Supreme Court of Mauritius, 6 mars 2020, 2020 INT 47 – R. RAGOOBEER & ANOR. v PERMANENT SECRETARY, M.O.H & Q.O.L, & ANOR.

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R. RAGOOBEER & ANOR. v PERMANENT SECRETARY, M.O.H & Q.O.L, & ANOR.

2020 INT 47

R. RAGOOBEER & ANOR. v PERMANENT SECRETARY, M.O.H & Q.O.L, & ANOR. CN: 903/2012

THE INTERMEDIATE COURT OF MAURITIUS [CIVIL DIVISION]

In the matter of:- 1. RAJDUTH RAGOOBEER 2. NEELLAM RAGOOBEER OF ROYAL ROAD, VALLEE DES PRETRES PLAINTIFFS

V/S

1. PERMANENT SECRETARY, MINISTRY OF HEALTH & QUALITY OF LIFE OF EMMANUEL ANQUETIL BLD, PORT LOUIS; 2. STATE OF MAURITIUS REPRESENTED BY THE ATTORNEY GENERAL OF R.SEENEEVASSEN BLD, PORT LOUIS DEFENDANTS

JUDGMENT:

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In the Proecipe, both Plaintiffs, who are husband and wife, have averred the following: From their marriage was born on the 12/05/10 a female child named Lakshita Ragoobeer. On 18/05/10, at about 6.00 pm, they noticed that their baby did not look well and was turning yellowish. Immediately, they conveyed the baby to Dr Jeetoo Hospital. Upon their arrival at around 7.00 pm, they were requested to wait for the arrival of a Medical Health Officer in the Casualty waiting room. After some thirty minutes of waiting and finding that the baby was turning more yellowish, they again informed one of the officers on duty that the baby needed immediate and urgent attention. They were again told to wait for the Medical Health Officer’s arrival. At around 8.00 pm, finding that their baby’s condition was worsening, they went back to the casualty and again requested for help, but were once more told to wait. By that time, their baby had turned completely yellowish. At around 8.30 pm, a Medical Health Officer finally came along to see the baby and told them that she had to be admitted. While the formalities for admission were still being initiated, their baby passed away at around 8.45 pm. They further aver that the officers on duty at the material time at Dr Jeetoo Hospital were acting as préposés of the Defendants. The préposés/officers on duty at Dr Jeetoo Hospital at the material time have failed in their duty of care and attention and have acted negligently in the exercise of their functions and duties resulting in the death of their child. The negligent and/or imprudent acts and/or doings of the Defendant No.1’s préposés (and equally the Defendant No.2’s servants/employees/agents) have caused them to lose their child which has caused them to suffer damage and prejudice. Moreover, the Defendants, as ‘commettants’ of the Medical Health officers, are bound in law to make good to the Plaintiffs all damage and prejudice suffered by them estimated at Rs.500,000 as a result of the wrongful, imprudent and negligent acts and doings of their préposés. The Defendant No.2, as employer of the Medical Health Officers, its employees/agents/servants are vicariously responsible for their aforesaid acts and doings. On 27/03/12, a notice ‘mise en demeure’ was served on the Defendants in their aforesaid capacities as commettant/employer of the Medical Health Officers, calling upon them to pay jointly and in solido to the Plaintiffs the sum of Rs.500,000 being moral damages, hardship and prejudice suffered by the Plaintiffs as a result of the wrongful, imprudent and negligent acts and doings of Defendants’ préposés/employees/agents/servants. However, the said notice ‘mise en demeure’ has not been complied with. The Plaintiffs are, therefore, praying for a judgment condemning and ordering the Defendants to pay to them jointly and in solido the sum of Rs.500,000. The Defendants have filed an Amended Plea in Limine Litis, but same was not insisted upon by the Defendants. On the merits, the Defendants have averred, inter alia, the following: The baby was registered at Dr Jeetoo Hospital at 19.40 hours, seen by a Senior Medical and Health Officer and it was observed that the baby appeared to have signs of jaundice and was refusing to be fed. The case was immediately referred to the Paediatric Registered Medical Officer (RMO). The poor state in which the baby was at the material time cannot occur in a matter of hours but days. The Paediatric RMO decided to have the baby admitted immediately with a set of urgent investigations

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and advised on appropriate medication including drip and antibiotics with instructions to monitor vitals. Then, the baby was carried to Ward 16 and after about 5 minutes, the baby collapsed. The condition of the baby on arrival was critical and was in a terminal phase of severe pathology. Any treatment though immediate with proper diagnosis would not have changed the prognosis of the baby. All symptoms and signs suggested neonatal septicaemia which was full blown at the time of presentation at the Casualty. There was no failure of duties on the part of the medical officers and the baby was examined within a reasonable time. They deny any negligence on the part of the officers in question as mentioned in the Plaint and further aver that they are not liable to the Plaintiffs in the sum claimed or in any sum whatsoever. Therefore, they move that the Plaint be dismissed with costs. Mr. V. Ramchurn, learned counsel, appeared for the Plaintiffs and Ms. Maherally, learned State Counsel, appeared for the Defendants.

The Plaintiffs’ case: The Plaintiff No.1 testified as follows: He is married to Defendant No.2 (vide: Copy of Certified Extract of Marriage Entry – Doc B). On 12/05/10, their child, Lakshita Ragoobeer was born at La Clinique Mauricienne, Réduit (vide: Copy of Certified Extract of Birth Entry – Doc C). The paedriatrician, Dr. Jean Claude Lam Chong Wah was present at the time his child was born. His wife was discharged from the hospital on 16/05/10 and his child was normal. On 18/05/10, in the morning, they went to see Dr. Lam Chong Wah for a private consultation and the latter told them that the baby was suffering from only a throat inflammation. At 18.00 hours, he noticed that the baby did not want to be fed. He phoned Dr. Lam Chong Wah to inform the latter of what was happening. The doctor told him to go to the hospital. He reached Dr Jeetoo Hospital at about 18.15 hours and his baby was in a critical condition. Immediately, he proceeded to the Casualty, where he met with a doctor, who recorded his statement, informed him that there was no paediatrician at that time and requested him to wait outside. After 15 minutes, his baby’s health deteriorated, following which he entered the building anew and told the doctor that his child was suffering and no preliminary treatment has been administered to the baby. He was again requested to wait. He went in and out of the Casualty for about 6 to 7 times. Thirty minutes later, he was then told to wait in the corridor as there was no paediatrician. In all, he waited for about one hour and thirty minutes. At about 20.00 hours, he was still in the Casualty and the baby became more yellowish. After a while, he was informed that Dr. Seetohul had arrived in order to examine the baby. At about 20.30 hours, the doctor told him that the baby had turned completely yellowish and had to be admitted to the hospital (vide: Consent Form – Doc G). While admitting the baby to a ward, the doctor informed him that the baby was dying. After 15 minutes, he learnt that his baby had passed away (vide: Copy of Certified Extract of Death Entry – Doc D). The baby was not examined by any doctor between the time he reached the Casualty and the time Dr. Seetohul arrived. Had preliminary treatment been administered to the baby by a doctor in the Casualty when he reached there, the baby could have been saved. The baby passed away

