republic of trinidad and tobago in the high court of...

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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

Claim No. CV2012-05158

BETWEEN

LISA ANN MC KENZIE Claimants

(Executrix and Personal Representative of the Estate

of Ricardo Mc Kenzie, Deceased)

ORNELLA MC KENZIE

DANIELLA MC KENZIE

(a Minor suing by Lisa McKenzie, her mother and next friend)

AND

MEDCORP LIMITED

CANCER CENTRE OF THE CARRIBBEAN LIMITED Defendants

BEFORE THE HONOURABLE MADAM JUSTICE DEAN-ARMORER

APPEARANCES

Mr. Terrance Bharath and Mr. Andre Justin Le Blanc, Attorneys-at-Law for the Claimant

Mrs. Lydia Mendonca, Mr. Ravindra Nanga and Mr. Neal Bisnath Attorneys-at-Law for the

Defendants

JUDGMENT

Introduction

1. In these proceedings, the widow and orphans of the late Ricardo McKenzie seek

compensation for his untimely death. They allege that his demise was precipitated by the

negligence of the Defendants in their failure to ensure the proper functioning of the Varian

Clinac IX Linear Accelerator, the radiation machine, by which he was treated.

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2. In the course of this judgment, I have considered the law relating to medical negligence, as

well as the principles, which govern causation in such cases.

Facts

3. Ricardo McKenzie was born on the 30th December, 1954. He was married to Lisa Ann

McKenzie, who is the First Claimant in these proceedings. Together, they had two daughters,

Ornella and Daniella1. Mr. McKenzie died on the 21st December, 2010. At the time of his

death, Mr. McKenzie was 55 years of age.

4. During his lifetime, Mr. McKenzie was a joint owner of Smokey and Bunty’s Sports Bar,

which was a thriving, popular bar in the bustling city of St. James. Mr. McKenzie led a very

active social life. The popularity and prosperity of the bar developed and grew over a period

of thirty years. Mr. McKenzie worked hard and by his magnetic personality, attracted many

clients. He conducted promotion programs and opened the bar for twenty-four (24) hour

periods during the busy carnival season. The bar was visited by former Prime Ministers and

Presidents.

5. It was in the year 2009, that Mr. McKenzie began to suffer with headaches, seizures and

vomiting. He visited Dr. Robert Ramcharan, a neurosurgeon whose office is located at St.

Clair Medical Centre, St. Clair. It is undisputed that Dr. Ramcharan recommended that

McKenzie should have a MRI Scan and that a CT Scan be performed on his brain.

6. On or around the 24th August, 2009, Mc Kenzie had the MRI done at the MRI Centre of

Trinidad and Tobago Limited, which is another arm of the Second Defendant, the Cancer

Centre of the Caribbean Limited. The MRI report, which was digitally signed by Dr. Alan

Thomas, stated that a necrotic lesion was found in the right superior parietal lobule and

1 Ornella and Daniella are the 2nd and 3rd Claimants herein.

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measured 4.9 x 3.1 x 3.7 cm. The report also stated that the lesion was caused by the presence

of a high grade glioma2.

7. On the following day, the 25th August, 2009, Mr. McKenzie underwent an initial resection

of the tumour at the West Shore Private Hospital, West Moorings. This procedure was

performed by Dr. Ramcharan who removed from Mr. McKenzie, a right parietal lobe intra

axial brain tumour.

8. Pursuant to recommendations made by Dr. Ramcharan, a CT Scan was performed on Mr.

Mc Kenzie on the 26th August, 2009.

9. Thereafter, a histological appraisal was performed on the mass that was resected from Mr.

McKenzie and a report was prepared by Dr. Chunilal Ramjit at the Diagnostic Histology

Services, Petit Bourg, San Juan. In his report, Dr. Ramjit observed that proper histological

appraisal was severely compromised because of “sub-optimal specimen fixation”.

Nonetheless, he concluded that Mr. McKenzie had a diffuse astrocytoma Grade II.3

10. Based on Dr. Ramcharan’s recommendations, Mr. McKenzie consulted with Dr. Anesa

Ahamad, radiation oncologist, who was then attached to the Brian Lara Cancer Treatment

Center (BLCTC), concerning his radiation treatment. Dr. Ahamad prescribed treatment of

60 Grays (Gy) of radiation in 30 doses at 2 Gy per dose4. Mr. McKenzie received radiation

between the 22nd September, 2009 and the 3rd November, 20095.

11. Mr. McKenzie had received radiation treatment and was billed by invoice dated the 11th

September, 2009, for the sum of $137,677.50. This invoice was later paid to the First

Defendant, Medcorp Ltd. prior to 22nd September, 2009.

2 See paragraph 12 the witness statement of Lisa Ann McKenzie filed on the 29th February, 2016 3 The report of Dr. Ramjit was exhibited to the witness statement of Lisa Ann McKenzie and marked “L.A.M.6” 4 See paragraph 8 of the Witness Statement of Dr. Anesa Ahamad 5 See paragraph 19 of the Witness Statement of Lisa Ann McKenzie filed on the 29th February, 2016

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12. Mr. McKenzie underwent External Beam Radiation Therapy at the BLCTC, during the

period 22nd September, 2009 to the 3rd November, 2009.6 The radiation therapy was done

under the care of Dr. Anesa Ahamad, Dr. Sandra Camps, Dr. Narinesingh and Dr. Kavi

Calpideo. It was the unchallenged evidence of Dr. Ahamad, that in her discussions with Drs.

Ramcharan, Capildeo and Ramjit, all doctors concurred that Mr. McKenzie was suffering

with a high grade brain glioma, which could have been either an anaplastic astrocytoma or

glioblastoma multiforme7. Mr. McKenzie also received chemotherapy treatment under the

care of Dr. Ahamad and Dr. Camps.

13. On the recommendation of Dr. Ahamad, another MRI was done on the 16th December, 2009

at the MRI Center. A copy of the digitally signed report by Dr. Allan Thomas, found that:

“Features are consistent with partial response to chemotherapy and radiation…”8

14. Following his surgery and treatment, Mr. McKenzie recovered well and was able to resume

his normal activities. However, in April, 2010, Mr. McKenzie became ill again. He

collapsed and experienced seizures, and thereafter was unable to move around and

complained of severe headaches.

15. Thus in May, 2010, Mr. McKenzie returned to Dr. Ramcharan. On or about the 10th May,

2010, McKenzie submitted to another MRI Scan for which the report was again signed by

Dr. Allan Thomas. Dr. Thomas wrote this in his report:

“Unfortunately there appears to be evidence of likely recurrent disease at the resection

site…suggestive of necrotic tumour…[A]ppearance can also be consistent with radiation

necrosis.”9

6 See paragraph 19 of the witness statement of Lisa Ann McKenzie filed on the 29th February, 2016 7 See paragraph 7 of the Witness Statement of Anesa Ahamad dated 29th January, 2016 8 Exhibit “L.A.M. 4” annexed to the witness statement of Lisa Ann McKenzie filed on the 29th February, 2016 9 See “L.A.M 9”

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16. Following a visit to Dr. Kavi Capildeo, Medical Oncologist, Mr. and Mrs. McKenzie again

had recourse to Dr. Ramcharan in June, 2010. As a result, surgical decompression was

performed on Mr. McKenzie at the Westshore Hospital by Dr. Ramcharan who prepared a

report dated the 29th June, 201010. Dr. Ramcharan noted that Mr. McKenzie did well post-

operatively, but developed symptoms of left sided hemiparesis and worsening gait. Dr.

