knowledge and experience in

Kiribati assumptions. Say his earnings past 2003 to the present and into the future

total $20,000. That figure must be greatly discounted for contingencies. I shall allow

for earnings past 2003 and for the future at $10,000.

For general damages for pain and suffering and loss of enjoyment of life I allow

$35,000.

There will be judgment for the plaintiff for $45,000.

Dated the day of March 2010

THE HON ROBIN MILLHOUSE QC

Chief Justice