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due to lack of paediatrician and of care and attention. There has been negligence on the part of the doctors and préposés of Defendant No.2. In the month of March 2012, he caused a Notice mise en demeure to be served upon the State (vide: Doc A). His baby was not born with jaundice. No doctor at the hospital told him that food went into the air passages of the baby. Therefore, he prays for a judgment in the sum of Rs.500,000 together with costs. In cross-examination, he answered as follows: In the Plaint it is mentioned that he arrived at the hospital at 19.00 hours. Before he took his baby to Dr. Lam Chong Wah on 18/05/10, his baby did not want to be fed. According to the Register, he applied for a Casualty card (Doc E) at 19.40 hours. During those 40 minutes he was looking after his baby’s health. On that day, he was accompanied by relatives and his wife was in the car. He imparted at the hospital that his wife had a caesarean delivery, her membrane had burst for more than 21 hours and their baby was born prematurely (vide: History and Continuation Sheet – Doc F). Dr. Mangoo did not examine the baby. His child did not receive immediate care and attention. Two doctors did not examine the baby between the moment he applied for a Casualty card at 19.40 hours and 20.30 hours. No doctor told him that his baby was in a dire state. In the course of re-examination, he stated that the treatment recommended by Dr. Seetohul was not given to the baby. His baby did not receive any treatment. He had applied for the Casualty card before Dr. Seetohul examined the baby. The Plaintiff No.2 stated the following under solemn affirmation: She is civilly married to Defendant No.1. On 12/05/10, their child, Lakshita Ragoobeer was born at La Clinique Mauricienne, where she stayed for four days. When she was discharged from the clinic, she was not told that her child had jaundice or was ill. On 18/05/10, her child was crying in the morning and her husband decided to take their baby to the paediatrician, Dr. Jean Claude Lam Chong Wah, who examined the child and informed them that the baby had throat inflammation. At 18.00 hours, she noticed that the baby’s skin had a yellow tinge and was refusing to be fed. After her husband spoke to Dr. Lam Chong Wah over the phone, they proceeded to the hospital. As she had a caesarean and was suffering, she waited in the car. She did not witness what happened. Her child passed away because of negligence. If her child was given the necessary care and attention at the hospital, the latter would have survived. Her husband caused a Notice mise en demeure to be served upon the State. They pray for a judgment condemning the State to pay them damages in the amount of Rs.500,000 in respect of the lack of treatment to their child. During cross-examination, she replied as follows: She had a caesarean delivery, there was a rupture of the membrane for more than 21 hours and her baby was born prematurely. At first, she waited for a period of 30 minutes inside the hospital. Dr. Jean Claude Lam Chong Wah testified as follows: On 12/05/10, at La Clinique Mauricienne, he assisted the birth of late child Lakshita Ragoobeer. He examined the child on that day and on the day of her discharge, and she was normal on both occasions. On 18/05/10, at about 11.00 hours, he examined the child at his surgery. He was told by the parents that on the eve the child was breathing quickly at times. He found that the baby was suffering from throat-inflammation. The child was otherwise well and breathing normally. Thereafter, he prescribed Amoxicillin, which

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is an antibiotic, and he gave sodium chloride as nasal drops. There was no jaundice at that time. If someone has an infection, that person can also contract jaundice. At about 19.00 hours, Defendant No.1 called him and informed him that the baby was having breathing difficulties and her face had turned yellowish. He advised Defendant No.1 to convey the child to the hospital, which is better equipped for resuscitation. If the Defendants would have proceeded to his surgery, they would have lost time. He cannot say whether if the child had been given some treatment at the hospital, this could have saved its life, as he does not know what the baby’s condition was at that time. In cross-examination, he replied as follows: The baby weighed 2750 g and, therefore, it is not a premature baby. When he examined the child, the baby did not have jaundice. The colour of the skin may change due to breathing difficulties and lack of oxygen. He cannot say anything about the cause of death of the child. The baby became ill at the age of 5 or 6 days and, thus, the infection cannot be contracted at birth from the mother (vide: Article on Neonatal Sepsis – Doc H). During re-examination, he stated the following: When he examined the baby, there was no symptom of neonatal septicaemia and this infection cannot be acquired at birth. Asphyxia due to aspiration of stomach contents can be a cause of death. Whether the child can be safe if treatment is given depends on how much has been aspirated. If it is only a small amount it can be treated, but if it is a large amount it is then difficult to treat. Mr. Pathavisitaramaya Erriah, the representative of La Clinique Mauricienne, stated the following under solemn affirmation: On 11/05/10, at 21.30 hours, Defendant No.2 was admitted to the clinic and the latter gave birth to a baby on 12/05/10, at 15.30 hours (vide: Labour Record – Doc J). She had a caesarean and was, subsequently, discharged on 14/05/10. At that time the mother and the child were in good health. Then, this witness produced a Fluid intake and output Chart (vide: Doc K) and a document relating to the temperature of Defendant No.2 (vide: Doc L). In the course of cross-examination, Mr. Erriah answered as follows: Defendant No.2 had an emergency caesarian. The ‘Apparent gestation (weeks)’ on Doc J is blank. The date and time of Defendant No.2’s discharge are 14/05/10, at 15.00 hours (vide: Doc M). Dr. Lam Chong Wah saw the child on 14/05/10, but the time does not feature on Doc J. The doctor has mentioned therein that the child was “not jaundiced”. During re-examination, Mr. Erriah stated that the baby was normal. Dr. Sudesh Kumar Gungadeen stated the following under solemn affirmation: On 19/05/10, at the Mortuary of Victoria Hospital, he performed an autopsy on the baby, following which he drew up a Medico-Legal Report (vide: Doc N). The cause of death of the child is asphyxia due to aspiration of stomach contents. This was a normal baby with no other pathology noted. In cross-examination, Dr. Gungadeen replied as follows: The weight of the baby is 2kg 600 grams, which is the normal weight for Mauritian babies. A premature rupture of the membrane may or may not affect the health condition of the child. The child was jaundiced. There are two types of jaundice, namely, physiological jaundice and pathological jaundice. In this case, physiological jaundice is very common; it is contracted because of the change of structure of the blood. If the child is exposed to sunlight or to an incubator fitted with modern lights, the jaundice goes off by itself. If the child is breastfed, the child would

