Cyprus Supreme Court dismisses medical negligence claim due to insufficient evidence proving doctor's fault.

[*706] 1971 September

(STAVRINAKIS, STYLIANIDES,AG. PRESIDENTS DISTRICT COURT)

IN THE DISTRICT COURT OF NICOSIA

Michalakis Panayiotou,

Plaintiff,

and

The Attorney-General of the Republic,

Defendant.

(Action No. 820/70).

Negligence Professional negligence - Medical negligence - Claim for damages for injuries arising due to negligence of doctors and other members of Hospital Staff - Plaintiff found suffering from severance of tendo-Achilles about 3 months after he received treatment in the Hospital to a heel injury - Expert medical evidence - One of plaintiff's witnesses testifying academically on assumptions having not examined himself the plaintiff - Court not satisfied with plaintiff’s evidence and felt unable to rely on it alone - Defendant’s allegation that accepted medical tests were applied upheld - Claim dismissed.

Negligence - Medical negligence -Res ipsa loquitur - Its application in medical cases - Prerequisites necessary - There must be an occurrence giving rise to a natural inference of negligence - And the occurrence must point not merely to negligence on the part of a particular defendant - Occurrence proved by plaintiff, in the instant case, not speaking of negligence either on the part of the doctors or of any members of the Hospital Staff.

Negligence - Medical negligence - Negligence in diagnosis - Standard of care applicable.

Damages - Practice - Dismissal of action for negligence but assessment of damages to which plaintiff would be entitled in case defendants were liable - Claim arising due to negligent medical treatment of heel injury in consequence of which plaintiff underwent operation - Defendants liability for damages held to have rested on their own negligence only.

D. Georghiades, for the Plaintiff.

S. Georghiades, Counsel of the Republic, for the Defendant.

JUDGMENT

The judgment of the Court was delivered by:

STAVRINAKIS AG.P.D.C. The Plaintiff by this action [*707] claims against the defendant, the Republic of Cyprus, general and special damages for personal injuries received on the 27th July, 1969, at the Nicosia General Hospital due to the negligence and/or breaches of statutory duties on the part of the doctors, medical assistants, nurses and other servants of the Hospital in the exercise of their duties.

The facts of the case briefly are as follows:-

On the 27th July, 1969, the plaintiff fell off his bicycle, injured his right heel and was taken to the casualty department of the Nicosia General Hospital for treatment.

He was complaining of severe pain on his right heel in the region of the tendo-Achilles where there was a lacerated wound 1 cm. long and 2 mm. deep. He was treated by Dr. Chrysostomos Spanos, the duty officer at the time, who after examining the plaintiff, sutured the wound, gave him an antitetanic serum and advised him to visit the hospital in a month’s time for the second and in three months’ time for the third does of the serum. He further advised him to visit the out-patients’ department in the Hospital in 8-10 days’ time in order to have the stitches removed and every 2 days to have new dressings.

The plaintiff attended the hospital 3 days after the accident and had the dressings changed. Five days later he paid another visit to the hospital for the removal [*708] of the stitches. He was attended on both occasions by the same nurse to whom, according to the plaintiff's allegation, he complained of pain and difficulty in walking but he was not advised to see a doctor.

Still according to the plaintiff's allegation, before the stitches were removed, the lower part of his leg swelled and a lump appeared just above the cut. The wound healed and 25 days after the removal of the stitches the swelling subsided and his leg became tender below the knee.

On the 27th August, 1969, he was given the second dose of antitetanic serum and on the 16th October, 1969, he was examined by Dr. Koutis, a Medical Officer at the Nicosia General Hospital, to whom he Complained of pain and swelling in the region of the right ankle and was referred to a specialist.

On the 18th October, 1969, he saw Dr. Ioannou (P.W.2), a private orthopaedic surgeon who diagnosed a severed tendo-Achilles. He referred the plaintiff to the Nicosia General Hospital with a; note of his findings but the plaintiff returned to him on the 23rd October, 1969, expressing his wish to undergo an operation in his clinic.

He was operated on the same day and Dr. Ioannou found a complete severance of the tendo-Achilles. There was a distance of 3/4 of an inch between the severed ends of the tendon, and there was minimal fibrous tissue running in the gap. The cut ends of the tendon were sutured and the [*709] plaintiff remained in the clinic for 15 days. The right lower limb was immobilized in a plaster cast below the knee for 6 weeks. Physiotherapy commenced immediately after the removal of the plaster cast and he returned to work at the end of April, 1970.

He was examined by Dr. Ioannou again in August, 1970, and found the tendo-Achilles functioning but with definite impairment regarding the strength and the elasti city of its structure. There was 2 cm. circumferential wasting in the calf and a 4" incisional scar formation in the posterior surface of the distal end. According to this doctor’s opinion, the plaintiff can now stand on his tip toes but he would get tired easily. He would feel pain and weakness in ascending and descending steps, in walking on uneven surface and on prolonged walking on the flat. He will also be limping when he gets tired.

