[UPDATED] Privy Council upholds $18m ruling for Nunez-Tesheira over husband's death

FORMER finance minister Karen Nunez-Tesheira says her 17-year battle with a private nursing home and a specialist doctor was a “fight for her husband,” the late insurance executive Russell Tesheira.

“I was not walking away. I fought for my husband…(he) deserved that…me fighting for him…He was deprived of his life… For my daughter who was very close to her father… she, too, was deprived.”

On Tuesday, the Privy Council dismissed the appeals of Gulf View Medical and anaesthesiologist Dr Crisen Jendra Roopchand against a court order to pay $18 million in compensation to Nunez-Tesheira over their negligence in her husband’s death after a prostate operation in 2004.

In a single ruling on the two appeals, Lords Reed, Sales, Hamblen, Stephens and Pentland dismissed all seven grounds of challenge by the institution and the doctor.
Although relieved she has been vindicated, Nunez-Tesheira admits it is still not over.

“Now, I have to collect my judgment.”

In an emotional interview on Tuesday, she also admitted her happiness has been blunted by what she had to endure for fighting for her late husband.

Nunez-Tesheira shared some of what she had to live through.

“For 17 years I had to stay quiet.”

She said one of the hardest parts of preparing her medical negligence case was the reluctance and outright refusal by some medical practitioners locally to testify as an expert witness. Nunez-Tesheira, a UWI law lecturer and PNM political leader hopeful, had to widen her search to the region.

She was also full of praise for her attorneys, Douglas Mendes, SC, Marcelle Ferdinand, Simon de la Bastide and also attorney Kerwyn Garcia, who, she said, gave “selflessly” of his time and advice early in her fight for justice.

While she was confident she had a “good case,” she repeatedly lauded her legal team for their commitment and proficiency. She also praised Justice Vasheist Kokaram and his detailed reasoning in his judgment.

Nunez-Tesheira also had some advice for others: Be persistent and vigilant. Do your own reading. Keep on the case and do not give up.”

She recalled that hours after her husband’s death, a sibling – a doctor – advised her to get his medical records.

“I was shellshocked and couldn’t think about that.”
Nevertheless, she went the next day with her sisters, stood her ground and didn’t leave until she had them.

The case

Russell Tesheira was admitted to Gulf View Medical on April 13, 2004, for a trans-urethral resection of the prostate (TURP), a type of elective surgery.

It was to be carried out by urological surgeon Dr Lester Goetz with Roopchand as the anaesthetist.

The surgery was completed by 1.10 pm that day, but while he was being taken to a recovery room, nurses observed his urine was heavily stained with blood.

The bleeding could not be contained, and at 3.30 pm, he was taken back to the operating theatre, where Goetz and Roophand tried various medical and surgical procedures to try to stop the bleeding.

After many hours, the bleeding was brought under control, but too late to save Tesheira’s life. He died on the operating table at 11.30 pm while still under general anaesthetic.

The cause of death was certified as “irreversible shock with DIC (disseminated intravascular coagulation).”
Tesheira was 53.

In 2005, Nunez-Tesheira filed the medical negligence lawsuit. In 2015, Justice Vasheist Kokaram held the hospital and the doctor were negligent in their management of the risk of post-operative bleeding.

In April 2017, three Appeal Court judges ruled against Gulf View and Roopchand, who both appealed Kokaram’s ruling.
Kokaram awarded Nunez-Tesheira compensation of $18,034,722.33. The sum to be paid will include interest, but the amount received by the surgeon will be deducted.
In a 109-page decision, Justices of Appeal Allan Mendonca, Prakash Moosai, and Judith Jones said they could not fault Kokaram’s original decision. After examining the evidence, they too held that on a balance of probabilities, Tesheira’s death was caused by the negligence of Gulf View and Roopchand.

Jones, who wrote the decision, said Tesheira’s was not a case of death by excessive bleeding but death as a result of poor management of the bleeding, which led to a fluid overload in his body.

The Appeal Court held there was an admission of non-delegable duty of care. In its ruling, the Privy Council said the challenge by the hospital and doctor had not been made out, as their defences made the admission.

Although the Appeal Court reversed several of Kokaram’s findings, they upheld his decision on causation and the quantum of compensation to be paid.

In a unanimous ruling, written by Lords Stephens and Pentland, the Privy Council described the Appeal Court ruling as “carefully reasoned and comprehensive,” but relied heavily on Kokaram’s findings as it dismissed each of the challenges.

It also held there were no grounds to go behind the previous courts’ (Kokaram’s and the Court of Appeal’s) ruling on the cause of Tesheira’s death, and said the evidence of Nunez-Tesheira’s expert witness, Dr Pitt-Miller, went uncontradicted.

In 2011, Kokaram had dismissed the lawsuit at a preliminary stage after Nunez-Tesheira failed to meet two successive deadlines he set for filing evidence against Gulf View, Roopchand, and urologist Dr Lester Goetz.

She appealed and the lawsuit was reinstated. While appealing the decision, Nunez-Tesheira came to an agreement with Goetz which saw him being removed from the lawsuit.

The hospital filed an action seeking to have Goetz contribute to the court-ordered compensation, but this was struck down, and in June 2019 the Privy Council refused its application to include the urologist in its application, saying it lacked merit.

Gulf View Medical was represented by King’s Counsel Mary O’Rourke, David Boyle and Joseph Price. Roopchand was represented by Katherine Deal, KC.