The Island

  

Features  THE ISLAND APRIL 26 2001

Medical                                                                                                   Negligence One Down for the Roman-Dutch Law: One Up for the Medical Profession Arsecularatne vs Soysa   By Shivaji Felix  The Supreme Court of Sri Lanka has, in an important judgment, with far reaching implications, taken the opportunity to review the law relating to medical negligence. The court’s decision has significant consequences for both medical professionals and members of the public. In this case the Supreme Court held that, despite the fact that negligence (on the part of the medical professional) was established, the failure to establish a causal nexus between the negligence and the death of the patient resulted in the plaintiff/respondent failing in his claim.  One of the important issues that arise, as a necessary consequence of this decision, is whether a person who attends on a terminally ill patient could ever be liable in a claim for negligence. It appears that a medical practitioner can be as negligent as he or she wishes, provided that his negligence was not the operative cause of the patient’s death.  This article seeks to critically evaluate the decision of the Supreme Court in terms of the court’s reasoning in the instant case and its implications for the future. For this purpose this article will initially examine the facts of the case and will then proceed to critically analyse the court’s determination. The implications for the future will, thereafter, be examined.

 Relevant Facts.
 In this case Arsecularatne, the father of a deceased four year old child, had sued the appellant Prof. Priyani Soysa, a well known senior paediatrician, for damages occasioned by medical negligence in respect of the manner in which his daughter had been treated. It was the plaintiff’s contention that his daughter had been entrusted to the care of the defendant and that the defendant owed a duty of care to the patient. It was alleged that the defendant was in breach of her duty of care to the patient and was negligent in the discharge of her duties as a medical practitioner. It was further alleged that, in consequence of the defendant’s negligence, there was no diagnosis of the actual condition, namely Brainstem Glioma (BSG), and the child was not treated for the actual malady but was diagnosed as suffering from Rheumatic Chorea (RC). It was the plaintiff’s case that the child died at a point of time when she need not have died and 

that the death of the child was directly attributable to the breach of the duty of care and negligence on the part of the defendant.

 

The District Court of Colombo upheld the plaintiff’s claim and awarded damages in a sum of Rs. 5,000,000. On appeal to the Court of Appeal, a bench of two judges decided to accept the findings of the trial judge on the question of medical negligence but differed in respect of the quantum of damages. It was the view of one judge of the Court of Appeal that the plaintiff was only entitled to medical expenses amounting to a sum of Rs 250,000. The other judge was of the view that the plaintiff was entitled to

(i)     medical expenses, (ii) damages on account of mental shock, (iii) damages for loss of future earnings and support, and (iv) damages for loss of care and companionship, amounting in total to a sum of Rs 5,000,000. However, damages were not quantified under the different heads and the judgment did not make it clear as to what legal principles were resorted to when arriving at this figure.

 

The plaintiff’s counsel agreed to accept the lesser sum so as to avoid the need to have the case heard by a bench of three judges and to, thereby, obviate the delay in bringing the case to a finality. Counsel for the plaintiff, however, reserved the right to re-agitate the question of quantum if an appeal was lodged, by the defendant, in the Supreme Court.

 

The defendant, thereafter, applied for special leave to appeal to the Supreme Court and leave was duly granted on the following questions of law: (i) Did the Court of Appeal err in its finding on professional negligence (as averred in paragraph 12 of the petition of appeal)? (ii) Is the plaintiff respondent entitled to be awarded damages other than medical expenses?

 

The appeal before the Supreme Court, which attracted wide publicity, was heard by a bench of three judges, comprising of Dheeraratne, J., Bandaranayake, J., and Ismail, J., for 15 days. The Supreme Court, in an unanimous judgment, delivered by Dheeraratne, J., held that the plaintiff’s claim had failed and that the defendant, albeit guilty of negligence in her treatment of the deceased, did not cause her death and was, therefore, not liable to pay damages. The Supreme Court further held that the defendant was entitled to taxed costs in all courts.

 

The ensuing discussion critically examines the reasoning adopted by Dheeraratne, J., in the Supreme Court.