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come back to normal. Had it been a case of pathological jaundice, there would have been infection and changes in the liver. In this case, the lips of the baby were ‘cyanosed’ as there was not enough oxygen in the blood. The stomach content has gone into the lungs and once this has happened, air has been displaced; there is no exchange of gas in the organ. The cause of the asphyxia, the lack of oxygen is because of the presence of stomach content inside the lungs. There was a large amount of curd which means that the baby was fed with milk. When milk mixes with acid, it becomes like curd. The same material has been found in the stomach, the air passage, the food passage and the lung. According to Doc F, dated 18/05/10, the central nervous system of the baby seemed not active, sluggish and the general condition was poor. Aspiration of stomach content, most of the time, is an accidental type of procedure which happens in small babies. This is why one has to burp a child to drive away the gas and air which is found in the stomach in order to let food particles go inside the stomach. But, in this procedure, nobody can say how much air has gone out and whether air is still left inside the stomach. Once there is food and air down, it is like an explosion; the air will carry the food up and this might go inside the air passage. Hence, this is most of the time accidental in nature and it cannot be prevented. In this case, he does not know whether the burping was done properly or not and he cannot say there has been negligence or not by any doctor. Normally, once the material goes inside the lung, it will be difficult to give treatment. Once there is the presence of food particle in the air passage and the exchange of oxygen has been hampered, it will be very difficult for anybody, even a child or an adult to react to this. An adult has a cough reflex which can help to clear the air passage, but if it is more, this is how even some people die if they are, for example, under the influence of alcohol, the cough reflex gets abolished. In this type of children, there is no proper cough reflex to remove whatever has gone inside the air passage and that is why it keeps going down and up to the distral airways. It is a very common cause of death. During re-examination, Dr. Gungadeen stated the following: The stomach content will not have any effect on the sluggishness of the child, it is the aspiration of the stomach content which leads to complications. In this case, the jaundice cannot be the cause of death and he has not noted any septicaemia. In fact, all the features of asphyxia are clearly noted in this case. Usually, the treatment which has to be given is to try to aspire the contents from the air passage, either by doing endotracheal tubing, that is, the procedure is to try to insert a tube which will aspire the stomach content from the air passage. But, in this case, the fact that it has already gone down into the lungs, one cannot aspire further beyond the bronchi. The air passage is quite ‘pated’ at some level, but once it gets ‘branched’ it goes into the air cells, the pulmonary cells and it will be difficult for the doctor to aspire it now that the damage has already been done. Once it goes into the air passage, the child will start trying to breath vigorously, because there is something which is preventing breathing. Once the child will start breathing vigorously that thing can go further down to the distral airways, that is the lower part of the lungs, up to the alveolar sac. Death can occur within 3 to 5 minutes if proper ventilation has not started again. It is definitely an emergency and ventilation should start there. The child would die within 3 to 5 minutes, one hour is too much for the child to wait. The first treatment that needs to be given to a child of this nature is aspiration and ventilation.

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The Defendants’ case: Dr. Rishi Bundhun, Generalist, testified the following: He is posted to Dr Jeetoo Hospital and in the year 2010 he was working at the same hospital. In 2010, at the Casualty, the person would come to the Triage House Section, where the latter would be met with a Triage House nurse, who would send the patient to either the Accident and Emergency department or the Unsorted department, depending upon the severity of the complaint or the age of the patient. Thus, all the patients aged below 12 years or above 60 would be sent to Accident and Emergency department. If the patient were to be sent to the Accident and Emergency department, he would go from Triage out to the Record office, where he would be registered by records clerk and, then, from there an attendant would take the card and the patient to the Accident and Emergency department. From there, a nurse would call each patient in turn. Priority to a patient would be decided upon the complaint given by the relatives of the child to the Triage House nurse. In the present case, there was no emergency request made. For Court cases, the patients have to be registered first, but in an emergency, all procedures are bypassed. If they go to the nurse’s station regarding an emergency, then, they are seen immediately, registration will follow. In a case of a child, the Casualty officer will see the patient first and depending on what treatment will need to be given, the child will be referred to Paediatric Unit, or if it is a broken leg, it will be referred to the Orthopedic Unit. In this case the patient was registered on 18/05/10, at 19.40 hours. The hospital did not receive a direct complaint from the Plaintiffs, but a complaint from Plaintiff No.1 was received by the Ministry in the month of June (vide: Doc P). The baby was treated by two doctors, namely, Dr. Mangoo and Dr. Seetohul. The child was seen by Dr. Seetohul at 20.30 hours. In cross-examination, Dr. Bundhun answered as follows: The Triage nurse determines if it is an emergency case. In the present case, the baby was referred to the Accident and Emergency department. The patient goes to the Triage first and, then, goes for the registration. Dr. Mangoo, who is a Generalist, was in the Accident and Emergency department and he referred the baby to Dr. Seetohul. In Mauritius, there are no paediatrician in hospital after 16.00 hours. There was no paediatrician and the child was not seen by any specialist. The patient was prescribed antibiotics and perfusion drip. Resuscitation was also given to the child. In the course of re- examination, Dr. Bundhun stated the following: There is a specialist on call. He is usually at home and he shall be available for any advice over the phone. As regards complicated cases, he would have to go to the hospital. Dr. Mangoo and Dr. Seetohul are Generalists. The health system is divided into two sub-sections; those patients who need specialized care are referred to the specialized unit, which has a Generalist on call and a Specialist on call. At that time, Dr. Seetohul was in the specialized unit for paediatrics. Dr. Boolaky was the Doctor in charge of the Surgical Intensive Care Unit. The latter’s help is sought for critical cases where patients need assisted ventilation. According to the Occurrence Book, the measure taken by Dr. Seetohul was to provide ventilation in breathing (vide: Doc Q). At the time of registration, the relatives were there, but not the baby.

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Mr. Rajendra Raghoobar, Higher Health Records Clerk, testified as follows: In the year 2010, he was working at Dr Jeetoo Hospital. The baby was registered at 19.40 hours (vide: A copy of the Register – Doc R). Normally, the patients have to register and then move to the waiting area, to be examined by doctors. He would keep the registration card, which would be collected by the nursing officer. As per the Registration Book, it was a normal, smooth running registration of 30 to 35 patients an hour, with no queue. Registration was swift as there were three persons working at the counter. If someone is registered at 19.40 hours, it may have taken less than five minutes for that person to register. Even in an emergency, the patient will have to go through the nursing station prior to seeing the doctor. In cross-examination, Mr. Raghoobar replied that on the particular night he was not on duty and he gave evidence as to what generally happens. He added that in a case of emergency, the formality is done afterwards. During re-examination, he pointed out that in emergency cases the registration is done concurrently as the doctor will need the Casualty card to write on. Dr. Ibrahim Mangoo stated the following under solemn affirmation: In May 2010, he was working at Dr Jeetoo Hospital. He saw the baby at around 20.30 hours. It is not true at all that Plaintiff No.1 went to see him on various occasions. There is no way Plaintiff No.1 could have contact with him. Plaintiff No.1 came through the door as a normal patient coming in, sat next to him and gave the history. Plaintiff No.1 brought the child in the company of a lady. With regard to the history of the child, the father mentioned jaundice from 18.00 hours, refusal to be fed, it was a premature birth, there was a rupture of the membrane and there was a delay of 18 hours. He had a presumptive diagnosis that it was a case of late onset septicaemia based on the fact that the baby refused to be fed, was seen by a paediatrician for cough, had runny nose, breathlessness, was already under treatment on antibiotic, it was not getting better, it became jaundiced and was advised by the treating doctor to go to the hospital. He called the paediatric RMO, Dr. Seetohul who happened to be seeing a patient in the Casualty and imparted to the latter his concern that he anticipated septicaemia. Dr. Seetohul left the patient and came to see the baby. There was a correlation between the history given by the parent and certain signs and symptoms as seen from examination of the child. Septicaemia has to be proven. The treatment has to be started straight away and one cannot wait for blood results for 5 or 6 days. The baby had to be admitted as they had to anticipate other complications that may result with septicaemia. The baby was slightly dehydrated jaundice. They gave the child antibiotics and prepared for a major intervention in case the baby would collapse, with respiratory distress and cardiac failure. At that time the baby was breathing well, with no temperature, but it was ominous, lethargic and jaundiced, which are clinical signs that one can anticipate septicaemia. Within two minutes the child was handed over to Dr. Seetohul. Later, he learnt that the baby had collapsed within 10 or 15 minutes. In the course of cross-examination, he answered the following: In anticipation, it was an emergency case, because the baby was 7 days old, under treatment for infection, instead of recovering, it was getting worse and it contracted jaundice. Septicaemia is a blood-born infection. The baby was born slightly premature and the membrane was ruptured more than 20 hours before the caesarian was done. In that 20 hours, there is always a door for infection from the

