Derek Achong
Senior Reporter
The Privy Council will have the final say over a medical negligence lawsuit brought by the mother of a 23-year-old man with cerebral palsy against the private clinic he was delivered at and her attending obstetrician.
Late last month, three Law Lords of the United Kingdom-based Privy Council granted permission for a final appeal in the lawsuit brought by Shelly-Ann Balwah, on behalf of her son Aeden, against Surgi-Med Clinic and Dr Marwan Abdulla.
Balwah's case was dismissed by a High Court Judge before being partially upheld by the Court of Appeal, which found that only Dr Abdulla was negligent.
Both Balwah and Dr Abdulla filed appeals challenging the split outcome.
Balwah's son was born on May 19, 2002.
Balwah was admitted to the clinic around 6.30 pm the previous evening and before he left around 8pm, Dr Abdulla administered a dose of misoprostol, a drug to induce labour.
When he returned early the following morning, a decision was made to deliver Aeden 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, when Aeden was 14-years-old, he was completely dependent on others for every aspect of daily living. He had never spoken, could not walk or talk or stand or brush his teeth and that he 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 4.00 am in his court filings, he subsequently claimed that he arrived half an hour later when he testified during the trial.
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 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 Aeden's condition was caused by a pre-partum event than the negligence of Dr Abdulla or the clinic.
In July, last year, Appellate Judges Mira Dean-Armour, Vasheist Kokaram, and Malcom Holdip ruled Justice Ramcharan was "plainly wrong" to conclude that Dr Abdulla arrived later than originally claimed.
They found that Aeden'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 Balwah permission to mount the final appeal but its decision was reversed by Lords Michael Briggs, Andrew Burrows, and Ben Stephens on October 31.
The Privy Council is now expected to set a date for the hearing of the appeal.
Dr Abdulla is being represented by Kiel Taklalsingh, Stefan Ramkissoon, and Johanna Richards.