Ramcharan made reference to the MRI report and indicated that surgical decompression had

been done on the 10th June, 2010, and that the biopsy showed extensive radiation necrosis as

well Grade III astrocytoma. Dr. Ramcharan penned this report concerning Mr. McKenzie:

“ …He did an MRI scan in May, 2010, which showed recurrence of the lesion right

under the bone flap with a differential of possible radio necrosis or recurrent tumor.

There was obviously an increase in the size of the tumor from the surveillance MRI

scan which was done in February, 2010. He was initially scheduled for a PET scan

but however his symptoms of mass effect and localized symptoms became worse.

Surgical decompression was once again done on June 10, 2010, and a good resection

was done to normal brain and the biopsy showed both extensive radionecrosis as

well as a Grade 3 astrocytoma which was consistent with the previous lesion.

Postoperatively he has improved clinically”.11

17. A report was also prepared and issued by the Diagnostic Histology Services, which was

dated the 24th June, 2010. The report stated:

“…

Nature of Specimen: Recurrent brain tumour [sic]

Cross Appearances:

10 Exhibited as “L.A.M.10” 11 See “L.A.M. 10”

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1) Specimen consists of a 5x2x2 cm portion of rubbery tan tissue A/E (6)

in 3 caps

2) Specimen consists of 4ml of friable tan tissue A/E in 1 caps

Histology

Both biopsies have been embedded in toto and sections show extensive necrosis,

calcific degeneration as well as radiation-induced changes. Also noted are foci of

a Grade III astrocytoma with similar features to those displayed by the previous

lesion”12

It is to be noted that by June, 2010 both Dr. Ramcharan and histopathologist, Dr. Ramjit

expressed the view that Mr. McKenzie was suffering with a Grade III astrocytoma.

18. Both Dr. Capildeo and Dr. Ramcharan advised Mr. McKenzie to seek urgent medical

attention at the Jackson Memorial Hospital in Miami, Florida. On the 28th July, 2010, the

McKenzies met with Dr. Deborah Heros who was an Associate Professor of Neurology and

a specialist in Neuro-Oncology, assigned to the Jackson Memorial Hospital. Dr. Heros

referred Mr. McKenzie to another specialist, Dr. Roberto Heros, who was the Co-Chairman

and Program Director at the Department of Neurological Surgery, Miller School of

Medicine, Miami.

19. Dr. Roberto Heros advised that Mr. McKenzie should undergo immediate surgery. As such,

Mr. McKenzie was admitted to the Jackson Memorial Hospital on the said 28th July, 2010,

and underwent surgery on the following day, 29th July, 2010.

12 See “L.A.M.11”

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20. At the Jackson Memorial Hospital, Mr. McKenzie underwent five surgeries the first of which

was performed on the 29th July, 201013, and then on 20th August, 201014, 14th September,

201015, 7th October, 201016 and the 8th December, 201017. Professor Heros has produced

post-operative reports in respect of each surgery.

21. In each post-operative report there was a finding of necrotic brain tissue. In the Report

relating to the 29th July 2010 surgery, one finds this observation under the heading

“ Operative Procedure in Detail”:

“We identified an area of necrotic brain in the post parietal area and then we

traced the site of necrosis to the deep white matter thereby identifying an early

abscess…”18

22. In the report, in respect of surgery performed on the 20th August, 2010, the heading

“Indication for Procedure” includes this comment:

“the patient is a 55 year old gentleman who presents with increasing headaches

and left sided weakness following a recent craniotomy for brain edema and a lesion

consistent with either abscess or radiation necrosis”19

22. In the post-operative report for the surgical procedure on 8th December, 2010, the section

entitled a “Brief History” made reference to surgeries performed at the Jackson Memorial

Hospital. Dr. Heros verified the report and stated:

13 Post-operative report in relation to surgery on the 29th July, 2010 exhibited as “R.H.3” to the Witness Statement of Dr. Roberto Heros 14 Post-operative report in respect to surgery on the 20th August, 2010 exhibited as “R.H.4” to the Witness Statement of Dr. Roberto Heros 15 Post-operative report in relation to surgery on the 14th September, 2010 exhibited as “R.H.5” to to the Witness Statement of Dr. Roberto Heros 16 Post-operative report in relation to surgery on the 7th October, 2010 exhibited as “R.H.5” to to the Witness Statement of Dr. Roberto Heros 17 Post-operative report in relation to surgery on the 8th December, 2010 exhibited as “R.H.6” to to the Witness Statement of Dr. Roberto Heros 18 See exhibit “R.H. 3” to the witness stated of Dr. Roberto Heros. 19 Exhibited as “R.H.4”

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“He (Mr. McKenzie) had radiation necrosis in his right side of brain secondary to

glioma and have operated 4 times twice for radiation necrosis and twice for

subsequent infection…”20

23. Following the demise of Mr. McKenzie, Dr. Heros prepared a report dated 10th February

2011. In his report, Dr. Heros set out Mr. McKenzie’s surgical history. In his last paragraph,

Dr. Heros expressed this view:

“It is my firm opinion that Mr. McKenzie was suffering from severe and recalcitrant

radiation necrosis to the brain….What I can say for certainty is that this is the worst

case of radiation necrosis I have ever encountered. There is no question that his

radiation necrosis led to his death”21

It is to be noted that Dr. Heros was rigorously cross-examined as to his qualification to

make a comment of this kind. The cross-examination will be considered later in this

judgment.

24. Mr. McKenzie’s health continued to deteriorate after the second surgery in June 2010. He

experienced headaches, pain and was unable to walk, unable to eat solid foods and suffered

periodic seizures. Immediately before his death, Mr. McKenzie fell in and out of

consciousness and days prior to his death, Mr. McKenzie bled out of his ears, eyes, and nose.

Unfortunately, his daughter Ornella, witnessed her father’s ordeal.

25. Mr. McKenzie passed away on the 21st December, 2010. The death certificate of the

deceased was issued by the Florida Department of Health. The immediate cause of death

was cited as respiratory arrest and the underlying cause as “Anaplastic astrocytoma with

cerebal edema.”22

20 See exhibit “R.H.6” to the witness statement of Dr. Roberto Heros 21 See exhibit “R.H.8” to the witness statement of Dr. Roberto Heros 22 See death certificate annexed as “L.A.M 12” to the witness statement of Lisa Ann McKenzie filed on the 29th February, 2016

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26. In September, 2010, Mrs. McKenzie had informed the BLCTC that Mr. McKenzie was being

treated for effects which he suffered from an over-dose radiation at the BLCTC and Mr.

McKenzie requested financial assistance. By letter dated the 23rd November, 2010, the

Chairman of BLCTC, Dr. Dinesh Mor, wrote to Mrs. McKenzie stating that the Board of

Directors sympathised and empathised with the her, and offered USD$10,000.00 to assist

with Mr. McKenzie’s treatment. However, Dr. Mor made it clear that the BLCTC did not

accept liability for the description of Mr. McKenzie’s condition.23

27. It was undisputed, in these proceedings, that between April, 2009 and 2010, the BLCTC’s

machine had been under the care of a junior physicist and that because of miscalibration of

the machine, patients received higher doses of radiation than prescribed by their radiation

oncologists24.

28. Under cross-examination, Dr. Bovell admitted that the radiation machine was dangerous in

the hands of someone who was not qualified to operate it. Dr. Bovell agreed as well that the

machine ought not to be used while exceeding a 3% margin of error.