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vagina up to the cervix. The diagnosis of septicaemia can be confirmed by only blood culture, that is, the blood is sent to the laboratory, where the bacteria can be seen. In this case, the post-mortem was done the next day and the blood sample was sent after the death; by that time there is a ‘lysis’ of blood cells and a level of bacteria does die. When somebody is ingesting milk, there are signs on their chest. The baby was breathing spontaneously, the chest was clear, the baby was pink and the father never raised the issue of vomiting. When there is aspiration, there is suffocation and the face and lips turn blue. When the child came to him, he referred it to Dr. Seetohul within 5 minutes. The child was registered at 19.40 hours and he saw the child at 20.30 hours. Nobody told him that it was an emergency case. Nobody from the Registration department informed him that there was a child. During re-examination, he explained that in an emergency case, the nurse would pick up the child and bring it to the doctor, thus, bypassing the red tape. The child was handed over to Dr. Seetohul for investigation and treatment. Dr. Ravi Meghnath Seetohul testified as follows: On 18/05/10, he was on shift, as Generalist at Dr Jeetoo Hospital. He was in the Casualty seeing another patient when he was informed about the case by Dr. Mangoo. When he saw the child, he filled in a History and Continuation sheet. First of all, they have to know who accompanied the child and, in this case, it was accompanied by the father and aunt, who would give them information about the patient. The second step is to ascertain why the patient has attended hospital. In this case, there was a complaint of a yellow tinge of the skin since 18.00 hours, cough and congested nose. The next step is to identify any past medical history of the patient; whether the patient has been suffering from any other medical conditions. In this case, it was nil. The following step is the examination of the patient, which revealed: jaundice, the cardiovascular system revealed a normal heart rate, respiratory system bilateral air entry, the chest was clear, the upper abdomen was soft and no mass was felt, the level of oxygen circulating in the patient at that time was of 95 to 96%, the fontanelle was normal and the hips were stable. The central nervous system examination revealed that the patient was not active, sluggish and lethargic. The general condition of the patient was estimated to be poor and that was explained to the father. His preliminary diagnosis was jaundice and, consequently, the measures taken were: the admission of the child to the Paediatric Ward, sending on investigations which consisted of serum bilirubin, blood culture, full blood count, UNE, coombs test, LFT’s and stool for culture, starting adequate treatment for this condition, vitals were asked to be monitored and any dis-balancing vitals were to be noted. He sent the necessary investigations to confirm the diagnosis. The serum bilirubin would give the definite diagnosis of jaundice. A case of septicaemia would require the same test. He attended to the baby at 20.30 hours. The child was breathing spontaneously. If a child had initially ingested an increased amount of milk, one may find the chest clear; but with progression and gravity, the milk can descend to the lower extremities of the lungs, then, there will be bronchi. The chest of the baby was clear, but it does not exclude the possibility that the child has ingested milk. The epiglottis blocks the entry of food and at the same time it prevents anything ingested from coming out. With sluggish reactions, it might be released and, eventually, a regurgitation and aspiration can occur in this case. When food goes in the trachea, that is aspiration

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occurs, the respiratory rate will decrease and, eventually, one can go into respiratory distress. If a large amount of food has been aspired, the outcome is death. In the present case, the condition of the child was very poor, it had very poor reflexes. The possibility of aspiration of gastric content cannot be excluded as, within the lapse of time, the reflexes were already poor. If the patient has ingested and while carrying the baby or handling the baby, even while going to the Ward, it is possible that aspiration has settled down. Even when the child is placed on the bed, aspiration is possible with these weak reflexes that are already present. One of the features that a patient who has contracted septicaemia manifests is jaundice. In this case, they went for prophylactic antibiotics, which is the protocol they had to follow. The intravenous access with the baby was very difficult and that is the reason he called Dr. Boolaky, a Senior Medical Officer, trained in anesthesia. If a patient has aspirated, the first thing is to do suction by passing a tube through the trachea and this was done in this case. He took resuscitative measures, called Dr. Boolaky to help out with an intravenous access and to intubate if need be. If a large amount of food had been aspired, there must be intubation and ventilation. These would have been done by Dr. Boolaky. In this case, the prognosis was already very poor. In comparison, it is like a person who has been drowning and in these cases the prognosis is very poor. One can attempt to suck the maximum possible, but in most cases drowning and near drowning is fatal. All the necessary treatment was given in this case. There was no delay on his part to attend to the patient. There was a complaint made by the Plaintiff No.1 and an enquiry was conducted (vide: letter, dated 6 th July 2010, signed by Dr. D.A. Rajcoomar, Ag. Regional Health Director – Doc S). Within 20 minutes he examined the child, took a history, was able to admit the child in the ward, called a colleague, managed to put in the necessary people to help him out and give appropriate treatment to that child. In general, if they face any issue concerning a difficult case, they would call the specialist, but they would already start the first line treatment. In this case, the specialist was not in attendance, but he informed the former about this case. In cross-examination, Dr. Seetohul replied as follows: his preliminary finding relating to the child was pathological jaundice and he needed to have the confirmatory diagnosis through the serum bilirubin levels which were requested. Even after an autopsy the serum bilirubin levels would have been there. Whether septicaemia is visible after an autopsy depends on the time frame at which the blood culture was taken because the red blood cells have a lifetime whereby even after post-mortem findings, the micro organisms are not present and can be undetected. When he saw the child, it was in a very poor condition. Dr. Boolaky came when the child had already passed away. He called the Specialist, Dr. Mangar while attending to the patient. An X-ray would have revealed the presence of foreign body in the trachea, but that is time consuming as it would have taken 20 to 25 minutes. He was not told it was an emergency case and had to attend to it immediately. The baby collapsed and as part of the resuscitative measures, he had to clear the airways. At that time, he was in the ward. When he initially examined the child and found that the chest of the baby was clear and the level of blood running in the blood, there was no need for suction at that time. The aspiration could have occurred either before the baby was in the hospital or within the 20 minutes. During re-examination, he stated the following: He will not be able to answer what had

