A couple's lawsuit claiming more than SAT$2 million in damages for the stillbirth of their child delivered at the national hospital was struck out by the Supreme Court.

The defendants in this case were the Director General of Health and the Ministry of Health as the couple claimed it was negligence that led to the infant's death. 

Steffi Carruthers-Thomsen Fuataga and Kaino Thomsen Fuataga’s baby was delivered stillborn in March 2022 at the national hospital at Moto’otua having died in utero. 

They initiated a proceeding against their obstetrician Aiono Dr. Alec Ekeroma (first defendant) on 26 January 2023, alleging negligence on his part.

At the time Aiono was already appointed as the Director General of Health, his current position.   

The couple also sued the Ministry of Health (MOH) (second defendant) whom it is alleged is vicariously liable for any relevant breach of statutory duty. 

The claim is brought by the plaintiffs in their capacity and as parents of baby Adira. 

When the lawsuit was filed the couple relied on the Law Reform Act 1964 but this position was abandoned. 

During submission, the lawyer for the couple said the action was lodged under common law and sought damages for the tort of negligence.  

The couple sought more than $2 million for damages for the loss of their infant child, mental shock and anguish, stress and anxiety. 

Aiono and the M.O.H. countered the claim with a motion to strike out and the proceeding was heard by Chief Justice Satiu Simativa Perese in November last year. 

His reserved decision was delivered this month that concluded the statement of claim dated 26 January 2023 to be struck out. 

“It cannot possibly succeed,” the Chief Justice ruled. 

“There being no extenuating or special circumstances, costs should follow the event…” 

Chief Justice Perese said the claim appears to be considerably wider, it includes on behalf of baby Adira, a claim for loss of amenity and enjoyment of life. 

The plaintiff submitted a single action in negligence against each of the defendants for loss alleged in mental shock by the negligence of the medical staff members who were involved with the childbirth. 

“For this judgment, a discussion of the alleged facts serves no helpful purpose in determining the justiciability of the Plaintiff's claim,” the judgment says.  

“In any event, it is unnecessary to recount the agony and pain that the Plaintiffs suffered; on the other hand, one must be careful to not inadvertently cause harm to professional reputations based on untested evidence.

“I am satisfied the Plaintiffs claim for negligence must be struck out. A claim in common law cannot succeed.”

The Samoa Observer reached out to Mrs Thomsen Fuataga for a comment and said they will be meeting with their lawyer to discuss the outcome of the case before making any public statements. 

Lawyer Leiataualesa Komisi Koria represented the couple. 

Semi Leung Wai is the counsel for Aiono while Violina Leilua of the Attorney General’s Office represented the M.O.H.