29. Dr. Bovell agreed also that there was a need for the machine to be checked by a qualified

physicist and that at the material time calibriation checks were performed by a junior

physicist. Dr. Bovell indicated that had he been director at the material time, he would not

have permitted a junior physicist to calibrate the machine.

30. The fact of miscalibration was not only admitted in these proceedings25, but was the subject

of a public apology by the BLCTC. The apology was published on social media. No date is

discernible on the extract which was exhibited as “L.A.M.15”. However, the BLCTC

expressed its regret that some of its patients “may have received a maximum of 13.9% more

23 Exhibited as “L.A.M. 13” to the witness statement of Lisa Ann McKenzie filed on the 29th February, 2016 24 See the Witness Statement of Damian Rudder. See too the Witness Statement of Anesa Ahamad 25 See the Amended Defence filed on the 17th July, 2013 at paragraph 48.

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than the prescribed dose of radiation.” In the release, the BLCTC said that they were

thankful that the miscalibration of their machine had not been harmful to patients and that

they were pleased that all of their patients continue not to show side effects.

31. The accuracy of the apology was called into question during the cross-examination of Dr.

Peter Bovell, who admitted that it was not accurate that all patients had been reviewed, since

Mr. McKenzie had not been reviewed. Moreover, there was an unnamed patient, who had

commenced proceedings against the BLCTC and whose claim was still pending.

Quality Assurance Policy

32. Mr. Damian Rudder, who signed a witness statement in support of the Claim, had been

employed by the BLCTC August 2006 and May 200826. He referred to a Quality Assurance

Policy which he had written in 2006, while he had been employed with the BLCTC.

33. Mr. Rudder, a Medical Physicist, did not attend the trial for cross-examination. In September,

2017, the Claimants filed a Hearsay Notice and provided, as a reason for Mr. Rudder’s non-

attendance, his inability to travel from St. Thomas, whose international airport had been

indefinitely shut down because of a category 5 hurricane. Accordingly, the weight to be

placed on Mr. Rudder’s evidence is a matter for the Court.27

34. The Quality Assurance Policy, had been approved by Dr. Anesa Ahamad. The terms of the

Quality Assurance Policy, which have not been contradicted by any witness for the

Defendant, require that the Linear Accelerator be calibrated annually. The terms of the

Quality Assurance Policy are set out below:

26 See paragraph 5 of the witness statement of Damian Rudder. 27 See Section 40(4) Evidence Act Ch 7:02 and Phipson on Evidence 17th Edition para 29-06

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“General:

Annual calibration of all linear accelerators shall be performed to ensure that the

operation characteristics that affect the radiation output of the linac and radiation

delivered to the patient demonstrate an acceptable degree of consistency, the limits

of which are outlined in this document. These checks shall include all of the daily,

weekly and monthly checks in addition to a representative suubset of measurements

done during initial commissioning of the linear accelerator.

Schedule:

Measurements shall be performed once every year at a date not later than 1 year

after the last annual calibration. The first annual calibration will become due on

the anniversary of the commissioning of the new linear accelerators.

A subset of these annual checks must be performed after any major changes/ service

of the linear accelerator wave-guide and/or x-ray production system. The extent of

the checks in such circumstances will be recommended by the senior physicist upon

consultation with the maintenance engineer.

Responsibilities

For the department, the qualified expert the check outline in this policy is hereby

identified as a radiation oncology physicist (hereafter called physicist). Only he or

she shall perform these measurements.

Records:

A comprehensive report of the results must be written by the physicist and filed for

review within the department. Any changes in the dosimetric characteristics of the

accelerator outside of the acceptable limits would necessitate production of new

dosimetry tables and re-commissioning of the treatment planning system for

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clinical use. The department shall maintain copies of these records for at least 5

years after the date of completion of the checks and/or corrective actions.

Compliance and Corrective Actions

“Should any of the measurements be out of compliance with the established range

of acceptability, the physicist shall take the necessary corrective action(s). Should

he/she be unable to correct the situation, the relevant field service engineers shall

notified [sic]. In the effect that the out-of-compliance cannot be corrected

immediately, the physicist will determine the effect on the dosimetry and what, if

any, adjustments should be make in the interim.

Equipment

Linac output measurements shall be made with an electrometer/ion chamber system

that has been calibrated within the last two (2) years. Quality Assurance checks on

other devices used in performing spot checks should have been done within the last

two years.”28

35. It was Mr. Rudder’s evidence that he had calibrated the machine in May, 2008, prior to his

departure from the BLCTC. He testified further, that in the year 2010, he was contacted by

Mr. Guy Alain Tenefo, Chief Executive Officer of the First Defendant, who asked for the

services of Mr. Rudder in calibrating the radiation machine. Mr. Rudder stated that Mr.

Tenefo told him that there was no calibration since the year 2008. Mr. Rudder testified

further that while performing the calibration, he became aware of miscalibration to the extent

of 19%.

36. I have carefully considered the evidence of Mr. Rudder, in respect of the alleged failure of

the Defendants to calibrate the radiation machine between 2008 and 2010. This evidence

28 See “D.R.3” exhibited to the witness statement of Damian Rudder

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depends on Mr. Rudder’s report of what was told to him by Mr. Tenefo, who had not been

called to testify in these proceedings. To accept Mr. Tenefo’s statement to Mr. Rudder, for

the truth of its contents, would be to accept inadmissible hearsay. This is all the more

dangerous since Mr. Rudder, through no fault of the Claimants, was unable to attend for

cross-examination. Accordingly, while I accept that Mr. Rudder performed the calibration

exercise in 2010, I find myself unable to accept that there was no annual calibration between

2008 and 2010.

37. Mr. Rudder has also testified that while performing the annual calibration in 2010, he

discovered that the machine had been miscalibrated up to 19%. Mr. Rudder testified as to

miscalibration in April/May, 2009 and from June, 2009 to June, 201029. In support, Mr.

Rudder relied on a calibration output table prepared by Amanda Moses, a Junior Physicist,

who was then employed by the BLCTC.

38. I have carefully considered this evidence. While admitting to over-calibration up to 13%, the

Defendants have strenuously denied that over-calibration was to the extent of 19%. Mr.

Rudder was not cross examined and the Defendants have not had any opportunity to put their

case to him and in my view, it would be dangerous for the Court to accept such highly

contentious evidence.

Expert Witnesses

Dr. Mudhou Joe Ma

39. Dr. Joe Ma was called by the Defendants as an expert witness who had no contact with the

deceased. He testified as a neuropathologist30. He analysed slides which had been forwarded

to him by attorney-at-law Mr. Samson Wong on 17th April, 2016.

29 See paragraph 21 of the witness statement of Mr. Damian Rudder 30 See expert report of Dr. Joe Ma dated 23rd April, 2016.

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40. It was his evidence that the slides were compromised and that he duplicated them. It was his

view that the Deceased had a Grade IV glioblastoma.

41. Dr. Joe Ma indicated had been told that the specimen had been placed on slides 3 days after

removal. He was unable to say where they were stored for 7-8 years.

42. Dr. Joe Ma was questioned about the report of pathologist, Dr. Chunilal Ramjit, who had

said that the histological appraisal was compromised by widespread necrosis and that the

deceased was suffering from a “diffuse astrocytoma Grade II”.31

43. Dr. Joe Ma failed, as an expert to set out his qualifications and experience. He also agreed

that he had analyzed slides that had been duplicated from severely compromised slides which

had been prepared several years before.

