Professional Negligence I
Cases (Medical)
Daniels and Another v. Heskin
[1954] IR 75
Maguire C.J. 75
Supreme Court
MAGUIRE C.J. :
30 March
The plaintiffs in this action, which was one of negligence tried by Mr. Justice Casey and a jury, seek to set aside the verdict and judgment entered against them by the direction of the trial Judge, and that a new trial be ordered.
They are husband and wife, and the negligence alleged is that of the defendant as a medical practitioner in his care of the wife. She had been safely delivered of a baby by the local midwife, Nurse Power. While being so delivered she suffered a tear of the perineum. The defendant, who is the dispensary doctor for the area, came in response to a summons from Nurse Power for the purpose of stitching the tear. While he was engaged in doing so a needle broke. Portion of this needle remained embedded in the flesh. The defendant completed the stitching with another needle. He did not tell the plaintiffs or either of them what had happened. They learned of it later and about eight weeks afterwards another doctor successfully removed the broken portion of the needle.
A medical practitioner is liable for injury caused to another person to whom he owes a duty to take care if he fails to possess that amount of skill which is usual in his profession or if he neglects to use the skill which he possesses or the necessary degree of care demanded or professed. This statement is taken from Halsbury’s Laws of England, vol. 21, at para 634, and appears to me correctly to summarise the law.
It is conceded that the defendant did owe to the plaintiff, Mrs. Daniels, a duty to take care.
Negligence was alleged under three heads: 1, the breaking of the needle; 2, failure to remove the broken portion promptly; 3, failure to inform the plaintiffs or either of them of the breaking of the needle.
The learned trial Judge ruled that there was no evidence to go to the jury upon which they could find negligence under any of these heads.
As regards the first head of negligence I am of opinion that there is no evidence upon which the jury could hold that the breaking of the needle was due to negligence on the part of the defendant.
The second head of negligence is that the defendant failed to remove the broken needle promptly from the body of Mrs. Daniels. From the expert evidence which on this point was in agreement, two courses were open; one was to suspend the stitching and have the broken needle removed before completing it; the other to complete the stitching and wait for a period of some weeks before having it removed. The latter was the course adopted by the defendant and from the expert evidence given it is clear that to adopt either course is in accordance with accepted medical practice. I am of opinion, however, that the question of whether the defendant was entitled to decide which course to adopt is wrapped up with the question whether it was his duty to inform either or both of the plaintiffs of the mishap directly it occurred.
The only case cited to the Court on this last question was Gerber v. Pines (1). There Mr. Justice du Parcq said that it seemed to him “that a patient in whose body a doctor found that he had left some foreign substance was entitled to be told at once. That was a general rule, but there were exceptions.” Reference was also made to a note of an American case noted in Taylor’s Medical Jurisprudence, 9th ed., vol. 1, at p. 83, Eislein v. Palmer (2), in which it was apparently decided that there was no duty on a physician to tell a patient or her husband that a broken needle had been left in the patient’s body as long as she remained a patient but that there was a duty to tell her when discharging her from his care.
To my mind Mr. Justice du Parcq has laid down the rule correctly. In this case no reason is given why the defendant should be excused what seems to me to be his obvious duty. There was no evidence that any serious consequence would be likely to follow telling the patient what had happened when it happened. Even if it were shown that to tell her might unduly shock Mrs. Daniels there is no reason why her husband should not have been informed. The fact that a choice lay between the two alternative courses of action mentioned above made it to my mind incumbent upon the defendant at least to inform the husband and to allow him to judge whether his wife should be told and in any case to allow the patient or her husband to make the choice. The defendant would clearly have advised that the stitching be completed and the operation of removing the broken needle deferred for some weeks. It was, however, the prerogative of the patient and her husband to decide whether they would accept or reject such advice if given.
In my view the jury should have been asked to consider the question whether or not the defendant was negligent in failing to inform the plaintiffs of the breaking of the needle.
The verdict and judgment should be set aside and a new trial should be ordered.
MURNAGHAN J. :
I agree with the judgment about to be read by Mr. Justice Lavery.
O’BYRNE J. :
I agree with the judgment about to be read.
LAVERY J. :
The plaintiffs appeal to this Court against the dismissal of the action consequent on the ruling of the learned trial Judge that on the evidence there was, as a matter of law, no case for the jury to consider and that if the case went to them for consideration it would not be open to them to find that the defendant had been guilty of negligence and to award damages.
The respective functions of judge and jury are well settled and there was no controversy about them.
There is in every case tried by a judge and jury a preliminary question which is one of law, namely, whether there is any evidence on which the jury could properly find in favour of the party on whom the onus of proof lies. If there is not, the judge ought to withdraw the question from the jury and direct a non-suit if the onus is on the plaintiff. It is not in dispute that the onus of proof was on the plaintiffs.
Neither is there any serious dispute as to what the question was.
The defendant undertook to treat the female plaintiff, to whom I shall hereafter refer as the plaintiff, as a medical man and he is responsible for damage caused by his treatment if he did not possess in a reasonable measure the skill necessary to perform what he undertook or if, possessing such skill, he failed to employ it with reasonable care.
I need not set out again the course of events which has already been stated by the Chief Justice.
The plaintiff charged that the defendant failed in his duty in three respects. First, that in the course of stitching the plaintiff he broke the needle he was using and left the broken part in the plaintiff’s body and that on the evidence it was open to the jury to find that this was due to want of skill or incapacity or carelessness on his part. Secondly, that the mishap having occurred his subsequent treatment of the plaintiff was improper. Thirdly, that the mishap, having occurred it was his duty to inform the plaintiff or her husband in order that if they wished they could seek the advice and attention of another doctor and so avoid the consequences which it is alleged followed the actionor, as it is said, the inaction of the defendant.
On the first question, the plaintiffs concede that the case is not one where the principle, or the phrase, “res ipsa loquitur,” applies and that on the evidence the needle may have broken through a flaw in itself not discoverable by the doctor or otherwise without negligence on his part.
This is certainly the case. Three doctors gave evidence and all agree that this was so.
Mr. McKenna, however, submits that as there was evidence that the breaking of needles in the course of a surgical operation is more often due to an imperfection of technique on the part of the operator than to defect in the instrument it would have been open to the jury on the balance of probability to find that it was caused by negligence.
Leaving aside the question whether imperfection in technique is to be considered negligence in all cases, it seems to me that Mr. McKenna is claiming to apply the principle of “res ipsa loquitur” in another form and that there is a fallacy in his argument.
If there is positive evidence that an event was caused in a particular way and other positive evidence that it was caused in another way, it is undoubtedly true that the jury are to decide as between such bodies of evidence on the balance of probability how it actually occurred.
That is not the case here. No evidence given at the trial would support a finding that it was the manner of the operation which caused the break. On the contrary, such evidence as there is, and it is very slight, would tend to establish that the accepted and normal course was followed. I refer to the evidence of Nurse Power and of Dr. O’Keeffe that he found the needle in what he concluded was its original position and that he did not suggest it had been wrongly used.
It is certainly not open to a jury, in my opinion, in that state of facts to hold that the breaking was caused by imperfection of technique on the ground that say in 60% of cases of broken needles it is so caused, and the same is true of any other statistical record of such happenings until the point is reached where the preponderance is such as to make it a case of res ipsa loquitur shifting the burden of proof to the defendant to give an explanation and to establish that the mishap was not due to his negligence.
In my opinion the first ground fails and the ruling of the learned trial Judge on the question was correct.
Was the course taken by the defendant after the breaking of the needle improper?
Dr. Davidson, an ex-Master of the Rotunda Hospital and a distinguished gynaecologist, called for the plaintiff, said in effect that he would have taken the course which the defendant took, that if he could not recover the needle, he would complete the stitching, keep the party under observation and defer an operation to recover the needle for two or three months, firstly in the hope that it might come out of itself and, secondly, to avoid infection and to allow the period of infection to pass before operating, should the needle not come away.
Mr. Chance for the defendant gave evidence substantially to the same effect.
As against this evidence, Dr. O’Keeffe said, at Q. 573:”I think I would take the patient into hospital straight away and either do it that evening or the following morning, giving her an anaesthetic, put her asleep, and attempt to remove the needle,” and that he did not think there would be any difficulty in doing so.
There is no hint in his evidence that while he might have taken a different course he considered that taken by the defendant as improper or in any way wrong according to accepted medical practice.
In that state of the evidence it would not, in my view, be open to the jury to hold that the defendant was negligent.
The defendant was bound to possess and use reasonable skill, having regard to his position as a general practitioner and in the circumstances of the particular case. If I may quote Maugham L.J. in the case of Marshall v. Lindsey
County Council (1): “I refer to his evidence as an illustration of the fact that in this matter, as in so many others, the doctors differ, and in the presence of this undoubted honest difference of opinion it is not open in my opinion to a jury to hold that it is negligent to accept one view rather than the other,” and again (at p. 540): “I do not doubt the general truth of the observation in the judgment” [in the case of Vancouver General Hospital v. McDaniel (2)] “that a defendant charged with negligence can clear himself if he shows that he has acted in accord with general and approved practice.”
Maugham L.J. was a dissenting judge, but I do not read the judgments of the other members of the Court or of the House of Lords to which the case was takenas differing on this point. In any event, my view is the same as that expressed by Maugham L.J. A contrary view would lead to strange results which are so apparent that I need not give illustrations.
In my opinion the ruling of the learned trial Judge on this question was correct.
There remains for consideration the question whether the defendant should have told the plaintiff or her husband that he had broken a needle and that probably the broken portion was in her body and whether the fact that he did not do so was negligence or a breach of duty founding an action.
As the Chief Justice has said, this question is bound up with the matter I have already dealt with, namely, the defendant’s decision to complete the stitching and to defer an operation for the removal of the needle should this become necessary till the period of infection had passed.
The duty of a doctor to inform his patient of the treatment he is adopting and of incidents such as that under examination has been fully discussed in argument. It is clear that there are some matters which a doctor must disclose in order to afford his patient an opportunity of deciding whether she accepts his view or wishes to consult another doctor and an opportunity to make a choice between alternative courses. An example would be where a dangerous operation was contemplated.
On the other hand, there are matters which the doctor must decide for himself having accepted the responsibility of treating his patient and having regard to his professional skill and knowledge upon which she relies. A clear example would be where in the course of an operation an unexpected complication appears.
Into which category does the present case come?
The evidence establishes, in my opinion, that when the needle broke, the choice before the defendant was either to suspend operations, inform the husband and have the plaintiff removed immediately to hospital (assuming that were possible), and there X-rayed and operated on for the removal of the needle or to complete the stitching and defer the operation for removal.
I have already expressed the view that in deciding on the latter course the defendant acted reasonably and without negligence.
This decision having been taken the evidence establishes that the defendant and the nurse discussed the question whether the plaintiff should be told and agreed that it would be better not to tell her for fear it would damage her health. A period of six weeks would have to elapse during which nothing could be done save to keep the patient under observation. In the words of the defendant in his letter of the 24th October, 1951, he did not inform the patient as he”was of the opinion that if this fact were disclosed to her at that time it would only cause her unnecessary mental anxiety.”
This appears to me to be a reasonable decision and it involved non-disclosure to the husband as well. In the circumstances no purpose could have been served by informing either the patient or her husband.
It is not, however, necessary to hold that the decision was the right one. In order to establish negligence or breach of duty the plaintiff would have to show that it was a decision incompatible with the proper exercise of the defendant’s functions as a doctor.
Moreover, in order to succeed in the action, even assuming the duty to tell, the plaintiff would have to prove that damage which is the gist of the action as pleaded was caused by the failure to tell. In fact, the needle was successfully removed by Dr. O’Keeffe at the appointed time and the event justified the course taken by the defendant. I cannot find any evidence that the non-disclosure caused any damage to the plaintiffs.
For these reasons I am of the opinion that the ruling of the learned trial Judge was correct in all respects and that this appeal should be dismissed.
KINGSMILL MOORE J :
The plaintiffs are a labourer and his wife, living some five miles from Waterford, and the defendant is the dispensary doctor of the district in which the plaintiffs reside. The plaintiffs claim damages for negligence, or alternatively for breach of contract, alleging that the defendant was employed to treat the female plaintiff and that in so doing he was negligent in three ways, in as much as he allowed a surgical needle to break while stitching her perineum, failed to remove the broken portion of the needle from the perineum or to take early steps to have it removed, and failed to inform the plaintiffs that the broken portion had been left in the perineum.
At 11 o’clock p.m. on the 17th June, 1951, the wife gave birth to her first baby, and in the course of the delivery the perineum became torn to an extent which required stitching. Accordingly, Nurse Power, a midwife of over thirty years experience, who was in attendance at the birth, sent next day for the defendant. He arrived at 11 o’clock a.m., selected from his bag the needles he required, and gave them to the nurse who sterilised them, and threaded in the sutures. The first stitch was inserted without mishap, but in the course of inserting the second stitch the needle broke and about 11/2 inches remained buried, fairly deeply, in the perineum. Another needle and suture were got ready, and with them the second stitch was put in place. Both doctor and nurse searched for, but could not find, the broken portion of the needle and the doctor told the nurse that “it must be in there,” meaning that it was in the perineum, and said “we will have to have an X-ray,” and subsequently”you will have to have an X-ray.” Before leaving he told the nurse to look after the patient, to watch her pulse and temperature and to report to him if anything went wrong, or if she was worried about anything, or if the patient was suffering any discomfort. He does not seem to have given specific directions about the needle, but Nurse Power understood that these directions were given with reference to the needle, and she also understood that if the needle was not found in six weeks the patient was to be X-rayed.
The patient remained under the care of Nurse Power and had a normal convalescence. After nine days the stitches were removed, and the patient got up, and began to take up her ordinary life. She did suffer from what she called”ire,” a word which apparently means “chafing” and which, according to Nurse Power, is a normal feature after delivery, and when she bent down, according to her testimony in the box, she felt as if there was a piece of wire in her flesh which pricked her. Nurse Power attended her daily for nine days after the birth and saw her out walking, or in a social call, about twice a week after that. No complaint was made to Nurse Power about the sensation of wire, but the patient did complain of the “ire.” Nurse Power in the course of the six weeks after the birth saw and reported to the defendant about three or four times, and told him that she had not been able to find the needle. When the six weeks had expired Nurse Power, without any additional instructions from the defendant, but in pursuance of what she thought had been agreed on the day of the stitching, took her patient into Waterford to a Dr. O’Keeffe, who is a surgeon and gynaecologist, and he made arrangements for an X-ray. The X-ray showed the broken needle lying fairly deep in the perineum. After a delay of about a fortnight, till a bed should be vacant, the patient was operated on, and the broken needle removed, not without some little difficulty, on the 13th August. On the 26th August she was discharged from hospital with the operation scar healed and her health has progressed normally. At the trial she said that she was due to have another child on the 24th June just over twelve months after her first baby was born.
Nurse Power kept the defendant informed of the steps which were being taken by her and believed herself to be carrying out his instructions. She says that when she told Dr. Heskin that she had taken the patient to Dr. O’Keeffe he appeared pleased.
For the plaintiffs, Dr. O’Keeffe and Dr. Davidson, ex-Master of the Rotunda Hospital, gave expert evidence. For the defendant, Dr. Arthur Chance, a very eminent surgeon, was called, and his evidence was for convenience interposed after the plaintiffs’ doctors had given their evidence. The defendant himself was too ill to attend the trial. At the conclusion of the case for the plaintiffs the trial Judge withdrew the case from the jury on the ground that there was no evidence of negligence, and entered judgment for the defendant, and against this ruling and order the plaintiffs appeal.
There was very little controversy as to facts and the case turns on whether on the admitted facts, there was any evidence that the defendant was negligent in the treatment of his patient in any of the three ways suggested, and the answer depends chiefly on the expert evidence of the doctors.
The first negligence alleged was permitting the needle to break in the tissues of the patient. All the doctors agreed that needles may, and do, break owing to flaws in the steel, without the slightest error being imputable to the user. As I understand the evidence, all the doctors also agreed that a sound needle may be broken by a doctor in the course of an operation if the doctor asks too much of it, either by taking up rather too big a fold of tissue, or by forcing the needle slightly, or subjecting it to some other strain. This Dr. Chance termed an “imperfection of technique,” but he made it quite clear that it was such an imperfection as was inherent in the limitations of human nature, and did not amount to negligence: “there is no living surgeon that has not broken a needle many times,” “all the most skilful people in the world have done it,” “the most competent surgeons in the world have broken needles. The masters have broken them.” Dr. Davidson said: “I have broken needles often myselftrying to get too much into the needle, or putting too big a strain on it,” and in cross-examination he reaffirmed that needles had frequently broken with him, but disclaimed any negligence on his part. Dr. O’Keeffe appeared to have been more fortunate than his colleagues, having only broken needles on two occasions.
If a needle may be broken through a flaw in the steel, or through some failure to reach perfection in handling, which does not amount to negligence, there can be no question of the application of the maxim, “res ipsa loquitur,” and there must be evidence of some definite act of negligence by the doctor. It was suggested that the doctor used a wrong type of needle. The usual needle used for such stitching is the semi-circular, or fully-curved perineal needle, and the X-ray showed that the doctor had used a less fully-curved needle. But on this, Dr. Davidson said: “I should say that not all people use a fully-curved needle. Some use the semicurved needle. Some may use the less fully-curved.”Dr. O’Keeffe agreed that different kinds of needles were used, depending on individual choice.
It was also suggested that the needle was too thin, but it was admitted that a fine needle had the advantage of minimising pain, and no doctor said that the needle used was improperly fine.
I am unable to find any evidence such as would warrant a jury in finding that the fracture of the needle was due to any negligence of the defendant, rather than to an unforeseen weakness in the steel, or to a mishap such as may happen to the most skilful operator, especially when he is working in difficult conditions. To fall short of perfection is not the same thing as to be negligent.
If the doctor was not negligent in breaking the needle, was he negligent in leaving the broken piece in the tissues, to be removed subsequently? There was a divergence of opinion between the doctors as to what was the most suitable course. Dr. Davidson said that if he was a country practitioner, stitching the patient in her own home, and found it difficult to get at the broken needle at once, he thought that he would stitch up the patient and leave her to see if the needle would show up at a later date; but if the needle had not worked itself out by three or four months time, he would operate, and he would operate at an earlier period if pain or temperature suggested any harm was being done. Dr. O’Keeffe said: “I think I would take the patient into hospital straight away . . . giving an anaesthetic and attempt to remove the needle.” He made it clear that unless he could be certain of operating within twenty-four hours of the time when the needle was fractured, he would prefer to have the needle in situ for some weeks or months before operating. Dr. Chance was of opinion that if the needle were broken in the course of an operation in a hospital theatre, the best course would be to locate and remove the broken portion at once, but if the damage occurred in a private house, and the broken portion could not be at once located and removed, then the better course was to sew up the patient and remove the needle after six weeks or so had elapsed.
None of these eminent medical men purported to be dogmatic; none of them suggested that a course, other than the course he preferred, would have been necessarily erroneous: certainly no one of them suggested that the adoption of the alternative course was negligence. I should like to say with emphasis that an honest difference of opinion between eminent doctors, as to which is the better of two ways of treating a patient, does not provide any ground for leaving a question to the jury as to whether a person who has followed one course rather than the other has been guilty of negligence. It would be different if a doctor had expressed the opinion that the course adopted was definitely erroneous. The defendant in this case adopted the course which Dr. Davidson, a Master of the Rotunda, who for many years was responsible for teaching the best practice of midwifery, considers to have been correct, and the one which ought to have been adopted in the circumstances. Neither the honesty not the competency of this opinion has been challengedindeed Dr. Davidson was called as the expert witness for the plaintiffs. I do not understand Dr. O’Keeffe to have suggested that there was anything negligent in leaving the needle in situ to be removed subsequently, though he himself would probably have attempted an early removal if he could be sure of doing the operation within twenty-four hours. There was no evidence that the defendant, faced with an emergency, could have been sure of making suitable arrangements for an operation to take place within the period assigned, and in Dr. O’Keeffe’s own opinion, if this could not be ensured, the most proper course was that taken by the defendant.
There seems to me to be no evidence fit to be considered by a jury to suggest that the defendant was negligent in leaving the needle in the tissues for removal at a subsequent period when the tissues should have healed and risk of infection would have diminished.
The third head of negligence alleged against the defendant was his failure to give immediate information to the patient or her husband that portion of the needle was buried in the tissues.
Counsel for the plaintiffs suggested that there was a rule of law that such information should be given. He relied first on the words of Mr. Justice du Parcq in a case of Gerber v. Pines , very shortly reported in 79 Sol. Jo. 13. The learned Judge is there alleged to have said that “it seemed to him that a patient in whose body a doctor found he had left some foreign substance was entitled to be told at once. That was a general rule, but there were exceptions.”Counsel next referred to an American case, noted in Taylor’s Medical Jurisprudence, 9th ed., vol. 1, at p. 83, Eislein v.Palmer (1), in which it was apparently decided that there was no duty on a physician to tell a patient or her husband that a broken needle had been left in the patient’s body so long as she remained a patient, but that there was a duty to tell her when discharging her from his care.
I doubt very much whether the judges in either of these cases intended to enunciate a rule of law. If they did I must respectfully disagree. A doctor owes certain well recognised duties to his patient. He must possess such knowledge and skill as conforms to the recognised contemporary standards of his profession and, if he is a specialist, such further and particularised skill and knowledge as he holds himself out to possess. He must use such skill and knowledge to form an honest and considered judgment as to what course, what action, what treatment, is in the best interests of his patient. He must display proper care and attention in treating, or in arranging suitable treatment for, his patient. Any attempt to substitute a rule of law, or even a rule of thumb practice, for the individual judgment of a qualified doctor, doing what he considers best for the particular patient, would be disastrous. There may be cases where the judgment of the physician is proved by subsequent events to have been wrong, but if it is honest and considered and if, in the circumstances known to him at the time, it can fairly be justified, he is not guilty of negligence. There may indeed be cases where the nature of the judgment formed or the advice given is such as to afford positive evidence that the physician has fallen short of the required standard of knowledge and skill, or that his judgment could not have been honest and considered, but it lies on the plaintiff to adduce evidence from which such a failure of duty can reasonably be inferred.