 

The Decision of the Supreme Court.

 

Dheeraratne, J., delivering the judgment for an unanimous Supreme Court, analysed the issues involved in terms of the following: (a) the nature of the plaintiff’s action and the damages recoverable under the law; (b) the standard of care; (c) whether the defendant was negligent inasmuch as her

conduct fell short of the required standard of care; and (d) causation. Each of these issues warrants detailed, and critical examination.

 

The Nature of the Plaintiff’s Action and the Damages Recoverable Under the Law.
 

According to Dheeraratne, J., the action had been filed by the plaintiff not in a representative capacity, on behalf of the deceased child’s estate, but on account of the damage suffered by him. Consequently, Dheeraratne, J., examined the claim for damages from two points of view, i.e., (a) whether the Roman-Dutch law permitted a claim for damages, other than for pecuniary loss; and (b) whether it was possible to change or modify the principles of Roman-Dutch law whenever the necessity arose.

 

(a)   Does the Roman-Dutch law permit a claim for damages other than for pecuniary loss?

 Dheeraratne, J., was firmly of the view that, in the instant case, the Roman- Dutch law did not permit a claim for damages other than for pecuniary loss. Referring to the basis of the plaintiff’s claim, his Lordship said:
 

"It is axiomatic that today the delict known as damnum injuria datum created by [the lex Aquilia] has become a general remedy for loss wrongfully caused by another under the Roman Dutch Law. In contrast, under the English Law, the common law has developed a specific delict of negligence."

 

Dheeraratne, J., cited Wickramanayake, Mc Kerron and Boberg in support of the requisites of the lex Aquilia. According to Wickramanayake the requisites for an action under the lex Aquilia are as follows:
 

"(i) The plaintiff must show actual pecuniary loss. An exception is the award of compensation for physical pain suffered by a person injured through the negligence of another.

 (ii)   He must show that the loss was due to the unlawful act of the defendant or that the defendant was acting in excess of his rights. 

 

(iii)   He must show dolus or culpa on the part of the defendant. The burden of showing this is on the plaintiff."

 

The views of Mc Kerron and Boberg, on the requisites of the lex Aquilia, are similar in substance to that of Wikramanayake, although there is some divergence in respect of the terminology adopted.
 

 The plaintiff had claimed, inter alia, damages for mental shock, damages on account of future earnings and support from the deceased child and damages for the loss of care and companionship of the child.

It was the view of Dheeraratne, J., that damages claimed by the plaintiff, under the head of mental shock, was recoverable only if it resulted in psychiatric illness. Damages for emotional shock, of a short duration, which failed to have a substantial effect upon the health of a person, were not recoverable.

 

The Supreme Court expressed the view that in order that the plaintiff succeeds in his claim for damages, on account of future earnings and support from the deceased child, it was necessary for him to demonstrate his indigent circumstances which, in the present case, the plaintiff had failed to do.

Counsel for the plaintiff contended that he was entitled to recover damages, other than medical expenses, for the loss of care and companionship of the deceased child; it was further contended that the resilient nature of the Roman-Dutch law made it possible to extend its application to modern conditions. These contentions were rejected by Dheeraratne, J., who relied upon the dicta of Innes, J., in the case of Union Government (Minister of Railways and Harbours) v. Warneke, to support his view that it was not possible to extend the scope of the lex Aquilia so as to accommodate a claim for damages other than for pecuniary loss.

Assuming, without deciding, that the lex Aquilia did not permit a claim for damages, other than for pecuniary loss, surely, at the very least, the plaintiff should have been entitled to be recompensed for the additional medical expenses incurred as a direct consequence of the negligence of the defendant. It is unfortunate, therefore, that the Supreme Court did not adequately consider this issue. It is submitted that the additional medical expenses incurred by the plaintiff on his child, as a result of the negligence of the defendant, should have been recoverable, albeit, the claim was denied by the Supreme Court.

 

(b)   Is it possible to change or modify the principles of Roman-Dutch law whenever the necessity arose?