Dr. Khalil Sultanem

44. Dr. Sultanem told the Court that he was a senior radiation oncologist. When Dr. Sultanem

gave evidence he was stationed at the Jewish Hospital, Montreal, Canada which is an

academic institution affiliated with McGill University.

45. It was Dr. Sultanem’s opinion that Mr. McKenzie’s diagnosis was of high grade glioma,

either Anaplastic Astrocytoma or Glioblastome Multiforme32.

46. It is to be noted that this accorded with the view of Dr. Ahamad.33 Dr. Sultanem stated that

there can be pathological misdiagnosis of the grade of the brain tumour, and in that regard

he relied on Coons Report.

47. It was his testimony that he understood that a pathologist relies on certain criteria to define

the grade of the cancer including the presence or lack of presence of necrosis, the structure

31 See exhibit “L.A.M.6”to the witness statement of Lisa Ann McKenzie 32 See expert evidence of Dr. Khalil Sultanem at page 3 33 See the Witness Statement of Dr. Anesa Ahmad at paragraph 7.

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of cells to name a few. Dr. Sultanem went on to say that different pathologists can interpret

them differently34. Dr. Sultanem testified that:

“two pathologists can look at the same slide of cancer and give different criteria,

hence giving a different grade, and that grade will have an impact on what

prognosis can be given to that specific case”.35

48. Dr. Sultanem testified that the Anaplastic Astrocytoma is an aggressive form of high grade

glioma and that patients diagnosed with anaplastic astrocytoma survive for a limited period

of time; less than three years, despite having the best medical care. Based on the “Glioma

Meta Analysis Trialists (GMT Group)” review, at one year, 40% of patients succumbed to

the disease and at 2 years, 70% patients also succumbed to the disease.

49. Dr. Sultanem admitted that the treatment administered to Mr. McKenzie was quite

acceptable and was also considered a standard that was internationally acceptable. He further

admitted that that the radiation plan, dose and fractionation were compatible with the best

care practice.

50. It was also Dr. Sultanem’s evidence that high grade gliomas are rarely curable and further

agreed that scientific studies on the behaviour of tumours, include looking at a number of

different factors to determine how the tumour will behave36. Dr. Sultanem also testified that

based on the data available to him concerning Mr. McKenzie’s condition, that is the

radiology and the basic pathology, the reports are indicative a higher-grade glioma. 37

51. Dr. Sultanem also testified that the timeframe between Mr. Mc Kenzie’s diagnosis, surgery,

radiation, chemotherapy and recurrence of the disease and death, was compatible with the

natural history of anaplastic astrocytoma.

34 See page 78 of the Transcript of the trial heard on the 29th September, 2017. 35 See page 79 of the Transcript of the trial heard on the 29th September, 2017 36 See pages 81-82 of the Transcript of the trial heard on the 29th September, 2017 37 See pages 83 of the Transcript of the trial heard on the 29th September, 2017

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52. Dr. Sultanem further testified that the amount of necrosis found in Mr. McKenzie in 2010

was abnormal even when taking into the account the miscalibration of the machine. Dr.

Sultanem referred to a case of Chan et al, where radiation therapists purposefully increased

a dosage to 30% for a patient, but that patient did not suffer the extent of radiation necrosis

as seen in Mr. McKenzie38.

53. Moreover, it was Dr. Sultanem’s view that the necrosis found in Mr. McKenzie’s brain had

many other causes than radiation. Necrosis was potentially due to the infection and abscess

documented in the surgical reports from Jackson Memorial Hospital, as well as the multiple

surgical interventions39.

54. Dr. Sultanem further testified that necrosis relating to radiation is an inherent and

unavoidable risk and that it can be seen with doses as low as 50 Grays (Gy) However, Dr.

Sultanem also established that it is known that higher dosages of radiation results in

an increased risk of necrosis (my emphasis). In that regard he cited Brandsma et al

wherein Brandsma produced a formula for determining the impact of excess radiation.

According to that formula, Dr. Sultanem testified that based on the dose given to Mr.

McKenzie and converting it to a 2Gy per fraction equivalent dose and extrapolating from

the histogram provided by the data from Brandsma, it is possible to estimate the increased

risk of radio-necrosis incurred by the overdose. Using an over dosage percentage of 13.9%

and based on the calculations explained above, Dr. Sultanem estimated the overdose of

radiation increased the risk of necrosis from 5% to 10-15%. Dr. Sultanem also noted that if

the overdose was 19% as stated in the Claim, the risk would increase from 5% to 30%.

38 See expert evidence of Dr. Khalil Sultanem at page 4 39 See expert evidence of Dr. Khalil Sultanem at page 4

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55. In his expert report, Dr. Sultanem expressed his view that there were many factors which led

to Mr. McKenzie’s death, including the disease itself, the inherent risk of radiation, the

infection and abscess formation and the surgical interventions over a short period of time.

56. However, Dr. Sultanem maintained that he did not agree that the deceased died of radiation

necrosis. It was his view that no medical expert can give a definitive time period (in terms

of life expectancy) as their findings are based on probability.

57. Under cross-examination Dr. Sultanem agreed that after the 10th June, 2010, no report

showed tumour regrowth.40 He agreed as well that after the first surgery Mr. McKenzie

returned to normal activities.

58. Dr. Sultanem was questioned as to his evidence concerning a study of 34 patients who were

exposed to 90 Gy of radiation. He was confronted with the view of Dr. Anesa Ahamad, who

had expressed the opinion that the study was limited in terms of the number of subjects, and

that there was inadequate detail.

59. Dr. Sultanem was questioned as to the life expectancy of patients with high grade gliomas.

He agreed that there was a 10% chance of survival up to 5 years.

60. Dr. Sultanem was shown the pathology report of Jacksonville Memorial and stated that he

would not challenge their finding that radiation necrosis was the final diagnosis. See

“R.H.8”.

Dr. Phillip St. Louis

61. Dr. St Louis is a neurosurgeon who practices both in Florida and in Trinidad and Tobago.

He is certified by the American Board of Medical Examiners, American Board of

Neurological Surgeons and the American College of Surgeons.

40 See page 86 of the Transcript of the trial heard on the 29th September, 2017

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62. Dr. St Louis, gave an expert report on Mr. McKenzie’s condition and eventual death. It was

his view, based on the findings that the patient suffered from a Grade IV glioblastoma from

the initial onset of his symptoms.

63. Dr. St Louis reported that it was only after Mr. McKenzie’s second surgery, which was done

some ten months later, did the MRI show some signs of necrosis. The MRI was indicative

of recurrent tumour with necrosis but the possibility of radiation necrosis could not be ruled

out.

64. It was this doctor’s view that at that, juncture of the second surgery, the finding of necrosis

was controversial, and further, that if the necrosis related to a recurrent tumour, the diagnosis

would be compatible with a Grade IV Glioblastoma.

65. Dr. St. Louis stated that having taken into consideration the finding of viable tumour on the

biopsy specimen, he would conclude that Mr. McKenzie did have a recurrence of a Grade

IV Glioblastoma in addition to radiation induced changes.

66. Dr. St. Louis emphasised that the prognosis for patients with Grade IV Glioblastoma, is

related to a number of factors. Patients who undergo complete surgical resection followed

by chemotherapy have a survival time of 14.6 months and a 27% chance of surviving for 2

years. On the other hand, those who undergo only biopsy or subtotal surgical resection are

reported to have survival period of 8.8 months.

67. Dr. St Louis also informed the court that the prognosis of a patient who later suffers fungal

brain abscess, as Mr. McKenzie suffered, is extremely poor. He stated that it was reasonable

to assume that this additional complication may have contributed to the life expectancy of

Mr. McKenzie.

