17 May 2012
- Written by Jada Loutoo (T&T Newsday)
- Hits: 986
FORMER FINANCE Minister Karen Nunez-Tesheira’s lawsuit seeking more than $20 million in compensation for the “loss and damage” suffered upon the death of her late husband, Clico insurance executive Russell Tesheira in 2004, has been thrown out by the courts.
After turning down a second request by Nunez-Tesheira to “corral her case” within the confines of the Civil Proceedings Rules, Justice Vasheist Kokaram ruled that Nunez-Tesheira had failed to file the necessary expert witness statements in time and failed to comply with the court’s orders.
“This marks the end of the claimant’s case. The claim stands dismissed...Having regard to the legal personalities involved in the conduct and carriage of her case and the several unfortunate missteps along the way, I can only surmise that there must be forces larger than us all preventing her from investigating the death of her husband. He is perhaps to be remembered as he lived and not as he died,” the judge said in the final paragraph of his 17 page ruling.
In an immediate reaction, a visibly upset Nunez-Tesheira placed the blame of her unsuccessful medical negligence lawsuit against a medical clinic based in La Romaine, a top urologist and an anaesthesiologist, squarely on the shoulders of her instructing attorney Nyree Alphonso.
The former finance minister also intimated politics was at play, pointing to Alphonso’s chairmanship on the First Citizens board. Alphonso is also a founding member of the Congress of the People.
Nunez-Tesheira said she intends to take up the issue with the Disciplinary Committee of the Law Association as well as file legal proceedings against the attorney, and could not say if she intends to appeal Justice Kokaram’s ruling.
“We must all be held accountable,” she said.
The former finance minister named Gulf View Medical Centre, urologist Dr Lester Goetz and anaesthesiologist Dr Crisen Jendra Roopchand as defendants in her lawsuit. In separate defences filed in response to the claims made by Nunez-Tesheira, the defendants denied the allegations, noting that there was no reasonable cause of action against them.
Nunez-Tesheira is the widow and executrix of the estate of Russell Tesheira and brought the action on behalf of his estate under the Supreme Court of Judicature Act and for the benefit of his dependents under the Compensation for Injuries Act.
Nunez-Tesheira alleged that her husband was put at risk when doctors performed transurethral resection of the prostate (TURP) surgery on him. She insisted that the procedure should not have been performed on her husband and that the doctors involved in his care ought to have been aware that heavy bleeding was a risk of the TURP procedure. (During TURP, an instrument is inserted up the patient’s urethra to remove the section of the prostate that is blocking urine flow). Tesheira, Clico’s vice-president of sales and agencies administration, died on April 13, 2004, shortly after undergoing surgery.
The nature of the claim, according to the lawsuit, was that Tesheira, who was 53 at the time of his death, was a “strong, healthy man who had worked continuously at Clico as the vice-president, sales and agencies and administration with additional responsibility for administration and marketing of life pension products.” He was also responsible for a sales force of over 500 agents with over 200 agency staff. She sought damages equivalent to his earnings for each year since his death — an estimated $20 million over a five year period.
Following the court’s ruling yesterday, Tesheira faulted Alphonso’s handling of her case.
But in her defence, Alphonso said the allegations made by her now former client were untrue.
Alphonso said they were unable to file on the first deadline given by the judge because “we had no witnesses.” She explained that the medical expert sought by her former client withdrew after being threatened by a colleague.
“What is the lawyer to do?” she asked. She said after they approached the judge for an extension and was given two weeks, another expert witness who would have provided financial evidence, resigned on December 29, 2011, one day before the new December 30, 2011, deadline given by the judge.
“We were scrambling to file witness summaries and statements and get witnesses to replace those who withdrew. It cannot be the lawyers’ fault,” Alphonso said.
She said despite the late scramble, they were able to file the necessary documents on December 30, however they did not receive the papers back from the High Court Registry on the same day, so they were unable to effect service on the defence.
She said when they were able to serve the documents, after the New Year holiday period, the defence refused to accept service because it was not done on December 30, 2011.
Alphonso said she has been an attorney for more than 20 years and did not choose clients based on their political affiliation.
“I don’t care what party she belongs to. I don’t see race, religion, political affiliation. I do not discriminate against clients because of this,” she said.
Kokaram had given an “unless order” when he granted the extension to Nunez-Tesheira to file her supporting documents, which meant unless she complied with the December 30, 2011, date, the claim stood dismissed.
In his ruling, Kokaram said he did so to emphasise the serious nature of his order. He said Nunez-Tesheira had failed to demonstrate good reasons and general compliance for failing to file on time.
“There was no good excuse for failing to file and serve the supplemental list of documents which would have disclosed the expert medical reports. There was also an express sanction imposed for failing to comply with that order,” he said.
He also pointed out that he had urged parties to consider mediation and had been encouraged to learn that Nunez-Tesheira and Dr Goetz were interested in mediating the dispute while Gulf View Medical and anaesthesiologist Dr Roopchand refused, saying it would deprive them the right of a trial.
The judge said he found the explanation neither acceptable nor rational. He said mediation was voluntary and entirely within the rights of the parties to amicably resolve their dispute and if the process failed, either side would have a better understanding of their respective cases.
But Roopchand told the media, mediation worked on the premise that one side was the guilty party.
In her claim, filed in 2010, the former finance minister outlined her husband’s annual earnings in 2003 as being over $3.8 million and noted that he paid for land taxes and the mortgage for property at 63 Hilltop Drive, Champs Fleurs, telephone and mobile phone bills, clothing, holidays, family dining at first-class restaurants, university fees for the children and purchased an Audi A4 car and a town house for her. She sought damages equivalent to his earnings for each year since his death — an estimated $20 million.
Nunez-Tesheira stated her husband’s annual salary and the payments would have continued had he remained alive. As a result of his death, the lawsuit further noted, Tesheira’s annual salary and monthly payments were no longer available to his dependents and his wife had to pay the mortgage on the home at Champs Fleurs at a higher interest rate of nine percent instead of the preferred six percent which he enjoyed as an employee of Clico.
Russell Tesheira’s cause of death was listed as cardiac failure and shock and haemorrhaging. Douglas Mendes SC, Simon de La Bastide and Nyree Alphonso appeared for Nunez-Tesheira while Kemraj Harrikissoon SC, appeared for Gulf View Medical Centre and Dr Roopchand while Michael Hamel-Smith appeared for Dr Goetz.