In February, 1971, the plaintiff was examined by Dr. A. Pelides, an orthopaedic surgeon at the Nicosia General Hospital, in consultation with Dr. Phessas, Medical Superintendent of the Nicosia General Hospital and another Government specialist surgeon, Dr. Papanastassiou. The plaintiff showed to Dr. Pelides (D.W.3) the place of the original wound where there was a horizontal scar just over ½" long, well outside on the lateral side of the tendon but not running over it.

It is the contention of the plaintiff that the tendon was severed at the time the wound was stitched at [*710] the Nicosia General Hospital and that the doctor on duty failed to apply the appropriate tests as a result of which the ruptured tendon was not diagnosed and remained severed for 3 months. In consequence of the delayed repair the plaintiff was left with an incapacity. It is also his contention that members of the staff of the Nicosia General Hospital to whom the plaintiff complained of pain and difficulty in walking failed to refer him to a specialist for examination.

The defendants allege that the accepted medical tests were applied, no severance of the tendon was detected and such severance must he attributed to subsequent or other causes.

Expert medical evidence was adduced by both sides as to the nature of the injury originally received, the proper tests to be applied for diagnosing severance of tendo- Achilles and what may bring about such severance.

Dr. Ioannou (P.W.2) and Dr. Thalis Michaelides (P.W.4) were called by the plaintiff in addition to the evidence of the latter, and we must state at this stage, that the plaintiff’s evidence is of paramount importance as the opinion and conclusions of the medical men depend on what the plaintiff had told them. Any exaggeration, omission or addition to the real facts will affect diametrically the expert opinion. Further it is to be noted that Dr. Thalis Michaelides testified academically on assumptions and having not had the opportunity of examining himself the plaintiff at all. [*711]

Before dealing with the evidence of the plaintiff we have to ascertain the following:-

(a) The exact position of the original wound;

(b) the appropriate test in such cases and what was the test applied by the treating physician on the 27th July, 1969, at the Nicosia General Hospital;

(c) Whether the tendon was cut at the time the wound was sutured or at some subsequent time and, if so, under what circumstances this could have happened.

(a) Position of the wound.

The evidence on this is not very clear.

The plaintiff spoke of a horizontal wound, 2" long, but he did not specify its exact position. Dr. Ioannou, (P.W.2) on examining the plaintiff found a scar running transversely over the distal end of the posterior surface of the right leg. Later he said that the wound was running over the course of the tendo-Achilles.

Chrysostomos Spanos (D.W.2), the doctor who sutured the wound, stated that when he saw the plaintiff, there was a lacerated wound 1 cm. long and 2 mm. deep. He, in Court inspected the plaintiff's leg and stated that the original scar is not now visible because it is superimposed by a surgical scarification which runs over the tendo-Achilles.

Dr. Antonios Pelides (D.W.3), on the other hand, after having the opportunity of examining the plaintiff, [*712] found a small scar just over ½" long, well outside on the lateral side of the tendo-Achilles but not running over it. This scar is consistent with a slightly smaller wound which would necessitate one to a maximum 3 stitches.

During his examination the plaintiff showed to Dr. Pelides the place where he was injured, and that point coincides with the point where the aforesaid scar is now. The plaintiff was recalled by the Court to point out the place of the original wound but he avoided giving a definite answer, alleging that he does not remember the point of the original wound. He denied having been asked by the members of the medical board to indicate the exact position of the wound and concluded that when he went to the hospital on the 27th July, 1969, the scar referred to by Dr. Pelides was not there, adding that it was probably caused by the accident.

Bearing in mind the above, there can only be two explanations regarding the scar referred to by Dr. Pelides. (i) It could have been caused by the original wound and if this is so, then the evidence of Dr. Ioannou, Dr. Thalis Michaelides and Dr. Spanos must be viewed in a different perspective or (ii) in view of the fact the plaintiff being so dogmatic about the scar not being there on the first day he visited the Nicosia General Hospital for treatment, it cannot be excluded that it was caused by a subsequent to the accident injury. [*713]

It is worth noting that the learned counsel for the plaintiff in

presenting the case and the line he followed in cross-examining Dr. Pelides, did not in any way suggest that the small scar at the side of the tendon

was caused by another injury

received either before or after the accident. His line was that the scar is consistent with the original wound but it must have

changed its position by the stretching of the skin. We fully appreciate the difficulty he was confronted with and we must say that he handled

the situation in an admirable way, avoiding to open the door to a more risky suggestion, such as, a subsequent injury that could have easily afforded an

alternative explanation about the severance of the tendon thus jeopardising his case.

Dr. Ioannou did not see the place of the original wound but he must have noticed the existence of the now visible scar at the side of the tendo-Achilles about which he kept silent.