Dheeraratne, J., was of the view that the judiciary was not empowered to change or materially alter the substance of the Roman-Dutch law. His Lordship made the following observation in this regard.

 

"I think we are not entitled, as judges, to change the material of the Roman Dutch Law, but are only permitted to iron its creases, whenever, the necessity arises. Effecting structural alterations to the Common Law should be the exclusive preserve of the Legislature "

Dheeraratne, J., was greatly influenced by the views expressed by H. N. G. Fernando, C. J., in de Costa v. Bank of Ceylon. In that case, Fernando, C. J., after examining the text of the Proclamation of 1799, as found in the Collection of Documents in Volume II of Dr. G.C. Mendis’s edition of the Colebrook - Cameron Papers, arrived at the following conclusion:

 

"The Proclamation of 1799 thus declared that the Administration  of Justice shall be exercised by the Courts according to the Roman-Dutch Law, subject to deviations and alterations

 

(a)       in consequence of emergencies, or absolutely necessary and unavoidable, or evidently beneficial and desirable;

 

(b)    by the Court of Directors of the East India Company or the Secret Committee thereof or the Governor of Fort William; 

 

(c)   by Proclamation of the Governor; 

 

(d)   by lawful authority ordained.

 

But the Proclamation did not authorise any such deviations or alterations to be made by the Courts of law."

 

Dheeraratne, J., was aware that a different formulation of the role of the courts had been accepted by the Privy Council, the, then, highest appellate court, in an opinion given seven days before the judgment of the Supreme Court in de Costa’s case. Perhaps, H. N. G. Fernando, C. J., did not have the advantage of perusing the determination of the Privy Council, a decision by which he was bound, prior to giving his reasons in de Costa. Senior counsel for the defendant, who was well aware of the significance of the Privy Council decision, having been junior counsel representing the Crown in both the appeal to the Supreme Court and the Privy Council in the Kodeeswaran case, quite rightly, allowed the matter to be brought to the notice of the Supreme Court. The Supreme Court, however, preferred to rely upon the dicta of H. N. G. Fernando, C. J., in the de Costa case.

 

It is unfortunate, however, that the Supreme Court chose to adopt this course of action. When the Kodeeswaran case was being heard before the Supreme Court, H. N. G. Fernando, C. J., did not refer to the version of the proclamation found in Dr. G. C. Mendis’s work in contra distinction to the version found in the legislative enactments (1956 edition). His Lordship was content to rely upon a passage from the judgment of the Supreme Court in Fraser’s case which referred to the original proclamation and its modification by Ordinance, No 5 of 1835.

 

The Privy Council, the then highest appellate court, allowed Kodeeswaran’s appeal. Lord Diplock, who delivered the opinion of the Privy Council, was not unaware of the original text of the proclamation; in fact, his Lordship did make specific reference to certain aspects of the original proclamation in its historical context. It is submitted, however, that Lord Diplock was right to refer to the proclamation as found in the 1956 edition of the legislative enactments in order to ascertain the applicable law, at that point of time.

 

The official version of the legislative enactments, last published in 1956, was prepared, under and in terms of the Revised Edition of the LegislativeEnactments Act, No 2 of 1956 (Cap 1), by the Commissioner appointed for the purpose, Mr. H. H. Basnayake, the then, Chief Justice. Prior to the revised edition of the legislative enactments coming into force it had to be laid before the House of Representatives, by the Prime Minister, and laid before the Senate, by the Minister of Justice. Thereafter, a resolution had to be passed by the Senate and the House of Representatives authorising the Governor General to publish a proclamation in the Gazette so that the revised edition of the legislative enactments could come into force.

 

Once the revised edition of the legislative enactments came into force it was binding and was, for all purposes, to be treated as an Act of Parliament. Section 12 (3) of the Revised Edition of the Legislative Enactments Act, No 2 of 1956 (Cap. 1), was as follows:

 

"The revised edition shall, on and after the date on which it comes into force, be deemed to be and be without any question whatsoever in all courts of justice and for all purposes whatsoever the sole authentic edition of the Legislative Enactments of Ceylon therein printed."

