Senior Reporter
derek.achong@guardian.co.tt
A specialist doctor has scored a legal victory over being found liable for a man being born with cerebral palsy after he (the doctor) delivered him over two decades ago.
In a judgment delivered yesterday, five Law Lords of the United Kingdom-based Privy Council upheld Dr Marwan Abdulla’s appeal over being found negligent for the condition developed by 24-year-old Aeden Balwah at birth.
Lady Morag Wise, who wrote the judgment, found that the local Court of Appeal was wrong to have found the obstetrician liable after the case, brought by Balwah and his mother Shelly-Ann against the doctor and the private clinic Balwah was delivered at, was mostly rejected by a High Court Judge.
The appeal mostly centred around the local courts’ handling of contradictory claims in the legal proceedings over the exact time Dr Abdulla arrived at Surgi-Med Clinic to assist with Balwah’s birth.
Lady Wise and her colleagues recommended that the Judiciary consider an amendment to the Civil Proceedings Rules (CPR) that would have helped resolve the issue justly.
Balwah was born on May 19, 2002.
His mother, Shelly-Ann, was admitted to the clinic around 6.30 pm the previous evening, and before Dr Abdullah left around 8 pm, he administered a dose of misoprostol, a drug to induce labour.
When he returned early the following morning, a decision was made to deliver Balwah via caesarean section.
He was subsequently diagnosed with cerebral palsy due to prolonged hypoxic ischaemia (oxygen deprivation during his mother’s labour).
His mother filed the lawsuit in 2013 seeking compensation for his past and future medical care.
At the time the case was filed, Balwah was 14 years old; he was completely dependent on others for every aspect of daily living. He had never spoken, could not walk, talk, stand or brush his teeth and was doubly incontinent.
The case was largely based on the time that Dr Abdulla returned to the hospital.
While he initially alleged that he arrived around 4 am in his court filings, Dr Abdullah subsequently claimed that he arrived half an hour later when he testified during the trial.
The clinic initially claimed that he arrived later but subsequently amended its case to claim that he in fact arrived earlier.
The time difference was vital as the medical experts in the case stated that it would determine whether his medical condition occurred pre-labour or while under Dr Abdulla’s care.
In January 2020, High Court Judge Kevin Ramcharan rejected Balwah’s case.
Although Justice Ramcharan found that Balwah’s mother proved that the clinic and Dr Abdulla had breached their respective duties of care they owed to her son, he found that she had failed to prove that their breaches caused the damage he suffered.
He ruled that it was more likely that Balwah’s condition was caused by a pre-partum event than the negligence of Dr Abdulla or the clinic.
In July 2024, the Court of Appeal ruled Justice Ramcharan was “plainly wrong” to conclude that Dr Abdulla arrived later than originally claimed.
They found that Balwah’s condition was caused by Dr Abdulla’s negligent management of his delivery and ordered that a High Court Master assess the compensation he should pay.
The Court of Appeal refused Dr Abdulla permission to mount the final appeal, but its decision was reversed by the Privy Council after the appeal was pursued by attorneys Kiel Taklalsingh and Stefan Ramkissoon, of Sovereign Chambers.
In deciding the final appeal, Lady Wise found that the Appeal Court was wrong to have interfered with the trial judge’s findings.
“When the Court of Appeal decided that its substituted finding on timing should apply only to Dr Abdulla’s case on the basis that he should take responsibility for his pleadings on the issue, it failed to recognise the inconsistency that this would create by effectively making different findings against two defendants in relation to the same fact,” Lady Wise said.
“The absurdity of a finding as against Dr Abdulla that he arrived at the clinic at 4 am and a contradictory finding applicable to Surgi-Med that Dr Abdulla had arrived at 4.30 am does not feature as an issue in the Court of Appeal’s decision, although that was the consequence of its decision,” she added.
Lady Wise also found that the Appeal Court erred in finding that Dr Abdulla caused Balwah’s condition on the basis of its finding on his arrival time.
“It was not open to the Court of Appeal to make a finding of causative breach against Dr Abdulla ... The Board concludes that the Court of Appeal went too far too fast in entering judgment against Dr Abdulla on the basis of the substituted finding,” Lady Wise said.
Dealing with Dr Abdulla’s inability to address the issue with his arrival time through an amendment to his pleadings, Lady Wise suggested that the CPR was too rigid and should be amended to be consistent with its overriding objective for civil courts to deal with cases justly.
“The Board respectfully suggests that the Rules Committee of Trinidad and Tobago may wish to consider again whether amendments at any stage in proceedings should be subject to discretion, balancing prejudice against the interests of justice,” Lady Wise said.
The Board also rejected the Balwahs’ cross-appeal seeking to reverse the decisions of the local courts to reject the case against Surgi-Med.
Dr Abdulla was also represented by Robert Strang and Johanna Richards.
The Balwahs were represented by Dr Michael Powers, KC, Rajiv Persad, SC, Ricardo Williams and Niala Narine.
Surgi-Med was represented by Benjamin Browne, KC, Finn Callow, Narad Harrikissoon and Andre Sinanan.