Dr. Spanos also spoke about a wound over the tendon but to be fair to him he did not see the plaintiff since he treated him and, therefore, his evidence as to the exact position of the scar does not have the authenti city of recent memory. The length however of the wound given by Dr. Spanos tallies with the scar formation at the side of the tendon referred to by Dr. Pelides whose evidence we accept on this point. His evidence is supported by objective findings and we can safely infer that the scar [*714] found by him was caused by the original wound. We further find that the position of the scar establishes the position of the original wound. His evidence, in spite of fierce cross-examination on this point, remained unshaken, clear and unambiguous and we accept it.

(b) Appropriate test:

According to Dr. Ioannou, the appropriate test in a case of suspected severed tendo-Achilles is to ask the patient to stand on his tip toes or to let him walk on the flat and if he cannot stand on his tip toes or he cannot lift his heel, then this is an indication that the tendo-Achilles is not functioning. Another test is to tell the patient to push against resistance. A visual examination may also reveal severance of the tendon if the wound is overlying its course, but bleeding must first be stopped.

Dr. Thalis Michaelides is in agreement with Dr. Ioannou as to the test to be applied in diagnosing a cut tendon. He said that if he had a case of suspected se vered tendon, he would ask the patient to flex his foot or to stand on his toes.

Dr. Pelides, said that the first thing a doctor has to do in examining a patient with a suspected ruptured tendo-Achilles is to examine the wound and its position because the tendo-Achilles is a superficial tendon directly under the skin and, therefore, the position of the wound [*715] is a very important factor to be considered. The second step is to retract the edges of the skin and then do the movements of the foot by dorsi flexing and plantar flexing it. By doing so, the doctor will see if the tendon is gliding under the skin, If the dorsi flexion is not excessive, then there is no likelihood of complete tear of the tendo- Achilles, but if the foot comes up and touches the tibia, there is excessive dorsi flexion which means that there is a complete tear of the tendon,. Another test, not approved by Dr. Pelides, because it is shocking to the patient, is to ask him to stand on his tip toes. In explaining the dorsi flexion Dr. Pelides said that it is the flexion movement at the ankle joint moving upwards towards the leg. The plantar flexion is the opposite movement. In a cut tendon the movement is 180°, the normal being up to a maximum of 145°.

From the above it is clear that both tests are approved ones and, whichever is applied, the examining doctor will detect a possible rupture of the tendo-Achilles.

We shall now turn to the evidence of the examining doctcr, Chrysostomos Spanos (D.W.2). He said that he asked the patient to lie on the examining couch, got hold of his toes and pulled them outwards (dorsi flexion). The flexion was only 145° and after examining visually the wound satisfying thus himself that there was no injury to the tendon, stitched the lacerated wound with 2 stitches. The plaintiff on entering and leaving the examining room was not limping [*716] nor did he complain of any difficulty in walking. The whole examination and treatment lasted for about 15 minutes.

His evidence, was challenged and we have to turn to the evidence of the plaintiff who was the only other person present at the time. He said that after the accident he lost consciousness and he was taken to the Nicosia General Hospital. On his way there he regained conscious ness. Dr. Ch. Spanos examined him by placing him in a prone position on the examining couch. The wound was cleansed and sutured. The examination lasted for about 20 minutes. He said that he complained to the doctor of pain and difficulty in walking but he was not asked to stand on his tip toes or to stretch his leg. Up to an extent his evidence coincides with the evidence of Dr. Ch. Spanos; the disagreement lies in the allegation of the plaintiff as to difficulty in walking. An illiterate layman, cannot be expected to remember the full course of a medical examination and register in his memory all details, such as, the passive dorsi flexion, and we must deal with his evidence with caution. The plaintiff merely said that he was not asked to stretch his leg which may and may not be the same thing, as a passive dorsi flexion. At this stage and for additional reasons which we shall give later on, we are not satisfied that the examining doctor failed to carry out any of the accepted tests especially bearing in mind the position of the wound as to which we have already made a positive finding. [*717]

(c) When was the tendon ruptured:

The third question is whether the tendo-Achilles was cut at the time of the examination or at some subsequent time. One thing is certain and that is the severance of the tendo-Achilles which called for a surgical operation some three months after the injury, and we ask ourselves: Is it possible in the light of the medical evidence and positive objective findings for the tendo-Achilles to have been ruptured in consequence of the accident?

Dr. Ioannou and Dr. Michaelides expressed their opinion, the first on the basis of a scar overlying the tendon and the second on the assumption that the wound was running transversely over the course of the tendon. The wound was, and we have, no other evidence to contradict same, 2 mm. deep, that is, 1. mm. less than the distance between the skin and the underlying tendon. However, in view of certain theories advanced we entertain some doubts as to the depth of the wound. We shall revert on this point later on.

In addition to this there is evidence that the wound was not over the tendon but at its side. It was, a rather small wound at the side of the tendon which could not have reached the tendon and injure it directly.

According to the evidence of Dr. Pelides, the position of the wound could not have as a result the immediate severance of the tendon, and even if there was [*718] an instrument or a piece of metal penetrating the wound, it would have gone in front of the tendon but at the same time it might have contused but not cut it from that side.

