Home' Trinidad and Tobago Guardian : April 13th 2014 Contents A7
April 13, 2014 www.guardian.co.tt Sunday Guardian
We want justice
staying away to avoid any perception of interference.
The probe team:
On March 17, Attorney General Anand Ramlogan
named three people to investigate the matter. The
team, headed by Appeal Court Judge Mustafa Ibrahim
and includes former head of the neonatal unit at the
Port-of-Spain General Hospital Dr Petronella Man-
ning-Alleyne and UK-based consultant obstetrician
and gynaecologist of the University College London
Hospitals Dr Melanie Clare Davies.
In a telephone interview, Ramlogan said the com-
mittee had already developed the terms of reference
and as far as he was aware had been liaising with
the relevant parties. He said it was Davies previous
international commitments that was holding up the
"But that should be scheduled for the end of this
month," Ramlogan said.
The Sunday Guardian e-mailed Dr Davies regarding
the probe and received this response: "The Royal
College of Obstetricians and Gynaecologists has been
asked to nominate an independent obstetrician to
provide an expert opinion on this case. It would not
be appropriate for us to comment on the information
received or any other details about the inves-
Attorney Ravi Rajcoomar
comments on Baby Simeon's death
The surgeon's knife
In recent weeks the media reported on
the horror of a child s death and as of this
week, the fact is that the inquiry into this
tragedy has not begun as scheduled.
The story conflicts but what is certain is
that the surgeon s knife was responsible.
The autopsy revealed that the baby s head
was cut so deeply it penetrated the brain
and damaged tissue during what should
have been a routine c-section surgery. If
young Simeon died after birth, then his
cause of death would be injuries sustained
Can the law provide a remedy and
comfort for this senseless loss?
The concept of justice is that all men
should get their due.
What does baby Simeon deserve?
This is not the first time that routine sur-
gery has resulted in death. There have been
widespread stories in recent years of unex-
plained deaths in institutions created to pre-
serve and protect life and health. For such
matters we need to find a way around
drawn-out civil procedures.
What the law says
So what remedies are available, not
only for bereaved relatives, but also for
In the case of Simeon, a baby boy not
yet born, but dead in the eyes of the law,
death, it can be inferred, resulted from a
knife wound that penetrated the brain.
Is this child destruction, murder or
In our jurisdiction, criminal liability only
arises where a child is born alive.
At Common Law, no criminal offence
occurs while the child is in the womb or in
the process of being born. A person can
only be guilty of an offence where the child
exists, living and breathing by reason of its
own breathing "through its own lungs with-
out deriving any of its living or power of
living by or through any connection with
its mother." If there is no such independent
living then the criminal law cannot be
A crime called child destruction
In 1929, the United Kingdom enacted
legislation to correct this obvious wrong.
The Infant life (Preservation) Act changed
the Common Law. This act does not apply
to our country. The UK law effectively made
the killing of a child capable of being born
a criminal offence punishable by life impris-
onment. It is called child destruction. It
carries a term of imprisonment for life.
In T&T, an unborn child does not have
the protection of either the criminal law or
The European Court of Human Rights in
the 2004 case of Vo v France opined that
the unborn child is not protected by the
Human Rights Convention. In an immediate
criticism of this decision in 2005 JK Mason
called for the immediate creation of an
offence which he called feticide and could
be committed without intention where gross
negligence could be proved. This of course
follows the law as it now relates to
manslaughter arising out of negligence. It
seems clear that our Constitution, which
follows the European Convention, does not
apply to unborn children.
What is medical negligence?
How do you compensate a family for
the loss of the life of a child like Sime-
In medical negligence cases it is possible
to pursue criminal proceedings where you
can establish gross negligence. Negligence
in this sense means the failure to use such
care as a reasonably prudent and careful
person would use under similar circum-
The test for medical negligence has been
the same since 1856: a doctor is negligent
if he does not act in accordance with the
practice accepted by his profession in that
Gross negligence can lead to charges of
manslaughter. By gross negligence, the law
simply requires evidence that a duty was
performed in reckless disregard of the con-
sequences or doing an act which an ordinary
and prudent man would not do in the same
circumstances. Where a medical doctor or
any professional is concerned, this translates
into acts which a reasonable professional
similarly qualified would not do. In other
words, no medical practitioner would have
acted or taken such a risk.
In a criminal case where a doctor was
convicted for manslaughter, the English
courts opined that where a person holds
himself out as possessing special skills and
knowledge, he owes a duty to use due cau-
tion in treating the patient. He would be
criminally liable where his actions fall below
what is fair and reasonable. If his treatment
falls below what is fair and reasonable he
would be in breach of his duty to the patient
and guilty of negligence. A doctor would
have to be judged in light of the state of
medical knowledge at the time of the inci-
'Time for the authorities to act'
Regretfully, little Simeon was not given
the opportunity to breathe or to become a
Quelly Ann Cottle was
admitted to Mount Hope
Maternity Hospital with a c-
section date of March 7, two
months earlier than her nine-
month due date.
Another doctor, though, spoke
with Cottle on March 1 and she
was informed that she should
move the date up as the baby
would not "get any bigger in
During that surgery, the baby's
head was sliced open.
Cottle, 38, a mother of five,
said she heard the baby cry
and was then told by on-duty
doctors that he had passed.
She was quoted as saying that
she noticed a plaster on the
baby's head while she was
being wheeled out of the room
and then later, when viewing
the body, noticed stitches on
Continued from Page A6
Continues on Page A11
Emil Millington hugs his wife Quelly Ann Cottle, during the funeral service of their son
Simeon Millington at Dass funeral home in Chaguanas last month.
PHOTO: RISHI RAGOONATH
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