68. Dr. St Louis testified that Mr. McKenzie received appropriate treatment.

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69. Dr. St Louis indicated that the problems relating to wound healing and consequent CSF

drainage may have been related to the dose of radiation and that those wounds are very

difficult to heal.

70. Dr. St Louis advised the Court that persons who receive doses of 50, 55 or 60 Gy had median

survival times of 28, 36 and 42 weeks respectively, as opposed to those who received 45 Gy

or less than 45 Gy who survived 18 and 13.5 weeks respectively. It followed then that those

who received 60 Gy resulted in significantly prolonged survival compared to those who

received 50 Gy. Dr. St Louis asserted that 80% of treatment failures are due to tumour

recurrence within the field of high dose radiation.

71. Dr. St Louis further disclosed that recurrence of the disease in May 2010, was not at all

unusual or uncommon in the management of high grade gliomas and is expected in Grade

IV glioblastomas.

72. On the issue of whether the amount of radiation necrosis found in Mr. McKenzie was

abnormal, Dr. Louis advised that little is known about the incidence of radiation necrosis

after radiation therapy for gliomas. He went on to cite Ruben et al, a study in which only

4% of 426 patients suffered radiation necrosis after having received radiation therapy.

73. Moreover, Dr. St Louis professed that the aggressiveness of the disease warrants treatment

to a higher total dose and the associated small risk of radio-necrosis.

74. Dr. St. Louis also opined that given the finding of necrosis within 6 months of radiation

therapy and adjuvant chemotherapy, the initial finding of necrosis is consistent with

pseudoprogression as opposed to radiation induced necrosis.

75. Dr. St Louis holds the view that there is little doubt that Mr. McKenzie had a Grade IV

Glioblastoma with a poor prognosis. He also holds the view that Mr. McKenzie died from a

brain tumour complication by the occurrence of a brain abscess.

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76. Dr. St. Louis also testified that patients with a Grade IV Glioblastoma has a survival time of

one year and given the finding of necrosis in the pathology specimen reports on Mr.

McKenzie and as reported initially, one can assume that he had a Grade IV Glioblastoma

which placed him at a one year survival rate.

77. With regard to the cause of death on the certificate issued by the state of Florida, which states

that the deceased died from anaplastic astrocytoma, Dr. St. Louis strongly held the view that

Mr. McKenzie suffered from a Grade IV Glioblastoma and not an anaplastic astrocytoma.

78. Dr. St Louis further testified he was uncertain that a definitive statement regarding radiation

necrosis leading to the death of Mr. McKenzie could be supported and concluded that while

Mr. McKenzie received more radiation than his treatment plan, the effect upon his tumour

is somewhat controversial.

79. Under cross-examination, Dr. St. Louis was questioned as to his competence as a neuro-

surgeon. He admitted that he had not been successful in applying for a job with Florida

Medical Group and explained his failure on the ground of race. Dr. St. Louis admitted that

he was the surgeon who sliced the wrong side of a patient’s head. He admitted that a lawsuit

was filed against him and that the claim was settled for $500,000.00. Dr. St Louis also

admitted that a lawsuit had been filed against him in respect of a Mr. Anderson, who died

under his care.

80. Dr. St. Louis was questioned as to an article which he claimed that he had written. He agreed

that he had not produced the article.

81. Dr. St. Louis was questioned as to an alternative method of assessing tumours by looking

for the presence of a wild gene. Dr. St. Louis admitted that there was no genetic testing of

Mr. McKenzie.

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Law and Discussion

82. The first Claimant, Mrs. McKenzie has instituted this Claim as the Executrix and Legal

Personal Representative (LPR) of the Estate of her late husband, Ricardo McKenzie. There

is no dispute, that in seeking compensation qua personal representative, she relies on the

Supreme Court of Judicature Act Ch 4:0141.

83. The second and third Claimants approach the Court as dependants of their late father

pursuant to the Compensation for Injuries Act Ch 8:05. At the time of the filing of this

claim, the third Claimant was a minor and instituted these proceedings through her mother

as Next Friend

84. In their effort to establish that the Defendants were negligent, the Claimants were required

to prove, on a balance of probabilities, the presence of the three limbs of negligence:

The existence of a duty of care;

A breach of that duty

Causation, in that the breach caused injury or damage to the Claimant.

85. Accordingly, three broad issues arise for the Court’s consideration:

i. Whether the Defendants owed a duty of care to Mr. McKenzie

ii. Whether they breached that duty;

iii. And whether their breach was the cause of his ultimate demise.

Should the Claimant succeed on the above issues, a fourth issue would arise as to the

question of damages due to the estate of the deceased and to his dependants.

41 Section 27 (1) Subject to the provisions of this section, on the death of any person after 24th December 1936, all causes of action subsisting against or vested in him shall survive against or, as the case may be, for the benefit of, his estate; but this subsection shall not apply to causes of action for defamation or seduction or for inducing one spouse to leave or remain apart from the other.

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86. In the course of this discussion, reference will first be made to the relevant law. I will then

proceed to apply the law to the facts, which have been established on the evidence on a

balance of probabilities.

Duty of Care

87. The Defendants are companies, incorporated under the Companies Act Ch 81:01. They

provide medical, diagnostic and surgical services. The entire share capital of the Second

Defendant is wholly owned by the First Defendant.42

88. There was no dispute that the Defendants, as companies which offered medical services,

owed a duty of care to their patients. Should any authority be required, it could easily be

found in the words of Mendonça JA in South West Regional Health Authority v. Samdaye

Harrilal43. Justice of Appeal Mendonça had this to say:

“[20] It is also settled that a hospital is liable for the negligent acts of its professional

servants which occur in the course of their employment. See in particular the judgment

of Denning LJ in Cassidy v. Ministry of health [1951] 1 All ER 574”

Breach of the Duty of Care

89. Where there is an allegation of negligence on the part of a medical practitioner, the Court

does not impose the test of the ordinary reasonable man on the street (the Clapham omnibus),

but it applies the test of the ordinary skilled man exercising and professing to have that

special skill. This test was formulated and immortalised in the judgment of Mc Nair, J in

Bolam v. Friern Hospital Management Committee44.

42 See paragraph 4 of the Amended Statement of Case, as admitted at paragraph 4 of the Re-Amended Defence. 43 Health Authority v. Samdaye Harrilal C.A. Civ 60/2008 44 Bolam v. Friern Hospital Management Committee [1957] 2 All ER 118 at page 120 per McNair J: “The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill at the risk of being found negligent. It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular act”

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90. The Bolam test has been applied in the jurisdiction of Trinidad and Tobago in Dr. Patricia

Deonarine v. Rana Ramlal45, where the Court of Appeal upheld the decision of this Court.

91. The instant claim is somewhat distinguishable from Bolam v. Friern Hospital Management

Committee46 since there is no allegation in these proceedings, of negligence on the part of

an individual medical practitioner, but on the part of a company providing medical treatment.