It is, therefore, highly improbable that the tendon was completely cut at the time of suturing the wound; but even if that by some queer coincidence happened, we have to consider the allegation of the plaintiff that he could not lift his heel.

In the first place, his allegation, which is consistent with severed tendo-Achilles, is inconsistent with the rest of the evidence and in particular the position of the wound. We watched his demeanour in giving evidence and bearing in mind the evidence as a whole we entertain doubts about the genuiness of his evidence. We cannot overlook the fact that after the accident he resumed work and without wishing to embark on medical matters.

We wonder how he could go back to his work in the state he allegedly was, not so much because of the pain he was experiencing, but because of the inability to lift his heel. We consider this as a rather alarming sympton. It is not only the inability to lift his heel that one has to consider, but the excessive dorsi flexion which he must have noticed during the performance of his duties as a plumber. About the latter, he mentioned nothing, confining himself to complaints about difficulty in walking. We know that the one does not appear without the other. We considered also his alleged complaints to [*719] members of the hospital staff about difficulty in walking, but we are not satisfied with his allegation. Under the circumstances, we cannot rely on his evidence alone.

It was argued by learned counsel for the plaintiff that if and when Dr. Spanos tested the foot of the plaintiff, the fact that the dorsi flexion was 145 degrees is in itself proof of severed tendon. Reference was made to the use of a goniometer, but there is no evidence that Dr. Spanos used such an instrument and we take it that when he spoked of the degree of flexion, he was making a rough estimate and even so this is not in itself an indication of ruptured tendon, especially when we have the evidence of Dr. Pelides to the effect that in a case of complete rupture the toes can touch the tibia.

But his evidence does not end here. Dr. Pelides stated that he would have expected a greater distance bet ween the cut ends of the tendon if the rupture was an old one and not a mere 2/3rds of an inch, as found by Dr.

Ioannou. There is also evidence that after the accident a tumour and tenderness of the leg appeared, but again we have to rely on the evidence of the plaintiff. These symptoms appeared, but at what particular point of time, - a question of paramount importance in a case of this nature - we cannot say. The plaintiff alleged that he noticed tenderness appearing gradually, and yet he failed to notice the free mobility of the dorsi flexion. Dr. Ioannou, asked on the question of tenderness, had this to say in cross-examination:- [*720]

Q. "According to the plaintiff’s allegation, his condition was deteriorating gradually and the tenderness was increasing gradually and his walking was becoming more and more difficult. With this in mind, is it not more consistent that something else intervened between the first examination and your examination that brought about this severance of the tendon?

A. No, it is rather consistent with the post-traumatic course in cases of cutting of tendo-Achilles, the atrophy and wasting of the corresponding muscle below takes time to be well established. A muscle does not become wasted from one moment to another. It takes time and that is why gradually the patient understood that his leg was getting worse and worse. The very first moment the two calves are equal, but in a month's time one is wasted and the other is normal. If he understood that deterioration was occurring gradually, this is consistent with the post-traumatic stages in cases of severance of the tendon. But I would like to say something else. If the laceration occurred two weeks later or a month later, then the patient could have said that until that, particular moment he was feeling O.K. and suddenly in an attempt to go upstairs he felt a severe pain in the leg and suddenly he could not push off or raise the heel. But there is no such a history". [*721]

The above passage from the evidence of Dr. Ioannou, does not exclude the possibility that the tumour and the wasting appeared gradually, and were well established a month after the rupture, but again his findings are based on the history of the case which was given to him by the plaintiff about whose credibility we have already arrived at certain positive conclusions.

Since it is unlikely for the tendon to have been severed at the time of the accident, the question is whether it could have happened at some subsequent point of time. This is not excluded by the medical evidence and even by the doctors called for the plaintiff, provided that the evidence of the plaintiff is not taken for granted. Dr. Ioannou was asked to comment on the contents of exhibit 1 which is the joint medical report prepared by the ad hoc committee to the effect that the tendon was severed as a result of the degeneration of the muscles and his answer was the following:-

"Provided the patient was injured by a blunt instrument and second that the patient could walk properly, Yes, this is acceptable, but according to the history given by the patient, he suffered a lacerated wound caused by the pedal of the bicycle which was worn out and it ended in a sharp edge, and according to my findings, of course. According to the history given to me by the patient, the patient could not walk, whereas in this report it says that the patient could walk from the beginning". [*722]

As to whether a haematoma caused to the soft tissues can affect the tendon, his answer was in the negative.

Dr. Thalis Michaelides said that in a case of partial rupture, there may be a haematoma.

Dr. Pelides's opinion is based on the position of the wound and stated that the wound would not have as a result the immediate severance of the tendon even if the metal that caused the wound penetrated the leg. In such a. case, the instrument or piece of metal wound have gone in front of the tendon, contusing it, but not cutting it.