I cannot admit any abstract duty to tell patients what is the matter with them or, in particular, to say that a needle has been left in their tissues. All depends on the circumstances the character of the patient, her health, her social position, her intelligence, the nature of the tissue in which the needle is embedded, the possibility of subsequent infection, the arrangements made for future observation and care, and innumerable other considerations. In the present case the patient was passing through a post-partumperiod in which the possibility of nervous or mental disturbance is notorious; the needle was not situate in a place where any immediate damage was to be anticipated; husband and wife were of a class and standard of education which would incline them to exaggerate the seriousness of the occurrence and to suffer needless alarm; and arrangements were made to keep the patient under observation during the period when sepsis might occur, and to have the patient X-rayed at a period when the bruising and injuries caused by the birth should have subsided. If it were open to me to speak as a juror I would say that the defendant’s action was correct. That question is not directly before this Court. What we have to consider is whether it was so incorrect as to provide evidence on which a jury could reasonably conclude that the defendant had failed in any of the duties toward his patient which I have already enumerated. In my opinion there is no such evidence.
All the doctors who were examined were of opinion that it would be wise for a doctor to tell a patient or some member of her family of such a mishapbut wise in a self-regarding way, so as to protect the doctor from the possibility of future vexatious actions. Thus Dr. Davidson said he would inform the patient as otherwise he might “find himself in an awful mess.” “From my own point of view I would inform her, looking after my own interest.” In cross-examination he admitted that there was a choice between “either keeping yourself right by informing the patient, or taking a chance and saving her anxiety.” Dr. O’Keeffe said he would have told one of the family; but agreed that there were patients who should not be informed immediately after a confinement, that in every case a doctor must make up his own mind, and that as Dr. Heskin and Mrs. Power knew the patient and the circumstances of the case they were in the best position to form a correct judgment. Mr. Chance thought the patient should not have been informed; that there was no reason to inform her except the doctor’s self-protection; that in his own interest a doctor should tell somebody.
Here the defendant told Mrs. Power. No doubt he would have been wise in his generation to tell the husband and so avoid future trouble for himself. But this policy, though justifiable from motives of narrow self-interest, may seem to some less laudable than the other alternative of “taking a chance” to save the patient anxiety.
Nor can I see how the patient’s interests in this case would have been secured by informing her husband, thus causing anxiety to him and, if he revealed his knowledge, to her. It has been suggested that if her husband had been informed he might have got into touch with Dr. O’Keeffe, who in turn might have been able to get a bed and remove the needle within the period of twelve to twenty-four hours in which he considered operation would be desirable. The husband, though examined, never suggested that he would have taken this course, and, if we are to pay attention to the evidence given by Dr. Davidson for the plaintiffs, it is a matter of doubt whether such an operation at this time was the best treatment. Even if there was a duty to inform, which in this case I do not think there was, I cannot find that any damages have been incurred by failure in such duty.
To avoid any misconstruction I may add that I do not wish to suggest that a doctor would always be justified in keeping such knowledge to himself. In every case there is a clear duty to take precautions against injury to the patient from the presence of the needle. The nature of those precautions must vary with each case. In the present case the arrangements made with Mrs. Power, to keep a close watch on the patient and have an X-ray at the appropriate time, were such that it would be impossible to find that the doctor had not exercised his judgment honestly, responsibly and with a due regard to his patient’s interest.
O’Donovan v. Cork County Council.
[1967] IR 180
O’DALAIGH C.J. :
20 Dec.
I agree with the judgment of Mr. Justice Walsh.
LAVERY J. :
This appeal is brought from the verdict of a jury and the judgment entered thereon by Mr. Justice Teevan. The appellants are Jeremiah J. Hurley who was at the material time the county surgeon employed by the Cork County Council and, as such, he was the medical officer in charge of the county hospital, Fermoy, County Cork; Dr. James G. O’Brien who was at the material time employed by the County Council as anaesthetist in the county hospital; and the Cork County Council who have been held liable as responsible for the alleged negligence of their officers, the other two appellants. The respondent is the widow of Denis O’Donovan who died in the hospital on the 10th May, 1957, in the course of an operation being performed in the hospital. She brings this action on behalf of herself and her children in respect of the loss suffered by the death of her husband. The course of the events must be set out in some detail.
The grounds of the appeal are that there was no evidence of negligence on the part of either Surgeon Hurley or Dr. O’Brien proper for the consideration of the jury and that the trial judge should have withdrawn the case from the jury and entered judgment for the defendants.
The damages were assessed in respect of the loss suffered by the respondent and by each of her children. The total sum awarded was £6,000. The trial judge entered judgment on these findings against the County Council, Surgeon Hurley and Dr. O’Brien and gave judgment for John N. O’Donnell.
The deceased, Denis O’Donovan, was an agricultural labourer who was 29 years old when, on the 10th May, 1957, he was admitted to the hospital, suffering from stomach pains, for examination and, if necessary, for operation. Surgeon Hurley was the medical officer and surgeon in charge of the hospital but, by an arrangement sanctioned by the County Council, he was at the time residing at Mallow which is about 20 miles from the hospital at Fermoy. Dr. O’Donnell was the assistant surgeon resident in or near the hospital and acting as assistant under the control and direction of Surgeon Hurley. The deceased was brought by ambulance to the hospital and arrived at 6 p.m. He was seen by a nurse and later by Dr. O’Donnell who diagnosed a condition of sub-acute appendicitis. Surgeon Hurley, after his day’s work in the hospital, had gone to his home at Mallow. At 7 p.m. Dr. O’Donnell telephoned Surgeon Hurley and gave him his opinion: a decision was deferred. Having observed the condition of the patient for about an hour, Dr. O’Donnell telephoned Surgeon Hurley at about 8 o’clock and it was arranged that Dr. O’Donnell should proceed to operate. Surgeon Hurley, having given this instruction, said “if any difficulty arises I will probably go over.” Dr. O’Brien, the anaesthetist, was called and the operation commenced at 8.15 p.m.
The patient was put under anaesthetic by the administration of ether. The appendix was found to be inflamed, with adhesions. The actual operation was completed about 8.40 p.m. but Dr. O’Donnell observed some oozing of blood from two small areas and, as this oozing continued, he instructed
the nurse to phone Surgeon Hurley and to ask him to come over so that he could get his opinion as the senior surgeon before closing the wound.
Surgeon Hurley immediately came by car to the hospital and he arrived at about 9.45 p.m. or 10 p.m. He went at once to the operating theatre, looked at the wound, and went to “scrub up.”
Surgeon Hurley decided that it would be best to close up the wound at once with suitable packs, but at this moment the patient became cyanosed, which indicated a lack of oxygen, and went into a state of convulsion. Until this happened the situation was under control and the operation was proceeding normally.
The convulsions continued for about half an hour during which time Dr. O’Brien cut off the ether and gave oxygen to the patient whilst Surgeon Hurley closed up the operation wound. Attempts were made to get in touch with Dr. Nagle, a consultant anaesthetist. He was not available and Dr. Hickey of Cork was then phoned and his advice obtained. During this period Surgeon Hurley passed a tube to help the anaesthetist to get oxygen to the patient. He then saw a danger that there would be a heart stoppage and he opened the chest and massaged the heart which resumed its function. The patient was then removed to the ward but died at about 12.45 a.m.
The negligence alleged against Surgeon Hurley, as appears from the questions put to the jury, was (a) that he was wrong in allowing Dr. O’Donnell to do the operation without his being at call; and (b) that at a later stage, after the convulsions had started, he was negligent in the treatment for which he had undertaken responsibility.
There were other acts or omissions constituting negligence alleged but they do not appear to have been pressed. For example, it was suggested that an apparatus for giving a saline drip or a blood transfusion should have been made available. On the evidence it does not appear that these allegations could be sustained, but in any event no occasion for use of a saline drip or the giving of a blood transfusion arose. The death was due to anoxia, meaning loss or lack of oxygen.
The allegation of negligence against Dr. O’Brien is that he did not use an anti-convulsant drug and that his treatment when the convulsions began was inexpert and that it was insufficient to do what he did, which was to cut off the ether and administer oxygen.
The course of events is not in controversy. The facts are definitely ascertained. What the operating team did and did not do is clear. The issue, which depends on medical testimony and on the evidence of experts, is whether there was negligence. Before examining this expert evidence it would be appropriate to set out the standard of care which is required from a medical man who has undertaken the treatment of a patient. There is no real difference between the law of negligence to be applied in such a case and the general law which requires that a person, owing a duty to another, shall discharge that duty with reasonable care and, if he is a person claiming a special knowledge or skill, that he shall possess such knowledge or skill in a reasonable degree and will use it.
The question of negligence on the part of a medical man has been examined in this Court in the case of Daniels v.Heskin (1). In the course of my judgment in that case I said at p. 79 of the report:”The defendant was bound to possess and use reasonable skill, having regard to his position as a general practitioner and in the circumstances of the particular case. If I may quote Maugham L.J. in the case of Marshall v. Lindsey County Council (2):’I refer to his evidence as an illustration of the fact that in this matter, as in so many others, the doctors differ, and in the presence of this undoubted honest difference of opinion it is not open in my opinion to a jury to hold that it is negligent to accept one view rather than the other.'” I stated that this was my view of the law and with this judgment Murnaghan J. and O’Byrne J. agreed. Kingsmill Moore J., in a separate judgment, was of the same opinion; at p. 85 of the report he said:”I should like to say with emphasis that an honest difference of opinion between eminent doctors, as to which is the better or two ways of treating a patient, does not provide any ground for leaving a question to the jury as to whether a person who has followed one course rather than the other has been guilty of negligence.” Maguire C.J., who differed in opinion on another issue, said at p. 76 of the report:”As regards the first head of negligence [which was alleged negligence in the manner of operating] I am of opinion that there is no evidence upon which the jury could hold that the breaking of the needle was due to negligence on the part of the defendant. The second head of negligence is that the defendant failed to remove the broken needle promptly from the body of Mrs. Daniels. From the expert evidence which on this point was in agreement, two courses were open . . .” The Chief Justice described them and continued:”The latter was the course adopted by the defendant and from the expert evidence given it is clear that to adopt either course is in accordance with accepted medical practice.”
There was therefore no difference of opinion in the Court on the standard to be applied in considering whether a medical man had been negligent in the treatment of a patient.
In the year 1955 the Court of Session in Scotland considered a similar question in Hunter v. Hanley (1). Daniels’ Case (2) was not cited. It may be that notwithstanding the date of the report stated it had not in fact been published at the time.
I quote from the judgment of Lord President Clyde at p. 204 of the report:
“To succeed in an action based on negligence, whether against a doctor or against anyone else, it is of course necessary to establish a breach of that duty to take care which the law requires, and the degree of want of care which constitutes negligence must vary with the circumstances Caswell v.Powell Duffryn Associated Collieries (3) per Lord Wright at pp. 175-6. But where the conduct of a doctor, or indeed of any professional man, is concerned, the circumstances are not so precise and clear cut as in the normal case. In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men, nor because he has displayed less skill or knowledge than others would have shown. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary careGlegg, Reparation (3rd Ed.), p. 509. The standard seems to be the same in EnglandSalmond, Torts (11th Ed.), p. 511.” At p. 206 the Lord President continues:”Even a substantial deviation from normal practice may be warranted by the particular circumstances. To establish liability by a doctor where deviation from normal practice is alleged, three facts require to be established. First of all it must be proved that there is a usual and normal practice; secondly it must be proved that the defender has not adopted that practice; and thirdly (and this is of crucial importance) it must be established that the course the doctor adopted is one which no professional man of ordinary skill would have taken if he had been acting with ordinary care.”
The principle is therefore well settled and is the same in the Courts of England, Scotland and Ireland. The course of events and the conduct and actions of the two defendants Surgeon Hurley and Dr. O’Brien, which appears in the evidence, is to be judged on this principle.
The grounds of appeal, which have now to be considered, are set out in the Notice of Appeal of Surgeon Hurley. The grounds of appeal are set out in the Notice of Appeal of Dr. O’Brien in similar terms though verbally different, and it is unnecessary to set them out.
At the close of the evidence at the trial counsel for each of the defendants applied to the trial judge to withdraw the case from the jury and the transcript shows that this application was argued at length. I cannot set out this argument nor would it serve any useful purpose were I to do so. I quote what appear to me to be the substantial submissions made and the answer given by Mr. FitzGerald, counsel for the plaintiff. Mr. Liston said:”Now there are two submissions I wish to make. The first is that on the evidence the jury could not hold that the operation had not been performed in a normal manner, in a proper manner or in a satisfactory manner. In my submission it is not for the jury of their ownlike they might say a motorist should have done this, that or the other thingagainst medical opinion to say the operation should have been done in some other way.” Mr. Liston then referred to the case of Daniels v.Heskin (1) and quoted at length from the judgments.
In reply, Mr. FitzGerald said:”The jury would be entitled to hold that this man’s death was caused by something which happened to him in the hospital. In my submission they would be entitled to hold, there being no evidence that he developed any condition extraneous to the operation and anaestheticthey would be entitled to hold that his death was caused by the treatment he received, which I intend to include, of course, failure to treat. They would be entitled to hold that if Surgeon Hurley had performed the operation the probabilities are that the man would not have died. They would be entitled to hold that he died of anoxia, either by reason of the ether convulsions themselves producing the state of exhaustion that has been referred to, or from a condition produced in him which killed him and which also caused the ether convulsions. They would be entitled to hold that the development of ether convulsions and the condition which led to his death and which was also causing the ether convulsions was due to the prolongation of the operation through a failure either to stop the oozing or to close the wound, if it was not stopped, and the continuance of the operation in keeping the man’s wound open and prolonging the anaesthetic. That they would be entitled to hold that the responsibility for that sequence of events rests in the first instance on Dr. Hurley because he did not perform the operation himself, when it might have had a successful conclusion; on Dr. O’Donnell for undertaking the operation in the absence of Mr. Hurley and if he did undertake it, in failing to complete it either by stopping the oozing or closing the man up if he did not succeed in stopping it within fifteen or twenty minutes, which is what Mr. Hurley would have done; and against all three doctors for their failure to deal with the crisis that arose when the man developed the convulsions.”
In giving his ruling the trial judge said that he had had some doubts as to whether he should grant the application but he ruled:”So I am afraid there is evidence to go to the jury as regards the other two doctors, Mr. Hurley and Dr. O’Donnell. Again for quite a considerable timeuntil the last momentI felt that Dr. O’Donnell should get a direction, but I think I was overlooking the points made by Mr. FitzGerald in reply. I accept Mr. FitzGerald’s submission and feel I must leave the case to the jury against all the doctors concerned.”
Evidence was given by a number of medical men of the highest standing both on the surgical aspect of the case and in relation to the anaesthesia. On many points there was a definite conflict of opinion. There is no doubt about the qualifications of all the witnesses to express an opinion under the principles laid down in the cases to which I have referred. The issue is whether it was proper to submit to a jury the choice of which of two differing views they should accept. The defendants can only be held liable if there is evidence that they acted or failed to act otherwise than in a manner approved by a responsible body of opinion. I cannot set out the evidence in detail, and what I will set out may not be completely adequate to explain my conclusion. I have considered the evidence both in Court and afterwards and have, I hope, given consideration to the submissions of counsel.
The plaintiff called as expert witnesses Mr. Douglas Montgomery, a distinguished surgeon, and also Dr. Dundee, a specialist in anaesthetics and head of the Anaesthetics Department of Queen’s University, Belfast. The effect of Mr. Montgomery’s evidence was that he did not consider Dr. O’Donnell sufficiently qualified to undertake the operation in the absence of the senior surgeon within call. He was also of opinion that a blood transfusion unit and/or a saline drip equipment should have been provided and he was of opinion that, when the convulsions started, an anti-convulsant drug should have been given.
The effect of Dr. Dundee’s evidence was that he was of opinion that an anti-convulsant drug should have been given. I quote from his evidence: Q.:”Now what treatment is proper to stop convulsions?” A:”Use of a specific anticonvulsant drug.” Q:”Are there any specific anticonvulsant drugs?” A:”Yes. The most commonly used one for an immediate effect would be pentothal.” He added that there were other similar drugs which would produce the same effect.
On the question of the competence of Dr. O’Donnell the jury have found that he was not negligent. That does not conclude the matter as regards the other defendants; but it seems to me that on the evidence of the expert witnesses for the defence they could not have come to any other conclusion and, if they had found a verdict against him, in my opinion it could not be supported. I do not think there can be any doubt that Dr. O’Donnell, whose qualifications and experience were stated at length, was fully competent to commence and carry out an operation for appendicitis, and I have no doubt that he would have successfully carried it out but for the unexpected onset of the convulsions. All the witnesses agreed that ether convulsions are very rare indeed. Most of them had never seen a case of it. In particular I refer to the evidence of Mr. Arthur Chance who, in his immense experience over a long period of years, had never seen a case of ether convulsions.
Mr. Coleman Byrnes, another distinguished surgeon, gave evidence for the defence. I quote from his evidence:”I have no doubt Dr. O’Donnell was capable of doing an appendix operation.””In my experience I never met a case of ether convulsions.””It is completely wrong to put up a saline drip during an operation. I think there was no indication at all. In my experience I would see nothing wrong in Mr. Hurley agreeing to or directing an operation without having examined the patient personally.” The witness said that repeatedly; he would say that about two nights a week he would get a ring from his hospital and instruct the junior or senior registrar, as the case might be, in the case of an appendix to “carry on and if there is any difficulty let me know.” He said:”That repeatedly happened in our hospital.” When dealing with ether convulsions, he said:”It is something that comes out of the blue. A man all of a sudden gets ether convulsions. It is an appalling catastrophe, a fantastically rare occurrence.”
Mr. Arthur Chance, whose authority and experience as a surgeon is everywhere acknowledged and was acknowledged in this case, said that, having heard the course of the operation described in evidence, he thought that everything was done properly and in accordance with normal practice, and he said that “to give an anti-convulsant drug would have been dangerous.”
Dr. O’Brien himself gave evidence that he considered it would have been a very dangerous thing to use an anticonvulsant and he explained his reasons by saying that:”if he had not got ether convulsions we could have gone on till 12 o’clock without any trouble.” He also said:”There is a danger in the use of anti-convulsant drugs, and in O’Donovan’s case pentothal was contra indicated.”
Dr. John Patrick Conroy and Dr. Patrick J. Nagle, two anaesthetists of high standing and great experience, gave evidence on behalf of Dr. O’Brien. Both were of opinion that Dr. O’Brien had acted in a competent and skilled manner. They recognised that alternative procedures might have been adopted but were satisfied that the course taken was a proper one in the circumstances. On the particular point as to whether pentothal should have been given, Dr. Conroy said:”If one gave pentothal one would undoubtedly kill the patient.” He explained why. Dr. Conroy said that in the circumstances he might have given scoline or something like it. He said that scoline is a relaxant and not an anti-convulsant drug and he said that, at the time the tube was passed by Surgeon Hurley to assist in giving the patient oxygen, to give pentothal at that time would undoubtedly be a complete coup de grace; and he added:”I can say as definitely as I can say anything that had he been given pentothal or scoline or any of these drugs at that time he would have died.” This summary of the evidence of Dr. Conroy in my opinion correctly states its effect. Mr. Justice Walsh takes a different view which he explains.
Since first writing this opinion I have re-read the transcript of the evidence of Dr. Conroy which covers 94 pages, recording 521 questions and answers.
I refer to further evidence given by this witness. When he was asked what course would he have taken in the circumstances, if he had been the anaesthetist at this operation, he answered:”I think I might well have given soccomelinathat is scoline. I might still have done that. On the other hand if the patient had got one small convulsion . . . I would not have given any relaxant or barbiturate.”He then said:”The course which Dr. O’Brien described to cut off ether and administer oxygen and nitrous oxide before going on to anything else was a perfectly reasonable course.”
There is much more in the evidence. I consider that I have set out enough to justify my opinion on the law that it was not open to a jury to hold Dr. O’Brien negligent and that the judge should have withdrawn the issue and entered judgment for Dr. O’Brien.
Dr. Patrick J. Nagle gave evidence to the same effect. He said:”From the evidence that I have heard in this case the onset of the convulsions was sudden and severe . . . now I would say at that point of time it would have been dangerous to give pentothal.” Asked if he thought that it might have been given at a later stage, he said that that was a question of considerable difficulty but he explained:”All the expert evidence suggests that an anti-convulsant should be given at the earliest possible moment and quite rightly so, but if I were treating that case, to put it hypothetically I would not have given pentothal. I would have given scoline” and he explained what he would then have done. When he was asked his opinion of Dr. O’Brien’s decision not to use pentothal, he answered:”I feel that Dr. O’Brien was right.”
Lengthy as these quotations from the evidence are, they do not explain fully the evidence. If the evidence establishes that both surgeon and doctor acted in accordance with a procedure acceptable to a responsible body of medical opinion then it was not for the jury to hold them negligent.
In my opinion the learned trial judge should have withdrawn the case from the jury and directed a verdict in favour of all the defendants. I consider, therefore, that the appeal should be allowed and that the action should be dismissed.
WALSH J. :
The Cork County Council is the health authority for the County of Cork; and the County Hospital in Fermoy in County Cork was one of the institutions managed and provided by the County Council. Mr. Hurley was at the material time an officer employed by the County Council as the county surgeon and as such was in charge of that hospital. Dr. O’Brien was also an officer of the Council employed as anaesthetist in that hospital. The liability alleged to lie with the County Council is solely their vicarious liability, which was admitted in this case, for the acts of Mr. Hurley or Dr. O’Brien or both. Although Mr. Hurley was a more senior officer than Dr. O’Brien, there was nothing in their relationship as such officers to make Mr. Hurley vicariously liable for any of the acts of Dr. O’Brien.
The liability alleged to lie with Mr. Hurley is purely a personal liability in respect of the alleged failure on his part to fulfil the personal duty which he had undertaken towards the deceased, and it is claimed in this case that that duty was undertaken not only in the field of surgery but in the field of anaesthetics. So far as the case against Mr. Hurley was concerned, the charge was not that he lacked any of the required skill or competence in surgery but rather that he was lacking in care for the patient by permitting and directing the operation to be undertaken by the house surgeon in the hospital at a time when Mr. Hurley was not present in the hospital and when he was at Mallow, which is 16 miles from the hospital. It is alleged also that he lacked the required competence and skill in the treatment of the patient’s convulsions when they started; that is, in effect, a charge that he was without the required competence and skill in the field of anaesthetics.
The charge against Dr. O’Brien is that he was without the required competence or skill in his own field, namely anaesthetics.
A medical practitioner who holds himself out as being a specialist in a particular field is required to attain to the ordinary level of skill amongst those who specialise in the same field. He is not required to attain to the highest degree of skill and competence in that particular field.
It was also alleged against Dr. O’Brien that he was lacking in care both in his preparations for the operation and in his conduct when the emergency arose. A medical practitioner’s conduct so far as care is concerned is to be judged in the light of the particular circumstances prevailing at the time when he is called upon to act, and the degree of care required may vary in proportion to the magnitude of the risk involved.
