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Koep v Kinipi [2021] PGNC 649; N9853 (25 November 2021)

N9853


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


WS NO. 107 OF 2011


BEPI KOEP, by her next friend JOHN KOEP NONGONAIK
Plaintiff


-V-


DR CHRISTOHER KINIPI
First Defendant


PACIFIC INTERNATIONAL HOSPITAL LIMITED
Second Defendant


Waigani: Kariko, J
2021: 25th November


NEGLIGENCE – Medical negligence – Brain damage to patient – Alleged that incorrect medication ordered and administered – Whether injury due to negligence


The plaintiff’s wife was treated at the room of the defendant hospital after suffering from serious asthmatic attack. She was subsequently diagnosed with brain damage which the plaintiff alleges is a result of her being administered the incorrect dosage of medication. It is claimed therefore that the doctor who attended her was negligent, and the hospital is vicariously liable.


Held:


  1. To prove a cause of action in negligence a plaintiff must prove:
  2. In a civil claim, the plaintiff has the onus of proving his claim on the balance of probabilities.
  3. A medical doctor owes a duty of care to his patient to administer the correct form and dosage of medication in his treatment.
  4. It was not properly proven there was a breach of duty of care.

Cases Cited:
Papua New Guinean Cases


Shaw v Commonwealth of Australia [1963] PNGLR 119
Supreme Court Reference No 4 of 1980 [1982] PNGLR 65


Overseas Cases


Donoghue v Stevenson [1932] AC 562


Counsel


Mr R Uware, for the Plaintiff
Mr T Dalid & Ms P Nii, for the Defendants


LIABILITY


This was a trial on liability


25th November, 2021


  1. KARIKO, J: Bepi Koep was attended to at the emergency room (“ER”) at the Pacific International Hospital (“PIH”) by Dr Christopher Kinipi on 12th May 2010 for an acute asthma attack. She was later admitted to the hospital’s Intensive Care Unit (“ICU”) where she was treated for seven days before being referred to the Port Moresby General Hospital (“PomGen”) due to inability to meet PIH hospital costs. The referral noted her diagnosis to be Ischemic Brain Insult (meaning brain damage due to lack of blood flow). She was admitted and treated at PomGen until her discharge on 9th August 2010.
  2. Due to Bepi’s disability, her husband John Koep Nongonaik filed this suit as her next friend alleging the brain damage suffered by Bepi was caused by the negligence of Dr Kinipi in ordering and administering to her the wrong dosage of Salbutamol, a drug used to treat asthma.

PLAINTIFF’S CLAIM


  1. In the Statement of Claim, the plaintiff alleges negligence against Dr Kinipi and vicarious liability against the owner of his employer PIH, Pacific International Hospital Limited.
  2. The pleadings state relevantly in paragraphs 13 to 15 (correctly numbered):
    1. It is alleged that the Plaintiff has suffered from overdose as a direct result of negligence by the First Defendant.

PARTICULARS OF NEGLIGENCE


(a) Failing to properly and safely administer the correct dosage of medication namely salbutamol – a form for use in nebulizer instead of using the correct form intended for injection.
(b) Failing to administer the correct method of medication i.e. salbutamol where 5000mg (or 5mg) not intended for injection was administered via IV line (statum) instead of injecting the Plaintiff with the normal allowed dose of 500mg by IV infusion.
(c) Failed to exercise diligence and due care and attention in the diagnosis and treatment of the Plaintiff with above referred medication.
(d) Breached the duty of care by recommending that Plaintiff take on the nebulizer after the administration of the above referred medication when he knew that it was likely to lead to an overdose of the medication.
  1. The second Defendant is vicariously liable due to the actions or omissions of the First Defendant being its employee.
  2. Due to the negligent acts or omissions of the First Defendant, the Plaintiff suffered inconveniences and damages.
  3. The defendants deny the alleged negligence and plead that while the wrong dosage of Salbutamol was prescribed, it was an error that was corrected, and the proper medication was dispensed by the pharmacist and administered to the patient. The brain damage was not due to overdose of Salbutamol, but a natural consequence of her weak medical condition as a long-suffering asthma patient.

