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 laymans 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 Tongs qualifications and did not cross examine Dr Tong on his report. I accept Dr Tongs 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 Tongs 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: 29 Jan: 12 Feb: 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 ..... Undertaking not honoured: the Court insists on a written report from defence expert in advance of the hearing: otherwise he may not be heard ..... 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 Generals 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 plaintiffs 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