It is convenient to consider the events of the night in question by dividing the whole time into two periods. First is the period prior and up to the onset of the convulsions and, secondly, the period commencing with the onset of the convulsions and ending with the death of the patient.
So far as the first period is concerned, the agreed facts are that the deceased was to undergo what, to all appearances, was to be an uncomplicated and straightforward operation for appendicitis. The preliminary examination of the patient disclosed no abnormalities or any other symptom which might suggest that the operation would be other than a normal one. The patient, a farm labourer, was about 35 years old and, except for the condition of his appendix, was otherwise apparently healthy. A suggestion was put forward during the trial that he was possibly suffering from dehydration as a result of the symptoms, but nobody who saw him formed the opinion that he gave any indication of such a condition. Preparations were made for the operation and Mr. Hurley gave authority on the telephone from Mallow for the commencement of the operation and directed that it was to be undertaken by the house surgeon, Dr. O’Donnell. There are somewhat varying accounts of what Mr. Hurley said he would do after the commencement of the operation. His own account was that he said that he would remain in Mallow and would not go over unless there was some difficulty. The message, as it was ultimately conveyed to the house surgeon, Dr. O’Donnell, was such that a jury might well accept that the impression that he was left under was that he was to commence the operation and that during the course of it Mr. Hurley would arrive.
The operation commenced at about 8 o’clock and it would, in the ordinary course of events, have been terminated at about 9 o’clock. The anaesthetic consisted of a mixture of ether, oxygen, and nitrous oxide, and it was administered by Dr. O’Brien. Dr. O’Donnell and Dr. O’Brien were assisted by a number of nurses who were also present in the theatre. The operation up to a certain point passed off uneventfully but, shortly before the point at which the patient would have been closed, Dr. O’Donnell noticed that there was a slight seepage of blood. This, so far as the evidence went and various doctors gave evidence, is something which can happen quite easily as the smallest nick by one of the surgical instruments may cause sufficient grazing to permit a slight bleeding. Dr. O’Donnell took the various approved steps, endeavouring to stop the flow of blood although he failed to find the exact source of the blood. These steps were the placing of various warm or hot packs in the region of the seepage. They did not have the desired effect and Dr. O’Donnell thought it better to contact Mr. Hurley and ask him to come over before he would close the patient. The situation was explained to Mr. Hurley on the telephone and he set out immediately and arrived in about a half hour. The patient in the meanwhile was kept under the anaesthetic to a degree sufficient for the occasion, namely, that of keeping him still unconscious without risk of his gaining consciousness before the operation was resumed.
Mr. Hurley arrived in the theatre at about 9.50 p.m., walked over to the patient and had a look round. Having seen the patient, he indicated that there was nothing to worry about and he went to scrub up. While he was preparing himself one of the nurses present mentioned that the patient was “moving.” In fact the patient had begun to have convulsions which it is agreed may be described correctly as ether convulsions. Mr. Hurley recognised at once the nature of the convulsions and said what they were and decided to close the wound immediately with part of a pack, protruding from the wound, which might be later removed. Dr. O’Brien also recognised them and so informed Mr. Hurley.
In respect of this first period of the night, the allegation against Mr. Hurley was that he was negligent in entrusting this operation to a house surgeon when he himself was not within immediate call.
So far as his service with the County Council is concerned, Dr. O’Donnell’s duties within the field of surgery were generally to assist the surgeon of the hospital in the performance of his duties and to observe and execute all such orders and directions, as might be given to him by the surgeon, applicable to his office. He also had duties to take charge of patients on their admission, to assign them to wards pending their examination by the surgeon and to report to the surgeon on the condition of the patients. So far as the regulations were concerned, it does not appear to be contemplated that he would perform any operations himself. That, however, does not affect the question of negligence in this case whether on his part or on the part of Mr. Hurley in directing him to carry out an operation.
Dr. O’Donnell had qualified in the month of June, 1955, and was a Licentiate of the Royal College of Surgeons of Ireland. He took up duty in the hospital at Fermoy on the 13th October, 1956. Prior to his being placed on the Medical Register in the month of July, 1956, he had spent six months in the Richmond Hospital, for two months of which he worked as a house surgeon, and he spent some months in the Rotunda Hospital where he also acted as a house surgeon for about three months, and he occupied the same position for one month at the National Maternity Hospital. During his time in the Richmond Hospital he assisted at major and minor surgical operations. He had also assisted at operations in the National Maternity Hospital and in the Rotunda Hospital. He estimated that the number of operations in the Richmond Hospital at which he assisted was about 65 operations. After he had been some time in the hospital at Fermoy he was permitted by Mr. Hurley to do some minor operations and, as Mr. Hurley’s opinion of his proficiency grew higher, he was allowed to do more and more. Eventually he was allowed to conduct operations on his own though never on any such occasion had Mr. Hurley been absent from the hospital. Up to the date of the operation in question he had performed approximately 250 operations at Fermoy and had assisted Mr. Hurley at approximately 277 operations. All in all he estimated that he had assisted at, taken part in or performed approximately 600 operations from the time he qualified. Of the operations which he performed at Fermoy approximately 40 were appendicectomies. He had also performed about six operations for either gastric or duodenal ulcers.
Mr. Hurley gave evidence to the effect that he was perfectly satisfied that Dr. O’Donnell was competent to carry out the operation in question even though he, Mr. Hurley, remained in Mallow. The opinion of many other eminent medical witnesses was canvassed on this question of permitting a young surgeon of Dr. O’Donnell’s qualifications and experience to carry out an operation of this kind unassisted and unsupervised by a more senior surgeon, and all the medical opinion was to the effect that that was quite proper medical procedure. One witness did suggest that what he called “a house man” should not be permitted to carry out such an operation unsupervised, but it appeared that his definition of a “house man” really referred to somebody qualified a considerably shorter time than Dr. O’Donnell. On the evidence, in my view, it could not be held on this aspect of the case that the practice, if common practice it be, to so permit a house surgeon of Dr. O’Donnell’s qualifications and experience and one who had the full confidence of his senior surgeon, has any inherent defects which ought to be obvious to any person giving the matter due consideration. There was evidence that it is a practice and an accepted practice and in the result there is no evidence to the contrary. Challenge, unsupported by evidence, is not sufficient to put the matter in issue. A medical practitioner cannot be held negligent if he follows general and approved practice in the situation with which he is faced: see Daniels v. Heskin (1)and the cases referred to therein.
That proposition is not, however, without qualification. If there is a common practice which has inherent defects, which ought to be obvious to any person giving the matter due consideration, the fact that it is shown to have been widely and generally adopted over a period of time does not make the practice any the less negligent. Neglect of duty does not cease by repetition to be neglect of duty. Furthermore, if there be a dispute of fact as to whether or not a particular practice is a general and approved practice, it is a matter for the jury to determine whether or not the impugned treatment is general and approved practice. In such circumstances a jury would be told that if they find that there is such a general and approved practice they must acquit the practitioner where there is not the qualification which I have referred to above.
If some witnesses say that a particular practice is a general and approved one and other medical witnesses deny that, then it is an issue of fact to be determined as any other issue of fact. This particular issue cannot be withdrawn from a jury merely because the practice finds support among some medical witnesses if there be others who deny the fact that it is general and approved practice.
I am of opinion that Mr. Hurley was entitled to have this particular ground of negligence withdrawn from the jury for the reasons I have stated, namely, that so far as this aspect of the case is concerned Mr. Hurley was following a practice which was general and approved in such a situation and there is no evidence to the contrary; and because the practice when carried on in relation to Dr. O’Donnell did not appear to have any inherent defects.
So far as the second period was concerned, the allegation against Mr. Hurley deals with his responsibility for the administration of the anaesthetics and the treatment of the convulsions which was really a matter within the field of anaesthetics. Once Mr. Hurley arrived on the scene he might be said to be in charge of the operation, although the assistants at the operation including the anaesthetists, although his subordinates, were not his servants. His primary duty was to concentrate his attention on the surgical work and he would not ordinarily be required to divert his attention to matters within the province of the anaesthetist. In a public hospital, such as the one in question, Mr. Hurley has to accept the services of the anaesthetist, provided by the local authority, who is on duty. It might well be that, in the appropriate case, a surgeon might be personally negligent if he was aware or ought to have been aware that the anaesthetist was discharging any of his duties in a careless or improper manner and failed, nevertheless, to take steps to safeguard the patient from injury. A surgeon is entitled to rely on the careful administration of the anaesthetics by a skilled and competent anaesthetist and he is entitled to assume that the anaesthetist is skilled and competent until he has a reason to believe otherwise.
In fact Mr. Hurley immediately recognised the nature of the convulsions and gave certain directions or advice to the anaesthetist but in doing that he did not, in my opinion, take upon himself the charge and responsibility for the administration of the anaesthetics. He was not putting himself in the position of the surgeon in charge in Jones v. The Manchester Corporation (1), who was in fact responsible for the administration of anaesthetics even though the anaesthetic was actually administered by an assistant acting under his control. In that case it was decided to administer an anaesthetic which required special skill and it was the surgeon’s responsibility, by reason of his responsibility for the anaesthetics in that particular case, to tell the assistant what was necessary and thus, in the subsequent fatality, he was held to be more responsible than the actual administrator. Mr. Hurley did not hold himself out as having any special skill in anaesthetics and he certainly could not be condemned as negligent merely on the grounds that he failed to keep his reading up to date in that particular field. In the situation which arose he could scarcely have been expected to stand idly by and offer no help or advice, and the fact that he did offer advice and help and suggested the getting of advice from other practitioners in no way amounted to the assumption of control of the anaesthetics which all the time remained under the control and within the province of Dr. O’Brien. Even if it were the case that Mr. Hurley, although recognising the condition, did not know what should be done about it, it is in my view that it would still not be open to a jury to find him guilty of negligence in this respect because in law he owed no duty to the patient to have any special skill in this field, particularly in relation to a condition which rarely manifests itself. In my view he was entitled also to have the case against him on this ground withdrawn from the jury.
If one may assume for the purpose of considering this aspect of the case that Dr. O’Brien was discharging his duties in a careless and improper manner, there is no evidence upon which the jury could hold that Mr. Hurley recognised that or, in the light of his position as a surgeon, ought to have recognised it and failed to take steps to protect the patient from injury. The matters I have mentioned constituted the whole of the case against Mr. Hurley and for the reasons I have given the case against him ought to have been withdrawn from the jury.
I now come to consider the position of Dr. O’Brien. Dr. O’Brien qualified as a doctor in the year 1930. He came to Fermoy and took up general practice in the town in the year 1931; and in the year 1938 he was appointed a temporary anaesthetist in the hospital in Fermoy and he continued to carry on his private general practice also. He never became a full-time anaesthetist. During his period at the hospital he gave the anaesthetics for all types of operations and he estimated that he was giving an average of about 800 anaesthetics a year in Fermoy as well as anaesthetics for other operations elsewhere. In all he claimed to have administered about 30,000 anaesthetics in his career. He had never had a fatality during that time. In the course of that time he had never seen a case of ether convulsions, although he had heard of them and read about them. He had long experience in the use of what is called “Boyle’s apparatus” for which he had received instruction in hospitals in Cork and from a special anaesthetist who came from Cork to Fermoy and gave instruction in the use of it. This is the apparatus used for the administration of the anaesthetic consisting of a mixture of ether, oxygen and nitrous oxide which was the one used on this occasion and was the one generally used by Dr. O’Brien.
The condition known as ether convulsions is one which is occasioned by the use of ether, but it is an extremely rare condition and very seldom met with even by full-time anaesthetists. Although a very rare occurrence, it is one dreaded by anaesthetists and it is a condition which is frequently fatal.
So far as the first period of the night is concerned, the allegation against Dr. O’Brien is that he failed to equip himself in advance to meet the possibility of this emergency arising. The risk of ether convulsions developing is a risk inherent in the use of ether itself. In the use of ether it is a foreseeable though unavoidable risk. As in the case of all risks, a degree of care is required of the person undertaking the risk but the degree of care varies in proportion to the magnitude of the risk involved. On all available experience the risk of ether convulsions, while always present, is very slight because the condition is one of extreme rarity. Nevertheless a person undertaking to administer ether and holding himself out as having the necessary skill to do so must also be required to know how to deal with ether convulsions should that condition arise.
It was alleged against Dr. O’Brien that he failed to take preliminary precautions such as having a blood transfusion unit and saline drip equipment set up before the operation. This suggestion, however, was not primarily directed at the risk of ether convulsions but as a general precaution in an operation to guard against loss of blood pressure. Indirectly it would be relevant to a condition of ether convulsions developing because low blood pressure on the part of the patient at that stage would be an indication against administering certain anti-convulsant drugs which might be used if the blood pressure were not low. There was medical evidence which indicated that the setting up of a saline drip in advance would not be called for and, while the existence of such contrary evidence does not determine the matter, I am satisfied that the relevance of such a preparation to the possible risk was itself so sufficiently remote to the risk itself that the absence of such a preliminary precaution would not in the circumstances, and having regard to the degree of the risk involved, amount to negligence on the part of the anaesthetist. In my view, therefore, so far as the conduct of the anaesthetist prior to the onset of convulsions is concerned, there is no ground upon which a jury might reasonably find him guilty of negligence for failing to provide the apparatus mentioned.
I turn now to consider the allegations made in respect of Dr. O’Brien’s conduct after the onset of the convulsions. That requires some consideration of the nature of the condition itself. The convulsions are described as being a specific response to specific stimuli and there may be present one or more predisposing factors such as dehydration, high temperature, sepsis or an overdose of ether. While it is a very rare condition, it is one which is referred to in the current standard text-books as one of the recognised risks in the administration of ether. When a patient develops ether convulsions it produces a shortage of oxygen because of the interference with the respiration caused by the convulsions and that condition of anoxia, if it is allowed to continue sufficiently long, would cause permanent brain damage and, unless he gets oxygen quickly enough and in sufficient quantities, the patient will inevitably die.
It was generally agreed by all the medical witnesses that the treatment must be very prompt and be as follows: (a) to cut off the ether, (b) to get oxygen into the lungs and into the tissues and (c) to stop the convulsions if they have not passed off. It was also agreed that the general and accepted practice of achieving this result was, first to cut off or withdraw the ether; secondly, to administer a relaxant drug or, if the condition of the patient permitted it, an anticonvulsant drug so as to permit the entry of the oxygen into the lungs and the tissues if that was being rendered impossible by the convulsions or, if after initial entry, it was then being impeded by the convulsions; thirdly, the entry of the oxygen itself; and, fourthly, an anti-convulsant to stop the convulsions if they had not already stopped after the intake of the oxygen, after the relaxant had worn off.
There was considerable discussion and some difference of opinion between the experts as to what particular relaxant drug might be used and as to whether an anti-convulsant might not be used in the first instance instead of a relaxant. With regard to relaxant drugs mention was made of flexadil which was, in fact, available in the hospital in Fermoy, though one anaesthetist, Dr. Conroy, was of opinion that it might be safer to use scoline because its effect was of shorter duration. If the condition of the patient permitted the safe use at this stage of an anti-convulsant, that would be the best solution because it would stop the convulsions at this initial stage of the treatment. One anti-convulsant which was mentioned frequently in the evidence was pentothal, but opinions varied as to the desirability of using it. It did emerge, however, that, if used, it would need initially to be used in small quantities and not to be used if the patient’s blood pressure had fallen.
In discussing the use of pentothal as an anti-convulsant for different conditions, Dr. Conroy discussed the similarities and differences of nitrous oxide convulsions and ether convulsions (see pp. 1139 and 1140 of the transcript). He said that nitrous oxide convulsions might conceivably be difficult to distinguish from ether convulsions if one did not know what the patient had been getting. But, he added, any anaesthetist would immediately know if he saw it. In dealing with the effect of pentothal on a patient suffering from nitrous oxide convulsions, as distinct from ether convulsions, he said at p. 1140 (Q. 9291):”It is just a matter of removing the nitrous oxide, but removing the nitrous oxide and maintaining a free airway. If one gave pentothal, one would undoubtedly kill the patient. With one of those . . .”Question 9292 was:”If a patient had nitrous oxide convulsions and you gave pentothal you might”, and the answer was “Oh, very likely.” He was thus explaining his view on the danger of using pentothal as an anti-convulsant for a person suffering from nitrous oxide convulsions. It is interesting to note that in Jones v. Manchester Corporation (1),already referred to, the fatality was caused by the administration of a full dose of pentothal to a patient who was already unconscious or semi-conscious from nitrous oxide gas. Later in his evidence (at p. 1211; Q. 9669 and the following questions) he suggested that “nitrous oxide convulsions” is not the correct term for the condition he was describing but rather “nitrous oxide jactitations” which are anoxic convulsions brought on as a result of giving nitrous oxide without oxygen. He does not suggest that the patient in this case, nor does anybody else suggest it, was suffering from nitrous oxide convulsions.
Dealing with the effect of the administration of scoline or pentothal at a later stage of the operation, namely at the point of time when Mr. Hurley and Dr. O’Brien commenced to insert the endotracheal tube, Dr. Conroy (at p. 1183; Q. 9518) says that such administration at that point would undoubtedly have been “a complete coup de grace.” At this stage the patient’s pulse had disappeared, his respiration had ceased or almost ceased, he was moribund and had collapsed. This was also some appreciable time after the onset of the convulsions because in the meanwhile a telephone message had been sent to Dr. Nagle, who was not available, and then to Dr. Hickey who advised the insertion of the tube and the patient had been closed by Mr. Hurley. It was agreed that the giving of scoline was to enable the anaesthetist to take over the respiration of the patient in such a case and the anaesthetist giving scoline must be in a position to do so. It was also agreed that where it is necessary to give a relaxant drug such as scoline, or an anti-convulsant if that is safe to give at that stage, it is for the purpose of the artificial respiration gaining entry for the oxygen into the lungs and the tissues and that it must be given at the earliest possible moment.
In my view on the evidence it was open to the jury to hold that there was a general and approved practice applicable to the condition of the patient in question in this case and it is not disputed that Dr. O’Brien did not follow that particular practice. That, of course, does not conclude the matter because before he could be found guilty of negligence it would have to be established that the course which he did take was one which no anaesthetist of ordinary skill would have taken had he been taking the ordinary care required from an anaesthetist.
It has been submitted that the reason why Dr. O’Brien did not take what is called the ordinary course was because he did not know what to do. In my view the evidence, particularly the evidence which discloses the calls upon Dr. Nagle and Dr. Hickey for advice, the intervention of Mr. Hurley at this phase coupled with the fact that Dr. O’Brien did not take these steps, would legitimately warrant a jury coming to the conclusion that he was not aware of this method of treatment and its order. During the course of his evidence Dr. O’Brien gave reasons why he thought an anti-convulsant drug ought not to have been used though it does not appear from his evidence that that was a factor which he took into account at the time of the actual emergency.
With regard to flexadil, the relaxant drug which was available, he said he would have an objection to using it as he had never used it before and that he did not think that then was the time to experiment with it when he was in a dilemma. In point of fact, according to his evidence, he had never thought of using it at the time. He agreed (p. 1122; QQ. 9179 to 9181) that if flexadil had been given earlier, after a few minutes of convulsions, the probable effect would have been to relieve the convulsions, relax the muscles and thus relieve the convulsions and consequently lessen the exhaustion. When it was put to him (as Q. 9181) that it was just that he did not have any knowledge of the administration of it that he was not in favour of it, his answer was:”I did not think of it at all because I had never used it and I did not think of it.” The importance of administering such a drug in the first few minutes to obtain the relief described is emphasised throughout the trial by those persons who dealt with this subject, particularly by Dr. Conroy who expressed the view that after three minutes the patient was probably irreparably, if not fatally, injured. In my view it was open to the jury on the evidence to find that the administration of a relaxant drug in the first few minutes of the convulsions might have avoided all that followed. It was also open to them to hold as negligence or culpable lack of skill, on the part of the anaesthetist, the failure to consider using the drug which was available. This is not a situation of a doctor who considered it and rejected it upon a ground which a jury might regard as reasonable.
It is, of course, open to a jury to consider the situation in the light of the urgent need for action which existed and to consider whether Dr. O’Brien might be acquitted of negligence if, in the agony of the moment, he adopted a course or omitted a precaution which he might not perhaps have adopted or omitted if he had time to consider the matter. It is unnecessary on this aspect of the case to consider to what extent that defence might have been available.
The course which Dr. O’Brien did adopt was designed to maintain the patient’s vital functions, namely, his respiration and his heart; and he believed that in so doing the convulsions might wear off. With that object in view, he cut off the ether, increased the proportion of oxygen, maintained the nitrous oxide though to a smaller proportion, prised the patient’s jaw forward to establish a free airway so that he might be able to breath in the oxygen and nitrous oxide, and gave him injections of coromine, sedulanid and astrophine. These drugs are not anti-convulsants or relaxants. With this treatment he expected the convulsions would wear off.
During this time Mr. Hurley was closing the patient and before the closure was complete the patient was getting pure oxygen. Dr. O’Brien says that the patient’s colour improved a little, but the convulsions did not wear off and having conferred with Mr. Hurley on the question, it was decided to telephone Dr. Nagle and, subsequently, Mr. Hickey. The latter advised the passing of an endotracheal tube and the giving of oxygen, and that was done following the receipt of that advice or about that time. By that stage the patient’s condition had deteriorated to a great extent, which has already been described, and the convulsions had ceased because of the complete collapse of the patient. Dr. O’Brien’s evidence was that he regarded the insertion of the tube at that stage as a necessary accompaniment of what Mr. Hurley was about to undertake, namely, the opening of the chest with a view to massaging the heart in endeavouring to restore life. At that stage the patient might be regarded as dead unless Mr. Hurley succeeded in restoring the heart action which in fact he did.
In my view, this was all material which the jury could take into account in considering whether or not the course followed was one which no anaesthetist of ordinary skill would have undertaken in the circumstances.
In the absence of evidence that the procedure adopted by Dr. O’Brien was a general and accepted procedure for such a condition, the fact that other medical witnesses were of opinion that he acted in a competent and skilled manner does not take the matter from the hands of the jury. It is the function of the jury, not of the medical witnesses, to decide whether or not negligence is established. In my opinion the plaintiff was entitled to have the case against Dr. O’Brien left to the jury in relation to his treatment of the patient after the onset of the convulsions. That would embrace the question of his skill and knowledge as well as the question of whether he was lacking in care in undertaking the administration of the anaesthetic without seeing that he had available to him for use such drugs as would be necessary to combat the consequences of the foreseeable risk eventuating.
I would therefore disallow the first six grounds of this appellant’s appeal. For the reasons I have already given I would also disallow the eighth ground.