ISSUES


  1. The issues for trial are:
  2. Issues (1) and (4) are not in controversy so I need only to address the remaining two issues.

PLAINTIFF’S EVIDENCE


  1. In support of the plaintiff’s case, four witnesses were called and had their affidavits tendered:
  2. The following documents were also tendered into court:
  3. A summary of the relevant evidence of the witnesses follows.

Dr. Sam Yockopua


  1. Dr Yockopua was then employed at PomGen Emergency Department as a consultant emergency physician. He received the plaintiff from PIH on 20th May 2010.
  2. He wrote a report on 10th November 2010 after reviewing the plaintiff following her discharge from PomGen.
  3. Based on his observations of the plaintiff and the PIH documents accompanying her referral, he noted that the patient was administered the wrong dosage of Salbutamol by IV - 5mg or 5000 micrograms, when it ought to have been 0.5mg or 500 micrograms. He concluded that this high toxicity caused the patient to go into cardiac arrest.
  4. The plaintiff was brough to PomGen in a coma and was admitted to ICU under the care of Dr Leslie Kawa. Her condition gradually improved until her discharge on 9th August 2010.
  5. When he reviewed her on 26th October 2010, he noted that she had mobility difficulties, speech impairment, memory loss, and poor cognition and intellect functions.
  6. Dr Yockopua concluded in the report that the patient suffered gross hypoxic–ischemic encephalopathy or hypoxic brain injury caused by Salbutamol toxicity (brain injury from lack of blood flow and oxygen due to an overdose of Salbutamol).

Dr. Leslie Kawa


  1. Dr. Leslie is a consultant physician at PomGen. He attended to the plaintiff after her referral from PIH on 20th May 2010.
  2. He prepared a medical report on her five days after her admission on 25th May 2010.
  3. The report noted the plaintiff had a long history as an asthmatic patient and was referred to PomGen after admission to PIH for a week. On examining his patient, he noted she was intubated and being given oxygen. She was not fully alert and had a weak pulse, fast heart rate, and she was breathing rapidly. He had her admitted to ICU and where she remained on ventilator. A tracheotomy was performed when she encountered complications to help her breathing. She was later moved to the general ward where she improved neurologically and was able to communicate with family members though not with full faculty.
  4. The report concluded that her neurological condition was a result of a higher dose of Salbutamol given through IV, and that the patient showed symptoms of damage to the motor tracts in the midbrain.
  5. The report stated that Salbutamol dosage is usually a minimum 500 micrograms IV infusion (slow) and not 5000 micrograms given by IV statim (immediate) as was the case in the plaintiff’s treatment. It explained that Salbutamol can increase the heart rate so that the heart does not properly fill up before pumping. High dosage can dilate all peripheral and central blood vessels causing blood to clamp up in the vessels not empty properly into the heart.
  6. The doctor concluded that the plaintiff’s neurological condition was very likely the result of being administered a higher dose of Salbutamol.

James Hembiap


  1. James Hembiap is an in-law of the plaintiff. He accompanied the plaintiff to PIH on 12th May 2010. While he initially testified that the plaintiff collapsed after being injected with medication by Dr Kinipi in the emergency room, he later agreed he was not present in the room. He was aware that a prescription was written for the plaintiff for six items (seemingly a reference to Exhibit P7).

John Koep Nonganaik


  1. The witness is the plaintiff’s husband who was present with Bepi when she was treated at PIH on 12th May 2010.
  2. He stated that his wife was able to walk into the hospital unaided and she was attended to by Dr Kinipi who placed her on nebulizer. The doctor gave him a prescription for medication which he took to the hospital’s pharmacy and obtained the order. The medications were taken back to Dr Kinipi. After the doctor administered two of the medication that were in ampules to the plaintiff, she became uneasy, started sweating and shaking, and then she collapsed on the floor.
  3. The plaintiff was then placed on a bed and had first aid applied to her. She was admitted to PIH and later transferred to PomGen upon request. His wife could not eat or talk and showed memory loss.
  4. At PomGen, he was advised that his wife’s condition was the result of being overdosed.
  5. The witness produced two prescriptions (Exhibits P7 and P9) but he could only properly recollect dealing with the one that listed six medications including 5 mg Salbutamol (Exhibit P7).
  6. He presented the two prescriptions to the doctors at PomGen who, after reading the prescriptions, suggested to him the alleged overdose.

