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Baby Simeon probe stalls

...Will he be another statistic?
Sunday, April 13, 2014
Attorney Ravi Rajcoomar, during an interview at his Edward Street, Port-of-Spain office, last Wednesday. Photo: KRISTIAN DE SILVA

The probe into the death of baby Simeon Cottle whose head was sliced open when his mother underwent a c-section on March 1 at the Mt Hope Maternity Hospital did not start last Monday as promised. But even as the investigation has stalled, fresh information has added to already serious concerns over whether the doctors involved would ever face disciplinary action.



The Sunday Guardian has learned that the inquiry itself may be ineffective since there appears to be a conflict of interest regarding the recent appointment of a senior official of the University of the West Indies (UWI) to head the Medical Council, which is the body that will ultimately arbitrate on the issue of possible medical negligence. 



The Sunday Guardian understands that UWI’s dean at the Faculty of Medical Science, Dr Samuel Ramsewak, may be the person ultimately arbitrating on the findings, as Cabinet only recently approved his appointment to sit on the Medical Council. The deputy dean at the faculty, Dr Hariharan Seetharaman, is also secretary of the Medical Council. It is the Medical Council which has the final say on any disciplinary action brought against doctors. 


Days after the March 1 incident, UWI issued a media statement defending its consultant who was rostered for on-call duty but who was not on the scene, saying “it is the established practice that an experienced specialist registrar would conduct the c-section but would have access to advice and support and, if needed, intervention by the consultant. Standard practice under the T&T healthcare system does not require an on-call consultant to be present at the time of a c-section being conducted, unless there is a special need to do so.


“In the case of Ms Quelly Ann Cottle, the specialist registrar (employed by the RHA, with no conditions or restrictions to functioning in this capacity) who undertook the procedure, is an experienced specialist registrar in O&G (obstetrics and gynaecology) who holds the MRCOG—Membership of the Royal College of Obstetricians and Gynaecologists certificate (London).”


The UWI release which commented on the young doctor’s expertise stated, “The records will indicate that he has also performed, within the last two years alone, over 100 unsupervised and successful c-sections at the Mt Hope Maternity Hospital, including those for high-risk pregnancies. “It is within this context that when Ms Cottle’s c-section was scheduled, the UWI consultant who was on call, and was accessible, was not requested to be in attendance.”


The surgeon who performed the c-section has since been sent on paid leave pending the outcome of the probe.



Ramsewak: I will recuse myself if there is a conflict of interest
In a text exchange with Ramsewak on Thursday, he said the doctor directly involved in the case was not employed at UWI. “If it came to a possibility of a conflict of interest, then I will recuse myself bearing in mind that council is composed of 11 members. This, of course, presumes that the matter will require the attention of the Medical Council,” he said.



‘The powers that be must take serious action’
Meanwhile, in the wake of this fiasco, at least one prominent attorney is now saying that if a case of medical negligence is found to have occurred in this issue, the time has come for criminal charges to be laid against those responsible. Attorney Ravi Rajcoomar said the powers that be must take serious action in the interest of proper patient care. He is also calling for a special police unit to be set up to deal with medical negligence.


Rajcoomar, also an author, who practises at Invictus Chambers which he founded, was the attorney handling the case of another botched neonatal issue at the San Fernando General Hospital that resulted in the death of Crystal Ramsoomair back in 2011. In that case, Ramsoomair, 29, a mother of three, died at hospital, after undergoing a c-section procedure during the birth of her third child. Rajcoomar filed on behalf of Ramsoomair’s husband, claiming negligence.



Baby’s mom: We want justice, we’re in the dark
For over a month, grieving parents Quelly Ann Cottle and Emil Millington have nursed fears that they will never find the justice they are seeking after the botched c-section left their baby dead. Although the probe was expected to begin last Monday, neither parents have been contacted for any interviews or updates. “I am in the dark on this whole thing. I have not been contacted at all by anyone,” Cottle said. Cottle said her high blood pressure was already a health issue for her and as such, she was trying to stay calm.


“But they lucky I am a praying woman, because it has been over a month and no word from anyone,” she said. Cottle said she was, in one way, happy that they were “dragging their feet” on the issue. “It is giving me more time to prepare and when I start a war with my information, there would be nothing they could do to cover-up then,” she said. “They are just stalling the inevitable, there is only so much I can take,” she said. Millington shared her view.


“They real lucky I believe and have faith. That’s the only thing keeping me from acting out,” he said. “They keep hoping this going away and I just keep praying. Because this still going on there is no sense of closure, it is still so raw,” Millington said. Health Minister Dr Fuad Khan on Wednesday maintained his distance from the issue. In a brief telephone interview, Khan said he was deliberately staying away to avoid any perception of interference.



The probe team:
On March 17, Attorney General Anand Ramlogan named three people to investigate the matter. The team, headed by Appeal Court Judge Mustafa Ibrahim and includes former head of the neonatal unit at the Port-of-Spain General Hospital Dr Petronella Manning-Alleyne and UK-based consultant obstetrician and gynaecologist of the University College London Hospitals Dr Melanie Clare Davies.


In a telephone interview, Ramlogan said the committee had already developed the terms of reference and as far as he was aware had been liaising with the relevant parties. He said it was Davies’ previous international commitments that was holding up the oral interviews. “But that should be scheduled for the end of this month,” Ramlogan said.