There remains to be considered the question of the judge’s direction to the jury. The objections made by this appellant are that the judge failed to direct the jury adequately as to the degree of skill which the law required of the appellant and as to what in the circumstances was the degree and quality of the negligence necessary to establish liability on the part of the appellant. I have carefully studied the portion of the judge’s charge dealing with this question and in my view he dealt with the matter of medical negligence generally in a very adequate and thorough and correct manner and went to considerable pains to explain it to the jury. In his initial treatment of it the explanation occupied seven or eight pages of the transcript of his charge. At a later stage he devoted very many pages to the special position of Dr. O’Brien in this case and even went so far as to convey to the jury that the treatment which had actually been given by Dr. O’Brien and which has been referred to as the”conservative” treatment or, as the judge also called it, the “pre-1950 treatment” could be found by the jury to be a treatment which was general and approved for this condition at the date of the fatality, a proposition which in my view was not supported by the evidence given in the case by the many eminent medical men who were called.
He also invited the jury to consider in Dr. O’Brien’s favour that they might not expect him to attain the same standard of proficiency and knowledge as the specialist anaesthetists who were called. This was really an over-statement of the position because he did not qualify it by telling them that, none the less, Dr. O’Brien was expected by the law to come up to the standards of the ordinary careful and competent anaesthetist employed as such and constantly engaged in the administration of anaesthetics which carry certain known risks.
It was complained that the standard of negligence set by the judge was too high and that the standard was unreal because it failed to have regard to the circumstances under which Dr. O’Brien was called upon to act. Perusal of the charge indicates the care with which the judge dealt with both of these topics and, in my view, he did not set a standard higher than that which is applicable and he paid considerable attention to the circumstances under which Dr. O’Brien was called upon to act and directed the jury’s attention to it in considerable detail.
It was also submitted that the learned trial judge should have instructed the jury that the suddeness of the onset of the convulsions in this case was itself an event not reasonably foreseeable. In an earlier part of this judgment I have expressed the view that the risk of ether convulsions occurring is a foreseeable risk in the administration of this anaesthetic even though it happens but rarely. The fact that it may manifest itself gradually in some instances and come on with unheralded severity in other cases does not make the latter circumstance a different risk. It is but a variant of the foreseeable risk, namely, the risk of ether convulsions occurring. The nature of the manifestation of the risk may be taken into account in judging the conduct of Dr. O’Brien in the steps he took to deal with it when it did manifest itself, and that was fully explained to the jury by the learned trial judge.
In my view these criticisms of the judge’s charge have not been justified.
The next ground of appeal is that the learned trial judge failed to direct the jury adequately as to the effect of the specialists’ evidence adduced on behalf of this appellant. The learned trial judge dealt at great length with this evidence drawing attention in particular to the passages where some of these eminent specialists say they would not expect Dr. O’Brien to have their skill, and he specially directed the jury’s attention to the fact that the mere circumstance that they might take one course and Dr. O’Brien take another was not in itself proof of want of skill on his part. He also dealt at great length with the differing views as to which drugs might be used and warned the jury that the case was not to be decided on the basis of being a contest between a pentothal and an anti-pentothal school of medicine, and he went so far as to tell them that if that were the case that he would direct them to find in favour of Dr. O’Brien. He also drew the jury’s attention to those portions of the evidence of the various specialists which dealt with the circumstances in which it would be positively dangerous to use particular drugs. In my view there was no relevant aspect of the evidence of the specialists which he did not bring to the jury’s attention and explain its effect.
The last objection to the charge is that the trial judge refused to recall the jury and direct them in accordance with the requisitions made on behalf of this appellant. In my view all the matters which were raised on behalf of this appellant in the objections had in fact been adequately covered by the judge in his charge and in one or two respects had been overstated in favour of Dr. O’Brien, a matter which the judge, on the requisition of counsel for the plaintiff, to some extent corrected in his further directions to the jury.
In my view no grounds have been put forward to show that the trial was unsatisfactory as claimed in the notice of appeal. In the result, for the reasons I have already given, I would allow the appeal of Mr. Hurley and dismiss the appeal of Dr. O’Brien and, therefore, the appeal of the County Council.
William Dunne (an Infant) v National Maternity Hospital and Reginald Jackson
Supreme Court
14 April 1989
[1989] I.L.R.M. 735
(Nem. Diss.) (Finlay CJ, Griffin and Hederman JJ)
14 April 1989
FINLAY CJ
(Griffin and Hederman JJ concurring) delivered his judgment on 14 April 1989 saying: These are two appeals brought by the defendants against a judgment and order of the High Court dated 2 August 1988 whereby after a trial held by a judge with a jury the plaintiff was awarded the sum of £1,039,334 damages for negligence against the two defendants. The plaintiff’s claim is that whilst in his mother’s womb he suffered extensive brain injury due to the negligence of the first-named defendant (‘the hospital’) its servants and agents in the management of his mother’s labour and of his birth, and also by reason of the negligence of the second-named defendant (‘the doctor’) who was the consultant obstetrician attending his mother in respect of her labour and his birth.
The facts
The facts out of which this claim arose may thus be briefly summarised. The plaintiff was born on 20 March 1982 and is the second child of Mr and Mrs William Dunne who reside in Bray, Co. Wicklow. In respect of the birth of her first child who is approximately two years older than the plaintiff, Mrs Dunne attended as her personal consultant obstetrician, the doctor. Her child was born in the hospital and her pregnancy and labour preceding that birth were normal and without any incident.
On becoming again pregnant Mrs Dunne again consulted the doctor and was accepted by him as a personal patient. She made arrangements that the child should be born in the hospital. She attended the doctor on a number of occasions during the period of her pregnancy and by arrangement with him also attended a local general practitioner, Dr Byrne, who practised in Bray.
On the 10 March 1982, upon attending the doctor on one of her regular visits, she asked him to consider as to whether her pregnancy might be a twin pregnancy. The doctor carried out a scan examination of Mrs Dunne and as a result was satisfied that she was in fact pregnant of twins; that both were of equal size and in apparent good health; that the first or leading twin was presenting for a normal vertex delivery and that the second twin was presenting for a breech delivery.
*738
Mrs Dunne had remained healthy and well, without complications, during the entire of her pregnancy.
On the morning of 20 March 1982, which was a Saturday, and was two weeks earlier than the expected full term date for the birth of the twins, namely, 3 April, Mrs Dunne having experienced some pains during the night attended Dr Byrne at about 9 am. He examined her and informed her that she was two or three centimetres dilatated and that she was in labour, and he advised her to go straight away to the hospital. He expressed the view that her children might be born around lunchtime. On receiving that advice Mrs Dunne rang the doctor, told him that she was in labour, had been to Dr Byrne and that he had said she was two or three centimetres dilatated. She informed the doctor that she was going ahead to the hospital and her evidence was that he said: ‘Come ahead, I will be waiting for you.’ Mrs Dunne was then driven by her husband from Bray to the hospital and arrived there at approximately half past ten.
She was admitted to the labour ward at 11.15 am and examined by the sister-in-charge who measured the extent of her dilatation as two centimetres. The doctor was not in the hospital at the time of the arrival of Mrs Dunne, though he had been there earlier seeing patients. At approximately 11.30 am he phoned the hospital to see if Mrs Dunne had arrived, and on being informed that she had and had been admitted to the labour ward, he asked to be phoned after her membranes had been punctured by the doctor who carried out that in the hospital. At 12.10 pm the doctor was informed by the sister in charge of the labour ward that the doctor concerned had punctured the membranes and that grade 1 meconium had been found. He was also informed that upon auscultation a foetal heart had been found and that the dilatation was three centimetres. The doctor was aware on receiving that information that it was the practice of the hospital in the case of a known twin pregnancy to seek to identify one foetal heart only and did not direct any alteration in that practice. The plaintiff’s mother gave evidence that at approximately 1.40 pm she experienced tumultuous foetal movements which lasted for about fifteen minutes. She asked the nurse attending her to inform the doctor of this fact and to ask him to come to see her. At about 2 pm the sister-in-charge phoned the doctor and informed him that progress in the labour was very slow and that the dilatation of the cervix remained at three centimetres. The doctor then directed that the plaintiff’s mother should be asked to walk up and down the corridor so as to expedite the labour. This was then done between 2 pm and 4 pm. At approximately 4 pm the sister-in-charge phoned the doctor and informed him that despite the walking and the further time which had elapsed no further progress with regard to dilatation had been made, and the doctor directed that Mrs Dunne should then be put on an oxytocin drip and requested that the assistant master who was in attendance at the hospital should examine her.
At 4.15 pm Mrs Dunne was put on to an oxytocin drip and was examined by the assistant master at 4.20 pm. He found that the dilatation of the cervix had progressed to five centimetres; that there was poor progress in the labour; that the membrane had apparently resealed itself and he again punctured the membrane, finding a grade *739 2 meconium deposit. He stopped the oxytocin which accordingly had only been on for five minutes. He carried out a foetal blood test on the scalp of the infant plaintiff, who was the leading twin, and it had a pH of 7.31 which would be normal. He then attached to the scalp of the plaintiff a continuous electronic monitor. At 5.03 pm the doctor was informed by telephone that the position of Mrs Dunne was that the cervix was fully dilatated and that she was proceeding to deliver the first twin.
At 5.15 pm the infant plaintiff was born naturally and within minutes afterwards the doctor arrived in the hospital. At 5.30 pm the second twin was born dead and bore signs of maceration on the anterior abdominal wall.
On birth, the plaintiff was intubated, having difficulty with breathing, and grade 3 meconium was suctioned from his trachea. He was in some distress and was transferred to the intensive care unit.
Over the next few days he displayed signs of severe brain damage, including convulsions, cycling movement of the limbs and rolling of the eyes. The brain damage with which he was born is irreversible and he is now a spastic quadriplegic with major mental handicap.
The trial and verdict
The trial lasted for 15 days between 5 and 25 July 1988, and evidence was given on behalf of the plaintiff and on behalf of each of the defendants which included a great number of expert medical witnesses. All the hospital reports and documentation concerning the birth of the plaintiff were made available and were freely quoted and referred to in the course of the trial. At the conclusion of all the evidence the defendants having applied each for a non-suit and the learned trial judge having refused those applications, after discussion he left to the jury a series of questions which were answered and which led to the verdict and judgment to which I have referred.
It is necessary for the purpose of understanding the issues arising in this appeal to set out those questions, though they are lengthy, in full, together with the answers delivered to them by the jury.
The questions are as follows.
1. Did the plaintiff suffer brain damage as a result of lack of oxygen occurring over some hours during labour and whilst in hospital on 20 March 1982?
Answer: Yes
If the answer to question 1 is yes answer the following questions:
2. (a) Should the authorities in the defendant hospital have instructed its nursing staff to attempt to identify the presence of two foetal hearts in the case of known twin pregnancy (a) on admission of the plaintiff’s mother to their hospital, and
Answer: Yes
(b) Should the authorities in the defendant hospital have instructed its nursing staff to inform Dr Jackson of an inability to identify the presence of two foetal hearts
(a) on admission, or
Answer: Yes
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(b) during labour it was not possible to identify the presence of two foetal hearts?
Answer: Yes
3. Should the sister-in-charge have informed Dr Jackson at 2 pm not only that labour was slow but also (a) that excessive foetal movements had occurred
Answer: Yes
and (b) that Mrs Dunne had requested his presence and have recommended his presence at the hospital?
Answer: Yes
4. (a)(i) Should Dr Jackson have examined the plaintiff’s mother on her admission to hospital and whilst doing so have attempted to identify the presence of two foetal hearts?
Answer: No
Alternatively,
(ii) Should Dr Jackson prior to the admission of the plaintiff’s mother have ensured that the nursing staff was instructed to attempt to identify the presence of two foetal hearts
(a) on her admission and
Answer: Yes
(b) regularly during labour and to inform him if the identity of a second foetal heart could not be ascertained?
Answer: Yes
(b) If Dr Jackson himself had failed to identify the presence of a second foetal heart or had been informed that it was not possible to identify the presence of two foetal hearts should he have carried out an ultrasonic scan?
Answer: Yes
(c) If the answer to (b) is yes would he have ascertained either at the time of Mrs Dunne’s admission or sometime during labour and prior to 1.30 pm that twin two had died?
Answer: Yes
(d) If the answer to (c) is yes should he then have electronically monitored the plaintiff’s heart by means of a clip attached to his head?
Answer: Yes
(e) If the answer to (d) is yes, should he have ascertained that William was suffering from serious foetal distress some time prior to 1.30 pm?
Answer: Yes
(f) If the answer to (e) is yes should he have delivered William by caesarian section prior to 1.30 pm?
Answer: Yes
5. (a) Having been informed at about 12.10 pm on 20 March 1982 of the presence of meconium grade 1 should he have attended to the plaintiff’s mother in hospital, examined her and attempted to identify the presence of two foetal hearts?
Answer: Yes
(b) If (a) is yes and if he had failed to identify the presence of a second foetal heart should he have carried out an ultrasonic scan?
Answer: Yes
(c) If (b) is yes, would he have ascertained that twin two was dead?
Answer: Yes
(d) If (c) is yes, should he then have electronically monitored the plaintiff’s heart by means of a *741 clip attached to his head?
Answer: Yes
(e) If (d) is yes would he have ascertained that William was suffering from serious foetal distress at that time?
Answer: Yes
(f) If (e) is yes should he have delivered William by caesarean section?
Answer: Yes
6. (a) If Dr Jackson should have delivered William by caesarean section prior to 1.30 pm would William’s brain damage have been avoided?
Answer: Yes
(b) If Dr Jackson should have delivered William prior to approximately 2.00 pm would William’s brain damage have been avoided?
Answer: Yes
7. Assess damages under the following headings:
(a) Cost of nursing care to age 16
Answer: £132,561.00
(b) Cost of housekeeper to age 16 as aid to mother
Answer: £ Nil
(c) Provision of accommodation for plaintiff up to age 16
Answer: £50,000.00
(d) Cost of residential care for life from age 16
Answer: £351,850.00
(e) Cost of special food, disposable nappies, doctors’ fees, hoists etc.
Answer: £25,923.00 (Agreed)
(f) Loss of earnings
Answer: £12,000.00
(g) General damages for pain and suffering and loss of amenities
Answer: £467,000.00
Total: £1,039,334.00
Grounds of appeal
Each defendant appealed both against the finding of liability made and against the assessment of damages. The hospital submitted 33 grounds of appeal, and the doctor submitted 33 grounds of appeal. These grounds of appeal, many though not all of which were similar, fell into certain broad categories and almost all of the 66 grounds thus submitted were fully argued before this Court.
The issues
As a result of the submissions made on behalf of the two appellants and the replies thereto made on behalf of the respondent it is possible to identify in a general way the major issues with which this appeal dealt. They are as follows:
*742
1. Was there evidence to support the finding by the jury in answer to question 1 to the effect that the plaintiff suffered brain damage as a result of lack of oxygen occurring over some hours during labour?
2. Was there evidence to support the finding involved in the answer by the jury to question 6 that the damaging brain injury was not suffered by the plaintiff until after either 1.30 pm or 2 pm?
3. Was there evidence to support the finding by the jury in answer to questions 4(e) and 5(e) that if the doctor had attached an electronic monitor to the foetus before 1.30 pm and before 2.10 pm respectively that he would have discovered that the plaintiff was suffering from serious foetal distress at those times?
4. Could the jury on the evidence, if properly directed as to the legal principles applicable have made a finding of negligence arising from failure to attempt to identify a second foetal heart against
(a) the hospital?
(b) the doctor?
5. Are the defendants or either of them entitled to an order for a new trial on any one of the following issues, or any combination of them?
(a) The prejudicial effect of the references to a rugby match and the cross-examination of the doctor concerning the administration of oxytocin.
(b) The ruling excluding the evidence of Professor O’Donoghue with regard to the question of brain swelling based on examination of the charts.
(c) The failure of the learned trial judge to include a reference to placental malfunction in question 1.
(d) The absence of references to negligence in questions 2, 3, 4 and 5.
(e) Objections to the charge based on the following:
(i) A submission that it was imbalanced as between the plaintiff and the defendant.
(ii) That it lacked sufficient guidance as to the detailed evidence tendered on either side, having regard to the length and nature of the trial.
(iii) By reason of the failure of the learned trial judge in his charge to the jury and upon requisition by way of further charge to the jury to give to them the appropriate directions as to the legal principles applicable to the question of negligence against both the hospital and the doctor arising from failure to seek to identify by auscultation two foetal hearts, having particular regard to the decision of this Court in O’Donovan v Cork County Council [1967] IR 173.
6. In relation to damages the sums put in issue as being excessive were as follows:
(a) The cost of nursing care to the age of 16 in the sum of £132,561.
(b) The provision of accommodation for the plaintiff up to the age of 16 assessed at £50,000.
(c) The cost of residential care for life from age 16 assessed at £351,850.
(d) General damages for pain and suffering and loss of amenities assessed in the sum of £467,000.
I am satisfied that the issues thus raised by the grounds of appeal fall into separate *743 categories.
The first three issues are exclusively concerned with an examination as to whether there was evidence to support the findings of the jury referred to in those issues. Questions of law were raised on the argument before us concerning the approach of this Court to that issue and, in general, upon the question of what was described as perverse verdicts. If the appellants or either of them succeed on any one of these three issues they would be entitled to a dismiss from this Court of the plaintiff’s claim.
With regard to paragraph number 4 a question of law arose on the argument before us as to the proper meaning and interpretation of the decision of this Court in O’Donovan v Cork County Council [1967] IR 173 and in particular, to the question of the appropriate directions which a court must give to a jury or, in the case of a trial by a judge alone, must follow, where questions of a medical practice arise.
In respect of the issues hereinbefore set out at question number 5 if either of the appellants should succeed on one or more of those issues the remedy which could be obtained would be allowance of the appeal and an order for a retrial.
THE LAW
Findings of the jury
Two alternative submissions were made by the appellants.
The first was that the challenged findings of fact were not supported by evidence and that the learned trial judge erred in law in leaving the several questions of fact leading to these findings for the determination of the jury.
The second was that even if there was evidence capable to being left to the jury on the issues involved the contrary evidence adduced by the defendants was so overwhelming that the findings of the jury must be deemed perverse and unreasonable and should be set aside.
In support of the second proposition reliance was placed on the decision of the former Supreme Court in M’Greene v Hibernian Taxi Company [1931] IR 319. The jurisdiction of this Court on appeal with regard to findings of fact made in the High Court is fully stated in its decision in Northern Bank Finance Corporation Ltd v Charlton [1979] IR 149.
In that case O’Higgins CJ in the course of his judgment stated as follows at p. 180:
A judge’s findings on fact can and will be reviewed on appeal. Such findings will be subjected to the normal tests as to whether they are supported by the evidence given at the trial. If such findings are firmly based on the sworn testimony of witnesses seen and heard and accepted by the judge, then the court of appeal, recognising this to be the area of credibility will not interfere.
Henchy J dealing with the same question in his judgment stated as follows at p. 191:
In a civil case such as this where a tribunal of fact, be it a judge or a jury, has decided a question *744 of specific fact and the resolution of the question depended wholly or in substantial measure on the choice of one version of controverted oral testimony as against another, a court of appeal which is dependent on a written record of the oral evidence given at the trial will not normally reject that finding merely because an alternative version of the oral testimony seems more acceptable. The court of appeal will only set aside a finding of fact based on one version of the evidence when, on taking a conspectus of the evidence as a whole, oral and otherwise, it appears to the court that, notwithstanding the advantages which the tribunal of fact had in seeing and hearing the witnesses, the version of the evidence which was acted on could not reasonably be correct. For example, if the question of fact was whether a defendant was driving on his correct side of the road at the time of a collision and, out of a welter of conflicting oral testimony on the point, the judge (or the jury, as the case may be) expressly or by implication accepted the defendant’s version to the effect that his vehicle was on its correct side of the road at the time of the collision, then in that event a court of appeal will normally hold itself to be debarred from rejecting the finding of fact on the ground that its fact-finding capacity in relation to conflicting oral testimony cannot be equated with that of the trial judge (or jury) who heard and saw the witnesses. If, however, on a review of all the evidence, it appears from the uncontroverted evidence as to tyre marks or glass or mud on the road that the defendant’s evidence (that his vehicle was on its correct side of the road) could not be correct, the court of appeal will feel free to reject the finding of fact to that effect.
In the instant case the challenged findings of fact all concern brain damage suffered by the infant plaintiff while he was in the womb of his mother, and relate to the timing and cause of such damage and to his probable foetal condition before and after the suffering of the actual injury.
As such, they were facts incapable of being established by direct evidence of actual observation. Instead they necessarily fell to be proved by inferences drawn from, or analyses made of, diagnostic signs recorded before, during and after the birth of the plaintiff. Such inferences and analyses, (quite unlike, for example, the position of a vehicle on the road inferred from the marks left by it), cannot be drawn or made by a layman, except by the acceptance by him of expert medical evidence sworn before him as to the conclusions to be drawn from the diagnostic signs.
The task of this Court, therefore, on the issue raised by this first submission is to ascertain whether the expert medical evidence adduced on behalf of the plaintiff is capable of supporting the challenged findings.
The court must, in arriving at that decision, presume that in every instance where conflicting credible scientific or medical opinion has been expressed the jury accepted that version which favoured the plaintiff’s case.
This Court as a court of appeal cannot and must not reach a conclusion or express a view as to which of two conflicting expert opinions it (the court) would prefer.
With regard to the alternative submission, I have come to the following conclusions.
If in a trial in a civil case with a jury the evidence on any particular fact adduced by one of the parties, having regard to other uncontroverted evidence, is incapable of being believed, even though sworn to, it is as a matter of law the duty of the judge to withdraw from the jury that particular issue of fact or to direct the manner in which the jury must answer it.
Having regard to that proposition, I can see no logic in a contention that an issue of fact could properly be left by a trial judge to the determination of a jury and then in the event of the jury deciding it in one particular way, their verdict could be set *745 aside by an appellate court which was satisfied that it was proper to have left that issue.
In so far as the judgments of the former Supreme Court in M’Greene v Hibernian Taxi Company [1931] IR 319 can be interpreted as meaning that in Ireland the appellate jurisdiction of the Supreme Court from the High Court includes a jurisdiction to set aside a jury’s finding on fact on the grounds that it is against a predominant weight of evidence, even though it could not be said to be a finding which a reasonable jury could not make, I must decline to follow it. The sole test, in my view, is whether in accordance with the principles I have outlined, the learned trial judge was correct in law in leaving the challenged issues of fact to the jury.