 

Additionally, the Commissioner, appointed in terms of the Act, was empowered to make appropriate alterations to legislation prior to its inclusion in the revised edition of the legislative enactments. More specifically, he was empowered to omit any preamble to any legislation, where such an omission could be conveniently made, and to incorporate any legislative changes to the law. Consequently, once the revised edition of the legislative enactments of 1956 were published it was not necessary to look beyond the Adoption of Roman-Dutch Law Ordinance (Cap. 12) in order to ascertain the applicable text of the Proclamation of 1799 (as amended by Ordinance, No 5 of 1835)

 

In any event, the Roman-Dutch law was not a dead system of law that had ceased to evolve. The essence of the common law, as opposed to statute law, is that it evolves on an incremental basis. This was recognised by Lord Diplock in Kodeeswaran’s case. Equating the further evolution of the Roman-Dutch common law of Ceylon with the evolution of the common law of England, his Lordship observed:

 

"Like the common law of England the common law of Ceylon has not remained static since 1799. In course of time it has been the subject of progressive development by a cursus curiae .... as the Courts of Ceylon have applied its basic principles to the solution of legal problems posed by the changing conditions of society in Ceylon."

 

The growth of the Roman-Dutch law in Sri Lanka has been gradual, and evolutionary, rather than revolutionary. It has been cross-fertilised by both the indigenous legal systems and by English Law. This is something that has been acknowledged for a long period of time by many judges and academics of Sri Lanka. According to Cooray, "[n]o legal system is static. The Roman-Dutch law is a development from the Dutch law. And the Roman-Dutch commentators never envisaged that the Roman-Dutch lawshould stand still." Advancing an argument in favour of legal pluralism and the cross fertilisation of the Roman-Dutch law with the other systems of law prevailing in Sri Lanka (Ceylon) Goonesekere states as follows:

 

"If the early trend in our courts which was unsympathetic to the Roman- Dutch law can be criticised, it is submitted that the recent tendency to emphasise the importance of the Roman-Dutch law, is not without its own limitations. Even adopting a conservative view of the role of the judiciary in "law making", it would seem that if Ceylon has a legal heritage derived from many systems it is worthwhile to draw on the vitalising elements of either system, to fashion a jurisprudence suited to the needs of our own society "

 

The fact that the Roman-Dutch law, as we know it, has evolved by being influenced by other systems of law has even been judicially recognised in Sri Lanka. Tambiah, J., in Kamalawathie de Silva, observed that "[l]aw, like race, is not a pure blooded creature. English Law has been tacitly adopted in Ceylon in many branches of the law such as the Law of Persons, Property and Obligations, where, according to the traditional view, the Roman-Dutch Law should apply.

 

Consequently, the view of H. N. G. Fernando, C. J., that the judiciary is unable to modify and change the principles of Roman-Dutch law (except to "iron its creases" as suggested by Dheeraratne, J., in Soysa v. Arsecularatne), to meet the exigencies of the times, has failed to be widely accepted. Cooray, critically analysing the dicta of H. N. G. Fernando, C. J., in de Costa v. Bank of Ceylon, states:

 

"A system of law must be a living system. The Roman-Dutch law in Voet’s day is very different from the Roman-Dutch law hundred years earlier at the time of Grotius. The law had adapted itself during this period in keeping with changing needs and circumstances. The Roman-Dutch law died in Holland in 1809 when it was repealed by a Code. It is illogical to tie ourselves to the law enunciated by the Dutch commentators before 1809, and abdicate the power to mould and adapt the law, which the Dutch commentators would undoubtedly have done, if not for the abolition of Roman-Dutch law in Holland. It is therefore submitted that any approach which seeks to tie the courts of Sri Lanka down to the law of 1796 should be avoided."

 

The essence of a common law, as opposed to statute law, is that it should evolve and grow. Living law is neither written on stone nor frozen in time. A common law which fails to be socially relevant fails to fulfill its purpose.

