Contributing to Paradise Lost

Bermuda has many things. Elbow beach. The Kite festival. Scuba diving. And the highest numbers of lawyers per head of population on the planet. So perhaps we should not be surprised when a case makes its way across six hours of BA’s finest care to London and then makes medico-legal professionals worldwide take note.

At the end of January 2016 it was the turn of risk analyst Kamal Williams, who “only ever wanted an apology” following his visit to the island’s only hospital. According to the local paper, Bermuda Hospitals Board opted to go to the Island’s highest court of appeal, in London, to avoid paying $58,000 to Kamal Williams, a father-of-two who had to wait more than ten hours for an appendectomy at King Edward VII Memorial Hospital in May 2011.

‍“A very important reason for me taking this case this far is because the BHB refused to offer any type of formal condolences or take responsibility for anything,” he said. “All I wanted was a formally written apology saying ‘We messed up. We’re sorry. Here’s something for your trouble’. The fact that they didn’t say that made me very angry. They underestimated my patience. A lot of people don’t have the time or money to pursue the hospital when they do something wrong. Initially, I was pursuing this to right the wrong they did to me — now, I’m also doing it for the people who don’t have the means to challenge them.”

‍BHB said the decision to appeal was driven by its medical malpractice insurers, who will meet “all potential costs”, and was based on detailed advice and a belief that the Board was in the right.

Mr Williams was admitted to KEMH’s emergency room on the morning of 30th May 2011 with serious stomach pain. Reportedly screaming in agony by 11.44am, he didn’t have a scan to check for possible appendicitis until after 5pm and the results of the scan weren’t received from an overseas agency — in Australia — until after 7pm. Surgery was eventually performed three hours later and it emerged that the patient had a ruptured appendix and widespread pus throughout the pelvic region from the ruptured appendix. The surgeon was of the view that the pus had been there for some time. The accumulation of pus led to myocardial ischaemia. During surgery, the patient suffered some form of myocardial ischaemic event and lung complications.

The trial judge found that sepsis from the ruptured appendix caused injury to the patient’s heart and lungs. He found that the scan should have been obtained on an urgent (STAT) basis and that the failure to do so led to the operation being delayed between two hours and twenty minutes and four hours and fifteen minutes. However, he concluded that the patient had failed to prove that the complications which he developed were probably caused by the failure to diagnose and treat him expeditiously.

The Court of Appeal reversed that decision, holding that that proper test of causation was not whether the hospital’s breaches of duty caused the injury to the patient, but whether they contributed materially to the injury.

In Williams v Bermuda Hospitals Board [2016] UKPC 4 the Privy Council (which is the Commonwealth equivalent of the Supreme Court which handed down the decisive judgment in Montgomery on consent last year) considered what is a material cause. The hospital board submitted that material contribution was not sufficient for the purposes of causation. It argued that in the instant case the sepsis attributable to the hospital’s negligence developed after sepsis had already begun to develop.

The Privy Council rejected that approach. It held that where on the balance of probabilities an injury was caused by two or more factors operating cumulatively, it was immaterial whether the cumulative factors operated concurrently or successively.

The sequence of events might be highly relevant in considering whether a later event had made a material contribution to the outcome or whether an earlier event had been so overtaken by later events as not to have made a material contribution to the outcome. However, those were evidential considerations. As a matter of principle, successive events were capable of each making a material contribution to the outcome. In the instant case, the judge found that injury to the heart and lungs was caused by a single known agent, sepsis from the ruptured appendix. The sepsis developed incrementally over a period of approximately six hours, progressively causing myocardial ischaemia. The sepsis was not divided into separate components causing separate damage to the heart and lungs. Its development and effect on the heart and lungs was a single continuous process. On the trial judge’s findings, that process continued for a minimum period of two hours and twenty minutes longer than it should have done. It was right to infer, on the balance of probabilities, that the hospital’s negligence materially contributed to the process and therefore materially contributed to the injury to the heart and lungs.

It followed that the Hospital’s appeal was dismissed and “but for” causation was found to be the test to be applied. Paradise lost for the insurers, but $58,000 for Mr Kamal and over $1,000,000 in costs expended. Life’s a beach.

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