Medical negligence
The courts have consistently recognised certain features in the general law of negligence which have particular reference to allegations of negligence made against professional persons in the carrying out of their professional duties. These particular features applicable to allegations of medical negligence have been fully set out by this Court in O’Donovan v Cork County Council [1967] IR 173 which adopted and followed the decision of the former Supreme Court in Daniels v Heskin [1954] IR 73. The reasoning of O’Donovan v Cork County Council was expressly followed by this Court in Reeves v Carthy [1984] IR 348. It was again approved and applied to a case of professional negligence by a solicitor in Roche v Pielow [1985] IR 232.
There was no argument submitted to us on the hearing of this appeal which constituted any form of challenge to the correctness of the statements of principle thus laid down, although there was controversy concerning their application to the facts of this case.
The principles thus laid down related to the issues raised in this case can in this manner be summarised.
1. The true test for establishing negligence in diagnosis or treatment on the part of a medical practitioner is whether he has been proved to be guilty of such failure as no medical practitioner of equal specialist or general status and skill would be guilty of if acting with ordinary care.
2. If the allegation of negligence against a medical practitioner is based on proof that he deviated from a general and approved practice, that will not establish negligence unless it is also proved that the course he did take was one which no medical practitioner of like specialisation and skill would have followed had he been taking the ordinary care required from a person of his qualifications.
3. If a medical practitioner charged with negligence defends his conduct by establishing that he followed a practice which was general, and which was approved of by his colleagues of similar specialisation and skill, he cannot escape liability if in reply the plaintiff establishes that such practice has inherent defects which ought to be obvious to any person giving the matter due consideration.
4. An honest difference of opinion between doctors as to which is the better of two ways of treating a patient does not provide any ground for leaving a question *746 to the jury as to whether a person who has followed one course rather than the other has been negligent.
5. It is not for a jury (or for a judge) to decide which of two alternative courses of treatment is in their (or his) opinion preferable, but their (or his) function is merely to decide whether the course of treatment followed, on the evidence, complied with the careful conduct of a medical practitioner of like specialisation and skill to that professed by the defendant.
6. If there is an issue of fact, the determination of which is necessary for the decision as to whether a particular medical practice is or is not general and approved within the meaning of these principles, that issue must in a trial held with a jury be left to the determination of the jury.
In order to make these general principles readily applicable to the facts of this case, with which I will later be dealing, it is necessary to state further conclusions not expressly referred to in the cases above mentioned. These are:
(a) ‘General and approved practice’ need not be universal but must be approved of and adhered to by a substantial number of reputable practitioners holding the relevant specialist or general qualifications.
(b) Though treatment only is referred to in some of these statements of principle, they must apply in identical fashion to questions of diagnosis.
(c) In an action against a hospital where allegations are made of negligence against the medical administrators on the basis of a claim that practices and procedures laid down by them for the carrying out of treatment or diagnosis by medical or nursing staff were defective, their conduct is to be tested in accordance with the legal principles which would apply if they had personally carried out such treatment or diagnosis in accordance with such practice or procedure.
Fully to understand these principles and their application to any particular set of facts, it is, I believe, helpful to set out certain broad parameters which would appear to underline their establishment.
The development of medical science and the supreme importance of that development to humanity makes it particularly undesirable and inconsistent with the common good that doctors should be obliged to carry out their professional duties under frequent threat of unsustainable legal claims.
The complete dependence of patients on the skill and care of their medical attendants and the gravity from their point of view of a failure in such care, makes it undesirable and unjustifiable to accept as a matter of law a lax or permissive standard of care for the purpose of assessing what is and is not medical negligence.
In developing the legal principles outlined and in applying them to the facts of each individual case, the courts must constantly seek to give equal regard to both of these considerations.
Issue Number 1
This issue arises from the finding made by the jury in answer to question number 1 on the issue paper concerning the timing of the brain damage.
The evidence for the plaintiff on this issue largely, though not exclusively, *747 consisted of the evidence of Dr Evans who is a consultant paediatrician with a major involvement in the care of the new-born, and of Dr Rosenbloom, a paediatric neurologist. To a lesser extent on this particular issue was the evidence of Dr Barson, a paediatric pathologist, also called on behalf of the plaintiff. Dr Bender, an obstetrician, called on behalf of the plaintiff, who dealt in evidence with the management of the labour preceding the plaintiff’s birth did not deal with this question.
Dr Evans opinion may be very briefly summarised as being as follows.
The hospital entries constituted a typical record of a baby who had brain swelling caused by a lack of oxygen before birth. The fact that the baby was desperately ill for some two or three days and then got better was typical of babies who are deprived of oxygen during a period of hours, usually during labour. The brain injury was too severe to be consistent with deprivation of oxygen for a very short period and the brain swelling was too obvious in the symptoms after birth to be consistent with a deprivation of oxygen of long duration. Asked in cross-examination about a theory to be adduced by witnesses for the defendants that the brain damage was sustained by the plaintiff 12 to 24 hours before birth and, therefore, well before his mother entered the hospital and was caused by an acute large transfusion of blood from the plaintiff to his twin, which had the effect of killing the twin and damaging the brain of the plaintiff, Dr Evans said that in his opinion this could not have occurred without damage being apparent on birth to the other organs, such as kidneys and intestines, all of which on the records were normal.
It was part of Dr Evans’ opinion that the deprivation of oxygen to the foetus would have occurred as a result of a malfunction of the placenta caused by contractions of the womb, and that accordingly the brain injury was more likely to have occurred as labour intensified. He also expressed the opinion that such injury occurring during labour would have been preceded by foetal distress.
Dr Rosenbloom expressed the view that the plaintiff suffered severe brain damage during his mother’s labour. He relied upon findings of grade 1 meconium at 12.10 pm and grade 2 meconium at 4.20 pm as indicative of increasing foetal distress leading up to brain damage occurring ‘some hours before the baby’s birth’.
His view was based very largely on the condition of the plaintiff at, and for some days after, birth together with what he believes to have been evidence of brain swelling shortly after birth. He too rejected the theory of a possible large twin to twin blood transfusion killing the second twin and damaging the brain of the plaintiff some 12 to 24 hours before birth and gave reasons for his rejection.
These witnesses relied in support of their opinions on what they asserted was the not unusual nature of the experience of injury, including brain damage, to one twin during labour, when the second twin has died in the womb, and to what they stated was the extreme rarity of brain damage and death caused by an acute and large twin to twin transfusion of blood.
It would appear that of all the experts called in evidence none had direct personal experience or observation of this last mentioned phenomenon, notwithstanding extensive periods of practice as obstetricians or paediatricians.
*748
Against this evidence the defendant called six consultant obstetricians, that is to say, Professor O’Herlihy; Dr Boylan; Dr Gordon; Dame Barnes; Professor O’Driscoll; and the second-named defendant. In addition they called a consultant neo-natologist, Dr Matthews; a consultant neuro-natologist, Dr O’Gorman; a paediatric neurologist, Professor O’Donoghue; and a consultant pathologist, Dr Royston who was at the time of the plaintiff’s birth, paediatric pathology registrar in the hospital, and who took part in the autopsy carried out on the dead twin.
Very briefly summarised indeed, their evidence was of opinions very largely corresponding one with the other to the following effect.
1. That the second twin had died at least 12 and, much more probably, 24 hours before its birth and thus long before the plaintiff’s mother entered the hospital. To establish this, major though not exclusive reliance was placed on the macerated condition of the second twin at birth.
2. The most probable cause of the death of the second twin was a massive twin to twin transfusion of blood from the plaintiff by reason of which the plaintiff suffered deprivation of oxygen and brain damage and that this would have occurred either directly coincidentally with or within a very short time of the death of the second twin. For this the defendants’ witnesses relied upon a great number of diagnostic signs occurring during labour and after the birth of the plaintiff. Chief amongst these were:
Normal foetal heart findings on intermittent auscultation during labour, up to about 4.20 pm, and thereafter on continuous electronic monitoring of the foetal heart.
Normal pH blood sample taken at 4.20 pm
Normal cord pH blood sample taken at birth.
Abnormal haemoglobin down to 50% of normal allied to a normal blood pressure both when taken at birth.
Excessive (25%) quantity of normoblasts on blood testing at birth.
The absence of other causes of death and an observation of an unusually large quantity of blood in the second twin on the autopsy.
The absence of any history of haemorrhage into the mother’s womb and the exclusion by test of haemorrhage into the mother’s circulation.
The defendants’ expert witnesses not only relied on these and other diagnostic signs as suggesting that their theory was correct, but strongly contended that many of them were flatly inconsistent with the plaintiff’s evidence that the brain injury occurred during the plaintiff’s mother’s labour.
There can be no doubt that this evidence constituted the opinion of a large number of highly-qualified experts, and if accepted by the jury in whole or indeed in part, would inevitably have led to the determination of the first question left to them against the plaintiff.
I am quite satisfied that having regard to the principles already set out in this judgment it is not of a nature which would permit an appellate court to decide that it nullified the evidence adduced on behalf of the plaintiff.
It follows that there was evidence to support the finding of the jury in favour of the plaintiff on question number 1.
*749
Issues Numbers 2 and 3
These two issues arise from the jury’s findings in answer to question number 6 and questions numbers 4(e) and 5(e) on the issue paper.
Whilst not directly linked, these findings are sufficiently related to make it convenient to deal with them in the same part of this judgment.
Firstly the question as to whether there was evidence to support any or all of these findings must be approached in the knowledge that the jury has indicated by its answer to question number 1 on the issue paper that it has accepted the opinions of the expert witnesses called on behalf of the plaintiff in preference to the opinions of the expert witnesses called on behalf of the defendants in what clearly was one of the major clashes of expert evidence in this case.
As I have already indicated, the evidence of Dr Evans and Dr Rosenbloom was to the effect that when it occurred in labour deprivation of oxygen causing brain injury was linked to the strength of the contractures of the womb and therefore was more likely to occur as labour intensified and in effect towards the end of labour rather than towards the beginning of labour.
On the evidence, the practice of the hospital was to assume for the purpose of records and, apparently, also of diagnosis, that labour only commenced when a mother was admitted into the labour ward. The reason stated for the adoption of this practice was a frequent experience of mothers believing and stating that they were in labour when they entered the hospital, and eventually proving not to have been so.
The jury had before them in this case, however, express evidence from Mrs Dunne that she was in labour from 9 am, and direct evidence from her general practitioner, Dr Byrne, confirming this, and giving evidence of an examination by him and of a dilatation of the cervix found on that examination of between two and three centimetres.
If they had accepted this evidence, and I must assume that they did since it would, to an extent, favour the plaintiff’s case, then Mrs Dunne’s total labour eventually lasted just over eight hours before the birth of the plaintiff.
On the evidence, in the first four to five hours of that labour, that is to say, up to 1 to 2 pm, the dilatation of the cervix increased by only one centimetre from two to three centimetres, whereas in the remaining three and a half hours of labour it proceeded another seven centimetres to full dilatation. On this evidence it was, in my view, open to the jury to accept the view put forward by the witnesses called on behalf of the plaintiff that the intense period of labour was after 1.30 or 2 pm and that it was after that time that the brain injury sustained by the plaintiff occurred and they were entitled to accept that evidence notwithstanding evidence adduced on behalf of the defendants to the contrary.
The witnesses for the plaintiff point to the existence of meconium grade 1 at 12.10 pm and its progress to meconium grade 2 by 4.20 pm as corroborative of an increasing foetal distress preceding the actual brain injury which they contend occurred after 1.30 or 2 pm. For reasons set out in particular in the evidence of Dr Rosenbloom, it is asserted that such distress might not be detected by intermittent *750 auscultation at 15 minute intervals, whereas it would have been revealed by continuous electronic scalp monitoring. Furthermore, the evidence of both Dr Evans and Dr Rosenbloom concerning the general nature of brain injury caused by deprivation of oxygen during labour is that it is not a sudden injury but is usually preceded by a period of foetal distress eventually increasing to the level of being harmful. All this evidence was again strongly disputed by evidence on behalf of the defendants, but it remained evidence fit and proper, in my view, to be left to the jury, and their acceptance of it cannot, in my view, be set aside by an appellate court.
Issue Number 4; monitoring foetal hearts in twin pregnancies
The second central issue which arose at the trial in addition to the question as to the timing and cause of the plaintiff’s brain damage was the question as to whether in the case of known twin pregnancy without apparent complications it was correct during labour to attempt to identify the presence of two foetal hearts or only of one.
The evidence adduced on either side in regard to this question may briefly be summarised as follows.
Dr Bender gave evidence that it was not difficult in the case of a twin pregnancy to identify two foetal hearts. His belief was that it was now universally done with a piece of sonic equipment which was in common use for the last ten years. He stated that it could also be done by auscultation carried out by trumpet (which was the method of auscultation used for Mrs Dunne up to 4.20 pm). He expressed the view that such identification was very important in a twin pregnancy and that there were risks in failing to carry it out.
Dr Evans stated that the practice of the hospital in the case of a known twin pregnancy not to seek to identify two foetal hearts was one of which he had never heard being adopted anywhere else. He said it was clearly in his opinion wrong, and he stated that to look for two foetal hearts was something basic, which he compared to putting on the lights of a vehicle when it became dark. He expressed the opinion that to seek to identify one only was absurd.
On behalf of the defendants it was stated as follows.
Dr Casey proved that the policy of the hospital was to listen to one foetal heart in a twin pregnancy.
Professor O’Herlihy confirmed that this was and remained at the time of the trial the practice in the hospital. He explained the reason for it as the technical difficulties associated with trying to identify two foetal hearts and the great difficulty of identifying one from the other. He also stated that it was somewhat uncomfortable for the mother. He stated that he was aware of a similar practice in use in other hospitals in which he worked, identifying one instance as St James’s University Hospital in Leeds, where he worked as a registrar in 1977 to 1978.
Dr Blennerhassett who was a junior doctor in the hospital at the relevant time, confirmed the practice and stated that now practising as a general practitioner he would in the case of a known twin pregnancy seek to identify one foetal heart only though his practice did not apparently include the management of labour.
*751
Dr Gordon stated that, in his opinion, seeking to identify two foetal hearts was notoriously unreliable, may be misleading, and may influence an obstetrician in reaching decisions quite incorrectly. He gave an example of a hospital with which he is associated in which two foetal hearts having been identified and traces of their movement have been obtained, which appeared to prove very satisfactorily that each was operating normally, upon eventual birth it was discovered that one of the twins concerned had been dead for a very considerable time. Evidence of this happening elsewhere was given by other witnesses on behalf of the defendants.
Dame Barnes stated that she saw nothing wrong in attempting to identify one foetal heart only, and although it might be desirable to attempt to identify two, it did not necessarily reveal the existence of a dead twin.
Dr Matthews gave evidence that it was the practice to attempt to identify two foetal hearts in both the Rotunda Hospital, to which he is attached, and in the Coombe Hospital. He expressed an opinion that such practice did not appear to him to be any better or of any advantage over the practice adopted in the hospital of only attempting to identify one. He relied for this conclusion in part, at least, upon survey reports from the Rotunda Hospital and from the hospital, covering a significant period, indicating similar experience and results from twin pregnancies.
The second-named defendant confirmed the practice of the hospital and indicated his acceptance of it in any case where he had no grounds for concern about the second twin which he stated was the position in this case.
Dr O’Driscoll, who is a former master of the hospital, and a former professor of obstetrics and gynaecology in University College Dublin, and who has been associated with the hospital for 40 years, gave evidence that the practice of seeking to identify one foetal heart only in the case of twin pregnancies had been the practice of the hospital for certainly 15 to 20 years at the time of the trial. He identified this practice not only as seeking to identify one foetal heart only, but also as being a specific attempt to identify the foetal heart of the first twin. He stated that the reason for the practice was the extreme difficulty of obtaining a reliable result from any attempt to monitor the second twin and the impossibility, since that twin is not presenting for delivery, of making many of the further tests which might be available upon it. He expressed the view that the attempt to monitor two foetal hearts could be so misleading as to be a dangerous practice. He also stated, when asked about the practice outside the hospital, that the plaintiff, who was the first twin, could not have been better monitored anywhere in the world.
Applying the principles laid down in O’Donovan v Cork County Council, as I have already stated them in this judgment, to this evidence I have come to the following conclusions.
It was clearly part of the plaintiff’s case against each of the defendants that in seeking to identify one foetal heart only in the case of a known twin pregnancy they were each deviating from a practice generally adopted and approved by both the medical administrators of maternity hospitals and by consultant obstetricians. In my view, the evidence on behalf of the plaintiff if accepted by a jury could support such a case.
*752
It was, in my view, equally clear that part of the defendants’ case was that in seeking to identify one foetal heart only they were following a practice which was ‘general and approved’ within the interpretation of that phrase which I have already set out in this judgment. In my view, the evidence tendered by them was capable of supporting such a case.
Having regard to these conclusions, I am satisfied that if the jury found that the defendants had deviated from a general and approved practice then, having regard to the opinions expressed by Dr Evans and, to a lesser extent, the opinion expressed by Dr Bender it would have been open to the jury if it accepted those opinions, to hold that the course being taken by the defendants was one which no hospital and/or consultant obstetrician of ordinary skill would, acting with due care, have followed.
If, on the other hand, the jury were to find that the defendants had followed a ‘general and approved practice’ they could still have found that they were negligent if, having accepted the opinions of Dr Evans and Dr Bender, they concluded from them that the practice was one which had inherent defects which ought to have been obvious to any maternity hospital, medical administrator or to any consultant obstetrician giving the matter due consideration.
I am, therefore, satisfied that the answer to the question raised by issue number 4 in this appeal must be that on the evidence the jury could, if properly directed, have found both the hospital and/or the doctor negligent arising from their failure to attempt to identify a second foetal heart.
Issue Number 5
I will first deal with issue number 5(e)(iii).
The question as to whether the learned trial judge erred in law in failing in his charge to the jury to give appropriate directions concerning the legal principles of medical negligence arising from the failure to seek to identify two foetal hearts and, if he did, whether such error vitiated the trial clearly involves the considerations set out by me in dealing with issue number 4 in this judgment.
During the course of his ruling on the defendants’ applications for directions the learned trial judge stated as follows:
In the present case there is no evidence to show that there is a general and approved practice not to monitor the second foetal heart in the case of twin pregnancies. Indeed the evidence would tend to establish a practice of attempting to monitor a second foetal heart, so I cannot withdraw this part of the case on the grounds that the hospital and the doctor were adopting a general and approved practice.
In the course of his charge to the jury the learned trial judge dealt with the question of medical negligence in the following terms:
The concept of negligence is a very simple one. It involves the concept of a duty of care and involves the concept of a breach of duty of care, and nobody denies that. The hospital had a duty of care to the plaintiff and Dr Jackson does not deny that he had a duty of care to the plaintiff, ie the plaintiff and to the plaintiff’s mother. What is denied is that there was any breach of that duty of care. Let me take the position of a highly qualified experienced obstetrician, a specialist obstetrician, Dr Jackson, as the plaintiff’s doctor and it is not wrong to refer to him as the plaintiff’s doctor because he was his patient just as much as Mrs Dunne was Dr Jackson’s patient. Dr Jackson *753 owed a duty to use reasonable care and skill in treating Mrs Dunne and in looking after her unborn children, the twins. As a specialist obstetrician he was under a duty to use the skill and knowledge and technique which a specialist obstetrician should have and to make a considered judgment as to what course and what treatment were in the best interests of Mrs Dunne and her twins. The test of the standard which you should apply is that of the ordinary skilled obstetrician exercising the ordinary degrees of professional skill. It is a matter for you, ladies and gentlemen, in the light of the evidence to decide whether in the handling of the plaintiff Dr Jackson fell below the standard of the ordinary skilled obstetrician. Now you don’t apply your own judgment as to what in your view he should have done, because you are not obstetricians. You consider whether in the light of the evidence his handling and care and treatment of Mrs Dunne and of William fell below the standard of the ordinary specialist obstetrician, and the test is the same in relation to the hospital.
Upon the conclusion of the judge’s charge Mr Liston on behalf of the doctor made a very specific requisition based on the fact that the defendants’ case was that there was a practice adopted by the hospital and accepted by the doctor with regard to the monitoring of one foetal heart in a twin pregnancy. He then sought specific further directions to the jury as to the principles laid down in O’Donovan v Cork County Council to which I have already referred. This requisition was resisted by counsel for the plaintiff and was rejected by the learned trial judge.
The conclusions which I have reached with regard to the evidence as to ‘practices’ in monitoring foetal hearts in twin pregnancies, as I have expressed them in respect of issue number 4, must inevitably lead to the conclusion that the charge of the learned trial judge to the jury on the meaning of medical negligence, though correct in so far as it went, was inadequate.
That inadequacy consisted in his failure expressly to point out to the members of the jury two matters. They were:
1. That if they concluded that there was a general and approved practice of monitoring two foetal hearts from which the defendants deviated, that they should not find that the defendants were negligent unless they also concluded that no hospital medical administrator or no consultant obstetrician would have so deviated if he were taking the appropriate ordinary care.
2. That if they concluded that the monitoring of one foetal heart was a ‘general and approved practice’ that they could not find the defendants were negligent unless they also concluded that it was a practice which had inherent defects which should have been obvious on due consideration to a hospital medical administrator or to a consultant obstetrician.
This omission is not merely a failure to use a particular phrase or set of words but is a failure specifically to draw to the attention of the jury the legal principles applicable to the determination of cases of medical negligence and the standards by which they must judge them.
I turn then to the further question as to whether this omission from the charge constituted a mistrial which could have led to a miscarriage of justice.
I am neither unaware of nor insensitive to the massive burden, both emotional and practical, which these proceedings have imposed upon the parties, both the parents of the infant plaintiff and the medical practitioners whose conduct has been impugned.
*754
I am driven, however, to the conclusion that the omissions from this charge which I have identified were such that had a jury been given what I am satisfied were the appropriate directions it might have reached a different conclusion on this vitally important issue. In so deciding I express, of course, no opinion whatsoever as to what its finding, if so directed, should have been.
Having reached this decision the only manner in which justice between the parties can be done in this case would be to direct a new trial of the issue of liability against both defendants. I would therefore allow the appeal of each defendant on the issue of liability and direct a new trial on that issue.
As such retrial, pursuant to the provisions of the Courts Act 1988, will be had before a judge sitting without a jury, it is unnecessary to express any view on the other challenges to the former trial, including those based upon the form of the questions left to the jury or the nature of the judge’s charge to the jury.
On one question, however, which arose during the hearing of this appeal, I feel I should express my views. Objection was taken by the appellants to the prejudicial effect of a series of questions put to the doctor in cross-examination concerning his decision to direct an oxytocin drip to be administered to the plaintiff’s mother.