 

The Roman law, from which the Roman Dutch law was derived, was a very practical and reasonable system of law. It was a system of law that had an equitable core. Referring to the innate sense of justice of the Roman law, Grotius states:

 

"Tam evidens. est ejus Juris in plerisque partibus, iis maxime, quae adcontractus aut damnum injuria datum pertinent, aequitas, ut, ad quos populous Romana arma pertingere nunquam potuerunt, eo leges Romanae sine vi ulla, justitiae suae vi triumphantes, pervenerint."

 

It has been accepted by writers of repute that the Roman-Dutch law, as it prevails in South Africa, has been influenced by other systems of law. According to Wessels:

 

"In some respects the introduction of English Law into South Africa has been slow and insidious; in other respects it has been rapid and overwhelming. The influence exerted by English textbooks and the decisions of the English Courts have tended gradually to modify the principles of Roman-Dutch Law and to bend them as to assume the form of similar English principles."

 

Lee, commenting on the influence of the English law of torts, as far as the Roman Dutch law was concerned, states:

 

"In the Roman-Dutch Colonies the English law of torts has imposed itself upon the Roman-Dutch law of delict much as the Roman law of delict imposed itself upon the native law of Holland. The adoption of English nomenclature has accompanied the adoption of much of the substance of the English Law. The process has gone further in some colonies than in others, but in all the influence of English Law has been very great. South Africa, here as elsewhere, is most retentive of the Roman-Dutch common law. In Ceylon and in British Guiana the reception of English Law has gone further."

 

Thus, both the Roman law and the Roman Dutch law were very reasonable and practical systems of law. They were fully capable of meeting with new situations and adapting to changing circumstances.

 

It is submitted, therefore, that the Supreme Court should have taken the opportunity to reason by analogy, taking into account the changing social circumstances, and then decided whether the Roman-Dutch law, as modified by other systems of law, would have provided a sufficient rubric to found a claim for damages arising from the plaintiff’s loss of care and companionship of his child. The Roman-Dutch law should never have been a stumbling block for reforming the law of negligence, if such reform was appropriate, in the current social context.

 

V. The Standard of Care

 

Dheeraratne, J., in his judgment, expressed the view that the proper standard of care was that expected from a reasonable professional with the skill of the defendant. For this purpose, his Lordship relied upon the Bolam test as formulated, by McNair, J., in that case. In terms of this test, "[a] doctor 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. "

 

In order to illustrate the standard expected of a reasonable professional, Dheeraratne, J., referred, inter alia, to the cases of Cassidy v. Minister of Health, Hall v. Brooklands Auto Racing Club, Glasgow Corporation v. Muir, S. v. Burger, Maynard v. West Highlands Regional Health Authority, Sidaway v. Bethlem Royal Hospital Governor and Bolitho v. City and Hackney Health Authority.
 
Dheeraratne, J., was correct to apply the Bolam test, as formulated by McNair, J., to ascertain the applicable standard of care. Similar principles are applicable in South Africa. According to Macintosh and Norman- Scoble, "[t]he liability of a medical practitioner for his own negligent acts depends upon a straightforward application of ordinary general principle. As he exercises a profession which demands both skill and capacity, he is bound to exhibit such skill and capacity; not the highest possible degree of skill, but a reasonable degree."
 
More specifically, a medical practitioner will not be liable for an error of diagnosis unless the error was so palpable as to be proof of negligence. In Mitchell v. Dixon, Innes, C. J., had occasion to refer to the applicable standard in respect of an error of diagnosis. His Lordship made the following observation:
 
"A medical practitioner is not necessarily liable for a wrong diagnosis. No human being is infallible; and in the present state of science, even the most eminent specialist may be at fault in detecting the true nature of a diseased condition. A practitioner can only be liable in this respect if his diagnosis is so palpably wrong as to prove negligence, that is to say, if his mistake is of such a nature as to imply an absence of reasonable skill and care on his part, regard being had to the ordinary level in the profession."
 
Consequently, the Supreme Court was correct in its determination that the standard of care expected was that of a reasonable professional in the position of the defendant.
 
However, the decision as to what is reasonable, in a given context, is for the court to decide.
 

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