The District Court of Colombo recently delivered a landmark judgement awarding compensation to a disabled child whose disabilities had arisen as a direct result of the negligent conduct of the hospital and medical professionals at the time of her birth.
Additional District Judge, Justice Kalhari Liyanage, by her judgment dated 13.09.2022, awarded a sum of Rs.30,000,000 to the said child holding, inter alia that the plaintiff had successfully managed to establish a direct causal link between the disabilities caused to the plaintiff and the conduct of the medical staff of Gampaha District Hospital at the time of her birth.
The said action bearing case no. DMR 581/2014 was filed by a disabled child as the plaintiff (appearing through her “next friend” - her mother), naming the secretary of the Ministry of Health and the Attorney General as Defendants in respect of the actions and conduct of the staff of Gampaha District Hospital when the Plaintiff’s mother had been admitted to the hospital to give birth to the plaintiff on or around 14.05.2012. The plaintiff claimed that the medical staff had, inter alia ignored and disregarded her complaints of constant unusual pain and other symptoms at the time of delivery. She further claimed that the negligence of the medical staff had led to the plaintiff being born with her umbilical cord wrapped around her neck, which had obstructed the flow of oxygen to her brain, causing permanent brain damage which resulted in the plaintiff being inflicted with permanent disabilities such as being subject to frequent seizures, inability to speak, walk and move her limbs. Therefore, she would require a permanent caretaker to look after her and cannot lead a normal life.
Firstly, the learned additional District Judge overruled the preliminary objection on jurisdiction raised by the defendants because Gampaha District Hospital is a government hospital under the Ministry of Health, which was situated within the jurisdiction of this court.
The main issues the court had to resolve were, inter alia, as follows.
- Whether the hospital staff have a duty of care towards the plaintiff?
- Has the hospital staff failed to exercise a duty of care towards the plaintiff and her mother?
- Has the hospital been negligent?
- Will the plaintiff have to spend the rest of her life as a disabled child
- Whether a cause of action has been accrued to the plaintiff against the defendant?
The judge answered the above questions of law in the affirmative. Accordingly, it was held that since Gampaha District Hospital comes under the Ministry of Health, its staff is considered as government servants. Since doctors have agreed with the Director General of Health Services to treat all the patients who visit the hospital, despite the fact that the patients make no payment to the hospital staff, it was emphasized that they have a duty of care towards the patients.
The decision of the court was also influenced by facts such as failure to conduct C.T.G. for 10 minutes, failure to conduct a scan to decide whether a caesarean is required, the mother’s complaints being ignored, that it takes 30 - 45 minutes to arrange an emergency caesarean, conduct of the nurses towards the plaintiff and evidence that there is a breach of duty of care due to an act of commission or omission by the doctors. According to the specialist’s evidence, it was admitted that the disability of the child would not have occurred had the hospital exercised due care. (at page 27)
Therefore, the court held that the counsel of the plaintiff managed to successfully establish a causal link between the child’s disability and the conduct of the hospital staff and doctors. Therefore, the judge held that the duty of care owed by the hospital was breached by the hospital and upheld that plaintiff was entitled to compensation. The court also took the following factors into consideration when awarding compensation to the plaintiff.
- Future cost and effort required to take care of the disabled child.
- The fact that she will never be able to live a normal life during her lifetime due to her permanent disability.
- The plaintiff’s mothers’ evidence that, at present, she has to spend Rs. 70,000 monthly for the child’s expenses.
- That the plaintiff will require round the clock care throughout her lifetime.
At the time of writing, the defendants have filed a Notice of Appeal indicating their intention to appeal this judgemen