The reason for that objection was that the uncontested evidence indicated that the drip was removed after five minutes and that there was no conceivable possibility that such a dosage lasting for such a short time could have had any effect on the injuries suffered by the plaintiff.
Counsel for the plaintiff sought to justify before this Court this cross-examination on the grounds that evidence of any act of negligence or apparent negligence committed by the doctor, even though unconnected with the damage complained of in the action, was relevant to the determination of issues of causative negligence which were to be decided in the case.
In the absence of any question of a system of work or system of conduct which did not arise in this case and which was not raised as a relevant question on this appeal, I am satisfied that such a proposition is quite unsound and is, of course, wholly unsupported by authority.
In the absence of evidence linking the five-minute dosage of oxytocin to the plaintiff’s injuries, questions concerning it are not relevant nor admissible, and they are clearly prejudicial, though the fact of its being ordered as part of the narrative of the treatment of Mrs Dunne might be admissible.
Damages
The extent and consequences of the plaintiff’s injuries is very great indeed, and represents a total destruction of any conceivable amenity of life.
He is a spastic quadriplegic with major mental handicap, incapable of any understanding. His sight is impaired. He displays some minimal signs of extra unhappiness on particular occasions and of what only can be described as a relative contentment on others. He is incontinent, and can perform no useful or intended function for himself, having to be fed, dressed and washed. He is totally dependent on assistance for all his needs. He faces the probability of future surgery to correct *755 muscle contractures which have in the past resulted in joint displacement. His expectation of life is approximately normal.
All these consequences of the plaintiff’s brain damage are quite irreversible.
The general damages assessed in respect of these injuries at £467,000 must be considered in the light of the principles laid down by this Court in the following cases: Foley v Thermocement Products Ltd (1955) 90 ILTR 92; Doherty v Bowaters Irish Wallboard Mills Ltd [1968] IR 277Reddy v Bates [1983] IR 141; Cooke v Walsh [1984] ILRM 208; Sinnott v Quinnsworth Ltd [1984] ILRM 523.
Having regard to these decisions the following factors are of particular relevance to the assessment of general damages in the facts of this case.
(1) The extent to which the plaintiff has any appreciation or awareness of his condition and of the amenities of living which he has lost.
(2) The extent to which the award of damages under separate headings have made full and ample provision for his care and bodily needs.
(3) The totality of his loss of amenity and happiness.
(4) The irreversible nature of his condition and the fact that it will continue for a normal expectation of life from birth onwards.
(5) The amount of the gross award for damages under all headings of which the amount of general damages is a component part.
In short, the appellants’ submission on this issue is that having regard to these principles and factors and with particular reference to the evidence which they submit establishes an almost complete lack of awareness and an incapacity to derive pleasure or comfort from anything except bodily care and attention and the presence of his family, the sum of just under £500,000 either viewed in isolation or viewed as a component part from a total award of over £1,000,000 is excessive to a major extent.
No submission was apparently made at the trial and no argument was certainly presented on this appeal to the effect that as a matter of principle a person who as a result of injuries tortiously inflicted has no awareness of his condition should be entitled under the heading of general damages to nil or nominal damages only. I, therefore, express no view on any such proposition.
Rather was the appeal presented to this Court as directed towards what was asserted in all the circumstances should be a moderate figure for general damages.
On behalf of the plaintiff it was contended that the case must, having regard to the extent of the injuries and to the fact that they will last literally for the entire of the plaintiff’s lifetime, be classified as unique, and that unique injuries justify a uniquely high award of general damages.
I am satisfied that the sum of £467,000 assessed as general damages is, having regard to the other damages awarded which amount to over £579,000 and, to the extent of the plaintiff’s lack of awareness of his condition, excessive to a degree which renders it unreasonable and that the appellants are entitled to succeed in their appeal on this issue.
Having regard to my view that there should be a retrial on the issue of liability, I am satisfied that the issue of damages should also be retried.
*756
The grounds of appeal on damages relating to the three items other than general damages which I have outlined in this judgment, were all based rather on the detailed evidence given at the trial than on any general question of principle. I am accordingly satisfied that it is not necessary and would probably not be helpful for me to express any view on them, having regard to the very real possibility that the details of the evidence on these questions could be different on a retrial.
In regard to the question of the cost of providing a house suitable for the residence of the plaintiff and his family, I would, however, feel that I should point out that if account is to be taken, as it was at the trial already had of the proceeds of the sale of the existing family home, the proposal would appear to require clarification in respect of the arrangements intended as to the ownership of any new house.
No controversy of any kind arose at the trial as to the condition of the plaintiff and the consequences of his brain injury. It would therefore appear very probable that the evidence which will be before the judge hearing the retrial as to damages on this particular topic will be the same as appears in the transcript before this Court. It would appear to me to be desirable that I should in those circumstances indicate a range of general damages which on the applicable principles would appear to be appropriate. I say ‘range of damages’ for obviously the trial judge would properly take into account on the assessment of general damages both the extent to which his other awards fully cared for the plaintiff’s bodily needs and comfort and prospective losses and to the gross award resulting from all his assessments. Such a range of general damages, having regard to the factors which I have indicated would, in my view, be appropriately found between a sum of £50,000 and £100,000.
I would allow the appeal of each defendant and direct a new trial on all issues.
Anne Kelly v Fergus Hennessy
1990 No. 2370P
High Court
30 March 1993
[1993] I.L.R.M. 530
(Lavan J)
30 March 1993
Subject: Negligence
Keywords: Nervous shock
Negligence—Nervous shock—Plaintiff’s husband and two daughters injured in road traffic accident—Accident caused by defendant’s negligence—Plaintiff told of accident and went into shock—Saw family in hospital which aggravated condition—Post traumatic stress disorder—Whether plaintiff entitled to recover damages against the defendant in respect thereof
*531
Facts
On 14 April 1987, the plaintiff’s husband and two daughters left home to travel to Dublin Airport to collect the plaintiff’s niece, who was arriving there on a flight from abroad. Some time later the niece telephoned to say that the husband and two daughters had been seriously injured in a road traffic accident.
The plaintiff immediately went into shock, became upset and commenced vomiting. She was taken to Jervis Street Hospital by her neighbours to see her family, and was ill during the course of the journey. At the hospital she saw her family, each of whom were in an appalling condition. Over the ensuing period the plaintiff was faced with a daily round of visits to hospitals apart from her own deep shock and upset.
The plaintiff’s husband and one daughter suffered horrific injuries including permanent brain damage. The second daughter suffered severe injuries but eventually made a full recovery. The plaintiff took on the role of caring for her husband and daughter on a daily and permanent basis, preferring to do this than to hand over her family’s care to some other person.
Held, by Lavan J in giving judgment for the plaintiff in the amount of £35,000 for pain and suffering to date, and £40,000 for pain and suffering in the future:
(1) On the facts the plaintiff suffered immediate nervous shock as a result of the phone call concerning the accident, and this was gravely aggravated by the scenes she later witnessed at the hospital. She suffered from post-traumatic stress disorder for at least five years and it was unlikely she would ever fully recover. She was thus entitled to recover for nervous shock. Mullally v Bus Éireann [1992] ILRM 722 followed.
(2) The defendant had failed to establish that because the plaintiff refused to acknowledge her grief she had thereby failed to mitigate her loss.
Cases referred to in judgment
Alcock v Chief Constable of the South Yorkshire Police [1992] 1 AC 310; [1991] 3 WLR 1057; [1991] 4 All ER 907
Brice v Brown [1984] 1 All ER 997
Hevican v Ruane [1991] 3 All ER 65
Jones v Wright [1991] 3 All ER 88
McLoughlin v O’Brian [1983] 1 AC 410; [1982] 2 WLR 982; [1982] 2 All ER 298
Mullally v Bus Éireann [1992] ILRM 722
P.H. v John Murphy & Sons Ltd [1987] IR 621
Ravenscroft v Rederiaktiebolaget Transatlantic [1991] 3 All ER 73
State (Keegan) v Stardust Victims’ Compensation Tribunal [1986] IR 642; [1987] ILRM 202
Representation
Paul O’Higgins SC and Patrick Hunt for the plaintiff
Kevin Haugh SC and Frank Duggan for the defendant
LAVAN J
delivered his judgment on 30 March 1993 saying: In this case the plaintiff claims that on or about 14 April 1987, the defendant, whilst driving his motorcar at Rathbeale Road, Swords in the County of Dublin his vehicle collided *532 with a motorcar, the property of one Thomas Kelly, wherein the said Thomas Kelly and his two daughters were travelling and, as a result thereof, both Thomas Kelly and his daugthers suffered severe personal injuries, loss and damage. In this case the plaintiff, who is the wife and mother of the aforesaid, says that arising therefrom she was caused and permitted to suffer from injury, emotional distress and nervous shock which were occasioned due to the negligence and breach of duty of the defendant at the said time and place.
The defence filed by the defendant on 11 December 1990 is a straight traverse of the plaintiff’s claim. It concludes at paragraph 3 that if, which is denied, the plaintiff suffered injury, emotional distress or nervous shock, as a result of negligence and breach of duty on the part of the defendant, his servants or agents the same does not entitle the plaintiff to recover damages in respect thereof.
The issue in this case is, therefore, the plaintiff’s entitlement to recover damages against the defendant for nervous shock arising out of the injuries sustained by her husband and two daughters.
This plaintiff is a 52 year old married woman. She has lived all her life at Rath, Ashbourne, Co. Meath. Having married her husband they had three children. Adrienne, born on 17 May 1961; Niall, born on 19 August 1964; and Shirley Ann, born on 10 January 1970. The family had a simple and happy life. The husband in the early years of marriage was a sales representative. Apart from work, their social life consisted of visiting and being visited by their neighbours and close friends.
Tragedy first touched this woman’s life in 1979 when Niall, her only son, was killed in a motor cycle accident. Shortly thereafter, the plaintiff’s husband set up in business with his brother-in-law as a market gardener.
On 14 April 1987, the plaintiff’s life was horribly and irretrievably traumatised. Her husband and two daughters had left home to travel to Dublin Airport for the purpose of collecting the plaintiff’s niece, who was arriving there on a flight from abroad. Some time after 9.30 pm that niece telephoned the plaintiff and informed her that her husband and two daughters were seriously injured in a road traffic accident at Rathbeale Road aforesaid. As a result of that accident, the plaintiff’s husband and Shirley Ann suffered horrific injury leaving both permanently brain damaged. Adrienne also suffered very severe injuries.
The plaintiff immediately went into shock, became upset and commenced vomiting. She was taken to Jervis Street Hospital by her neighbours to see her family. I accept she was ill in the course of that journey. When at Jervis Street Hospital she saw her family, each of whom were in an appalling condition and one of whom she has described as looking like ‘minced meat’.
The plaintiff has from that time led a traumatised existence. She had a daily round of visits to hospitals apart from her own deep shock and upset. The plaintiff’s husband remained in hospital until he was discharged at the end of July 1987. He is brain damaged. He cannot cope with people. He rises at 1 pm *533 daily and must be bathed and cared for by the plaintiff.
Shirley Ann was discharged one year and one day later from a number of hospitals, namely, on 15 April 1988. She is permanently brain damaged and a serious problem to her mother at home.
Adrienne was discharged at the end of July 1987 and has happily made a full recovery from her injuries.
Both the plaintiff’s husband and two daughters have received damages from the defendant, including the cost of their care, which is required on a daily and permanent basis. The plaintiff will not take in trained help.
This plaintiff takes the view that she cannot leave her husband and Shirley Ann. Adrienne has since married. She visits her mother on a daily basis. This plaintiff believes she ought not to hand over her family’s care to some other person. She says that she cannot let go. She fears that were she to ‘let go’ she would never recover.
I accept the plaintiff as a genuine, gentle and caring human being. No greater love for one’s family have I ever witnessed. I accept as truthful the evidence given by Miss Tracey Ward and Mrs Rita Fitzsimons. I accept, therefore, that the plaintiff’s personality and her lifestyle has been changed utterly by virtue of the events, the subject matter of this case. I accept Dr Corry’s evidence. There was some conflict between his evidence and the evidence given by Dr Ryan for the defendant. Where the medical evidence is in dispute, I would prefer Dr Corry’s as being more consistent with the other evidence adduced by the plaintiff. As to Dr Ryan, I formed an impression that he had not a full history of the plaintiff’s immediate and continuing reaction as given by her in court and which I have accepted. I found his attitude to the plaintiff less than reasonable in all of the circumstances. He certainly gave me the impression of engaging in a type of intellectual game, as distinct from giving a careful analysis of the position. I fully recognise that Dr Ryan was appearing for the defendant. I am, therefore, satisfied that the plaintiff suffered immediate nervous shock resulting in vomiting on receiving the telephone call concerning her family’s accident. This condition was, in my view, gravely aggravated by the scenes she immediately thereafter witnessed in Jervis Street Hospital.
I am satisifed that the post-traumatic stress disorder which Dr Corry has given evidence of continued up to 1992, at the earliest. I accept that the plaintiff continues to suffer a serious depression. I doubt, having regard to ail of the evidence, that I could be satisfied that she will ever fully recover from what I perceive to be a clear psychiatric illness. On the evidence adduced by the defendants, I do not accept that they have established on the balance of probability that, because this plaintiff has refused to acknowedge her pain, grief and depression, I ought to hold her guilty of a failure to mitigate her damages. I accept the plaintiff’s explanation.
As to the law:
*534
The decision of Denham J in Mullally v Bus Éireann [1992] ILRM 722 is not binding on me but is of strong persuasive authority being a judgment of the High Court. In addition, counsel have opened extensive English authorities and have ably argued their respective cases.
The following is a list of cases cited:
Alcock v Chief Constable of the South Yorkshire Police [1991] 4 All ER 907; Brice v Brown [1984] 1 All ER 997; Hevican v Ruane [1991] 3 All ER 65; Irish Law of Torts , 2nd ed., McMahon & Binchy, Butterworths (Ireland) Ltd, Dublin 1990; Jones v Wright [1991] 3 All ER 88; McLoughlin v O’Brian [1982] 2 All ER 298; Mullally v Bus Éireann [1992] IRLM 722; ‘Nervous Shock, Where Are We Now?’, Paul Sreenan BL, Solicitors Gazette , March 1990, p. 49; P.H. v John Murphy & Sons Ltd [1987] IR 621; Ravenscroft v Rederiaktiebolaget Transatlantic [1991] 3 All ER 73; State (Keegan) v Stardust Victims’ Compensation Tribunal [1987] ILRM 202
Also: All England Reports Annual Review: Tort: Nervous Shock, p. 371.
Having carefully considered all of the above authorities, I have come to the conclusion that I agree with and adopt the views of Denham J in the aforesaid decision and I, therefore, find that this plaintiff is entitled to recover as against the defendant for nervous shock.
Damages
For pain and suffering to date, I would award a figure of £35,000. For pain and suffering in the future, I would award a figure of £40,000.
Rossiter v Donlon
[2019] IEHC 105 (28 February 2019)
JUDGMENT of Mr. Justice Barr delivered on the 28th day of February, 2019
I. Introduction
1. The plaintiff is 36 years of age having been born on 12th March, 1982. She is a married lady with two children, aged 17 years and 7 years. The plaintiff has breast cancer, with metastatic disease in other parts of her body, namely her lower back, liver and brain. Her prognosis for survival in November 2018 was put at six months.
2. The defendant is a medical doctor, who at the time of the matters complained of, practiced as a GP in a two doctor practice known as the Hilltop Surgery, Raheny, Dublin.
3. In essence, the plaintiff’s case is that the defendant was negligent in the care and advice which she gave to the plaintiff when she attended the defendant on 24th September, 2014. It is the plaintiff’s case that in the three months prior to that visit, she had developed a lump in her left armpit, which she had discovered while in the shower. When it persisted, she became concerned and did an internet search. This revealed the possible connection between a lump in the armpit and breast cancer. The plaintiff was very concerned by this. She made an appointment to see a female GP, as she stated that she expected that a breast examination would be done.
4. It is alleged by the plaintiff that at a consultation which she had with the defendant on 24th September, 2014, the defendant performed an inadequate examination of her left axilla and did not offer to do a breast examination and, therefore, none was performed. The plaintiff alleges that the defendant simply reassured her that she could not find anything of concern following her examination of the axilla. It is alleged that the defendant was negligent in failing to carry out an adequate examination of the axilla and was further negligent in failing to offer and carry out a breast examination on that date.
5. The plaintiff further alleges that the defendant was negligent in failing to advise her to return for a review within two/six weeks, due to the fact that while the defendant could not find any lump under her arm on examination, the plaintiff was still able to feel the lump there.
6. It is alleged that in failing to do these things, the defendant acted negligently and in breach of the National Breast Cancer GP Referral Guidelines, issued by the HSE in April 2009.
7. In her defence, the defendant accepts that she saw the plaintiff on 24th September, 2014, when the plaintiff had a concern about a lump in her left armpit. The defendant candidly stated that with the exception of two things, she could not recall the details of that consultation. The two things which she did recall, were that the plaintiff said that she did not have any family history of breast cancer and that she had declined a breast examination when offered one by the defendant.
8
422. That brings me to the central conflict between the parties, which is whether the defendant offered the plaintiff a breast examination and whether the plaintiff refused it. The plaintiff’s account is straight forward. She says that she was not offered a breast examination and therefore did not refuse one.
423. The defendant’s account is that having palpated the two axillae, she said to the plaintiff in a conversational tone, ” I would like to perform a breast examination “, or words to that effect. She could not recall the exact words that she had used. She said that this request had been made in a conversational tone, so as not to alarm the patient, because in light of the negative axilla examination, she did not believe that there was any indication that the plaintiff actually had breast cancer. Furthermore, the fact that the plaintiff was a young woman and had no family history of breast cancer, meant that the index of suspicion of breast cancer was low.
424. The defendant stated that when the plaintiff declined to have a breast examination, she did not feel that she could push the matter further. She was conscious that that was the first occasion on which she had actually treated the plaintiff as a patient, although she had met the plaintiff previously, when she brought in one of her children who was sick. Given that the index of suspicion for breast cancer was low, she did not push the matter any further. She stated that she did not sense any unease or disquiet on the part of the plaintiff at not having a breast examination. She stated that she had recorded the fact that the plaintiff had declined a breast examination in her notes, which had been entered onto the computer immediately after the plaintiff left the consultation room and before she called in the next patient.
425. In looking at this conflict, one has to have regard to the fact that the plaintiff’s evidence was based on her recollection of a twelve-minute consultation, which had been recalled for the first time after August, 2016 in respect of a consultation in September, 2014. The plaintiff stated that at the conclusion of the consultation, she had felt slightly embarrassed, but very relieved that she had been given the all clear by the defendant in relation to her complaint of an axillary lump. Importantly, on the plaintiff’s evidence, there was nothing in that consultation which would cause her to particularly recall the consultation itself. She had not been given any bad news, which she might have ruminated on or remembered in the following two years. It was only some time after her diagnosis with breast cancer in August, 2016, that she had cause to try to recall that consultation. In opening the case, the plaintiff’s counsel had stated that around the end of 2016, the plaintiff had telephoned the defendant to ascertain the date that she had seen her in 2014.
426. The defendant candidly admitted that she only had a specific recollection of two aspects of the consultation; that the plaintiff said that she did not have any relevant family history of breast cancer and that she had refused a breast examination. Other than that she had to rely on her notes, which were made immediately after the plaintiff left the consultation room.
427. A number of points can be made about the defendant’s notes. Firstly, I find that they are satisfactory notes, insofar as they give sufficient detail of the relevant matters discussed at the consultation. I accept the evidence of Dr. Boland that the defendant’s notes would be generally regarded as being of an adequate standard. Indeed, the plaintiff’s expert, Dr. Burton, did not disagree with that conclusion, save that he felt that they would not be described as being detailed notes, due to the fact that there was not more information elicited in the history section in relation to the size and shape of the lump reported by the plaintiff and whether she had had it before, or had such lumps elsewhere in her body. I accept the defendant’s evidence that she had asked relevant questions in relation to the lump, but it was her practice only to record relevant positive answers to those questions. I accept the evidence of Dr. Boland that these notes are adequate in terms of the level of detail contained therein.
428. Secondly, there was no challenge made at the trial of the action that these notes were made contemporaneously by the defendant in the manner described by her. Accordingly, I find as a fact that her notes were made immediately after her consultation with the plaintiff.
429. Thirdly, it is relevant to note that the plaintiff accepted the accuracy of certain aspects of the defendant’s notes. She agreed that she had attended with a concern in relation to an axillary lump, which she stated had been present for three months and that it was non tender. She also accepted that she had stated that she had no family history of breast cancer. All of these things were recorded in the notes.
430. Both the plaintiff and the defendant were also in agreement that the defendant had examined the left axilla twice and that she was unable to find any lump on clinical examination. Accordingly, her note is accurate in relation to the findings on clinical examination of the axilla.
431. The critical part of the notes is that portion which reads “declined breast exam”. While it was put to the defendant that she had not in fact offered the plaintiff a breast examination, it was not put to her that she had deliberately written a falsehood in her notes relating to that consultation. In the course of cross-examination, it was put to the defendant that she had in fact never offered the plaintiff a breast examination. It was put to her that she was tied to a misinterpretation of her own notes, to try to provide some kind of rationale on that issue. That was the only challenge that was put to her in relation to this entry in her notes.
432. If I were to find that no breast examination was offered by the defendant to the plaintiff at the consultation on 24th September, 2014, it follows that I would have to find as a fact that the defendant had, within minutes of the conclusion of that consultation, deliberately entered a falsehood in her notes, to the effect that the defendant had declined a breast examination. That would be an extremely serious finding to make against a doctor. It is only fair that if such a finding was to be made against a practising medical practitioner, at the very least, the allegation should have been put to them in clear terms and they should be given an opportunity to deny or explain that allegation, prior to any adverse finding being made against them.
433. The law in relation to the duty to put matters to witnesses in cross-examination has been long established at common law. In Browne v. Dunn [1894] 6R. 67, Herschell L.C. set out the rationale for this rule of evidence in the following terms at pp. 70-71:
“Now, my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he was a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and as it seems to me, that is not a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.”
434. Halsbury L.J. explained the principle in similar terms at pp 76-77:
“To my mind nothing would be more absolutely unjust than not to cross-examine witnesses upon evidence which may have been given, so as to give notice and to give them an opportunity of explanation, and an opportunity very often to defend their own character, and, not having given them such an opportunity, to ask the jury afterwards to disbelieve what they had said, although not one question has been directed either to their credit or to the accuracy of the facts they have disposed to.”