92. However, hospitals may also be liable for the negligent acts or omissions of their

professional or nursing staff (See Cassidy v. Ministry of Health [1951] 1 All ER 574). See

too Roe v. Ministry of Health [1954] 2 QB 66, where Lord Denning said:

“…hospital authorities are responsible for the whole of their staff but also for the

anaesthetists and surgeons. It does not matter whether they are permanent or temporary,

resident or visiting, whole time or part time...47”

93. Roe and Cassidy supra have been applied in Trinidad and Tobago in SWRHA v. Harrilal48,

where Mendonça JA quoted the words of Lord Denning in Cassidy v. Ministry of Health:

“In my opinion, authorities who run a hospital be they local authorities, government

boards or any other corporation are in law under the self-same duty as the humblest

doctor. Whenever they accept a patient for treatment they must use reasonable care and

skill to cure him of his ailment.”49

94. In SWRHA v. Samdaye Harrilal50 Mendonça JA proceeded to hold that hospital authorities

will be held responsible not only for the negligence of their staff, but for negligent systems

and procedures. Accordingly, at paragraph 23 of his judgment, Mendonça JA had this to say:

45 C.A. Civ 28/2003 46 [1957] 2 All ER 118 47 Roe v. Ministry of Health [1954] 2 ALL ER 131 AT 137A 48 C.A. Civ 60/2008 49 Cassidy v Ministry of Health [1951] 1 All ER 574 at page 585 B 50 C.A. Civ 60/2008

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“The decided cases are also clear that hospital authorities will be held liable not just for

the negligence of their staff…but also for inadequate systems and procedures which result

in injury to their patients.”51

95. It was also the authoritative view of Mendonça JA, that hospitals and their staff will be

adjudged according to the Bolam test. His Lordship stated:

“[22] Since the hospital authorities themselves do not treat patients, the applicable

standard by which any negligence of its servants will be judged and for which the hospital

authorities will be vicariously liable is the Bolam standard. Where, as in this case, a

claimant alleges that the negligence is due to the fault of the hospital authority itself, the

liability is direct and not vicarious. See Lord Alness in Vancouver General Hospital v

Mc Daniel (1934) 152 L T 56 at 57.52”

96. I therefore proceed to measure the established facts of this Claim against the Bolam test. The

Second Defendant, by Bolam would not have been negligent if it acted in accordance with a

practice accepted as proper, by a responsible body of medical man skilled in that particular

art.

97. At paragraph 48 of their Re-Amended Defence, the Defendants have admitted that the

radiation machine, the Varian Clinac iX Linear Accelerator had been over-calibrated by

13.9% and that patients had received an overdose of radiation.

98. Evidence of miscalibration bellowed from the text of the media release, which was exhibited

in these proceedings as “L.A.M. 15”.53 Dr. Achong Low, Executive Chairman of the First

51 SWRHA v. Samdaye Harrilal C.A. Civ 60/2008 52 SWRHA v. Samdaye Harrilal C.A. Civ 60/2008 at paragraph 22. 53 See “L.A.M. 15” annexed to the Witness Statement of Lisa Ann McKenzie

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Defendant and Dr. Dinesh Mor, Chairman of the Second Defendant expressed their regret in

this way:

“The Brian Lara Cancer Treatment Centre…deeply regrets the most unfortunate event

which has resulted in a general misunderstanding of the administration of radiation in

the care of cancer patients and the resulting emotional distress caused to our patients

who may have received up to a maximum of 13.9% more than the prescribed dose of

radiation.”

99. The Defendants have not attempted to explain how the miscalibration occurred. However,

such an explanation could be gleaned from the evidence of Damian Rudder and from the

admission of Dr. Peter Bovell, under cross examination.

100. It was the evidence of Mr. Rudder that the radiation machine, which is a potentially

dangerous machine, because of its power, ought to be under the daily care of a senior

physicist. It was also Mr. Rudder’s evidence that during the years 2008 to 2010, there was

no senior physicist in the employment of the Second Defendant and the radiation machine

was under the care and control of a junior physicist.

101. The evidence of Mr. Rudder was put to Dr. Peter Bovell, while the latter was being cross-

examined. Dr. Peter Bovell, a radiation oncologist, was contracted as the full-time Clinical

Director of the BLCTC since 4th October, 2011. He testified on behalf of the Defendants.

102. Dr. Bovell had not been associated with the Defendant, at the time of the admitted

miscalibration. However, Dr. Bovell agreed, under cross-examination, that the Linear

Accelerator machine could be described as “dangerous” in the hands of someone not

qualified to use it.

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103. Dr. Bovell agreed that one would expect that the BLCTC would have checks and balances

in place to ensure that the machine was functioning properly.

104. Learned Counsel, Mr. Bharath, in the course of cross-examining Dr. Bovell, read paragraph

7 of the Witness Statement of Mr. Rudder and Dr. Bovell indicated his agreement with the

allegations made therein. He agreed that the Medical Physicist ought to ensure, every day,

that the output of the machine is properly set. He agreed that the permissible margin of error

was + or -3% and that outside of that margin of error, the radiation therapist must alert the

Medical Physicist.

105. Dr. Bovell also accepted that the radiation machine ought not to be used if there is a reading

of more than 5%.

106. Dr. Bovell admitted that there had only been a junior physicist in the employment of the

BLCTC. Dr. Bovell was shown the document exhibited as “D.R.4”, and agreed that the

junior physicist was adjusting the power of the machine. Dr. Bovell stated that he would not

have permitted the junior physicist to adjust the machine because she simply did not have

the experience.

107. The evidence which emerged from the cross-examination of Dr. Bovell has confirmed that,

as a matter of accepted standard practice, a machine as powerful as the Linear Accelerator

machine could only be safely used within a margin of error plus or minus 3% (+ or -3%) that

it ought to be under the care of a senior physicist.

108. By the testimony of their own witness, the Defendants have fallen short of the accepted

standard of reasonable care of patients, who submit to radiation therapy from a Linear

Accelerator machine. At the time when Mr. McKenzie received treatment, the machine was

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under the care of a junior physicist who was adjusting the power of the machine without

being qualified to do so.

109. The machine was miscalibrated to the extent of 13.9%, which was way in excess of the safe

and acceptable margin of error of + or -3%.

110. This was not the fault of any one person. It was a systemic fault, and falls within the category

identified in SWRHA v Harrilal54 where Mendonça JA said:

“[23] The decided cases are also clear that hospital authorities will be held

liable not just for the negligence of their staff….but also for inadequate

systems and procedures which result in injury to their patients….” (my

emphasis).

111. In the context of this claim, a medical facility, which offers treatment by powerful and

potentially dangerous machines have a duty to their patients, to provide adequately qualified

staff to ensure the proper functioning of the machine. Their failure to do so constituted a

breach of their duty of care and they would be liable for any injury caused by their breach.

Causation

112. Even where a Claimant succeeds in establishing negligent acts or omissions on the part of a

Defendant, the Claim will fail unless the Claimant succeeds in establishing a causal link

between the negligent act and the damage or injury that the Claimant suffered. This principle

was clearly stated in Wilsher v. Essex Area Health Authority55, where the House of Lords

established that the onus of proving causation rested on the Plaintiff.

54 South West Regional Health Authority v Samdaye Harrilal 55 [1988] 2 WLR 557

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113. The Court faces a peculiar dilemma where injury to the Claimant was brought about by more

than one competing factor. Accordingly, one finds authorities in which the Court refused

relief, where the Claimant would have suffered the injury, regardless of the negligent acts.

114. In Barnett v. Chelsea Kensington Hospital Management Committee56, an authority cited

and relied on by the Defendants, the Plaintiff, the widow of the deceased, brought an action

in negligence in respect of her late husband who had been treated by the Defendant, for

arsenic poisoning and later died. The deceased, who was vomiting for three hours after

having consumed a cup of tea, visited the casualty department and was told by the doctors

to go home and to call their own doctors. The court held that the hospital owed him a duty

to exercise the skill and care attributed to that of a nurse and medical casualty officer.

