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In our law the relationship between a doctor and a patient, whether in the private or public sector, is a contractual one. Therefore while the plaintiff must prove the link between the medical accident and the disability caused, it is up to the doctor to then prove that the medical procedure was carried out with the necessary skill and diligence of the best practices accepted by medical science. This was held by the Court of Appeal on the 28th of June 2019 in the case of Vincent u Mary konjuġi Gauci v. Tabib Ewlieni tal-Gvern u Dr Albert Fenech in a hearing surrounding the issue of medical negligence.

Vincent Galea had undergone a medical procedure known as angioplasty, a procedure which opens blocked arteries and restores normal blood flow to the heart muscle. He claimed that as a result of this, he suffered a 33% disability which left him unable to walk without crutches. The plaintiff asked the Court to find the defendants responsible for the injuries and to liquidate the damages suffered by him in this regard. The defence, however, claimed that the accident did not happen as a result of the negligence of Dr Fenech and that, without prejudice to this, the Government Chief Medical Officer could not be found responsible since there was no link between the parties.

Moreover, it was argued that Mary Gauci had no legal interest in the case since she was not the one who had undergone the procedure and was not in Dr Fenech’s care. While the First Court agreed with the defence council that the wife Mary Galea had no locus standi in the proceedings since there existed no relationship between her and the doctor in question, it, however, rejected all the other defences and condemned the defendants to pay a sum of €41,732.35. It based this judgement on the principles found both in the law as well as in landmark case law such as the case of Savona noe v. Asphar where it is confirmed that all medical professionals must act in accordance with the prudence, diligence and the attention of a bonus paterfamilias.

The appellants’ appeal application highlighted the fact that the law subjects the exercise of a profession to a level of responsibility that one can expect from a person of competence, and that in this case the plaintiffs did not adequately prove that it was medical negligence that caused the unfortunate accident.

They held that, quoting the English Courts in the case of Roe vs Minister of Health (1954), “we should be doing a disservice to the community at large if we were to impose liability on hospitals and doctors for everything that happens to go wrong”. The appellants requested the Court to re-examine the medical experts’ reports and testimonies wherein it was claimed by them that nowhere in these did it result that the care given by the doctor was below the standard required by a medical specialist.

The Court of Appeal firstly clarified that the appellants were mistaken in stating that the onus of proof is on the plaintiff to prove that the doctor acted negligently since the relationship between the patient and a doctor is a contractual one.

The Court explained that while doctors cannot guarantee a particular result, they have an obligation to ensure that the result does not lead to a worsening of the physical condition of the patient. It was clear that the plaintiff proved that as a result of nerve damage caused by the operation he could no longer walk. It was then the doctor’s responsibility to prove that he diligently exercised the procedure.

Furthermore, the Court, by decree, summoned the medical experts to explain how they came to the conclusions presented to the first Court. The experts explained that the accident was caused by nerve damage which may unfortunately occur as these operations are considered to be “blind procedures”, meaning that doctors cannot see where the nerves are during the operation. However, one of the experts explained that this accident could have happened because during the procedure the doctor did not wait for blood to flow out from the artery before piercing through, causing a greater risk of nerve damage.

The Court saw this as a clear sign of medical negligence, and since no defence was made in this regard, the judgement of the First Court was confirmed. It was also held that since the relationship between the two parties was contractual, that the Government Chief Medical Officer, as the doctor’s employer, was indeed bound to share in the responsibility.

The judgement was given by Hon. Judge Giannino Caruana Demajo, Hon. Noel Cuschieri and Hon. Anthony Ellul.

Av Malcolm Mifsud


Mifsud & Mifsud Advocates

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