435. The principles set out in the Browne case were accepted as being a correct statement of the law by Laffoy J. in McNamee v. Revenue Commissioners [2016] IESC 33. Those principles were also accepted by Charleton J. in McDonagh v. Sunday Newspapers Limited [2017] IESC 46, where, having cited the cases referred to above, he stated at para. 41:
“The extent to which fairness requires cross-examination is essentially dependant on how a trial runs. Fairness, however, is what the law requires both in relation to procedures that are dedicated towards achieving a correct conclusion in a trial and in relation to the right of a witness to be given a real opportunity to comment on a verdict the implication of which may only be interpreted as adverse.”
436. Those statements of the law were also accepted by this Court in Browne v. Van Geene [2017] IEHC 612 and in Jedrusch v. Tesco Ireland Limited [2018] IEHC 205. Having regard to the state of the law, I am of opinion that two consequences flow from the failure to put the allegation to the defendant that she had deliberately written an untruth in her notes. Firstly, objection could have been taken by counsel on behalf of the defendant, that had the plaintiff sought to put such an allegation to any witnesses called after the defendant had given her evidence. Secondly, the specific allegation could not have been put before a jury, or before the trier of fact, if such allegation had not been put to the witness. Accordingly I am of the opinion that I would not be entitled to make any finding that the defendant had deliberately written a falsehood in her notes in relation to the plaintiff declining a breast examination, as that specific allegation was not put to her.
437. However I do not rest my judgment solely on this somewhat technical ground. Even if it had been put to the witness and denied by her, having watched the defendant carefully giving her evidence, I am satisfied that she would not deliberately write in her notes that the plaintiff had declined a breast examination, if that was not the case. I simply do not accept that she falsified her records.
438. I am fortified in that conclusion by the fact that there was no reason for her to enter such a falsehood in her notes. If she had for some reason omitted to offer the plaintiff a breast examination and had realised that in writing up her notes immediately on the departure of the plaintiff, there was no need for her to falsify her records; all she had to do was ask her secretary to contact the plaintiff and ask her to come in for a breast examination on the following Friday, or in the following week. There was absolutely no need for her to falsify her records, which would be a very serious thing for a doctor to do.
439. In relation to the defendant’s testimony generally, she gave her evidence in a clear and straight forward manner. She did not try to dodge any difficult questions, nor did she try to obfuscate in her answers. I am satisfied that she is essentially an honest witness.
440. On this conflict of evidence, I prefer the evidence of the defendant that the plaintiff declined a breast examination after the negative axillary examination. That evidence is supported by her notes, which were made contemporaneously. There is no evidence that would enable me to hold that the notes are not truthful or accurate. On this aspect, I prefer the evidence of the defendant which is supported by her contemporaneous notes. Accordingly, I find that a breast examination was offered and was declined by the plaintiff at the consultation on 24th September, 2014.
441. In saying that, I am not casting doubt on the plaintiff’s honesty, the doubt is solely in relation to the accuracy of her recollection. I am satisfied that her recollection of the consultation in this regard is mistaken. That may have been due to the fact that it was over two years later, when she had been sucked into a vortex of terrible diagnoses, with a devastating prognosis, that she first recalled certain aspects of the encounter, namely that she had attended the defendant with a concern about a lump in her axilla and that her breasts had not been examined on that occasion; both of which were true, but she wrongly came to the conclusion that that meant that no breast examination had been offered. Accordingly, I am satisfied that the plaintiff was merely mistaken in her recollection of what occurred at the consultation, rather than there being any deliberate attempt on her part to give false evidence.
442. In the course of cross-examination, it was put to the defendant and to other witnesses, that if a young woman had found a lump in her axilla, had done an internet search and discovered the possible link between such a lump and breast cancer and had specifically made an appointment to be seen by a female GP, with a view to having a breast examination, there was no rational reason why she would have refused one when offered it. Broadly speaking, the witnesses, including the defendant, agreed with that proposition. At first glance, there is certainly considerable strength in it. However, for reasons that will become clear presently, I am of the opinion that a refusal of a breast examination by the plaintiff on this occasion, may not have been such an irrational or unlikely outcome.
443. The next conflict between the parties, was whether there was consensus between the plaintiff and the defendant that there was no lump present in her axilla on 24th September, 2014. There was a fairly stark conflict between the evidence of the plaintiff and the evidence of the defendant on this aspect. The plaintiff maintained that she was able to feel the lump in her axilla at all times, including during the consultation and indeed during the two years thereafter.
444. The defendant’s evidence was to the effect that, having thoroughly palpated the axilla on two occasions during the consultation, there was a consensus between them that there was no lump present. The defendant stated that at no time did the plaintiff verbally communicate to her that she thought that the lump was still present. Nor did she get any sense from the plaintiff’s body language, or otherwise, that she thought that the lump was still present, despite the negative clinical examination of the axilla by the defendant.
445. Having considered the evidence of the plaintiff and the defendant on this issue, I prefer the evidence of the defendant for the following reasons: firstly, I accept the defendant’s evidence that the plaintiff did not verbally communicate any concern that she could still feel the lump. The plaintiff did not state in evidence that she had specifically told the defendant that the lump was still there. I also accept the defendant’s evidence that had she done so, it would have been recorded in her notes and the consultation would have taken a different direction. I also accept the defendant’s evidence that she did not pick up any sense of disquiet or disagreement on the part of the plaintiff with her conclusion following clinical examination, that there was no lump present.
446. The absence of any entry in the notes of any disagreement or concern on the part of the plaintiff that the lump was still present, is supportive of the defendant’s evidence in this regard. One must also take into account that the presence of a disagreement between a doctor and their patient in relation to the presence of a certain condition, such as a lump, is not something that reflects badly on the doctor. If there had been any disagreement between the plaintiff and the defendant, there was no reason why the defendant would not have recorded such lack of consensus in her notes. Accordingly, I regard the absence of any such entry in the notes as being significant.
447. There was also a positive entry in the notes which supports the defendant’s account. According to the notes, at the end of the consultation, the plaintiff was told to return if the lump should recur. This was recorded as “TCI if recurs”. The use of the word “recurs” in its ordinary meaning suggests that there was no lump on that examination, but if it should come back, the patient should return to the surgery. While the plaintiff stated in evidence that she had no recollection of any such advice being given to her towards the conclusion of the consultation, I prefer the accuracy of the written notes made contemporaneously and accordingly I find that such advice was given. The giving of such advice is supportive of the fact that there was consensus between them that there was no lump present at that time.
448. There are two further elements in the conduct of the plaintiff which are supportive of this conclusion. Firstly, the plaintiff was seen on approximately ten occasions between 24th September, 2014 and 16th August, 2016, when she went to Dr. Redahan about the lump in her breast. On three of these occasions she was reviewed by the defendant in relation to other complaints. On other occasions she was seen by different female doctors in a different clinic. On no occasion did she mention the lump to any doctor.
449. At the trial an attempt was made to explain this state of affairs by the assertion that, while the lump had persisted throughout the entirety of the intervening two years, the plaintiff had not worried about it, or mentioned it to any doctor, because the defendant had reassured her that it was nothing to worry about. I find that somewhat difficult to believe. If the lump had persisted for the entire two years after September, 2014, and during that time the plaintiff had been seen by different doctors in different clinics, I feel that on the balance of probabilities, even if only for reassurance, the plaintiff would have mentioned it to one of these doctors.
450. Of more significance, is the fact that when the plaintiff went to see Dr. Redahan in relation to the lump in her breast and knowing from her internet search that there was a possible connection between breast cancer and axillary lumps, it is significant that she did not mention to Dr. Redahan that she had had a lump in her axilla for over two years. I find it improbable that if she had had a lump in the axilla for that period prior to August, 2016, she would not have mentioned that to Dr. Redahan.
451. I have also had regard to the fact that no lump was found on clinical examination of the axilla by either Dr. Redahan, or Mr. Allen in August, 2016. If they could not find any lump in the axilla, which they were specifically looking for in the context of a positive finding of a lump in the breast, I do not think that the plaintiff could have felt it either.
452. Lastly, I accept the evidence of Prof. Price, that having regard to the various findings on clinical examination in August and September, 2016 and on the scanning undertaken in 2016, and having regard to the finding on ultrasound of mild cortical thickening in the axilla, and having regard to the amount of malignant disease in the node at that time, it was unlikely that the plaintiff had had an enlarged node in 2014.
453. For all these reasons, I prefer the evidence of the defendant that there was in fact a consensus between her and the plaintiff at the consultation on 24th September, 2014, that no lump was present in her axilla on that occasion.
454. In light of that finding, the declining by the plaintiff of the offer of a breast examination becomes more credible. It is certainly possible that, having gone to the doctor about a lump in her axilla, which could not be found by the doctor on careful examination and when the plaintiff was in at least tacit agreement that there was no lump present, when the offer of a breast examination was put to her in conversational tones, it is understandable that she may have declined such offer, as she did not have any concern about any lump in her breast at that time. This would also fit with her description of her feelings at the end of that consultation, that she was a little embarrassed to have troubled the doctor, but was relieved that nothing of concern had been found.
455. In light of these findings, one has to consider whether the defendant was negligent in either not insisting more strongly at the consultation on 24th September, 2014, that the plaintiff should have a breast examination, or whether she should have scheduled a review appointment some weeks later.
456. In relation to the first question, I accept the evidence of Dr. Boland, that having regard to the fact that there had been a negative axilla examination, a consensus between the doctor and the patient that there was no lump present on that occasion and in light of a plausible explanation for that state of affairs, being that there may have been a transitory inflamed or enlarged node due to her longstanding eczema, and in light of the plaintiff’s age and negative family history, it was reasonable for the defendant not to push the issue of a breast examination once it had been declined by the plaintiff.
457. Accordingly, I find that the defendant was not negligent in failing to make a second or more vigorous request to examine the plaintiff’s breasts at the consultation on 24th September, 2014.
458. In relation to the question of whether the defendant should have told the plaintiff to return for review in a few weeks, Dr. Burton’s opinion that that should have been done, was predicated on an assumption that notwithstanding the negative axilla examination, the plaintiff had still maintained that a lump was palpable and that if the defendant was not specifically made aware of that, she was, at least, aware of a lack of consensus between her and the plaintiff on that issue. Essentially, Dr. Burton and Dr. Boland were in agreement that if there was no consensus between the plaintiff and the defendant in relation to the presence of a lump, then a review was mandated.
459. However, where there was consensus, as I have found to have existed on this occasion, the evidence of Dr. Boland was that it was not necessary to schedule a review appointment; it was sufficient to give advice to the patient to return if the lump should recur. I accept that evidence and as I have found that that advice was, in fact, given, I find that the defendant was not negligent in failing to arrange a review appointment for the plaintiff some weeks later.
460. Nor do I accept that the defendant’s actions were in breach of the National Breast Cancer GP Referral Guidelines, issued by the HSE in April 2009. The advice given on p. 2 clearly states what should be done if a patient attends with a GP complaining of a breast lump. It stipulates that a full history should be taken, followed by an examination of the breasts. If no lump was found, the guidelines state ” Reassure ?Reassess “. At the trial, it was maintained on behalf of the plaintiff, that the phrase “breast lumps” at the top of column 2, where that advice was given, included circumstances where a patient attended complaining of an axilla lump. This proposition was based on the fact that on p. 1 which refers to the different types of referrals that may be made, under the heading ” Urgent Referrals” , it provided that where a discreet breast or axillary lump was found, there should be an urgent referral.
461. I am satisfied that the reference to axillary lumps on p. 1, is in fact against the proposition put forward on behalf of the plaintiff. I am of opinion that if axillary lumps were to be included in the algorithm provided on p. 2 of the guidelines, axillary lumps would have been specifically stated, as had been done on page 1. There is no reason why such lumps would not be mentioned, if it had been intended to include them on page 2.
462. I prefer the evidence of Dr. Boland to the evidence of Dr. Burton that these guidelines, when referring to ” breast lumps ” on p. 2, do not include situations where patients complain of an axillary lump, but none is found. Dr. Boland’s evidence that the understanding of Irish GP’s of these guidelines is to the effect that the advice given on p. 2 does not include circumstances in relation to a complaint of an axillary lump, is persuasive.
463. I also accept the evidence given by Dr. Boland that if a patient was concerned about an axillary lump, but none was found on clinical examination and the plaintiff was happy with that conclusion, it was only necessary to reassure the patient and advise her to return if the lump should recur. That was what was done in this case. Accordingly, even if the guidelines on p. 2 did apply to this case, the defendant had complied with them. Dr. Burton stated that if the Court accepted that the defendant’s notes were accurate, then he agreed with the opinion of Dr. Boland that there was no breach of the guidelines by the defendant.
464. Having regard to my findings in relation to what transpired at the consultation on 24th September, 2014, I am satisfied that the defendant was not negligent in failing to raise the issue of the axillary lump when she saw the plaintiff on subsequent occasions.
465. Finally, even if I am wrong in relation to my conclusions that there was no negligence on the part of the defendant and if the defendant had been negligent in failing to carry out a breast examination on 24th September, 2014, that did not lead to any loss or injury, because having regard to my findings on the technical issue, I am satisfied that having regard to the probable size of the breast tumour in 2014, it would not have been palpable on clinical examination at that time. In other words, had the defendant examined the plaintiff’s breasts on 24th September, 2014, I am satisfied that on the balance of probabilities she would not have found any lump in the breast. In such circumstances, where there would have been negative breast and axillary examinations, then the defendant would, without any negligence on her part, simply have reassured the plaintiff that all was well. No further investigation would have been carried out at that time. However, in view of my primary findings in this case, this aspect does not require further elaboration.
466. For the reasons set out herein, and having regard to the principles laid down in Dunne (An Infant) v The National Maternity Hospital [1989] IR 91 and Collins v Mid-Western Health Board [2000] IR 154, I find that the defendant did not act negligently in her care of the plaintiff. Accordingly, I dismiss the plaintiff’s case against the defendant.
Flannery -v- Health Service Executive
[2018] IEHC 127 (13 March 2018)
DEFENDANT
JUDGMENT of Mr. Justice Barr delivered on the 13th day of March, 2018
Introduction
1. This action is concerned only with the assessment of damages arising out of the fact that a swab was left in the plaintiff’s vaginal area after the ventuse delivery with an episiotomy, of the plaintiff’s second son on 30th August, 2013. The swab remained in situ, until it was removed by a consultant in the course of an internal examination carried out on 8th September, 2013. It is the plaintiff’s case that as a result of that sequence of events, she has been caused to suffer physical and psychiatric injuries.
The Evidence
2. The plaintiff is 40 years of age having been born on 19th April, 1977. She is a married lady and lives with her husband in Co. Cavan. Her first son was born in 2008. In 2012, she became pregnant with her second son. She described how her contractions started on 29th August, 2013. That night she went to Cavan General Hospital. On the following day, she went into the second stage of labour. As the baby’s head was turned the wrong way around for delivery, she was told that she would require an episitomy for a ventuse delivery. This was done and her son was born at 15:40hrs that day.
3. The plaintiff recalled that the consultant gave the assisting registrar instructions to stem the bleeding and suture the site of the episiotomy. The doctor found it difficult to stem the bleeding. He sent for the consultant and the midwife came back with two other doctors. They were able to stitch the area and inserted a vaginal pack and catheter. These were removed after 24 hours and the plaintiff was discharged home on 1st September, 2013.
4. The plaintiff stated that on 2nd September, 2013, she began to experience low back pain. She thought that that had been due to the fact that her legs had been held in stirrups during labour and due to the fact that stitches had been inserted. When reviewed by the public health nurse that day, she complained of lower back pain, together with soreness and tenderness in the vaginal area. The nurse advised her to take analgesics and to bathe regularly. The plaintiff did as advised.
5. On 3rd September, 2013, her pain increased. She had difficulty moving, difficulty going to the toilet and a lot of stinging in the vaginal area when passing urine. She would experience a sharp shooting pain from the lower back into her vaginal area. This occurred whenever she did any movement. At that time, she also began to notice a foul smell when she went to the toilet. As she found it difficult to go to the toilet, her husband was assisting her movements and he too noticed the foul smell.
6. The plaintiff stated that she felt that this state of affairs was due to the fact that she was doing something wrong, e.g. not bathing properly. She used cushions on the chair to ease the pain and also applied ice packs to her vagina, but neither of these helped.
7. By 5th September, 2013, she was unable to move at all, she could not lift her baby. She recalled that a neighbour called in with a gift for the baby, but she could only talk to the neighbour for a very short period of time and then asked them to leave, as she was afraid that they would notice the foul smell, which had become worse by that time, or would see her wince in pain and think that she was not able to cope with looking after her baby. She felt very bad that she had asked the neighbour to leave so quickly.
8. On 6th September, 2013, the plaintiff attended her G.P. complaining of an increase in lower back pain going into her vaginal area. Her vagina was swollen. The foul smell was worse. The doctor diagnosed an infection to the endometrial lining. She referred the plaintiff back to hospital.
9. The plaintiff attended at Cavan Hospital later that day. Examination revealed that her vagina was infected. A swab was taken which confirmed the presence of E. coli. The consultant, Dr. Syed, directed that she should be placed on intravenous antibiotics and be admitted to hospital. On the following morning, a different doctor did an external examination of her. That doctor directed that the antibiotic should be continued. The plaintiff stated that she was trying to keep mobile, but felt very weak at that stage.
10. On Sunday, 8th September, 2013, the same doctor returned. He stated that he wished to contact the consultant. He asked whether the plaintiff had signed the forms stating that she would go privately for treatment. The plaintiff stated that she had signed those forms on admission. The doctor said that he would ring the consultant. Later that day, at approximately 12:30hrs, Mr. Syed attended on the plaintiff. At that time, she was in a three bed ward with an elderly man and a woman in her sixties. Dr. Syed drew the curtains and proceeded to carry out an internal examination. The plaintiff stated that that involved him putting his entire hand into her vaginal area and poking around inside her. She found this very distressing. He retrieved an article from inside her vaginal area, which he later confirmed was a swab, which had been left in situ after the delivery of her son.
11. The plaintiff stated that on removal of the swab, she immediately felt much better. Her back pain eased and the foul smell ceased. She was continued on antibiotics and was allowed home on the following day.
12. On 10th September, 2013, she attended with her G.P., Dr. Jacqueline Ellis-Deering and stated that she was feeling much better. She had been prescribed oral antibiotics for one week.
13. Unfortunately, in the preceding days and in the days which followed, the plaintiff and her husband noticed that her son was exhibiting some worrying signs in relation to his general colour and breathing patterns. On 19th September, 2013, she returned to her G.P. due to her ongoing concerns about her baby. Having examined the baby, the G.P. advised that he should be taken to Cavan General Hospital. The plaintiff did this. Her baby was examined and the doctors made a decision that he should be transferred to Crumlin Hospital for Sick Children in Dublin. There he was diagnosed as having a hole in his heart. Fortunately, the doctors were of the view that it could be treated conservatively. Her son was monitored in hospital for a period and thereafter was allowed home, but had to be monitored carefully in relation to fluid intake and maintenance of weight. However, the hole in the heart went on to close spontaneously and he made a full recovery.
14. The plaintiff stated that her mood was affected by the incidents complained of. In particular, she tended to blame herself for the fact that in the days and weeks immediately after the birth of her son, she was unwell and accordingly, was not able to spot the signs of his distress, earlier than had been done. She blamed herself for not having been in a position to properly care for her baby immediately after his birth. She stated that this feeling of guilt and self blame stayed with her for a considerable period. In her evidence, she stated that she had depressive days, but these were not sustained.
15. It appears that the plaintiff re-attended with her G.P. on 26th September, 2013, to inform her about her son’s condition and to tell her about his medication. The G.P. checked the plaintiff’s blood pressure and pulse for reassurance and both were normal.
16. In cross examination, the plaintiff accepted that almost immediately after the removal of the swab by Dr. Syed on Sunday, 8th September, 2013, her lower back pain resolved and the foul smell disappeared. She confirmed that she had not returned to Dr. Syed’s clinic on 20th September, 2013, due to the fact that her son was then in Crumlin Hospital. When questioned about her psychiatric symptoms, she stated that she had been back to her G.P. on a number of occasions when they had discussed whether she would take antidepressant medication. However, the plaintiff had declined to go down that route, as she was fully engaged in looking after her son. This involved careful monitoring of his fluid intake and monitoring of his weight.
17. It was put to the plaintiff that there was no mention in the G.P’s. report, which had been admitted in evidence and had been drawn up on 31st July, 2015, to the plaintiff having suffered any depressive illness. The plaintiff stated that as she had been a life long asthmatic, she saw her G.P. approximately once per month. She stated that on many of these occasions, they had discussed the possibility of her taking antidepressant medication. However, as already stated she did not want to take such medication due to her son being sick and also due to the fact that she became pregnant again in the following year.
18. She accepted that she had told her Consultant Psychiatrist, Dr. Mary McGuire, that she had felt depressed on occasions. She said she had had “bouts of depression”. That had been her phrase. She was asked whether she had felt annoyed by the way she had been treated by the hospital. The plaintiff stated that she had been annoyed, due to the fact even though she had elected to go privately, she had not been examined when she had returned to Cavan Hospital on Friday, 6th September, 2013. She felt that she should have been examined on that occasion. If that had been done, the swab would have been found and would have been removed. Instead, in the events which transpired, that had not been done until two days later on 8th September, 2013. The plaintiff confirmed that, with the exception of taking the course of antibiotics, she had not received any further treatment in relation to her physical or psychiatric injuries.
19. Evidence was given by Dr. McGuire, Consultant Psychiatrist, in relation to the plaintiff’s psychiatric injuries. She had seen the plaintiff on one occasion on 26th April, 2016. Having taken a detailed history from the plaintiff, she noted that the plaintiff’s mood was normal at the time of her examination. However, from what had been recounted to her by the plaintiff, she came to the conclusion that the plaintiff had developed a depressive disorder after the birth of her son, which was distressing for her and had impacted on her ability to look after her newborn baby. She had recovered reasonably well, but continued to have episodes of depression, which were not sustained. She stated that where a person had suffered a traumatic or very difficult event, that can cause distress to such an extent that it can lead to depression.
20. The only evidence called on behalf of the defendant, was that given by Dr. Patrick Devitt, Consultant Psychiatrist, who had seen the plaintiff on 15th March, 2017. He took a detailed history from the plaintiff and carried out a number of tests. These revealed that the plaintiff was not a malingerer and had not engaged in conscious exaggeration of her symptoms. He noted that she was somewhat annoyed and angry by the manner in which she had been treated by the hospital and by the fact that she was not told the result of any internal investigation carried out by the hospital authorities.