The Sunday Guardian e-mailed Dr Davies regarding the probe and received this response: “The Royal College of Obstetricians and Gynaecologists has been asked to nominate an independent obstetrician to provide an expert opinion on this case. It would not be appropriate for us to comment on the information received or any other details about the investigation.”



Attorney Ravi Rajcoomar comments on Baby Simeon’s death

The surgeon’s knife
In recent weeks the media reported on the horror of a child’s death and as of this week, the fact is that the inquiry into this tragedy has not begun as scheduled. The story conflicts but what is certain is that the surgeon’s knife was responsible. The autopsy revealed that the baby’s head was cut so deeply it penetrated the brain and damaged tissue during what should have been a routine c-section surgery. If young Simeon died after birth, then his cause of death would be injuries sustained during birth.



Can the law provide a remedy and comfort for this senseless loss?
The concept of justice is that all men should get their due. 



What does baby Simeon deserve? 
This is not the first time that routine surgery has resulted in death. There have been widespread stories in recent years of unexplained deaths in institutions created to preserve and protect life and health. For such matters we need to find a way around drawn-out civil procedures.


What the law says
So what remedies are available, not only for bereaved relatives, but also for the public? In the case of Simeon, a baby boy not yet born, but dead in the eyes of the law, death, it can be inferred, resulted from a knife wound that penetrated the brain. 



Is this child destruction, murder or manslaughter?
In our jurisdiction, criminal liability only arises where a child is born alive. At Common Law, no criminal offence occurs while the child is in the womb or in the process of being born. A person can only be guilty of an offence where the child exists, living and breathing by reason of its own breathing “through its own lungs without deriving any of its living or power of living by or through any connection with its mother.” If there is no such ‘independent living’ then the criminal law cannot be invoked.



A crime called child destruction
In 1929, the United Kingdom enacted legislation to correct this obvious wrong. The Infant life (Preservation) Act changed the Common Law. This act does not apply to our country. The UK law effectively made the killing of a child capable of being born a criminal offence punishable by life imprisonment. It is called child destruction. It carries a term of imprisonment for life. In T&T, an unborn child does not have the protection of either the criminal law or the Constitution.


The European Court of Human Rights in the 2004 case of Vo v France opined that the unborn child is not protected by the Human Rights Convention. In an immediate criticism of this decision in 2005 JK Mason called for the immediate creation of an offence which he called feticide and could be committed without intention where gross negligence could be proved.



This of course follows the law as it now relates to manslaughter arising out of negligence. It seems clear that our Constitution, which follows the European Convention, does not apply to unborn children.


What is medical negligence?
How do you compensate a family for the loss of the life of a child like Simeon? In medical negligence cases it is possible to pursue criminal proceedings where you can establish gross negligence. Negligence in this sense means the failure to use such care as a reasonably prudent and careful person would use under similar circumstance.


The test for medical negligence has been the same since 1856: a doctor is negligent if he does not act in accordance with the practice accepted by his profession in that field. 



Gross negligence can lead to charges of manslaughter. By gross negligence, the law simply requires evidence that a duty was performed in reckless disregard of the consequences or doing an act which an ordinary and prudent man would not do in the same circumstances. Where a medical doctor or any professional is concerned, this translates into acts which a reasonable professional similarly qualified would not do. In other words, no medical practitioner would have acted or taken such a risk.


In a criminal case where a doctor was convicted for manslaughter, the English courts opined that where a person holds himself out as possessing special skills and knowledge, he owes a duty to use due caution in treating the patient. He would be criminally liable where his actions fall below what is fair and reasonable.



If his treatment falls below what is fair and reasonable he would be in breach of his duty to the patient and guilty of negligence. A doctor would have to be judged in light of the state of medical knowledge at the time of the incident.


‘Time for the authorities to act’
Regretfully, little Simeon was not given the opportunity to breathe or to become a living being. In other reports Simeon may have lived and survived outside of the womb. If so, I call upon the authorities to obey the law. I have read that our Attorney General has indicated that the law will follow its course. I accept that upon receiving proper advice, the correct and proper course would be followed.



A special police unit for medical negligence
I applaud the setting up of inquiries as I hope this would allow for quick resolution of issues raised, but I fear it would become a mechanism of delay and finding a way around obvious wrongs. Even where inquires are held, court proceedings often must follow. The time has come to make all accountable. Criminal sanction has a preventative measure which will lead to enhanced care and standards.



‘No call to arms against medical profession’
I do not take this as being a call to arms against the medical profession. There are two principles which apply:
(a) If a medical practitioner acts in accordance with the general and approved practices of the profession save in exceptional circumstances he will not be negligent
(b) If a medical practitioner departs from the general and approved practise for no good reason and damage results, he will be negligent
The Judicial Committee of the Privy Council, our highest court, has already confirmed in 1996 that serious negligent treatment is sufficient for a doctor to be struck off.



‘Insure and continuously evaluate doctors’
It is time to insist that doctors who practice in our hospitals be insured with the Medical Union before they are allowed to work for the Government or the regional health authorities and are continuously assessed for competence either by peer review or continuous evaluation and training. In this time of constitutional reform, let us ensure that our unborn children are given constitutional protection. The unborn, too, have a right to life. Let us go forward with the hope that young Simeon’s death will not be another statistic.


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