The Tribune

By EARYEL BOWLEG

Tribune Staff Reporter

ebowleg@tribunemedia.net

THE Public Hospitals Authority is appealing a Supreme Court ruling that found Princess Margaret Hospital negligent in the death of a newborn girl, two months after its managing director said the authority would not challenge the decision.

The PHA and Dr Agatha Foulkes-Mackey filed separate notices of appeal on September 8. Both argue that acting Justice Raynard Rigby, KC, failed to establish that a 27-minute lapse in monitoring caused the baby’s fatal injury.

Dr Foulkes-Mackey also argues she should never have been held personally liable. Her notice says Justice Rigby found that she and another doctor understood the emergency, did all they could and that there was “no fault in their actions”.

On July 28, Justice Rigby ruled in favour of Widline Guillaume, whose daughter, Elizabeth Lundy, died on August 2, 2022, just over two hours after she was born.

He found that the hospital and Dr Foulkes-Mackey fell below the required standard of care by failing to monitor Ms Guillaume and her baby between 4.10am and 4.37am as she waited to enter the operating theatre for an emergency caesarean section. He said the negligence arose because no monitoring took place while Ms Guillaume waited for the result of a COVID-19 test before surgery.

Ms Guillaume was declared entitled to general and special damages, to be assessed at a later hearing, and the defendants were ordered to pay her legal costs.

The day after the ruling, PHA’s then-managing director Aubynette Rolle told The Tribune the authority would not prolong the case or force the family to relive the baby’s death. She said the PHA “at this moment has no intentions of going back against the ruling”, including any costs associated with it.

The PHA’s appeal, filed through the Office of the Attorney General, asks the Court of Appeal to set aside the judgment in its entirety or vary it, enter judgment for the defendants, and order Ms Guillaume to pay the authority’s appeal costs.

It argues that Justice Rigby found negligence without establishing a causal connection between the monitoring lapse and the injury. It also says he misapplied the burden of proof by highlighting evidence that was not led at trial and “critical witnesses” who were not called, when the burden lay on Ms Guillaume to prove her case. It further argues he wrongly admitted expert opinion that challenged primary facts when the person who recorded those facts did not testify.

The authority says the decision cannot be supported by the evidence, given the court’s own findings. Those findings were that the baby’s Apgar scores of seven and eight, at one and five minutes after birth, accurately reflected her condition; that the doctors acted promptly once the caesarean was decided on; that cardiotocography (CTG) readings showed the mother and baby were not in distress; and that the delivery was not delayed.

Dr Foulkes-Mackey, represented by Cheryl T Whyms & Co, wants the findings against her set aside, the claim against her dismissed, and Ms Guillaume ordered to pay her costs. Alternatively, she asks for the claim against her to be sent back for a new trial before a different judge.

Her notice argues that Justice Rigby did not identify any act or omission by her that fell below the standard of a reasonably competent obstetric and gynaecological registrar. It says he did not find that she removed the CTG monitor, was responsible for monitoring, told the midwife not to monitor, knew monitoring was not taking place, had access to a monitoring device or controlled the hospital’s equipment, staffing or theatre arrangements.

She contends that Justice Rigby found liability against “the Defendants” collectively without deciding which of them owed or breached the duty, and held her responsible for a monitoring failure he attributed to the hospital and the attending midwife. She also argues that the monitoring lapse was never pleaded against her personally. According to her notice, the claim focused on delays in assessment and delivery, and she was not given fair notice of the allegation or a chance to answer it.

The notice says monitoring is diagnostic and its absence cannot itself cause oxygen deprivation. It argues that Justice Rigby never determined when the baby’s condition deteriorated, what monitoring would have shown, or whether any intervention would have saved her.

It notes that the baby was born alive and deteriorated during transfer, and that no evidence established why. It also says Justice Rigby stated he did not have to decide what led to the baby’s sudden death, which the doctor argues he was required to do before finding liability.

Dr Foulkes-Mackey further challenges the finding that perinatal asphyxia probably caused the death. She argues that Justice Rigby rejected expert Dr Ward’s evidence of a possible congenital heart condition largely because the mother had a normal cardiovascular examination. Her notice says no expert evidence showed that such an examination ruled out heart disease in the baby.

She also disputes his reliance on the death certificate. Her notice says the certifying doctor, the paediatrician and the attending nurse did not testify, no paediatric expert was called and no autopsy was performed. It adds that both medical experts considered the lack of an autopsy material to determining the cause of death.

No hearing date has been set.