The contused tendon undergoes degenerative changes and a bit of weakness and it might, in the long run snap with a sudden movement. He did not exclude this happening to a normal person. Speaking about the particular case, he said:-

"When we considered his case at the Board we felt that there was a delayed period of three or four months between the initial trauma and the sudden onset of limping, which, taking into account the positioning of the wound, the fact that three months went by and even the fact that he did work during those three months and not seeking medical advice the board decided that this was a delayed rupture. I formed the opinion that this was probably a delayed rupture of the tendo-Achilles and probably due to the initial [*723] contusion sustained by the tendon. If the wound was overlying the tendon, we have the same history of three months and I would say definitely it was due to the contusion sustained by the tendon, because it is quite impossible for complete rupture of the tendo-Achilles to have the patient walking for three months and not seeking medical advice, even attending his business and then suddenly after three months to start limping".

In view of the evidence and of our findings so far reached, we conclude that the rupture could have occurred at some time after the accident up to at least a month prior to the operation. The severance could either result from a part rupture or from contusion of the tendon and this on the assumption that the wound was a penetrating one which is a fact highly probable in the present case. We further find that, in view of the position of the scar which has been established to be the place of the original wound, and also in view of our previous findings, it is improbable, if not impossible for the tendon to have been severed at the time of the first examination at the Nicosia General Hospital.

Learned counsel for the plaintiff contended that the maxim of res ipsa loquitur is applicable in the present case.

According to Nathan’s Medical Negligence (at page 109).

"The maxim of res ipsa loquitur is applicable ..." [*724]

We feel that we have to go through the authorities for guidance before deciding whether the "occurrence" established by the plaintiff speaks of negligence.

Professor G. H. L. Fridman, Professor of Law of the University of Alberta in an article of res ipsa loquitur published in the new Law Journal, February, 1970 on page 181, said:-

"The problem of proof of negligence is as deserving of investigation as the nature of negligence itself. On this reef many a case can come to grief. Not surprisingly, therefore, the notion of ’res ipsa loquitur', which was enunciated in the middle of the nineteenth century, has been seized upon by plaintiffs and, with the assistance of the Court, has been developed and utilised to the full. ’Res ipsa loquitur' has indeed become, as Professor Seavey once described it, ’tabula in naufragio’. Many a case that would otherwise have sunk has been kept afloat by it. This device, however, is not without its complications. Some recent English and Canadian cases suggest that there may be a significant difference in the way Courts on opposite sides of the Atlantic have regarded the effect and the purpose of the idea enshrined in this Latin tag". [*725]

In the House of Lords case of Colvilles Ltd. v. Devine (1969) 2 All E.R. 53, a case where the plaintiff was injured by an explosion, Lord Guest at p.57 said: -

"Everything depended upon the application of the maxim ’res ipsa loquitur'. On this it was held that, because the plant in which the explosion occurred was under the control of the employers, and such an explosion would not occur in the ordinary course of things without a lack of proper care on the part of the employers, the maxim could apply".

In the case of I.udgate v. Lovett

(1969) 2 All E.R. p. 1275 Harman L.J. states: -

"It being admitted on all hands that the plaintiff’s prima facie case is one where res ipsa loquitur, the burden is cast on the defendant to explain that which otherwise is without explanation, or, if he cannot explain it, at least to show that no fault of his was involved. He can do that even though he cannot explain it. Of course, as the judge said, it is much easier if he can explain it; but nevertheless there are cases in which, although no explanation can be found, the defendants satisfy the tribunal that there was no fault on their part and that they did all that they ought to do". [*726]

According to Fridman’s article (supra cited) the Canadian view regarding the maxim is different and he explains:-

"When 'res ipsa loquitur' applies, the defendant, in order to avoid liability, need only produce a possible (or plausible) explanation of the occurrence, as long as such explanation does not involve negligence on the part of the defendant. In such circumstances, the onus returns to the plaintiff to prove positively that the defendant was negligent".

"However, in an essay in the same volume (at pp.242-247) by Professor Linden on products liability in Canada, it is pointed out that, in cases where negligence in respect of the manufacture of products is concerned, the Canadian Courts seem to have adopted the same presumptive effect of 'res ipsa loquitur' as it conceded in the English cases which have already been considered. To quote Professor Lindon: 'A defendant is now required to convince the Court that he was not negligent in food cases 'which .... is an onerous burden. In other unsound product cases, if he does not adduce evidence of 'a safe system of operation and does not explain how the defect got there, he will also have a 'difficult time avoiding liability, which indicates ’that Canadian Courts, because of policy reasons, [*727] are explanding the reach of products liability through the technique of 'res ipsa loquitur'".

The maxim in its application in medical cases presents some difficulties. In the first place, the occurrence must point not merely to negligence, on the part of a particular defendant. In cases where the treatment is given at a hospital, the occurrence may be consistent with negligence on the part of a number of persons. However, in Cyprus, this may arise in cases of treatment in private clinics where the assistance of an outside doctor is called, but not in hospitals which are under Government control and almost invariably the members of the staff are government employees. In the second place, before the maxim can apply at all, there must be an occurrence giving rise to a natural inference of negligence. The judge must be able to say that this does not happen in the ordinary course of things without negligence.