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happened before he saw the child at 20.30 hours. The pathological jaundice was not confirmed. If a patient comes in with abdominal pain, there is a differential diagnosis; it can be an MI or it can be a duodenal also. Therefore, he cannot jump to a final diagnosis. Dr. Taj Ignace Mangar, stated the following under oath: He post-graduated in July 1985, has been a Specialist in the Government since January 1991, Consultant-in- charge since 2005 and retired in the year 2016. In the month of May 2010, he was working at Dr. Jeetoo Hospital as Consultant and he was on call. If the Medical officers feel they cannot manage or that the diagnosis is difficult, they would call him. According to Doc F, Dr. Seetohul found that there was no rise in the temperature of the baby, but the birth history was significant and the latter focused on the birth history which was given by the parents. The baby had two risk factors for septicaemia: rupture of membrane and prematurity. This is known all over the world. The chest of the baby was clear, but it had a shortness of breath. There was a mild shallow distress in that patient. The baby was sluggish which means consciousness was impaired and the general condition was poor. The fact that it was lethargic, this means that it has reached a very severe condition. These are overt signs of sepsis. The prematurity at birth and the failure to progress indicate that septicaemia had time to develop and become overt at that stage. The investigation by Dr. Seetohul is appropriate. All the symptoms suggested a case of full blown septicaemia. He was contacted by Dr. Seetohul on that particular night at 20.55 hours and the latter told him that a baby had died. Dr. Seetohul had started to give the first care. The doctor who is working in the hospital has to attend immediately and, then, if time allows he will contact the specialist. In an emergency, the doctor has to take the first steps of treatment before he sends the patient to a specialist. There are KCAT guidelines which are equivalent to those of SAMU in England, NHS . According to the guidelines, when there is prematurity, pre-nativity history of prolonged rupture of membrane, there will be breathlessness, lethargy, rapidly increasing of neonatal jaundice, unexplained jaundice and this is a diagnostic of sepsis. Clinicians have a clinical diagnosis and the lab diagnosis come to support the clinical diagnosis. But, if the doctor is clinically right to treat the patient, the lab diagnosis may not support the clinical diagnosis all the time. When there is sepsis in a patient, five blood cultures have to be done. They do not wait for blood culture. In this case, the blood culture was not yet done and the child passed away. His diagnosis was septicaemia and Dr. Gungadin’s Report speaks of aspiration. In a case of septiceamia, the protective reflexes of the patient would be gone and aspiration is, therefore, possible. In this particular case, where both lungs are imbibed with milk, both lungs will collapse and the patient will die immediately. Breast milk digests in 15 minutes. With such amount of milk in the stomach, the baby would have been breastfed 30 to 40 minutes before the death. After registration at the Casualty, the Plaintiff No.1 must reply in good faith whether the latter and the child were still in the Casualty department or they went for breastfeeding. And, when they were called they were not there; they were seen afterwards (vide: letter, dated 8 th July 2010, signed by Dr. D.A. Rajcoomar, Ag. Regional Health Director – Doc T). There is an Hourly Monitoring of patients for the 18 th of may 2010 (vide: Doc U). As per his experience, there is certainly not a long waiting time to be seen by a doctor. He does not agree that the delay between 19.40

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hours and 20.30 hours caused the death of the baby. The child was discharged before 72 hours and whether there had been onset septicaemia was not investigated. The baby came to the hospital with overt septicaemia on the 7 th day; whether the baby is treated one day before or one day after is immaterial. The child came in at a stage where its life could not be saved. The baby was already in a dying state. In this case of septicaemia overt terminal, if he or any expert would have been there, nothing could have been done. Once the baby’s state of health has reached that stage, it cannot be saved. Whatever one will do in intensive care, this will not save the patient. He does not disagree with the cause of death as determined by Dr. Gungadeen. He would say that the condition of the baby was such that it was prone to aspirate. In the course of cross-examination, he answered as follows: There was a deficiency as to who determined whether a case is an emergency one. But, since, measures have been taken to take care of that sorting. There is a medical officer or a nurse who will see the patient and determine whether a patient needs urgent treatment. The child was taken to the Accident and Emergency department. Dr. Seetohul did not phone him at 20.30 hours. Dr. Seetohul, being a very senior RMO and having a very large experience, was able to take the first steps. There was no need at that time for the doctors to contact him as first there is a time for assessment, that is physical examination, obtain the history and find out what this case is all about. The diagnosis in this case took around 10 minutes. It was an overt septicaemia and the child was brought too late. The facilities would have been of no use. The baby was normal when it was born. When bacteria goes into the body of the baby, which is called bacteraemia, there is nothing wrong. The baby is normal and, in fact, this is the challenge in neotology where two tests have to be carried out, namely, C- reactive protein at interval of 24 hours after the first 12 hours of birth. If the C- reactive protein is negative this child has no sepsis. This has not been done in this case. Second, having two risk factors of septicaemia, no prophylactic antibiotic has been given to this patient. Even if he were contacted or were there physically, he does not think that he would have been able to salvage this case at that stage. When there is overt septicaemia, nobody can salvage a patient. Septicaemia is neither visible nor found upon an autopsy and when there is no blood circulation, it is very difficult to detect jaundice. Aspiration is part of the whole diagnosis and it was predisposed by the septicaemia in the patient. During re-examination, he stated as follows: In May 2010, a baby of 7 days would not certainly be requested to wait. A nurse has sufficient clinical knowledge to know whether or not a patient needs help. The baby would certainly have been given priority. The yellowish tinge means that there was jaundice.

ANALYSIS: In the present case, the cause of action is grounded in tort, under Articles 1382 et s. of the Code Civil. There is no doubt that the State, which is responsible for the health service, as a healthcare provider, has a duty to provide competent professional staff in its hospitals and proper facilities and equipment for the treatment of its patients (vide: A. Ramcharan & Ors. v The State of Mauritius [2013 SCJ

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231]). As such, the State is, by virtue of the provisions of Article 1384 alinea 3 of the Code Civil, liable as ‘commettant’ for the acts and doings of public officers. In the case-in-hand, the plaintiffs have to establish the alleged imprudence and/or negligence and the causal link between the imprudence and/or negligence and the consequence complained of. The issue of negligence: The law: As regards the issue of medical negligence, the test which has to be applied has been laid down in the case of Bolam v. Friern Hospital Management Committee [1957] 1 WLR 582, known as the Bolam test and it runs as follows: "Where you get a situation which involves the use of some special skill or competence, the test as to whether there has been negligence or not is not the test of the man on the top of the Clapham Omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing that special skill. A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art … he 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 … putting it another way round, a man is not negligent if he is acting in accordance with such practice merely because there is a body of opinion who would take a contrary view.” [Emphasis added] In other words, as aptly put by the Supreme Court in the case of W.A. Gopee & Ors. v The State of Mauritius [2007 SCJ 303], “The test remains whether (the doctors) had fallen below the standard of professional care and skill to be reasonably expected from ordinarily competent doctors.” In Hunter v Hanley 1955 SLT 213, it was held that “In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men, nor because he has displayed less skill or knowledge than others would have shown. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of, if acting with ordinary care.” [Emphasis added] Hence, in order to prove negligence, it must be established that the course the doctor adopted is one which no doctor of ordinary skill would have taken if he had been acting with ordinary care (vide: S.K.S. Auckloo v. State of Mauritius [2004 SCJ 312]). Other factors to be considered when assessing whether there has been negligence by a doctor can be found in the case of Ungnoo & Anor v The State of Mauritius [2005 SCJ 89], where the Supreme Court referred to Jurisclasseur Civil – Santé – Art. 1382 à 1386 – Fasc. 440 – 20 note 50, which is reproduced below:

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“La faute du médecin, ou de l’établissement de soins, est traditionellement appréciée in abstracto par la jurisprudence… Pour engager la responsabilité du praticien, le tribunal doit en effet confronter le comportement du défendeur avec celui qu’aurait eu un modèle abstrait de référence, c’est-à-dire un professionnel de diligence moyenne. Lors de cette appréciation, le juge tient cependant compte de la compétence particulière du médecin (spécialiste ou non), et des circonstances de son intervention (urgence, par exemple). La faute est donc caractérisée lorsque le comportement du défendeur n’est pas celui attendu d’un médécin diligent, c’est-à-dire lorsqu’il n’a pas donné au patient, selon la formule consacrée depuis l’arrêt Mercier, des soins consciencieux, attentifs et conformes aux données acquises de la science.” [Emphasis added] Consequently, in applying the test for medical negligence, the Court has also to take into consideration the following factors, which can be distilled from the above-cited case law: (1) Has the doctor acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art? (2) Whether the course the doctor adopted is one which no doctor of ordinary skill would have taken if he had been acting with ordinary care; (3) At which rung of the career ladder the doctor had reached at the time of the alleged incident; and (4) The circumstances with which he was faced at the material time. The case-in-hand: The Plaintiffs have averred at Paragraph 11 of the Proecipe that “the preposes/officers on duty at Dr Jeetoo Hospital at the material time have failed in their duty of care and attention and have acted negligently in the exercise of their functions and duties resulting in the death of their child.” As regards the particulars of how the préposés/officers have allegedly failed in their duty of care and attention, they replied in the Answer to Particulars that “The said officers have failed to attend to the baby immediately upon Plaintiffs’ arrival at 5.00p.m and have failed to give the baby immediate care and attention.” In relation to the question of how the préposés/officers have allegedly acted negligently, the Plaintiffs answered in their Answer to Second Demand of Further and Better Particulars that “Plaintiffs came into casualty at 7.00p.m and had to wait for more than 1hr 30min for a medical officer to look after the child when in fact a new born baby should have been given immediate treatment.” Therefore, the Plaintiffs’ case revolves around the alleged fact that their child was not given immediate treatment and this calls for an analysis of the facts relating to time. Thus, the time at which Plaintiff No.1 started to wait has to be ascertained first before determining the issue of negligence. The time at which Plaintiff No.1 started to wait: Plaintiff No.1’s version is to the effect that after he had phoned Dr. Lam Chong Wah at 18.00 hours, he reached Dr Jeetoo Hospital at about 18.15 hours and at about 20.30 hours, the baby was seen by Dr. Seetohul. He added that, in all, he waited for

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about one hour and thirty minutes. Now, his version is not convincing for the following reasons: (1) If he waited for one hour and thirty minutes, therefore, he turned up at the Casualty at 19.00 hours and if he had reached the hospital at around 18.15 hours, the Court finds it strange that he did not rush to the Casualty at once. This begs the question as to why he waited for about 45 minutes to proceed to the Casualty when he was fully aware that the baby was in a critical condition, as he stated in examination-in-chief. Hence, his version does not appear plausible. (2) He testified that when he reached Dr Jeetoo Hospital at about 18.15 hours, his baby was in a critical condition. But, in cross-examination, he contradicted himself by stating the contrary. (3) The Court finds it odd that although the Defendant no.1 was accompanied by relatives and if they reached the Casualty at about 19.00 hours, he did not consider to apply for a Casualty card until after having waited for a long stretch of time, that is, till 19.40 hours. (4) He testified that he reached Dr Jeetoo Hospital at about 18.15 hours. However, Dr. Lam Chong Wah stated throughout his evidence that it was at about 19.00 hours that Defendant No.1 called him and informed him that the baby was not normal. The span of time between 18.15 hours and 19.00 hours is certainly wide. Therefore, it is apparent from the testimony of Dr. Lam Chong Wah that Plaintiff No.1 has not told the truth about the time, which is of the essence to the Plaintiffs’ case. Therefore, Plaintiff No.1’s version is not credible. (5) According to his testimony, he reached the hospital within 15 minutes. Consequently, he must have arrived there at about 19.15 hours. He stated that from the time he entered the Casualty, he met with a doctor, who is presumably Dr. Mangoo, and who requested him to wait outside. Subsequently, he went in and out of the Casualty for about 6 to 7 times. Dr. Mangoo denied categorically that Plaintiff No.1 went to see him on various occasions before 20.30 hours. He explained that there is no way Plaintiff No.1 could have had contact with him. The Court had the opportunity to watch the demeanour of Dr. Mangoo and the Court wishes to point out that he was convincing. Thus, the Court does not believe Plaintiff No.1 and rejects his version to the effect that the latter met with Dr. Mangoo at the Casualty before 20.30 hours. Consequently, the time starts to run as from 19.40 hours, that is, at the time the casualty card was registered. From 19.40 hours to 20.30 hours of the 18 th of May 2010: Dr. Mangoo stated that nobody informed him there was a child waiting and it was an emergency case. Interestingly, the relevant extract of Doc S, which is a correspondence from Dr. D.A. Rajcoomar, Ag. Regional Health Director, to the Supervising Officer of the Ministry of Health & Q.L, pertaining to an enquiry conducted at the level of Dr Jeetoo Hospital in the present matter, is revealing:

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1. “The Casualty Card was registered at 19h40. 2. Our enquiry could not come to the conclusion as to why the child was not presented to the A & E doctor immediately after registration. 3. It is a common practice for any dire emergency to step inside in the A &E without a casualty card and is promptly attended by the doctor. Formalities follow later. 4. Had the child been in real distress, the parents should have immediately entered the consultation room or address to any staff at that time.” [Emphasis added] Furthermore, an excerpt of Doc T, which is a subsequent correspondence from Dr. D.A. Rajcoomar, includes the outcome of the enquiry, which raises serious concern as to the whereabouts of Plaintiff No.1 and the child at the material time, is also pertinent and it runs as follows: “In the Accident and Emergency Department of Dr. A. G. Jeetoo Hospital, all emergencies are attended to immediately. It is strange as to why Mr. R. Ragoobeer did not present to the Casualty Officer at 19h40 in spite of being put in the fast tract (sic). Conclusion 1. After registration of the Casualty Card, was Mr. Ragoobeer and the child still in the department till 20h15, to which Mr. Ragoobeer must reply in good faith. 2. Children are always given priority. 3. Why the attention of the Casualty Officer or any other staff was not drawn by Mr. Ragoobeer, if at all other patients after him were being attended by the Casualty Officer.” [Emphasis added] Dr. Bundhun stated that there was no emergency request made and yet it appears from the above document that from 19.40 hours to 20.30 hours, they, nevertheless, treated it as an emergency case. In addition, it is palpable from that conclusion that there is a big question mark as to the whereabouts of Mr. Ragoobeer and the child between 19.40 hours and 20.15 hours. As per Doc T, the matter has been left to Plaintiff No.1 to unravel this mystery. However, in view of the fact that the Court does not believe Plaintiff No.1, given that his version is in stark contradiction with not only that of Dr. Mangoo but also that of Dr. Lam Chong Wah as highlighted above, and taking into consideration the conclusion featuring in Doc T, there is no concrete evidence that Plaintiff No.1 and the child were waiting in the Casualty between 19.40 hours and 20.15 hours. Moreover, Dr. Mangar’s evidence has revealed to be instructive when he stated that the baby would have been fed 30 to 40 minutes before the death and there is the evidence of Plaintiff No.2 that she was waiting in the car. Therefore, Ms. Maherally’s submission that, most likely, the baby was being fed and it could not have been inside the Casualty from 19.40 hours cannot be said to be unreasonable. It would also provide an answer to the question raised in Doc T as to the whereabouts of Plaintiff No.1 and the child between the time of the registration of the Casualty Card and 20.15 hours.

