Derek Achong

A pri­vate med­ical in­sti­tu­tion and a spe­cial­ist doc­tor have been or­dered to pay over $18 mil­lion in com­pen­sa­tion to for­mer fi­nance min­is­ter Karen Nunez-Tesheira for their al­leged neg­li­gence lead­ing to her hus­band's death af­ter a prostate op­er­a­tion in 2004.

Nunez-Tesheira yes­ter­day won quite pos­si­bly the high­est ever pay­out in a med­ical neg­li­gence case in T&T's his­to­ry at the con­clu­sion of an over decade-long le­gal bat­tle with Gulf View Med­ical Cen­tre and anaes­the­si­ol­o­gist Dr Crisen Roopc­hand.

Al­though she scored the ma­jor le­gal vic­to­ry af­ter over­com­ing nu­mer­ous hur­dles, in­clud­ing the dis­missal of the law­suit at a pre­lim­i­nary stage, Nunez-Tesheira will have to wait some time be­fore she can claim the sig­nif­i­cant sum, as both the in­sti­tu­tion and doc­tor have in­di­cat­ed their in­ten­tion to ap­peal.

An emo­tion­al Nunez-Tesheira re­peat­ed­ly broke down in tears, and had to be com­fort­ed by her two chil­dren, as High Court Judge Vasheist Kokaram read ex­cerpts of his 91-page judg­ment in a small court­room at the Hall of Jus­tice, Port-of-Spain.

Speak­ing af­ter­wards, Nunez-Tesheira, cur­rent­ly a uni­ver­si­ty lec­tur­er, said her fam­i­ly was hap­py and re­lieved to fi­nal­ly get clo­sure in the death of her hus­band, for­mer Cli­co in­sur­ance ex­ec­u­tive Rus­sell Tesheira.

"There is just a sense of re­lief that this has come to an end. Al­though there is a pos­si­bil­i­ty of an ap­peal, it is a hap­py day and I am go­ing to en­joy it," Nunez-Tesheira said.

In his analy­sis of the case, Kokaram iden­ti­fied Gulf View and Roopc­hand's lawyers' de­ci­sion not to ad­duce their own ev­i­dence as a sig­nif­i­cant rea­son why their de­fence failed. He said as a re­sult of the tac­ti­cal ma­noeu­vre, he was on­ly able to as­sess the ev­i­dence of Nunez-Tesheira's wit­ness­es in de­ter­min­ing the case, as lawyers for Gulf View and Roopc­hand were un­able to dis­cred­it them.

"De­spite the rig­or­ous cross-ex­am­i­na­tion, their sci­en­tif­ic knowl­edge was not ques­tioned and they have suf­fi­cient­ly set out a rea­son­able body of med­ical opin­ion which sug­gests on a bal­ance of prob­a­bil­i­ty that there was neg­li­gence on the part of both Gulf View and Dr Roopc­hand in the pre-op­er­a­tive and post-op­er­a­tive care of Mr Tesheira," Kokaram said.

As he left the court, an in­fu­ri­at­ed Roopc­hand crit­i­cised the judg­ment, as he sug­gest­ed Kokaram over-stat­ed the ef­fect of the le­gal de­ci­sion tak­en by Gulf View's renowned British med­ical neg­li­gence lawyer Mary O'Rourke, QC, who opt­ed to make a no-case sub­mis­sion at the end of a week-long tri­al in De­cem­ber last year.

"Grant­ed we chose to not say any­thing on the ad­vice of our for­eign at­tor­neys, but this judge should se­ri­ous­ly take a sec­ond look at this case," Roopc­hand said in a brief in­ter­view be­fore he was led away by his team of lo­cal lawyers.

As he spoke gen­er­al­ly of the role of neg­li­gence law­suits in en­sur­ing prop­er med­ical care for pa­tients, Kokaram ac­knowl­edged that doc­tors were ex­pect­ed to per­form "su­per­hu­man pro­ce­dures and mir­a­cles" even in risky sit­u­a­tions.

"Doc­tors faced with emer­gen­cies or­di­nar­i­ly will try their best to re­deem the pa­tient. How­ev­er, they must, where it is with­in their pow­er to do so, make rea­son­able at­tempts to pre­vent such emer­gen­cies from oc­cur­ring in the first place," Kokaram said, as he sug­gest­ed his judg­ment should not serve as a men­tal im­ped­i­ment to doc­tors when called up­on to make "life and death de­ci­sions" in the fu­ture.

Kokaram al­so crit­i­cised the de­fen­dants' ap­par­ent lack of re­gret as shown by the al­leged­ly "cold and un­help­ful re­spons­es" Nunez-Tesheira re­ceived short­ly af­ter her hus­band's death.

Nunez-Tesheira was rep­re­sent­ed by Dou­glas Mendes, SC, Si­mon de la Bastide and Mar­celle Fer­di­nand. Gulf View's le­gal team in­clud­ed Anand Be­har­ry­lal and Win­ston Seenath, while Roger Kawals­ingh and Ravi Mungals­ingh ap­peared for Roopc­hand.

About the Case

In­sur­ance ex­ec­u­tive Rus­sell Tesheira died at age 54 af­ter un­der­go­ing an op­er­a­tion for transurethral re­sec­tion­ing of the prostate at the Gulf View Med­ical Cen­tre on April 13, 2004.

Dur­ing the pro­ce­dure an in­stru­ment is in­sert­ed in­to the pa­tient's ure­thra to re­move the sec­tion of the prostate that is block­ing urine flow. Two hours af­ter the pro­ce­dure, Tesheira was found to be bleed­ing ex­ces­sive­ly, prompt­ing doc­tors to per­form a sec­ondary op­er­a­tion and emer­gency blood trans­fu­sion. Tesheira died on the op­er­at­ing ta­ble.

Six years lat­er his wid­ow, Karen Nunez-Tesheira, filed the law­suit claim­ing her hus­band died be­cause the hos­pi­tal and the two doc­tors who did the pro­ce­dure–anaes­the­si­ol­o­gist Dr Crisen Jen­dra Roopc­hand and urol­o­gist Dr Lester Goetz–were neg­li­gent.

In 2011, Jus­tice Vasheist Kokaram dis­missed the law­suit at a pre­lim­i­nary stage af­ter Nunez-Tesheira failed to meet two suc­ces­sive dead­lines he set for fil­ing her ev­i­dence against the three par­ties.

While ap­peal­ing the de­ci­sion, Nunez-Tesheira came to an agree­ment with Goetz which saw him be­ing re­moved from the law­suit. Nunez-Tesheira even­tu­al­ly won in the Court of Ap­peal and the law­suit was re­in­stat­ed.

In as­sess­ing com­pen­sa­tion for Tesheira's fam­i­ly, Kokaram con­sid­ered the salary and ben­e­fits he would have ac­crued if he had con­tin­ued to work at Cli­co, where his last bonus be­fore his death was al­most $4 mil­lion.

The ef­fect of gov­ern­ment's bailout of the cash-strapped in­sur­ance gi­ant in 2009 did not have much bear­ing on the as­sess­ment, as Kokaram said he would have at­tained re­tire­ment age by then.