Scott L.J. in Mahon v. Osborne

(1939) 1 All E.R., 535 said:- "How can the ordinary judge have sufficient knowledge of surgical operations to draw such an inference, or, to apply the phrase in the judgment in Scott v. London Dock Co., what does he know of 'the ordinary course of things' in a complicated abdominal operation?" (See Nathan Medical Negligence, page 115).

However, in Mahon v. Osborne only Scott, L.J. thought that the maxim is not normally applicable in such [*728] cases. MacKinnon and Goddard, L.JJ were both in favour of its application. Goddard, L.J. had this.to say: -

"’The surgeon’ is in command of the operation, it is for him to decide what instruments, swabs and the like are to be used, and it is he who uses them. The patient, or if he dies, his representatives, can know nothing about this matter. There can be no possible question but that neither swabs nor instruments are ordinarily left in the patient's body, and no one would venture to say that it is proper, although in particular circumstances it may be excusable, so to leave them. If, therefore, a swab is left in the patient's body, it seems to me clear that the surgeon is called on for an explanation, that is, he is called on to show not necessarily why he missed it but that he exercised due care to prevent it being left there".

In the following cases concerning medical negligence it was held that the maxim is applicable:-

Taylor v. Gray,

MacDonald v. Pottinger,

Garner v. Morrell,

Holt v. Nesbitt, Paton v. Parker (Australian case).

In the case of Roe v. Minister of Health (1952) 2 Q.B.66 at p.71 , C.A. two patients in a hospital were operated on upon the same day and in each case a spinal [*729] anaesthetic was used. After the operations both patients developed severe symptoms of spastic paraplegia, resulting in permanent paralysis from the waist down. Denning, L.J. in the Court of Appeal expressed the view that res ipsa loquitur applied, but this was not necessary for the decision, because the Court held that the defendants had established how the accident happened and had exonerated themselves from blame.

In the South African case of Mitchel v Dickson (1914) App. D.519, where the steel needle fitted to a syrenge broke into the plaintiff's back, Inner A.C.J., said:-

"The mere fact that the accident occurred was not in itself prima facie proof of negligence, because the needle might have been fractured by causes beyond the control of the operator, by movements of the patient, for example, so that the maxim res ipsa loquitur could have no application (Nathan Medical Negligence, page 119)".

The same was held in the English case of Gerber v. Pines (1935), 79 Sol. J.13 and in the Irish case of Daniels v. Heskin (1953) 87 L.L.T. 189.

Worthnoting are two Canadian cases, and irrespecti ve of Nathan’s reservations about these cases (expressed in his book on Medical Negligence, page 120), we feel that the [*730] facts of at least one of them deserve consideration, bearing all along in mind the difference in the applicability of res ipsa loquitur in Canada and England.

In Cox v. Saskaton (1942), 1 D.L.R.74, is the case of a woman patient who suffered a severe and prolonged injury in her arm as a result of an infection contracted during a blood transfusion operation. The specific allegations of negligence were not substantiated but it was shown that the operation was frequently performed without disastrous results. There was also evidence that the infection might have come from within the patient’s body; the trial judge held that the defendant had not given any satisfactory explanation of how the injuries could have occurred without negligence and that res ipsa loquitur' was applicable. On appeal this decision was reversed, the Court holding that to infer negligence would be mere conjecture and that even if res ipsa loquitur was applied, the presumption was rebutted by the evidence that the infection might have come from the plaintiff's body.

As we have already had the occasion to mention the Canadian view as to the applicability of res ipsa loquitur is not so presumptive as the English rule and probably the plaintiff lost the case because of his failure to prove positively that the defendant was negligent once the latter rebutted the presumption of negligence.

Finally we shall consider the cases of negligence in diagnosis. Negligence in diagnosis is intertwined with [*731] failure to exercise the standard of care required of medical men and therefore if the required standard is exercised, a mistaken diagnosis is not necessarily a negligent one. Nathan in his book on Medical Negligence states on page 20 the following regarding the standard of case:

"In the general law of negligence the standard is that of ‘the reasonable man’;

’negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do; or doing something which a prudent and reasonable man would not do’. (Blyth v. Birmingham Waterworks Co. (1856), 11 Exch. 781, per Baron Alderson, at p. 784). But where a person represents that he is possessed of special skill or knowledge in the conduct of a profession or calling, the law demands of him that he in fact possesses that skill and knowledge; and the very fact that a man carries on a profession or calling, the practice of which requires special skill or knowledge, constitutes a representation on his part that he possesses the requisite qualifications. (Shiells v. Blackburne (1789), 1 Hy.B1. 158, per Heath J., at p. 162; Harmer v. Cornelius (1858), 5 C.B.N.S. 236, per Willes, J., at [*732] p. 246. It follows that where negligence in the exercise of a profession or calling is in question the standard applicable is not the conduct of the reasonable layman but the conduct of the reasonable member of that profession or calling.