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Thus, the Plaintiffs have not been able to prove on a balance of probabilities that the préposés/officers have either failed to attend to the baby immediately upon Plaintiffs’ arrival or failed to give the baby immediate care and attention between 19.40 hours and 20.30 hours. From 20.30 hours to 20.50 hours of the 18 th of May 2010: Dr. Mangoo stated that when he saw the baby at around 20.30 hours, in anticipation, it was an emergency case and he quickly referred the matter to Dr. Seetohul, who testified that when he saw the child, it was in a very poor condition. It is expedient to note that Dr. Seetohul made a preliminary diagnosis and took the necessary measures within the 20 minutes that were available to him, but unfortunately, in view of the dire condition the child was in at the time he saw it, there was not enough time for a confirmed diagnosis. Even an X-ray would not have been possible at that time as Dr. Seetohul lucidly explained that it was time consuming. He was presented with a child of very poor health condition and time was too scarce to even have a confirmed diagnosis. For instance, as explained by Dr. Mangar, in this particular case, where both lungs were imbibed with milk, both lungs would collapse and the patient would die immediately. It is plain from the evidence on record that at the moment the child was seen by the doctors, it was already too late to save it from death. Dr. Mangar pointed out that no expert, treatment or medical facilities could have helped in saving the life of the baby at that stage and, therefore, it transpires that even if the doctors at the hospital had ample time at their disposal, that would have been of no use at all. Clearly, neither Dr. Boolaky nor Dr. Seetohul can be blamed. Therefore, it is plain that from 20.30 hours, the baby was attended to immediately by the doctors and it was given immediate care and attention. The contention that the child did not benefit a treatment from an expert: Mr. Ramchurn contended that the child did not benefit a treatment from an expert, in that Dr. Seetohul did not call Dr. Mangar, the Consultant in charge, before 20.50 hours on that night. In that respect, Mr. Ramchurn resorted to Jurisclasseur Civil Code, Responsabilité médicale – Diagnostic anténatal, Art. 1382 à 1386, which reads as follows: “29 – Faute consistant à ne pas s’entourer de l’avis éclairé d’autres Médecins. – Face à un diagnostic difficile, le médecin a l’obligation de s’entourer de l’avis éclairé de confrères si possible spécialisés dans le domaine considéré… Le médecin qui ne consulte pas d’autres praticiens alors que les circonstances l’exigent, commet une faute de technique médicale susceptible d’être invoquée dans le cadre d’une action en responsabilité medicale.” [Emphasis added] In the present case, it is expedient to put matters into context and perspective. Dr. Seetohul explained that he did not call Dr. Mangar immediately, inasmuch as he had to attend to the patient first. This has been confirmed by Dr. Mangar, who stated that in an emergency, the doctor has to take the first steps of treatment before he sends the patient to a specialist. Undoubtedly, the prime concern of Dr. Seetohul to attend to the baby at the material time is quite justified. Indeed, during cross-examination,

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Dr. Mangar disagreed that Dr. Seetohul ought to have contacted him, as there was a time for assessment and he explained that only the diagnosis may take about ten minutes. Now, apart from the fact that Dr. Seetohul examined the child, sought its medical history, filled in the History and Continuation Sheet and made a clinical diagnosis, he set in train the first line treatment, bearing in mind that the baby was in a critical condition at that time, and caused the child to be admitted to the ward; he did all these within the time frame of twenty minutes. In addition, at the material time, his examination of the baby revealed jaundice and that was his clinical diagnosis and he requested for investigations to be made so as to confirm his preliminary diagnosis. At that point in time, it was neither a case of ‘diagnostic difficile’ nor where “les circonstances l’exigent”. Finally, it was not put to Dr. Seetohul, in cross- examination, that he was faced with a ‘diagnostic difficile’. Therefore, the above-cited extract from Jurisclasseur is irrelevant in this case. As a result, Dr. Seetohul cannot be taxed with not having called Dr. Mangar during those twenty minutes. The issue of wrong diagnosis: During the cross-examination of Dr. Mangoo, Learned counsel for the Plaintiffs raised the issue that a right diagnosis was not done of the child’s pathology. Dr. Mangoo had a presumptive diagnosis that it was a case of late onset septicaemia on the basis of the history of the child, that is, the father mentioned jaundice from 18.00 hours, the baby refused to be fed, it was a premature birth, the membrane was ruptured and there was a delay of 18 hours, the child was seen by a paediatrician for cough, had runny nose, breathlessness, it was already under treatment on antibiotic and it was not getting better. Indeed, Dr. Seetohul stated that one of the features that a patient who has contracted septicaemia manifests is jaundice. His preliminary diagnosis, also known as clinical diagnosis, was jaundice and measures were taken accordingly. In fact, Dr. Mangar, who was a Consultant-in-charge since 2005, testified that all the symptoms suggested a case of full blown septicaemia. At this juncture, the Court finds it apposite to refer to the case of H. Hoolash v The Government of Mauritius [1997 SCJ 155], where the Supreme Court quoted, in relation to the issue of wrong diagnosis, from Le Tourneau’s Responsabilité Civile 3rd Ed. at note 1399: “Lorsque le diagnostic a été effectué avec conscience et attention, l’erreur en ce domaine n’est pas fautive …” [Emphasis added] The Supreme Court, in that case, also resorted to Dalloz Encyclopédie Droit Civil Verbo Médecine at note 578: “l’erreur de diagnostic, en elle même, ne constitue pas une faute professionelle; elle constitue une telle faute que si elle résulte d’une méconnaissance, par le médecin, des données acquis de la science au moment où il agit.” [Emphasis added] Therefore, a wrong diagnosis does not amount to ‘faute’, unless there is a “méconnaissance par le médecin” (vide: Hoolash v The Government of Mauritius [1997 SCJ 155]). Indeed, in A. Ramcharan & Ors. v The State of Mauritius (supra), the Supreme Court had this to say:

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“However, not every medical mishap, mistake or wrong diagnosis by those health professionals will automatically result in a finding of negligence. In order to succeed in their claim, the plaintiffs will have to establish that the treatment which Mr. Persad was given by the team of health professionals at Victoria hospital fell below the standard of care expected of them.” [Emphasis added] In the present matter, Dr. Seetohul was a Generalist at the material time and he explained how he followed the protocol (an ‘accepted proper practice’) to the letter. The Court also bears in mind that he was facing an emergency case. He explained that there was a complaint of a yellow tinge of the baby’s skin since 18.00 hours and the examination of the patient revealed jaundice. These were, evidently and understandably, pointers to him for a clinical diagnosis of jaundice. It is plain, therefore, that he made the preliminary diagnosis ‘avec conscience et attention’ and there is no evidence on record of any “méconnaissance” by him. He did not adopt a course which no doctor of ordinary skill would have taken. Conspicuously, Dr. Seetohul did not deviate from his duty and the fact that he diagnosed jaundice instead of septicaemia did not fall below the standard of care expected of him. By the way, he stated that a case of septicaemia would require the same test as that of jaundice and there is no evidence on record to the contrary. Dr. Mangar confirmed that, in any event, the investigation by Dr. Seetohul is appropriate. Therefore, the Court finds that in view of the steps taken by Dr. Seetohul, as enumerated by him in the course of his testimony, he cannot be blamed for professional negligence. Furthermore, it has also not been established that Dr. Mangoo was imprudent. He made the correct diagnosis and took the necessary step by referring the child to Dr. Seetohul within few minutes. Thus, neither Dr. Mangoo nor Dr. Seetohul overstepped the mark. No sign of septicaemia at the time of the autopsy: Another issue which needs to be addressed is that Dr. Gungadeen testified that he did not note any septicaemia. However, Dr. Seetohul and Dr. Mangar have shed light on this aspect. Dr. Seetohul stated that whether septicaemia is visible after an autopsy depends on the time frame at which the blood culture was taken because the red blood cells have a lifetime whereby even after post-mortem findings, the micro organisms are not present and can be undetected. Dr. Mangar confirmed that Septicaemia is neither visible nor found upon an autopsy. That would explain as to why Dr. Gungadeen did not note any septicaemia at the time of the autopsy. Furthermore, it is noteworthy that there is no evidence adduced on behalf of the Plaintiffs to suggest that septicaemia should have been visible at the time of autopsy. In all, after having heard the evidence given by the doctors and taking into account the whole evidence on record, the Court does not find that Dr. Mangoo and Dr. Seetohul have “fallen below the standard of professional care and skill to be reasonably expected from ordinarily competent doctors.” Thus, they have neither failed in their duty of care and attention nor have acted negligently and/or imprudently in the exercise of their functions and duties.

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The issue of causation: Although negligence has not been established, given the particular facts of this case, the Court shall address the issue of causation for the sake of completeness: In Ungnoo & Anor v The State of Mauritius (supra), the Supreme Court remarked: “It is not sufficient to prove the existence of a negligent act or omission. It is necessary to prove that the negligent act and/or omission “est la cause déterminante du prejudice causé à autrui”.” According to the Medico-Legal Report (Doc N), the cause of death of the child is asphyxia due to aspiration of stomach contents. Dr. Lam Chong Wah explained that whether the child can be safe if treatment is given depends on how much has been inhaled and if it is only a small amount it can be treated, but if it is a large amount it is then difficult to treat. Dr. Seetohul pointed out that if a large amount of food has been aspirated, the outcome is death. Dr. Gungadeen testified that there was a large amount of curd in the baby’s lungs which means that the baby was fed with milk. He added that aspiration of stomach content, most of the time, is an accidental type of procedure which happens in small babies and it cannot be prevented. True it is that the cause of death of the child is asphyxia due to aspiration of stomach contents, but the underlying reason for the aspiration is septicaemia, as Dr. Mangar stated that in a case of septicaemia, the protective reflexes of the patient would be gone and aspiration is, therefore, possible. Dr. Seetohul testified that at the time he saw the baby, its reflexes were already poor and the central nervous system examination revealed that the patient was not active, sluggish and lethargic. As alluded to by Dr. Mangar, the baby was fed with milk before it was seen by Dr. Mangoo and Dr. Seetohul. He added that the condition of the baby was such that it was prone to aspirate. Therefore, it becomes abundantly clear that it is the septicaemia which led the protective reflexes of the baby to disappear and this made the latter quite vulnerable as aspiration was predisposed and almost inevitable, especially when taking into account that it was fed before it was seen by Dr. Mangoo and Dr. Seetohul; otherwise there would not have been a large amount of curd in its lungs. Also of note is the evidence given by Dr. Gungadeen to the effect that one has to burp a child to drive away the gas and air which is found in the stomach in order to let food particles go inside the stomach. In this case, it is clear from the testimony of Dr. Mangar that the child was fed before it was seen by Dr. Mangoo and, therefore, this prompts the question as to whether or not the baby was burped and, if in the affirmative, whether this was done properly. It is also noteworthy that Dr. Mangar did not agree to the fact that because the doctors did not attend to the baby between 19.40 hours and 20.30 hours, this caused the death of the baby. He explained, quite plausibly, that the prematurity at birth and the failure to progress indicate that septicaemia had time to develop and become overt at that stage, and the fact that the baby was lethargic, this means that it had reached a very severe condition. The child was brought too late to the hospital. True it is that the baby was normal when it was born, but Dr. Mangar explained that when

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bacteria enters the body of the baby, nothing wrong is apparent. His concern is that the child was discharged before 72 hours and whether there had been onset septicaemia was not investigated, despite the fact that there were two risk factors of septicaemia. He pointed out that the test of C- reactive protein at the interval of 24 hours after the first 12 hours of birth has not been carried out. Therefore, what has emerged from his evidence is that if such test was carried out at the relevant time, the septicaemia could have been diagnosed at an early stage and treated accordingly. In addition, he emphasized that the baby came to the hospital with overt septicaemia and whether the baby is treated one day before or one day after is immaterial. In other words, the child came in at a stage where its life cannot be saved; the baby was already in a dying state and any treatment would have been stultified. Hence, the alleged delay in attending to the child and giving immediate treatment to the baby fades into irrelevance, in view of the enlightening and plausible explanation given by Dr. Mangar, in that the child would have passed away in any event. Thus, the child did not pass away in consequence of any negligence on the part of the Defendants’ préposés.

CONCLUSION: In light of the above observations, the Plaintiffs have failed to prove any negligence and/or imprudence or any ‘faute’ on the part of the Defendant No.1’s préposés (and equally the Defendant No.2’s servants/employees/agents) and they have also failed to establish that they lost their child as a result of any negligence and/or imprudence of Defendant No.1’s préposés (and equally the Defendant No.2’s servants/employees/agents). In the circumstances, they have failed to establish their case against the Defendants on the balance of probabilities. The Court, accordingly, dismisses the present Plaint with costs.

Mr. P. SEWPAL Ag. Vice-President Intermediate Court Date: 06/03/2020