However, since the deceased must have died from the poisoning, regardless of the failure to

treat the deceased even five hours before his death, the burden of proof still rested with the

deceased who had failed to establish on a balance of probabilities that the defendant’s

negligence had cause the death. Accordingly, the claim failed.

115. Similarly, in Kay v. Ayrshire and Arran Health Board57, also cited by the Defendants, the

appellant’s son had been treated for meningitis. During his treatment, the son was given an

overdose of penicillin. Having recovered from the meningitis, it was found that the son

suffered deafness. Their Lordships held that where two competing causes of damage existed,

the law could not presume in favour of the plaintiff that the tortious cause was responsible

for the damage. It was incumbent on the Plaintiff to prove that the tortious cause was capable

of causing or aggravating the damage suffered.

116. The most recent and authoritative authority on the issue of causation may be found in the

judgment of the Judicial Committee of the Privy Council om Williams v. Bermuda Hospitals

56 [1968] 2 WLR 422 57 [1987] 2 All ER 417

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Board58. Williams59 was referred to in Dr. Sido John v Central Manchester and

Manchester Children's University Hospitals NHS Foundation Trust60, an authority cited

and relied upon by Learned Counsel for the Claimants.

117. In Dr. Sido John v Central Manchester and Manchester Children's University Hospitals

NHS Foundation Trust61 Mr. Justice Picken considered the issue of medical causation at

paragraph 96 where the Learned Judge cited the case of Henegham v Manchester Dry

Docks62. Justice Picken quoted these words from the Lord Dyson MR in the Court of Appeal:

“There are three ways of establishing causation in disease cases. The first is by

showing that but for the defendant’s negligence, the claimant would not have suffered

the disease. Secondly where the disease is caused by the cumulative effect of an agency

part of which is attributable to breach of duty on the part of the defendant and part of

which involves no breach of duty, the defendant will be liable on the ground that his

breach of duty made a ‘material contribution’ to the disease: Bonnington Castings Ltd

v Wardlaw [1956] AC 613…Thirdly where causation cannot be proved in either of

these ways, for example where the disease is indivisible, causation may be established

if it is proved that the defendant materially increased the risk of the victim contracting

the disease….”63

118. I return to Williams v Bermuda64 on which I propose to rely because it is a recent

pronouncement by the Privy Council, by which I am bound.

58 Williams v Bermuda Hospitals Board [2016] UKPC 4 referred to in passing by Counsel for the Claimant 59 Ibid 60 [2016] EWHC 819 61 [2016] EWHC 407 62 [2016] EWCA Civ 86 63 See paragraph 96 of Dr. Sido John v Central Manchester and Manchester Children's University Hospitals NHS Foundation Trust 64 Williams v Bermuda Hospitals Board [2016g] UKPC 4

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119. The brief facts of Williams65 arose out of a visit by Mr. Kamal Williams who visited the

King Edward VII memorial hospital in Bermuda with the complaint of the abdominal pain,

which was later diagnosed as caused by an acute appendicitis. There had been a delay in

ordering a CT scan, with the result that Mr. Williams, suffered a rupture of his appendix.

120. Ultimately, Mr. Williams suffered sepsis which led to injury to his heart and lungs.66 There

was evidence that the pus which caused the sepsis had been in Mr. Williams’s abdomen for

some time. Accordingly, the trial judge concluded that the plaintiff failed to prove that the

complications suffered by Mr. Williams were probably caused by the hospital’s failure to

diagnose and treat him expeditiously67. The decision of the trial judge was overturned on

appeal. The Bermuda Hospitals Board appealed to the Privy Council.

121. Their Lordships dismissed the appeal of the Hospitals Board. In the course of their judgment,

they referred to the decision of Ward LJ in the Court of Appeal, had this to say:

‘He held that the trial judge was in error “by raising the bar unattainably high” in

his finding that Mr. Williams had failed to prove his case. The proper test of

causation, he said was “not whether the negligent delay and inadequate system

caused the injury to [Mr. Williams] but rather whether the breaches of duty by the

hospital board contributed materially to the injury” That the breaches contributed

materially to the injury was in his view beyond argument. He stated that the “but

for” test is sometimes relaxed to enable a claimant to prove the impossible, and he

referred to Bailey Ministry of Defence [2009] 1 WLR 1052 as a case in which the

“but for” rule was modified.”68

122. Ultimately at paragraph 42, their Lordships has this to say:

65 Ibid 66 Ibid at paragraph 10 of the judgment 67 Ibid at paragraph 17 of the judgment 68 Williams v Bermuda Hospitals Board [2016] UKPC 4 at paragraph 19 of the judgment.

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“In the judgment of the Board, it is right to infer on a balance of probabilities that

the hospital board’s negligence materially contributed to the process, and therefore

materially contributed to the injury to heart and lungs”.

123. I turn therefore to consider whether the Defendant’s breach of their duty of care materially

contributed to the death of Mr. McKenzie on 21st December, 2010.

124. In my view, this question falls to be considered in three parts: firstly whether as a matter of

fact Mr. McKenzie suffered with radiation necrosis: secondly whether there was a causal

link between the defendant’s breach of duty and the radiation necrosis, with which Mr.

McKenzie had been diagnosed in 2010; and thirdly whether the radiation necrosis materially

contributed to Mr. McKenzie’s death. In the course of determining the third issue, I will

consider whether the presence of the candida infection constituted a novus actus

interveniens.

125. In my view, there was clear evidence that the deceased was suffering with radiation necrosis.

This first emerged as one of the possible diagnoses in the histological appraisal, which was

signed by Dr. Chunilal Ramjit in May, 2010. Dr. Ramcharan, in his June 2010 report also

identified radiation necrosis as one of the possible ailments, which Mr. McKenzie suffered

in 2010.

126. Dr. Roberto Heros, in his evidence was adamant that the deceased was suffering radiation

necrosis. He described the appearance of radiation necrosis as being yellowish rubbery and

avascular and testified that he found this to be quality of the lesion, which was found Mr.

McKenzie’s brain in July, 2010.

127. Dr. Heros was rigorously cross-examined as to his qualifications to identify the presence of

radiation necrosis. In my view, there was no dispute that he was a professor of neurosurgery

and the fact that he had not published papers on the subject of radiation necrosis was de

minimis in the context of his vast experience.

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128. In my view, however, the presence of radiation necrosis was confirmed by the finding of

radiation pathologist Carol Petito, whose report was exhibited to the Witness Statement of

Dr. Roberto Heros and marked “R.H.8”.

129. Dr. Petito’s findings were presented to Dr. Sultanem under cross-examination. As an expert

witness for the defendants. Dr. Sultanem indicated his inability to dispute the findings of Dr.

Petito.

130. In respect of whether there was a causal link between the breach and the presence of

radiation necrosis, I have considered the expert evidence of Dr. Sultanem. While agreeing

that the risk of radiation necrosis increases with increased radiation doses, Dr. Sultanem

suggested that it was abnormal to contract radiation necrosis from an overdose of radiation,

since studies showed that persons exposed to 90 grays emerged unharmed. Dr. Sultanem

also suggested that necrosis could be caused by the candida infection and multiple surgeries.

131. If one considers the evidence of Dr. Sultanem alone, it would be clear, in my view, that the

overdose to which Mr. McKenzie was exposed materially contributed to the presence of

radiation necrosis, even if it was probably not the only cause. There is no dispute, that the

possibility of radiation necrosis was first identified in May-June, 2010 by Dr. Ramcharan

and Dr. Chunilal Ramjit. I accepted, as pointed out by Dr. St. Louis that the first possible

occurrence of radiation necrosis followed the overdose by 10 months. There was however

no expert explanation for the possible occurrence of necrosis apart from the evidence of Dr.