There is imposed therefore upon the medical man not merely a duty to use proper care but also a duty to possess and exercise proper skill. (Seare v. Prentice (1807), 8 East 347). ’If the patient’s death has been caused by the defendant’s indolence or carelessness, it will not avail to show that he had sufficient knowledge; nor will it avail to prove that he was diligent in attendance if the patient has been killed by his gross ignorance and unskilfulness’". (R. v. Bateman (1925), 94 L.J.K.B. 791, per Lord Hewart, C.J., at p.794)."

The qualified medical practitioner will thus be liable in an action for negligence if he fails to exercise that degree of care and skill which is to be expected of the average practitioner of the class to which he belongs. He will not be judged by the standards of the least qualified member of his class, nor by those of the most highly qualified, but by the standard of the ordinarily careful and competent practitioner of that class. [*733]

"’The jury should not exact the highest, or a very high, standard, nor should they be content with a very low standard. The law requires a fair and reasonable standard of care and competence’". (Ibid).

Thus a medical man is certainly not answerable merely because some other practitioner might possibly have shown greater skill or knowledge. (Lanphier v. Phipos (1838), 8 C. &

P. 475; Rich v. Pierpont (1862), 3 F. & P.35). On the other hand, it will be no defence to him to show that he acted as he thought right in the circumstances and to the best of his skill and knowledge, if he has nevertheless failed to come up to the standards of the ordinarily careful and competent practitioner.

"The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with reasonable care". (Per Lord President Clyde in Hunter v. Hanley, (1955) S.L.T. 213).

In short, a medical man will be guilty of negligence in diagnosis, if he fails to exercise ordinary skill with reasonable care.

In the case of Fish v. Kapus (1948), 2 All E.R., 176, the plaintiff proved that the dentist in extracting a [*734] tooth he had left part of the root in her jaw and had a fractured jaw. As far as diagnosis is concerned, the facts of this case bear a similarity to the facts of the present case, and we propose to deal more extensively with the said case.

After the extraction of the tooth which took place on the 1st May, 1946, her face began swelling and on the 3rd May saw her own doctor who saw nothing to suggest that there had not been a perfectly normal extraction or that the plaintiff had a fracture of the jaw. On the 1Oth May, 1946, she saw the defendant doctor and pointed out to him that her face was swollen and that she could not open her mouth proper ly. The doctor asked her if her teeth felt numb and she said yes. He then had a look at her mouth and told her that she could be all right in about a week. He did not take an X-ray, did not tell her that part of the tooth remained in the jaw and did not refer her to a doctor or hospital.

It was suggested that the doctor at least was negligent in not diagnosing the existence of a fracture when he saw the plaintiff on the 10th May, 1946, relying on the evidence of an expert who stated that if there is numb ness that is evidence that there may be a fracture. The Court did not proceed to make a finding, if actually there was negligence, but as no damages after that day were proved, the case was dismissed.

Reverting to the facts of the present case, we would have found the doctor negligent if (a) the wound was [*735] transversely over the tendon and (b) he failed to apply any of the appropriate tests or if after applying one of the said tests, failed to diagnose an actually severed tendon.

The standard of care of a nurse is, of course, different and if the doctor is guilty of negligence because he failed to diagnose a severed tendon, with the afore mentioned symptoms, it does not follow that one would expect a nurse to make the same diagnosis. We have no evidence of the training of the nurses and in particular of the one who attended the plaintiff, nor do we have any clear evidence to enable us to draw a safe inference that the tendon was actually severed at any of the occasions the plaintiff was being examined at the hospital. Any finding in this respect would amount to a mere conjecture.

According to our findings, the possibility that the tendon was partly severed is not excluded, but as the experts said such partial severance depending on its extent, would not have been detected by applying any of the accepted tests. As the evidence goes it is not known how a medical practitioner can diagnose a partially severed tendon so as to be found guilty of negligence in failing to make a reasonably skillful diagnosis.

In view of the aforesaid we find that the occurrence proved by the plaintiff dees not speak of negligence, either on the part of the doctors or of any members of the hospital staff. [*736]

Further we find that even if the ’occurrence‘ speaks of negligence which it doesn't the defendants explained to the satisfaction of the Court, how this could happen without negligence on their part.

The explanation advanced raises a very strong probability amounting to an inference that the tendon was ruptured at a subsequent to the first visit to the hospital time when diagnosis was not possible, or at any rate as far as other members of the hospital are concerned, negligent.

We shall now proceed according to precedent to assess the "damages" to which the plaintiff would be entitled, in case the defendants were negligent. The damages must be assessed on the basis of two alternative eventualities. Firstly on the assumption that the tendon was severed when the plaintiff was first treated at the hospital; and secondly on the assumption that it was subsequently severed and members of the hospital staff failed to diagnose same and on the further assumption that such failure on their part amounts to negligence.