DEFENCE EVIDENCE


  1. Five witnesses testified for the Defence. The witnesses also had their affidavits tendered:
  2. The following document was also tendered into court:
  3. A summary of the relevant evidence of the witnesses follows.

Dr Christopher Kinipi


  1. Dr Christopher Kinipi is a general practitioner who had more than 20 years’ experience at the relevant time. He saw the plaintiff at 7.22pm on the evening of 12th May 2021 when she came to PIH with complaints of chest tightness and severe shortness of breath at 7.22 pm. The plaintiff was a known asthmatic patient of many years. She had been to another clinic the previous three days, but she was brought to PIH as her condition worsened.
  2. The doctor assessed her respiratory status and noted low blood oxygen saturation at 92% and a high pulse rate of 110 per minute. The plaintiff was placed on immediate nebulizer treatment with Salbutamol 0.5mg with Pulmicort and oxygen at a flow rate of 8litres per minute via face mask, while the doctor issued a prescription prescribed some medications including Hydrocortisone 100 mg which he administered as a stat dose through slow intravenous along with intramuscular Adrenaline injection.
  3. Hydrocortisone 100 mg (a steroid) and Crystapen 600 mg (penicillin) were the only intravenous medications ordered in the prescription which was dispensed by the pharmacist around 7:30 pm.
  4. Dr Kinipi affirmed the plaintiff was first administered standard first line medical treatment protocol with nebulizer and oxygen for treating respiratory symptoms and breathing difficulty due to severe asthma. In support of this statement, he produced copies of:
  5. Hydrocortisone 100 mg was the first injection intravenous medication ordered through the first prescription and administered to the plaintiff. However, her condition worsened, and she went into respiratory arrest whilst on the nebulizer. Cardiopulmonary resuscitation or CPR was commenced at 7:50 pm and the Plaintiff was successfully resuscitated within 5 minutes and stabilized. The plaintiff was then treated with a second dose of Salbutamol 0.5mg with Pulmicort nebulizer and oxygen at a flow rate of 8litres per minute via face mask.
  6. The doctor opined that the respiratory distress or breathing difficulties of the plaintiff was due to her underlying asthmatic condition. Despite the emergency first line conventional treatment given to the plaintiff, her severe asthma attack led to fatigue of her respiratory muscles and her heart and her cardio-respiratory arrest.
  7. Dr Kinipi agreed that in the prescription (Exhibit P7) he ordered IV Salbutamol 5mg but when the prescription was presented at the pharmacy, the pharmacist called him and queried the dosage prescribed to which the doctor corrected the order to IV Salbutamol 0.5mg. The corrected dosage was dispensed and subsequently administered to the plaintiff.
  8. The prescription Exhibit P7 was dispensed after the plaintiff went into respiratory arrest. The corrected order was dispensed at 9.09pm according to the relevant computerized payment receipt (Exhibit P8). The correct form and dosage of Salbutol was then administered to the plaintiff by IV for an hour from 8.50pm as shown on the Medication Chart (Exhibit D2)
  9. Dr Kinipi stated that despite the alleged malpractice against him by colleagues from PomGen, the Medical Board confirmed by a letter dated 1st April 2011 addressed to PIH that there was no disciplinary complaint registered against Dr Kinipi (Exhibit D1: Annexure E).
  10. Dr Kinipi also admitted to giving K500.00 to the plaintiff’s husband but he explained that was not for any wrongdoing in his treatment of the plaintiff but rather out of sympathy because he knew the plaintiff’s husband as a fellow Southern Highlander, and he also felt for the plaintiff as a patient.

Helen Sep


  1. Helen Sep is the pharmacist who received the prescription Exhibit P9 which she accordingly dispensed. She finished duties at 8:00 pm.

