Issue link: https://maltatoday.uberflip.com/i/204636
47 Opinion maltatoday, SUNDAY, 3 NOVEMBER 2013 2013 A doctor is not necessarily responsible for the result of an intervention T he First Court of Civil Courts decided that a medical doctor and a private hospital were not responsible for the rupture of the shoulder of a baby during birth, because they used acceptable medical practice which any other doctor would have used. This was decided on 28 October 2013 by Mr Justice Mark Camilleri in Albert and Astrid Gambina vs The Golden Shepard Group Limited, which operate St Philips and Astrid Camilleri. The plaintiffs had filed a lawsuit against St Philip's Hospital and Dr Astrid Camilleri, after their daughter suffered injuries in her shoulder during birth, which resulted in a permanent disability. They claimed that if all the precautions were taken, this could have been avoided. They asked the court to condemn the defendants to pay damages. The hospital and the doctor denied the claim. Malcolm Mifsud mmifsud@mifsudadvocates.com.mt Mr Justice Camilleri pointed that there was no contestation that the baby had suffered these injuries during birth. Therefore, the court had to examine whether a medical professional did what was reasonably expected from her and from the hospital and whether the damages suffered were a result of their negligence. The Court relied on a medical technical report, which was drawn up by a court appointed medical expert. The expert recommended that the defendants were not to be held responsible for what took place to the baby. According to jurisprudence, there is a contractual relationship between a doctors and the patient. However, this is not based on a positive result, but a relationship where the doctor is to use his diligence during his activity of care. It is the plaintiff that must prove that the doctor acted incorrectly during her intervention. In order to prove professional malpractice it has to be proved that a doctor acted In order to prove professional malpractice it has to be proved that a doctor acted outside general medical practice outside general medical practice. In an English judgement Dunne vs National Maternity Hospital (1989) IR 91 established two requests for establishing medical responsibility: 1. The true test for establishing negligence in diagnosis or treatment on the part of a medical practitioner is whether he has been proved to be guilty of such failure as no medical practitioner of equal specialist or general status and skill would be guilty of acting with ordinary care. 2. If the allegation of negligence against a medical practitioner is based on proof that he deviated from a general and approved practice, that will not establish negligence unless it is also proved that the course he did take was the one which no medical practitioner of like specialization and skill would have followed had he been taking the ordinary care required from a person of his qualification. When the plaintiff arrived to hospital to give birth, Dr Astrid Camilleri, was assisted by a team of a midwife, a matron and a doctor. At birth the head of the baby did not come out completely and did not turn as it was meant to in order to facilitate the rest of the body to come out. The midwife assisted but failed and this is when Dr Camilleri intervened. She tried to put her hand to assist the baby to come out but that did not work either. They administered a syntocinon drip to help the mother push, but that failed also. The medical staff used an episiotomy scissors but that was useless. The medical staff had to pull at the baby in order for her not to suffocate. The defendant doctor denied panicking and held that she was faced with a problem and she had to solve that problem. She claimed to have done her utmost and saved the baby's life. The child is alive thanks to her pulling her for less than five minutes. The plaintiff alleged that all this was predictable due to the baby's size, which was larger than normal, however the court expert Dr George Buttigieg dismissed this argument since although the baby was large it was not "excessively big by statistical and comparative studies". In antenatal examinations there were no indication that this complication would take place. In his conclusions the Court expert noted that the hospital and the medical staff assisting in this particular birth acted as expected and there is no evidence of medical malpractice. The Court embraced the expert's conclusions and dismissed the plaintiffs' claims of damages. Malcolm Mifsud is a partner at Mifsud & Mifsud Advocates Approval in a Natura 2000 site subject to prior assessment A development application entitled "to construct agricultural store and reservoir" was turned down by MEPA's Environment and Planning Commission. On a preliminary note, the Commission observed that the site in question is located within a Level 2 Area of Ecological Importance and an Area of High Landscape Value. To this end, the Commission maintained that the proposal would have an unacceptable adverse impact on the conservation value and the visual integrity of the area. In reaction, applicant submitted an appeal, declaring that he is a registered full time farmer cultivating over ten tumoli of agricultural land. Applicant also underlined that the development would blend with the surrounding boulders and vegetation. As a final point, applicant insisted that various development applications have been approved in the immediate vicinity notwithstanding the designated site characteristics. On its part, the Authority pointed out that it was only during the processing of the application that applicant had registered himself as a full- Robert Musumeci MEPAwatch time farmer. The Authority reiterated that Structure Plan Policies RCO 12 and 15 prohibit any development in Areas of Ecological Importance and Sites of Scientific Importance, adding that most of the land registered on applicant's name is "non cultivable". According to the case officer, the proposed interventions may potentially exacerbate the integrity and protection status of the habitats characterising the Natura 2000 site. (Natura 2000 sites fall within a EUwide network of nature protection areas established under the 1992 Habitats Directive. This network was set up to secure the long-term survival of Europe's most valuable and threatened species and habitats). In conclusion, the Tribunal submitted that the Structure Plan aims to assist genuine farmers, many of who require adequate permanent onsite The Structure Plan aims to assist genuine farmers storage facilities. But even so, the Tribunal held that an independent scientific study should be commissioned at applicant's expense with a view to establish whether the proposed structures (tool room and underlying reservoir) would compromise the Natura 2000 status as alleged by the Authority. The Authority was ordered to issue the permit for an agricultural store and underlying YOUR FIRST CLICK OF THE DAY www.maltatoday.com.mt reservoir depending on the outcome of the assessment. robert.musumeci@rmperiti.com Download the MaltaToday App now