Parents insist on criminal action against consultant following son's death

The parents of Andrea Massa, a seven-year-old boy who died of peritonitis after being operated for appendicitis at St Luke's Hospital, are insisting that someone is to be held responsible on two counts: a medical count for what happened at the hospital; and a legal count for the decision not to prosecute (nulle prosequi) taken by the Attorney-General.

The case dates back to February 20, 2001, when Andrea was taken to hospital suffering from an abdominal pain and eventually operated upon for appendicitis after a pædiatric consultant examined him and requested the operation.

But after the operation the boy suffered complications and his condition got worse and worse until, on February 28, he died.

Following a magisterial inquiry, the consultant was charged with the boy's manslaughter.

A compilation of evidence followed but the charges were dropped when the Attorney General (AG), Dr Anthony Borg Barthet, decided that the doctor had no case to answer and stamped the case nulle prosequi.

On August 11 this year, a parliamentary question (no. 1446) about the case was tabled by Labour MP Joseph Cuschieri, who asked:

"What led the AG to decide on a nulle prosequi when the prosecution and the civil party still had evidence to present in court? Why didn't the AG send the court documents back to the Magistrates' Court to continue hearing remaining evidence?

"Why is it that Magistrate Consuelo Scerri Herrera (who presided over the compilation of evidence), the boy's parents, their lawyers and the police had not been informed about the AG's decision and instead got to know about the decision through The Times March 13 issue?

"Why was no criminal action being taken against anyone once Magistrate Abigail Lofaro, during the inquiry, concluded that the boy had died as a result of carelessness, negligence, a lack of observance of professional medical competence and hospital administration?"

In the reply, tabled on September 22, it was first explained that the Constitution of Malta states that the AG is completely autonomous.

Through the response, the AG explained that when he received the court documents of the case he sent them back to the Magistrates' Court for more evidence to be compiled.

Once the requested evidence was heard, the documents were sent back to his office but there was no indication that the prosecution or the civil party intended to present more evidence.

The case had not been put off for continuation to hear "the remaining evidence" for the same reason.

The AG also explained that apart from the court documents he had viewed the report of the internal inquiry held by the Health Department and therefore had all the information he deemed necessary to take the decision.

As for the magistrate's conclusion, he said that after viewing the evidence compiled he did not come to the same conclusion.

He added that if a case had been stamped nulle prosequi, that case could be reopened if there were new evidence and, if the police did not prosecute, one could file a challenge.

In the response the AG also said it was not the procedure to inform magistrates, parents or the police about his decisions. The law, he said, requires that a note be filed in the criminal court and that a report be presented to the President.

Based on a request inserted in the parliamentary question, the AG tabled the report, with all names deleted, in Parliament on September 28.

In the report he explained: "For criminal liability to be attached to Mr X [the consultant] it must be shown that he caused the death of Y [Andrea Massa] through imprudence, carelessness or lack of skill in the handling of the case, or that he did not observe regulations."

The AG outlined the facts of the case and explained that a postmortem showed that the boy died of "peritonitis and acute respiratory distress syndrome".

"Without the benefit of hindsight, the diagnosis reached by Mr X of appendicitis was reasonable and neither imprudent nor careless. Nor can it be said to show lack of skill...

"With hindsight it appears that Y was misdiagnosed or not fully and completely diagnosed. What needs to be established however is not whether Mr X... is or is not infallible but whether he was imprudent, careless or unskilful in the exercise of his art or profession, or failed to observe regulations," the AG wrote.

The AG concluded the report by saying that as there was no evidence of imprudence, carelessness or lack of skill in the exercise of the profession by the consultant, Andrea's death could not be attributed to him.

But Andrea's parents, Charles and Josephine Massa, found the AG's explanation, given through the parliamentary reply "unacceptable".

About the reference made to the procedure, Mr Massa said: "When will we understand that there should be regulations everybody knows about and abides by? How are the parents, who eagerly waited for justice to be carried out, supposed to know the procedure adopted in the AG's office?"

He added: "According to the AG, for the case to be reopened there must be new evidence. What new evidence? All the evidence is in his office. Do I have to stay pointing out to him where the negligence, gross negligence, lay?

"How come a foreign surgeon, who also gave evidence in the inquiry and the compilation, said that when he visited Andrea on February 26 he noted that 'the boy looked sick, he avoided movements and looked slightly dehydrated' and diagnosed him as suffering from 'peritonitis with beginning septic shock organ failure'?"

Mr Massa explained that other parliamentary questions regarding the case will be tabled and added that he planned to take further action if he would not be satisfied with the replies.

"However, I do not intend to start civil proceedings or take the case to the Medical Council before I let everyone know what my son went through. I will not accept an answer like the one I received and will not allow the matter to be swept under the carpet as if nothing happened."

Mr Massa added: "A great injustice has been brought upon us a second time. The first was in the medical field and now with the AG's decision it had become also legal...

"By deciding on a nulle prosequi, the AG did not close a door. He opened many and consequently there is no alternative save that the case be judged by the public. I am ready to put all the cards on the table so that everybody may have a chance to go through all the facts and reach their own conclusions... Whoever thinks that the Andrea Massa case stops here is mistaken."