Sr Naonao Moide


  1. Sr Naonao Moide is a sister attached with PIH Emergency Room having practiced as a nurse for more than 40 years. She was involved in attending to the plaintiff when she was brought into PIH. The plaintiff had severe shortness of breath and she was given first line treatment that included Salbutamol 0.5 mg with Pulmicort (another drug to help with breathing problems due to asthma) and oxygen at a flow rate of 8litres per minute via face mask. At the same time, IV Hydrocortisone 100mg was administered as a stat dose through slow iv injection, and she was also given intramuscular Adrenaline injection.
  2. The plaintiff collapsed after her condition deteriorated into the “red zone”. Dr. Kinipi assisted by Sr. Betty Josaiah, were able to successfully resuscitate her within 5 minutes. The doctor ordered the second lot of drugs. Sr Moide maintained the plaintiff collapsed due to respiratory failure caused by asthma and not due to an overdose of Salbutamol. Her medication was being given by mask when she collapsed.

D. Ringko Sitaing


  1. Dr. Sitaing is an anesthetist at PIH. He attended to the plaintiff after she was successfully revived through CPR on the night of 12th May 2010.
  2. From the clinical notes he noted that the plaintiff’s asthmatic condition was so severe that her condition worsened even after being administered the first line of treatment administered during the emergency. As a result, she suffered cardio-respiratory arrest, which means her heart stopped beating depriving the flow of oxygen through blood to her brain. the brain cells. CPR was appropriately applied to resuscitate her.
  3. He acknowledged that while the wrong form of Salbutamol (5mg IV injection) was prescribed by Dr Kinipi, the correct form (0.5mg ampoule) was dispensed by the pharmacy. The plaintiff was given an infusion of the Salbutamol diluted in 100mls normal saline for an hour from 8.50 to 9.50pm. After the cardio-respiratory arrest, IV Salbutamol was given as the next effective means due to poor response from earlier nebulized doses.
  4. He stated that in line with the recommendations made in the Australian Medicines Handbook, the plaintiff received a safe dosage of IV Salbutamol.
  5. The doctor agreed that a higher dosage of Salbutamol may accelerate the heart rate, but there was no medical proof that it may lead to brain impairment. He stated that medical cases have proved that asthma attacks result in decrease in oxygen level intake, and this may lead to less flow of oxygen to the brain causing its cells to die. The dead cells cannot easily regenerate, and where there is recovery, it is slow.
  6. In his opinion, the brain damage to the plaintiff was therefore from low oxygen flow to the brain due to her severe asthma condition.

Donald Sai’i


  1. Donald Sai’i is the pharmacist who received the prescription Exhibit P7. He telephoned Dr Kinipi and asked for confirmation of the form of Salbutamol required to which the doctor corrected the order to 0.5mg/ml injection and not 5mg. He dispensed Salbutamol as corrected by the doctor, and that is confirmed by the computerized payment receipt (Exhibit P8).