Sultanem, who offered the opinion that necrosis could have been caused by the presence of

the candida infection, the abscess or by multiple surgeries.

132. By July, 2010, when Mr. McKenzie was admitted to Jackson Memorial Hospital, he had

already suffered radiation necrosis. At that time there was no infection or abscess. These

were complications that followed the presence of necrosis. Similarly, the multiple surgeries

were the result rather than the cause of the radiation necrosis. It is therefore my view that the

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evidence does not support the theory that necrosis was caused by either the abscess or the

infection or the multiple surgeries undergone by Mr. McKenzie.

133. Accordingly, it is my view on a balance of probabilities, that the radiation overdose, which

the deceased suffered as a result of the Defendant’s negligence was the cause of the presence

of radiation necrosis in his brain.

134. In arriving at this conclusion, I considered the study to which Dr. Sultanem referred where

34 patients had been exposed to 90 grays of radiation and emerged unharmed. In my view,

the results of an academic study provides insight into probabilities, by reference to

percentages. The fact that 34 persons escaped the effects of radiation overdose, provides no

guarantee that everyone, including Mr. McKenzie, would enjoy similar good fortune.

135. More importantly however, as observed by Dr. Ahamad, the study was not wide ranging and

Dr. Sultanem omitted to provide details of the study, as to the age and circumstances of the

persons tested and as to the nature of the radiation treatment. Dr. Sultanem did not indicate

whether or not the age, health and respective neurological strengths of the 34 subjects were

identical to those of Mr. McKenzie’s. Accordingly, while I accept the truth of the Dr.

Sultanem’s testimony, it is my view that it does not diminish what, in fact, befell Mr.

McKenzie, that radiation overdose resulted in radiation necrosis.

136. Finally I move on to consider whether the radiation necrosis materially contributed to the

death of Mr. McKenzie. In considering this issue, it is necessary to determine the type of

tumour with which Mr. McKenzie was afflicted. A determination of the type of tumour is

relevant because there is a direct correlation between the type of tumour and the number of

years that Mr. McKenzie would on average, have been expected to live. This in turn would

determine the likelihood that Mr. McKenzie would have died, when he did, regardless of the

presence of radiation necrosis.

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137. Mr. McKenzie first presented as a patient suffering with a high grade glioma. See the report

of Dr. Robert Ramcharan dated the 24th August, 2009. This was confirmed by Dr. Anesa

Ahamad, who stated that a high grade glioma could be either an astrocytoma or a

glioblastoma multiforme. When Mr. McKenzie suffered a recurrence of the tumour, it was

the evidence of doctors who actually treated Mr. McKenzie was that he was suffering with

a Grade III astrocytoma. This view was expressed by Dr. Robert Ramcharan who canvased

this as a possibility in his report dated 29th June, 2010.69 It was the firm finding of Dr. Ramjit

in his histopathological report dated 10th October, 2010 that Mr. McKenzie suffered with an

Astrocytoma Grade III. (See “L.A.M. 11”).

138. A different view was expressed by Dr. Joe Ma, who was adamant that Mr. McKenzie was

suffering from a glioblastoma multiforme. It was my view that Dr. Joe Ma’s evidence was

very unreliable since, by his own admission, he was considering duplicates of severely

compromised slides, which were 7 to 8 years old, the storage of which was uncertain.

139. By contrast, the histopathological report of Dr. Ramjit was contemporaneous with the

occurrence and the resection of the tumour. There was no possibility of this finding being

compromised by duplication or by deterioration by reason of time or improper storage.

140. Accordingly, I am inclined to, and will, rely on the report of Dr. Chunilal Ramjit as exhibited

in the Witness Statement of Lisa Ann McKenzie as “LAM 11” and find as a fact that in June,

2010, Mr. McKenzie was found to be suffering with a Grade III astrocytoma, which was

resected from him by Dr. Robert Ramcharan in June, 2010.

141. Between June, 2010, when Dr. Robert Ramcharan resected the second tumour and

December, 2010 when Mr. McKenzie died, there was no recurrence of the tumour. This was

the evidence of Dr. Roberto Heros and was confirmed by Dr. Sultanem, while the latter was

69 See exhibit “L.A.M. 11” of the witness statement of Lisa Ann McKenzie

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being cross-examined. Dr. Sultanem, under cross-examination confirmed that he could not

see evidence that there was tumour regrowth in any of the post-operative reports from the

Jackson Memorial Hospital.

142. Accordingly, at the date of Mr. McKenzie’s death, he suffered with radiation necrosis, the

candida infection and the uncured abscess in his brain.

143. Dr. Robert Heros, under cross-examination agreed that the candida infection was fatal. I

considered whether the candida infection constituted a novus actus interveniens, which is

defined as an event of such impact that it obliterates the wrong doing of the Defendant70.

144. In my view, the candida infection was a complication of Mr. McKenzie’s condition and not

a new cause. See the evidence of Dr. St. Louis. It was one of the three factors that contributed

to Mr. McKenzie’s eventual downfall.

145. Dr. Heros, as a professor of neurosurgery and as a the medical practitioner under whose care,

Mr. McKenzie eventually died, expressed the view that he was certain that Mr. McKenzie

died of radiation necrosis.

146. I have considered evidence which contradicts this view. The strongest evidence is of course

the statement on the death certificate, which identifies the underlying cause of death as an

anaplastic astrocytoma with cerebral edema. 71

147. The contents of a death certificate provide only prima facie evidence of the cause of death.

See Section 20 Evidence Act Ch.7:02. In my view, the Court ought to place much weight

on the evidence of a witness, as qualified as Dr. Heros, who was deeply involved in the

management and treatment of the deceased.

148. It was my view that on the evidence before this Court a number of factors operated together

indivisibly to bring about Mr. McKenzie’s death. The series of unfortunate events begin, of

70 See Clerk & Lindsell on Torts 21st Edition, paragraph 2-104 71 See exhibit “R.H.7.” to the witness statement of Dr. Roberto Heros

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course, with his having been diagnosed with a high grade glioma, the prognosis of which left

him with a life expectancy of 2 to 5 years. See the evidence of Dr. Sultanem and Dr. Robert

Ramcharan in respect of Grade III tumours. There was nothing to suggest that Mr. McKenzie

would not have fallen on the upper end of the scale.

149. It was not disputed however, that after his resection, he returned to normal life and it was

after the second resection in June, 2010, with the possible diagnosis of radiation necrosis,

that his health deteriorated rapidly.

150. By the date of his death, Mr. McKenzie had been brought down by radiation necrosis,

Candida and the abscess. In my view, the Claimants have succeeded in establishing on a

balance of probabilities that the presence of radiation necrosis materially contributed to Mr.

McKenzie’s death on the 21st December, 2010. It is my view that without the onset of

radiation necrosis he could have survived up to 5 years from the first occurrence of the

tumour. It is my view that as a result of the breach of the defendants he lived only 18 months

from the first occurrence of the tumour.

151. Accordingly there will be judgment for the Claimant, the assessment of damages to be

determined following the filing of submissions by the parties.

Dated this 19th day of July, 2018

Mira Dean-Armorer

Judge72

72 Ms. Aleema Ameerali, Judicial Research Counsel I

republic of trinidad and tobago in the high court of...

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