The plaintiff is a young man 23 years of age with elementary education. At the time of the accident he was employed by Kokkinotrimithioti Bros. as a plumber earning £9.500 mils per week. In August, 1970, just over a year after the accident, he received a rise of 500 mils a week. He changed his occupation to avoid, as he said, climbing stairs and other movements which he could not do due to his handicap. He now works as a butcher which does not involve [*737] these movements. As a butcher he earns £9.- a week and this occurred about a month prior to the date he testified to wit, the 12th April, 1971. After the accident he was not working every day of the week and this is verified by his employer, Kleopas Kokkinotrimithiotis (P.W.3) who stated, not with any degree of certainty, that the plaintiff absented himself from work for two or three weeks after the accident and about one or two or three days a week thereafter, until he had the operation. After the operation, the plaintiff resumed work sometime in April, 1970. The plaintiff however stated that after the accident he absented himself from work for one week and thereafter he was working only two or three days a week, on account of his difficulty in squatting or lifting heavy objects. This continued till the 23rd October, 1969, when he had the operation and then resumed work on the 27th April, 1970. He was not very specific about the cost of medicine and the transport expenses and in the absence of clear evidence as to when these expenses were incurred, we cannot make an award for the simple reason that if the defendants are liable at all, their liability rests on their own negligence only and not on the injury for which they had nothing to do. If the medicines and transport expenses were incur red as a result of the operation, then obviously it is the plaintiff who has to bear the expenses, because even if the tendon was severed at the time he first visited the hospital, an operation there and then would have been imperative. The subsequent operation was not the result of any negligence in [*738] diagnosing the rupture tendon but something that had to be done in any event. Furthermore, we do not think that even the cost of the operation in a private clinic must be born by the defendants.

With regard to the special damages claimed for loss of wages, we can only allow such loss which is the result of the defendants negligence and not the result of the operation. In assessing the special damages, under this heading, we must make an alternative assessment. The first one on the assumption that the tendon was severed when he first visited the hospital and the second one on the assumption that it was severed at some subsequent time during the period he was visiting the hospital for changing of the dressing and in both cases until the time he underwent the operation. Any loss after the operation does not fall within the responsibility the defendant. It is in evidence that the plaintiff for the first week after the accident did not work. This again may be due to agreed extent to the original traumatization and we shall only allow 50% of his loss. Thereafter we shall allow 50% of his weekly wages as he was working two to three days a week till he had the operation. This period to wit between the 27th July, 1969 and 23rd October, 1969, covers roughly three months or 13 weeks. At that time his salary was £9.500 mils and making the appropriate calculations we would have allowed the global figure of £70.- on the first assumption. We must make it clear that if the operation was postponed upon admittance [*739] to the hospital his incapacity due to the injury would have intergrated to the post operational incapacity. A delayed operation due to negligence extended the period of incapacity and it is for this prolongation that the plaintiff is entitled to compensation.

The last time he was examined by a nurse was on the 27th August, 1971 and although we have no particulars as to what exactly was his condition at that time or at any previous time, he was examined at the hospital, we shall take the various dates he was examined by members of the staff in calculating the special damages up to the day of the operation. We need not make any specific assessment as all the material is on record.

Regarding general damages, we have to consider how much the plaintiff's condition was aggravated due to the delayed operation.

Dr. Ioannou in his evidence on this state:-

"If an operation had taken place right from the beginning after the original traumatization, he would have felt a slight pain and discomfort and the residual disability would have been minimal. Whereas now, he feels pain with less effort and he cannot ascend many steps. He can now ascend stairs but he gets tired. The muscles were wasted when I first examined him and this is due to the inactivity of the muscles. When you have to join together the severed ends of the tendon, [*740] you have to apply a lot of stretch which affects always the functioning of the above muscles, whereas if you suture the severed tendon soon after the accident, you will not have to do any stretching, because the edges are close to each other.

Q. What would have been the position if the repair of the tendon took place, say, two weeks after the accident?

A. I believe that in a month's time, according to my knowledge, the contraction of the proximal part of the muscle is permanent. Therefore, if the repair of the tendon was effected in less than a month from the date of the accident the results would have been better, although I cannot say that the residual incapacity would have been minimal I may also add that we sometimes refuse an operation if a patient comes, say, a year after, because we know that the result would be exactly the same, it would be impossible to suture it and if we suture it successfully the result is very poor. It must regain its elasticity".

It transpires from the above that due to the delayed operation the plaintiff experienced pain and inconvenience for longer than necessary and his present incapacity consists of difficulty in ascending steps, getting easily [*741] tired and feeling pain with less effort. We shall also take into consideration the less wages, he now earns but we shall not overlook (a) the possibility that even if he had the operation in time this might not have been averted and (b) the other contingencies pertaining to every case.

Taking all the above into consideration, we assess the general damages at £500.-. Of course, if the tendon ruptured subsequently, at any time during his visit to the hospital for the changing of dressing and the other treatment, the damages would be less, almost to about half.

For all the above reasons the plaintiff fails in his claim and judgment is issued for the defendant. Action is dismissed, with no order as to costs, bearing in mind the nature and difficulty of the case.

Action dismissed. No order as to costs.