CONSIDERATION


  1. It has long been settled since the hallmark case of Donoghue v Stevenson [1932] AC 562, that to prove a cause of action in negligence a plaintiff must prove these elements:
  2. The principles were adopted as part of the underlying law and approved by many cases in this jurisdiction.
  3. There is no argument that Dr Kinipi (as a medical doctor) owed a duty of care to his patient (the plaintiff) to administer her the correct form and dosage of medication (Salbutamol) in treating her for her asthma attack. It is also not under challenge that Dr Kinipi was at the relevant time, an employee of PIH, acting in the course of his employment.
  4. As noted earlier the issues for determinisation are:
  5. A basic rule in litigation is that the party who asserts must prove it; Shaw v Commonwealth of Australia [1963] PNGLR 119 and Supreme Court Reference No 4 of 1980 [1982] PNGLR 65, and the standard of proof in civil litigation is on the balance of probabilities.
  6. The plaintiff’s case is based on the theory that she was given an overdose of Salbutamol – the 5000mg form was administered via IV injection, instead of the 500mg by IV infusion, and that caused her to go into cardiac arrest that led to the brain damage.
  7. The plaintiff relied on the expert evidence of Dr Yockapua and Dr Kawa who proposed the theory based entirely, it would appear, on the prescription Exhibit P7. There was reference to other records from PIH, but these were not produced. The prescription contained an order for Salbutamol 5mg IV statim. It was only after this prescription was presented to the PomGen doctors that they suggested to the plaintiff’s husband that the plaintiff’s brain damage was caused by a higher dosage (overdose) of Salbutamol.
  8. The plaintiff’s claim was strongly refuted by the defendants contending that while Dr Kinipi did order the wrong dosage of Salbutamol, the error was acknowledged and corrected by the doctor when it was queried by the pharmacist, and as a result the proper form and dosage of the drug was dispensed and administered.
  9. Documentary evidence produced by the defendants, support Dr Kinipi’s evidence that:
  10. Dr Kinipi’s evidence regarding the treatment given to the plaintiff on the night of 12th May 2010 at PIH Emergency is corroborated by Sr Moide. Importantly, his evidence that the second prescription for Salbutamol was corrected is corroborated not only by Exhibit P8 but by the testimony of pharmacist Donald Sai’i.
  11. The treatment offered to the plaintiff by Dr Kinipi in Emergency is further corroborated by Dr Sitaing, who reviewed the case when the plaintiff was referred for admission to ICU. He confirmed that IV Salbutamol was given after the plaintiff’s cardio-respiratory arrest due to poor response from the earlier nebulizer doses, and the dosage given (8.3mcg per minute of 0.5mg Salbutamol diluted in 100mls of normal saline) was safe according to the Australian Medicines Handbook.
  12. According to Dr Yockopua’s evidence, the plaintiff went into cardiac arrest after being put an IV line injected with the higher dosage of Salbutamol. Dr Kawa also made a similar statement that the plaintiff collapsed after she was given Salbutamol 5mg by IV. This conclusion seems to have been based on the second prescription issued by Dr Kinipi, without more.
  13. On the other hand, the medical records of PIH clearly show that the plaintiff was on nebulized Salbutamol when she went into arrest. At that point in time, the prescription that ordered Salbutamol 5mg had not yet been issued. Further, the plaintiff went into arrest at about 7.50pm as noted on Special Vital Observation form (Exhibit D1: Annexure A), and the administration of Salbutamol by IV commenced at 8.50pm according to the Medication Chart (Exhibit D2), which is an hour later.
  14. Interestingly, the alleged negligence against Dr Kinipi was never reported to the Medical Board.
  15. It is also worth noting that during cross-examination, Dr Kawa agreed that low level of oxygen in the blood due to asthma can cause brain cells to die. Dr Kawa also agreed that where an acute asthmatic patient has a blood oxygen saturation as low as 92% and the pulse rate was high at 110 per minute, the administration of nebulizer treatment with Salbutamol 0.5mg with Pulmicort and oxygen 8L/min via face mask and Hydrocortisone 100 mg which is administered as a stat dose through slow intravenous injection along with intramuscular Adrenaline injection, is proper treatment of the patient. The described patient condition and the treatment was in fact the condition of the plaintiff and the treatment offered to her upon her admission to the ER at PIH.
  16. In respect of the K500 payment made by Dr Kinipi to the plaintiff’s husband, I accept the doctor’s reasons for the gesture as not uncommon or unreasonable in the context of this country. The payment was neither an admission of guilt nor could it be regarded as compensation payment.
  17. During their testimonies, the doctors from both sides in this case presented contrasting opinions as to whether an overdose of Salbutamol can directly cause brain damage. It would only be necessary to decide that point if I answer affirmatively to the primary question of whether such overdose was administered to the plaintiff by Dr Kinipi.
  18. I find overwhelming evidence in support of the defendants’ case, as opposed to the plaintiff’s claim which is clearly unsubstantiated and has not been proven to the requisite standard. I conclude that the plaintiff was not given an overdose of Salbutamol as claimed, and I accordingly dismiss the proceeding.
  19. As to costs, I believe the parties should bear their own costs. It is obvious to me that this suit was filed in reliance on the opinion expressed by the doctors from PomGen, which the plaintiff’s husband, as a simple lay person, honestly believed to be accurate. There was no mala fide in prosecuting this case.

ORDER


(1) This proceeding is dismissed.
(2) The parties shall pay their own costs.

________________________________________________________________
Public Solicitor: Lawyers for the Plaintiff
Greg Manda Lawyers: Lawyers for the Defendants


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