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Man awarded $5,000 for delayed diagnosis

A man who sued a doctor for $300,000 over a delayed diagnosis has been awarded $5,000 for pain and suffering by the courts.

According to an Ex Tempore Judgment by Chief Justice Ian Kawaley, Raynol Todd brought an action against Annamalie Chelvam over a failure to accurately diagnose a herniated disc in 2003.

Mr Todd was first seen by Dr Chelvam on July 1, 2003, walking with a cane and complaining about weakness in his limbs. A precautionary scan of Mr Todd's head was carried out, with the results being unremarkable.

On July 29, Mr Todd returned to the doctor experiencing numbness in his legs. An MRI of his lumbar spine was carried out, but did not reveal the herniated disc. Mr Todd reached out to the doctor again on September 19, complaining of worsening symptoms. The complaint led to a second MRI, which revealed a large disc protrusion causing severe spinal compression.

Mr Todd was later flown to the UK for surgery, with doctors reporting that on his admission on November 13, 2003 he was almost completely paralysed. However, after the surgery he was able to walk with the assistance of a walker. In an initial judgment on the case, the court found that the result of the delay was that Mr Todd received his surgery ten days later than he otherwise would have.

And while Mr Justice Kawaley wrote that the defendant was liable for the delay, he added: “This occurred in relation [to] initial presenting symptoms so unusual that Dr Chelvam would likely encounter them only ‘once in a career'.”

While Mr Todd sought $300,000 in compensation for pain and suffering, lawyer David Kessaram, representing Dr Chelvam, argued that given all of the circumstances he was entitled to around $1,000.

In the Ex Tempore Judgment, dated January 31, Mr Justice Kawaley said that it was clear Mr Todd would have experienced some anxiety about his prognosis, which would have worsened as his condition deteriorated.

“It would be wrong to overstate the degree of that anxiety having regard to the fact that the evidence overall in this case suggests that when the plaintiff had significant concerns he sought medical assistance; notably checking himself into hospital,” he said.

“And there is no evidence that after he was discharged from hospital on or about November 7 that he sought medical advice because of anxiety about his worsening condition.

“And so, looking at the matter in the round, this case is one which as Mr Kessaram submitted does warrant considerable sympathy for the plaintiff's position, but falls well below the worst case of pain and suffering.”

Mr Justice Kawaley ruled that Mr Todd should be awarded the sum of $5,000 for pain and suffering. And on the subject of legal costs, the Chief Justice noted a “Without Prejudice Save as to Costs” letter by the defendant, dated August 14, 2014 that admitted liability for the delayed diagnosis and offered a $20,000 settlement in general damages and a further $5,671.76 in interest and payment of ‘reasonable legal costs'. That offer was rejected by the plaintiff.

“In the event, following a trial on liability and an assessment of damages today, the plaintiff has been awarded the sum of $5,000,” Mr Justice Kawaley wrote.

“In these circumstances the only appropriate order as to costs, following established principles, is as follows.

“The plaintiff is awarded his costs, having succeeded on liability, up to August 14, 2014, to be taxed if not agreed. Thereafter, the defendant is awarded his costs, to be taxed if not agreed.”

Chief Justice Iam Kawaley (Photograph by Akil Simmons)

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Published February 07, 2017 at 8:00 am (Updated February 07, 2017 at 7:02 am)

Man awarded $5,000 for delayed diagnosis

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