Maybury wins $1.9m from BHB
The husband of a young mother who had terminal cancer diagnosed days after their son was born won $1.9 million in damages yesterday for medical negligence from the Bermuda Hospitals Board.
Chief Justice Narinder Hargun ruled that Kemar Maybury deserved the award because his wife, Latifa, would have been “treatable for cure” for colorectal cancer if an emergency room doctor at the King Edward VII Memorial Hospital had not failed to detect a rectal tumour and if the hospital had not failed to ensure that faxed medical notes were received by the patient’s GP.
But Mr Maybury’s legal battle may not be over because the board’s lawyer, Allan Doughty, told the Supreme Court: “My client is very serious about appealing this matter.”
A BHB spokeswoman said last night no decision had been made on an appeal.
She added: “BHB will decide on its response following a full review of the judgment, within the time allowed for such consideration.”
Mr Maybury, who lost his wife in November 2013, only six months after son Khaleel was born, was not in court for the judgment.
His mother, Keetha Lowe, who is helping to raise her six-year-old grandson, was present.
“It’s been a seven-year battle. Khaleel is in his seventh year,” she said. “He is asking for questions to be answered and I can’t answer Khaleel’s questions in a way that a seven-year-old would understand.
“I am tired. I really want to put it to rest. I really want to put Latifa to rest and, to a significant degree, I want to put Bermuda to rest.
“This case has not just affected our family but the entire community.”
Ms Lowe fought back tears as she added: “Latifa was an only child and her mother is still having to face the realities of what’s occurring right now.”
She said the case was a chance for the BHB to admit there was something “critically wrong with its policies and procedures” and own up to failures in its standards of patient care.
She added that the BHB had decided to engage in “fierce fighting” against a grief-stricken family.
Ms Lowe said: “When not even death moves authorities to do the right thing, then the community as a whole is at risk.”
The BHB admitted to the court that it was a breach of its duty of care when emergency room doctor Jacquiline Bisasor- McKenzie misdiagnosed Mrs Maybury with internal haemorrhoids in August 2012 after she went to the hospital with rectal bleeding and stomach pain.
It also admitted it was in breach of its duty when it failed to ensure a faxed copy of Dr Bisasor-McKenzie’s discharge summary, which included a follow-up instruction for Mrs Maybury to be referred to a specialist for a colonoscopy, was received by her GP.
But the board argued that even if the right diagnosis had been given it would have made no difference to the outcome given what it claimed was the “advanced staging” of the cancer in August 2012.
Mr Justice Hargun disagreed and highlighted he had seen no evidence that cells from the primary tumour had spread to Mrs Maybury’s lymph nodes at that time.
He accepted the evidence of expert witness Michael Leitman, a surgical cancer specialist who is chief of general surgery at Mount Sinai Hospital in New York, that “had Mrs Maybury been correctly diagnosed in August 2012, Mrs Maybury’s condition would have been treatable for cure”.
The Chief Justice said: “In this regard, I accept Dr Leitman’s evidence that her chances of survival were up to 60 per cent.”
He wrote in his judgment: “I am clearly of the view that the expert evidence of Dr Leitman was that had proper diagnosis been made in 2012, Mrs Maybury would have been cured from the cancer.
“The clear implication of Dr Leitman’s evidence is that she would have a normal life expectancy.”
Mrs Maybury, originally from Morocco, had just turned 30 when she died.
She and her husband married in 2010 and settled in Bermuda. Then they ran the successful Smokin’ Barrel food truck, which has now gone out of business.
Her health problems began in May 2012 when she started to suffer from constipation and rectal bleeding.
Ms Maybury reported rectal bleeding and abdominal pain for the previous three months at the August 2012 visit to the ER and was given suppositories and an X-ray.
The judgment said: “The rectal bleeding continued but Mr and Mrs Maybury took comfort in the fact that Dr Bisasor-McKenzie had diagnosed the condition as internal haemorrhoids.
“They did not receive any further communication from their GP ... following the visit to the emergency department ... They had no reason to suspect that the discharge summary may not, contrary to their understanding, have been faxed to [GP] Dr [Shaina] Kelly.”
Mrs Maybury returned to the ER in December 2012 when 18 weeks pregnant and again in January and April the following year.
Khaleel was born a month early by Caesarean section on May 9, 2013 after “an obstruction to normal delivery” was discovered.
Mrs Maybury was diagnosed days after the birth with terminal colorectal cancer, which had spread to her lymph nodes, liver, lungs and spleen.
Jai Pachai, who appeared for Mr Maybury, told the court the patient suffered “excruciating and ongoing pain and suffering” before she died on November 18, 2013.
Ms Lowe praised Mr Pachai for his work on the case.
The damages award included amounts for pain and suffering, bereavement, and loss of maternal and spousal care.
But Ms Lowe said: “Let’s be honest, no amount of money returns a mother to her child and to her husband and to her family at a time when she should be here. No amount can compensate for that.”
She added that the BHB “have to fight this as much as possible to avoid setting a precedent for others to follow and, Lord knows, there’s more than enough to follow”.
The BHB spokeswoman said: “In response to today’s judgment, while we strive to do our best each day caring for all people who come through our doors, we are truly saddened by the outcome for Mrs Maybury and sorry for where our service failed her and her family back in 2012.
“Since Mrs Maybury’s experience, BHB has worked to improve the communication between the hospital and community physicians by offering highly secure BHB e-mails through which patient information, such as emergency discharge sheets, can be confidentially shared.
“BHB is working collaboratively with Bermuda Medical Council and doctors to determine the most effective solution to this complex communication problem between all care providers.
“In the near future, this will include sending family physicians a daily list of all their patients who attended the emergency department, with a follow-up telephone call to ensure the list was received.
“Further ahead, BHB hopes the implementation of an electronic medical record will provide a platform to significantly progress towards a community solution.”
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