Dr Kong Sheik Achong Low v Brian Lezama (Trinidad and Tobago)

In a clinical-negligence appeal, treatment is assessed against the Bolam v Friern Hospital Management Committee standard, including the requirements of the particular emergency. A reasonable alternative diagnosis does not excuse failure to obtain urgent blood or blood products, adequate fluid replacement, intravenous access and professional assistance where those measures were required. Causation is determined on the balance of probabilities through careful analysis of factual and expert evidence, applying the approach identified in Bolitho v City and Hackney Health Authority. The Board upheld findings that negligent management of post-partum haemorrhage caused by uterine atony led to disseminated intravascular coagulopathy and death.

The respondent, administrator of the estate of Karen Lezama, brought a negligence claim against Dr Kong Sheik Achong Low, the obstetrician who treated her after the delivery of a stillborn child. Mrs Lezama suffered severe post-partum haemorrhage and died several hours later.

Rahim J gave judgment for the respondent on liability on 26 July 2012. The Court of Appeal of the Republic of Trinidad and Tobago dismissed the appeal on 27 March 2018. Although it identified material errors in the trial judgment, it upheld the conclusions that the treatment fell below the Bolam v Friern Hospital Management Committee standard and caused the death.

The appeal concerned the adequacy of the treatment, the proper approach to causation, and whether the death was caused by amniotic fluid embolism or by uterine atony causing post-partum haemorrhage and disseminated intravascular coagulopathy.

Appeal dismissed.

1. Pleading. The particulars of negligence in paragraph 10(4), (5) and (6) of the Statement of Claim were to be read in the context of the pleading as a whole. They were stand-alone allegations and were not confined to the introductory allegations that Mrs Lezama was a gestational diabetic or a known bleeder.
2. Negligence. The Board applied the appellate restraint stated in Central Bank of Ecuador v Conticorp SA [2015] UKPC 11. Concurrent findings of pure fact would not ordinarily be disturbed save in very limited circumstances. The findings that the appellant should have sourced blood and blood products earlier, called for professional help sooner, administered sufficient medication and fluids, and ensured adequate intravenous access were not materially challenged. Whether the cause was amniotic fluid embolism or uterine atony leading to post-partum haemorrhage and disseminated intravascular coagulopathy, blood, blood products and additional professional assistance were required. The allegations of negligence were therefore made out under the Bolam v Friern Hospital Management Committee standard.
3. Diagnosis and causation. Whether the appellant had diagnosed amniotic fluid embolism during the emergency was a factual question. The evidence supported the Court of Appeal’s finding that he had not. He treated the condition as post-partum haemorrhage, did not tell the assisting clinicians that amniotic fluid embolism was his diagnosis, omitted it from his contemporaneous notes and death certificate, and continued uterine massage. No sign particular to amniotic fluid embolism was established.
4. Evaluative exercise. The Board rejected the contention that the Court of Appeal had failed to conduct the causation analysis required following Bolitho v City and Hackney Health Authority [1998] AC 232. The Court of Appeal considered whether amniotic fluid embolism had been diagnosed at the time and whether it was more likely than not to have caused death, reviewing the factual and expert evidence in detail. It was entitled to conclude that the more likely cause was massive post-partum haemorrhage caused by uterine atony, leading to disseminated intravascular coagulopathy and death. No alternative causation case was advanced.

The Board directed payment out to the respondent of the assessed damages paid into court on 3 November 2015, together with accrued interest.

1. Privy Council: In [2022] UKPC 15, the appeal was dismissed. The Court directed payment out of the assessed damages paid into court, with accrued interest.
2. Court of Appeal of the Republic of Trinidad and Tobago: On 27 March 2018, the court dismissed the appeal. It identified material errors in the trial judgment but upheld the findings that the treatment fell below the Bolam v Friern Hospital Management Committee standard and caused the death.
3. Rahim J: On 26 July 2012, judgment was given for the respondent on liability and damages were directed to be assessed by a master.