21. However, he noted that the plaintiff had received no treatment in respect of any mental issues. While the question of antidepressant medication may have been discussed with her G.P., that doctor had not referred her for psychiatric evaluation, nor had she prescribed any antidepressant medication nor had she sent the plaintiff for counselling.
22. Dr. Devitt accepted that the plaintiff had been subjected to a very unpleasant experience due to the negligence of the defendant, which had occurred at a very distressing time for her, due to the serious illness of her newborn baby. She had had an emotional response to those issues, but he felt that her emotional reaction had been within the normal range. He did not think that she had developed a psychiatric illness.
23. Dr. Devitt stated that in order to reach a diagnosis of clinical depression, the patient would have to exhibit a number of recognised symptoms, above a certain threshold of severity and these symptoms would have to persist for a relatively prolonged period. Normally, one would look for symptoms of inability to eat, inability to concentrate properly, feelings of loss and lack of self worth, a feeling of isolation and hopelessness and in more severe cases these could be accompanied by suicidal ideation. A clinical diagnosis could be made where some or all of these symptoms were present for a prolonged period. They would have to be of sufficient severity that they would adversely affect a person’s ability to function. From the history that he had been given, it did not appear that the plaintiff had reached the criteria which would enable one to make a diagnosis of clinical depression.
24. He stated that in summary, the presence of a swab in the plaintiff’s vagina had caused her to experience an unpleasant odour, back pain, emotional upset and anger, while the swab was in situ for a period of approximately nine days until it was removed. Thereafter, for some months, she suffered some emotional upset, which was probably also due to her son’s illness. He was of opinion that the plaintiff was an honest, genuine and resilient individual who had made an excellent recovery. She had an excellent prognosis for the future.
Conclusions
25. Having considered the evidence given by the plaintiff, together with the evidence given by Dr. McGuire and Dr. Devitt and the content of the plaintiffs G.P’s. report dated 31st July, 2015, I have come to the following conclusions in this matter: firstly, I entirely accept the evidence given by the plaintiff. She gave her evidence in a straightforward manner. I am satisfied that she had not tried to exaggerate either the nature of the incidents in September 2013 giving rise to this action, or her injuries suffered as a result thereof, or of her subsequent recovery down to the present time. This conclusion is supported by the tests which had been carried out by Dr. Devitt, which revealed that the plaintiff was not a malingerer, nor had she exaggerated her symptoms.
26. It is undoubtedly the case that the plaintiff suffered distressing symptoms in the form of increasing back pain and an increasing foul smell from her vaginal area, in the days immediately after the birth of her son on 30th August, 2013. This continued for approximately nine days until the swab was removed by Dr. Syed on 8th September, 2013. I accept the evidence given by the plaintiff that the intervening days were particularly difficult for her. I accept that she had increasing pain and found it very difficult to care for her baby due to the extent of her pain and disablement. I accept her evidence in relation to the occasion when her neighbour visited with a gift for the baby.
27. The plaintiff has very candidly stated that after the removal of the swab, her back pain and the foul smell were resolved almost immediately. Thereafter, she was required to continue with a course of antibiotic treatment. One has to have regard for the fact that this episode, hit her at a very bad time when her son was exhibiting signs of distress, which were ultimately diagnosed as resulting from a hole in the heart. After receiving that diagnosis in relation to her son, and in the weeks and months thereafter, the plaintiff’s primary focus was in relation to securing the wellbeing and recovery of her son. In these circumstances, it is reasonable and understandable, that she would have had feelings of guilt and self blame in relation to the fact that she was not perhaps as attentive as she would have liked to have been of her son in the days immediately after his birth, due to her own difficulties at that time. Thus, one has to take account of the fact that this injury happened to the plaintiff at a very difficult time in her life.
28. The plaintiff also had a complaint in relation to a lump on her perineum. It appears from the report furnished by Dr Ellis-Deering that the plaintiff had attended with her on 19th September, 2013 because of concerns regarding her baby and also mentioned that she had further soreness of her perineum. On examination her posterior suture line appeared to have broken down. The doctor recommended a further course of oral antibiotics. She also advised the plaintiff to return to the casualty department of the hospital, however after her experience of the previous week, the plaintiff was reluctant to do so. She did however agree to attend Dr Syed. When the plaintiff saw Dr McGuire on 26th April, 2016, she was concerned regarding a lump on her perineum, which became sore during sexual intercourse and needed lubrication. She told the doctor that she was too fearful to return for reparative surgery. She said that intimacy with her husband was no longer spontaneous and she was sad about that.
29. It is clear that the plaintiff had a tear in the perineum as a result of the episiotomy. That had to be sutured following the delivery of her baby. One of the sutures broke down due to infection. While that was an unfortunate consequence of the episiotomy, there is no evidence that the breakdown of the suture line was caused by the fact that a swab had been left in the plaintiff’s vaginal area.
30. The only real issue between the parties is as to whether the plaintiff suffered a depressive disorder as a result of the events the subject matter of these proceedings. It is not necessary to set out the evidence of Dr. McGuire and Dr. Devitt on this issue, as that has been set out in the previous section of the judgment. I prefer the opinion of Dr. Devitt, which is to the effect that while the plaintiff certainly suffered emotional distress as a result of the incidents complained of, this was an entirely normal reaction and was within normal limits, rather than constituting a psychiatric illness.
31. In reaching this conclusion, I have had particular regard to the content of the report from the plaintiff’s G.P.. This report was issued on 31st July, 2015. The plaintiff has stated in evidence that she had consulted her G.P. on a monthly basis, due to the fact that she is an asthmatic. The plaintiff has stated that she discussed her mood with her G.P. at these visits and they discussed putting her on antidepressant medication, which the plaintiff declined. However, there is no mention at all in the report furnished by Dr. Ellis Deering of the plaintiff suffering from any psychiatric illness or mood disorder. There is no reference to any discussion concerning antidepressant medication. Nor did the G.P. refer the plaintiff on for psychiatric evaluation by a psychiatrist, nor did she recommend counselling. While I can understand that many people hold strong views as to whether or not they wish to go on antidepressant medication, I feel that if there was a serious possibility of the plaintiff’s suffering from clinical depression, the G.P. would have mentioned this in her report. The fact that this is not mentioned in a report issued by her in 2015, is most significant. She was the treating doctor, who was seeing the plaintiff on a regular basis. If she had thought that the plaintiff had been suffering from depression at any time up to July 2015, she would have said so in her report.
32. The plaintiff was sent to see Dr. McGuire in April 2016, by her solicitor. The practice of solicitors sending their clients for specialist evaluation by medical personnel, was the subject of criticism by this Court in Dardis v. Poplovka [2017] IEHC 249. The Court of Appeal has recently made similar comments in Fogarty v. Cox [2017] IECA 309. A treating doctor’s main concern is to care for the wellbeing of his or her patient. The primary doctor is the patient’s G.P.. If he or she thinks that the patient requires specialist evaluation, it is the G.P. who should refer the patient on for such evaluation. I do not think that it is good practice for solicitors to take it upon themselves to decide that their client needs evaluation by a particular medical specialist. That is a medical question which should be decided upon by the G.P., or by another specialist, who may refer the plaintiff to a different specialist for further investigation.
33. In relation to the diagnosis of psychiatric injury, Dr. McGuire was in a very difficult position. She did not have the opportunity to see the plaintiff at any of the times during which she may have been suffering from what she described as “bouts of depression”. The plaintiff’s mood was found to be entirely normal when Dr. McGuire saw her in April 2016. Thus, her diagnosis that the plaintiff had suffered from episodes of a depressive disorder, was based entirely on the history which had been recounted to her by the plaintiff. That placed her at a considerable disadvantage.
34. Dr. Devitt was at a similar disadvantage, in that he saw the plaintiff in 2017. However, I prefer his evidence that on the history as recounted by the plaintiff herself, she does not appear to have exhibited the symptoms of depression which have been recounted by Dr. Devitt in his evidence, nor did she have these at a sufficient severity or for a sufficient length of time, to enable a diagnosis of clinical depression to be made. Accordingly, I accept his evidence that the plaintiff suffered an emotional reaction due to the distressing circumstances of the incidents giving rise to this claim which were superimposed upon the very difficult circumstances surrounding the health of her son, but that that emotional reaction of distress was within normal limits, rather than tipping over into a full blown mood disorder or psychiatric illness.
35. In reaching an assessment of the appropriate level of general damages in this case, the court has been greatly assisted by the guidelines set down by the Court of Appeal in Nolan v. Wirenski [2016] IECA 56, and Shannon v. O’Sullivan [2016] IECA 93 and in particular to the criteria set down by Irvine J. at paras. 43 and 44 thereof. The court has also had regard to the dicta of the Court of Appeal in the case of Fogarty v. Cox [2017] IECA 309. In the light of these judgments, this Court has had to somewhat recalibrate its approach to the assessment of general damages in personal injury cases.
36. On the basis of the findings set out above, and having regard to the principles set down by the Court of Appeal in the cases cited above, I award the plaintiff the sum of €40,000 for general damages, together with agreed special damages of €160, giving a total award of €40,160.
Shuit v Mylotte & Ors
[2006] IEHC 89 (02 March 2006)
JUDGMENT of Mr. Justice Barry White, delivered on the 2nd day of March, 2006.
The plaintiff is a 51 year old married woman. She has two daughters aged 25 years and 23 years. She is Dutch. She has resided in the West of Ireland for upwards of 24 years. She has a good command of the English language.
The defendants are respectively, a Consultant Obstetrician/Gynaecologist, a Consultant Radiologist, a General Practitioner, and the statutory body responsible for University Hospital Galway.
The plaintiff sued the four defendants, alleging negligence on each of their parts, in her medical care and treatment between the years 1986 and 1996.
At the conclusion of the plaintiff’s case, counsel on behalf of the second, third and fourth named defendants, respectively applied to me for a non suit of the plaintiff. I acceded, at that stage, to the applications made on behalf of the third and fourth named defendants, and, having heard the evidence of the first named defendant, I acceded to a renewed application then made on behalf of the second named defendant. Accordingly, the sole issue that remains for my determination is whether or not the first named defendant was negligent in deciding to carry out a radical hysterectomy on the plaintiff.
The first named defendant carried out what might loosely be described as a Wertheim-Meigs hysterectomy on the plaintiff against the following background:-
The plaintiff was referred to the first named defendant by the third named defendant. In his letter of referral the third named defendant appraised the first named defendant of the fact that:
“her cervical smear on the 23.11.95 showed on microscopy abnormal cells suspicious of Adeno-Ca. In 1991 she has a smear test which showed moderate dyskaryosis with viral change. She had another smear done in 1993 which showed that due to excess blood and degeneration of the smear test that it was unsuitable for evaluation. . . . On the 21.11.95 when I did the last smear I didn’t notice anything abnormal on gross examination.”
On the 12th February, 1996, the plaintiff attended the first named defendant’s Colposcopy Clinic. Following examination of the plaintiff, the first named defendant wrote to the Third Named Defendant, on the same date, informing him that the plaintiff’s colposcopic appearances were uncertain and appeared to be a picture of both pre-malignant and possibly malignant and inflammatory changes. He wrote:
“I won’t be surprised if she proves to have an early cancer and if so, she will need a Wertheim’s hysterectomy. Alternatively if the tissue samples only suggest pre-malignant change, then in view of the cytology suggesting an adenomatous lesion, she would be best to have a simple hysterectomy. She is coming back next week for the results of the histology at which stage we can make a decision regarding treatment”.
On the 19th February, 1996, the first named defendant wrote to the third named defendant and stated:
“we plan to do extended hysterectomy on this lady on the 1.3.96 with removal of cuff of vagina and also sample her lymph nodes even though the histology on the biopsies taken from cervix did not show invasive carcinoma. A histological diagnosis of squamous CIN 3 of cervix and vagina intra-epithelial neoplasia grade II has been obtained. The clinical and cytological picture however is suggestive of invasive disease and with cytology raising the question of a glandular cell abnormality she needs a hysterectomy in any case.”
On the 27th February, 1996, a CT Scan of the plaintiff’s abdomen and pelvis was performed by the second named defendant. The scan reported right-sided internal iliac lymphadenopathy and noted that the cervix measured 5 cm in diameter. On the 29th February, 1996, the plaintiff was admitted under the care of the first named defendant, and, on the 1st March, 1996, a Wertheim-Meigs hysterectomy was carried out on the plaintiff by the said first named defendant at the fourth named defendant’s premises.
Prior to surgery, the first named defendant had not been furnished with a written report in relation to the C.T. Scan carried out on the 27th February, 1996. However, he had received a verbal report thereon. Neither the written, when it came to hand, nor the verbal report referred to the plaintiff having a tumour, but for some inexplicable reason, the first named defendant formed the impression that the C.T. Scan had in fact revealed a tumour, and he so informed the plaintiff on the evening prior to her hysterectomy.
In fact, the plaintiff had first had a PAP smear carried out as far back as the 1st November, 1986. The Cytology Report whereon reads:
“Microsocy – severe dyskaryosis with viral changes / CIN3. Suggest colposcopy and Biopsy.”
The plaintiff was never made aware of the results of the smear tests carried out prior to November, 1995 and there was no follow up, notwithstanding their disquieting findings.
On the 24th September, 1997, the plaintiff, who had become interested in supporting other women who had had hysterectomies, wrote to the first named defendant raising a number of queries. By letter dated the 15th October, 1997, the first named defendant answered her queries and concluded by saying:
“I hope this letter helps to answer your questions and clear up most of the confusion. If I knew then what I know now I wouldn’t have treated you so extensively. Given the circumstances where we had certain tests predicting that you had cancer we had to treat you radically or else run the risk of leaving you under-treated and therefore at risk of dying from the further development of the cancer which we though might be there.”
In all probability, the sentence “if I knew then what I knew now I wouldn’t have treated you so extensively” prompted the plaintiff to seek legal advice and ultimately to institute legal proceedings.
The plaintiff contends that the first named defendant was negligent and in breach of his duty of care in that:
(a) He failed to have any or any proper regard for the health and welfare of the plaintiff.
(b) He carried our improper treatment of the plaintiff.
(c) He commenced to carry out a most serious and irreversible operation upon the plaintiff without first having a full and clear radiological report in writing when such a report was imperative to the proper treatment of the plaintiff.
(d) He acted on some form of verbal communication between himself and the second named defendant, the information being given in that communication being either incorrect or in the alternative misunderstood or misinterpreted by the first defendant.
(e) He failed to exhaust preliminary tests before embarking on the more radical procedure of the Wertheim-Meigs Hysterectomy. In particular he failed, contrary to best medical practice, to stop the operation and to take as a precautionary measure, a frozen section of the lymph nodes in the plaintiff’s abdomen before continuing with the surgery despite persistent findings contrary to expectations as referred to in his letter of the 15th March, 1996, to the third named defendant in relations to the alleged 5cm tumour. He also failed to obtain the appropriate biopsies from the cervix and the uterus before proceedings with the operation. Despite this, negligently the first named defendant proceeded and went on to complete the Wertheim-Meigs hysterectomy.
(f) He failed to carry out a hysteroscopy with biopsy of the endometrial cavity and endocervix to exclude adeno-carcinoma.
(g) He concluded incorrectly, despite the fact that he had carried out a full examination internally, and that the CT Scan writing at the 1st March, 1996, indicated that there was no tumour, that there was a 5cm tumour present.
The principles by which medical negligence is to be determined are set out in Dunne (an infant) v. The National Maternity Hospital and Another [1989] I.R. 91 wherein Finlay C.J. at 109 et seq. states:
“1. The true test for establishing negligence in diagnosis or treatment on the part of a medical practitioner is whether he has been proved to be guilty of such failure as no medical practitioner of equal specialist or general status and skill would be guilty of if acting with ordinary care.
2. If the allegation of negligence against a medical practitioner is based on proof that he deviated from a general and approved practice, that will not establish negligence unless it is also proved that the course he did take was one which no medical practitioner of like specialisation and skill would have followed had he been taking the ordinary care required from a person of his qualifications.
3. If a medical practitioner charged with negligence defends his conduct by establishing that he followed a practice which was general, and which was approved of by his colleagues of similar specialisation and skill, he cannot escape liability if in reply the plaintiff establishes that such practice has inherent defects which ought to be obvious to any person giving the matter due consideration.
4. An honest difference of opinion between doctors as to which is the better of two ways of treating a patient does not provide any ground for leaving a question to the jury as to whether a person who has followed one course rather than the other has been negligent.
5. It is not for a jury (or for a judge) to decide which of two alternative courses of treatment is in their (or his) opinion preferable, but their (or his) function is merely to decide whether the course of treatment followed, on the evidence, complied with the careful conduct of a medical practitioner of like specialisation and skill to that professed by the defendant.
6. If there is an issue of fact, the determination of which is necessary for the decision as to whether a particular medical practice is or is not general and approved within the meaning of these principles, that issue must in a trial held with a jury be left to the determination of the jury.
In order to make these general principles readily applicable to the facts of this case, with which I will later be dealing, it is necessary to state further conclusions not expressly referred to in the cases above mentioned. These are:
(a) ‘General and approved practice’ need not be universal but must be approved of and adhered to by a substantial number of reputable practitioners holding the relevant specialist or general qualifications.
(b) Though treatment only is referred to in some of these statements of principle, they must apply in identical fashion to questions of diagnosis.”
He further states:
“In order fully to understand these principles and their application to any particular set of facts, it is, I believe, helpful to set out certain broad parameters which would appear to underline their establishment. The development of medical science and the supreme importance of that development to humanity makes it particularly undesirable and inconsistent with the common good that doctors should be obliged to carry out their professional duties under frequent threat of unsustainable legal claims. The complete dependence of patients on the skill and care of their medical attendants and the gravity from their point of view of a failure in such care, makes it undesirable and unjustifiable to accept as a matter of law a lax or permissive standard of care for the purpose of assessing what is and is not medical negligence. In developing the legal principles outlined and in applying them to the facts of each individual case, the courts must constantly seek to give equal regard to both of these considerations.”
Applying these principles and parameters, I am satisfied that it is not my function to determine, whether it would have been more preferable had the first named defendant carried out further and exhaustive investigations, before embarking on surgery. Rather, I must determine whether the plaintiff has proved that no obstetrician of like skill, acting with ordinary care, would have performed the operation carried out by the first named defendant.
I have heard evidence on the issue of negligence from Professor John Bonner and Dr. John Murphy, who were called on behalf of the plaintiff, and from Dr. Bill Boyd, Dr. Malachy Coughlan and Mr. Joseph Jordan who were called on behalf of the first named defendant. All five are eminent Consultants.
Both Professor Bonner and Dr. Murphy have sympathy for the first named defendant and the dilemma or predicament he found himself in, but neither of them considered that he was correct in his treatment of the plaintiff. With what I detected to be a certain degree of hesitancy, they concluded he had been negligent. Each of them considers that he is guilty of an error of judgment in not carrying out the appropriate investigations and as a consequence carried out surgery that was unnecessary. They consider that he should not have carried out the hysterectomy in the absence of a diagnosis of invasive cancer, albeit that in his report, Dr. Murphy seems to accept that a less radical hysterectomy might be acceptable. Both Professor Bonner and Dr. Murphy referred me to papers by learned authors in support of their contentions.
Neither Dr. Boyd, Dr. Coughlan, nor Mr. Jordan, accepted Professor Bonner’s and Dr. Murphy’s views or contentions. They averred that if placed in the first named defendant’s shoes, would have carried out the same operation. They consider he acted properly and appropriately.
I am satisfied as to the bona fide of each of the five Consultants. I am satisfied as to the truth of their testimony and as to the bona fide of their export opinions, and I consider that there are two bona fide schools of thought on the issue as to whether the first named defendant acted appropriately in the circumstances presented to him.
It was put to Mr. Coughlan, and to Mr. Jordan, that their expert opinion might have been influenced by their friendship with the first named defendant. They each rejected that suggestion and I accept their denials.
In the light of my findings in relation to the integrity, and bona fides, of the expert witnesses called by the respective parties herein, the plaintiff has failed to satisfy me that no obstetrician of like skill, acting with ordinary care, would have performed the surgery carried out by the first named defendant, rather I am satisfied that a number of reputable obstetricians would have done as the first named defendant did.
Mr. Peart, on behalf of the plaintiff, has submitted that it is the first named defendant’s case, or at least part thereof, that he was following a “general and approved practice”, and that, accordingly I must consider both the first and third principles set out in Dunne. He submitted that the plaintiff has proved that such practice has inherent defects, which ought to be obvious to any person giving the matter due consideration. He submits that the subsequent histopathology has shown that the operation was unnecessary. He argues that had the first named defendant carried out the appropriate investigations, the operation would not have been carried out.
Mr. McGrath has submitted that it was never part of the first named defendant’s case, nor has it been shown to be, that his defence was one of general and approved practice
I consider Mr. McGrath’s submissions to be well founded. On the evidence before me, the first named defendant was treating, or intended to treat, a particular, individual patient, who had an unusual set or combination of symptoms, and a highly abnormal history. He considered her case history as a whole. He considered her symptoms and her family circumstances, and concluded that the appropriate treatment in her particular case was to carry out a Wertheim-Meig hysterectomy.
The first named defendant has sworn, in evidence, that his mistaken belief as regards the C.T. Scan disclosing or revealing a tumour did not influence him in deciding the nature, and extent, of the surgery he carried out. Having regard to his pre operative correspondence with the third named defendant, I consider it unlikely that his mistaken belief influenced his decision regarding the nature of the surgery he proposed carrying out, and I accept his testimony that it did not.
The plaintiff contends that in the course of her meeting, and discussion, with the first named defendant, on the evening prior to her hysterectomy, he informed her in shark, and devastating, terms that she would die if she did not have the operation carried out. The first named defendant accepts that the plaintiff did enquire as to what might happen, if she did not have surgery, and that he informed her of the possibility of death, in the event of her not having treatment.
Having regard to the fact that “informed consent” is not an issue before me, it is perhaps unnecessary for me to consider their discussion on the topic of death. Nevertheless, it seems to me that a person facing radical surgery is likely to be in a state of high anxiety. I consider the plaintiff is likely to have been in such a state, and, on hearing of the presence of a tumour was, in her own words, devastated. I consider the combination of high anxiety, and feeling of devastation, to have perhaps highlighted in her mind the word death, but I am satisfied this had never been the intention of the first named defendant.
In the circumstances the plaintiff’s claim is dismissed.
Anderson v Birthistle
[2019] IEHC 172
JUDGMENT of Mr. Justice Barr delivered on the 20th day of March, 2019
Introduction
1. This is a medical negligence action brought by the plaintiff against the defendant as representative of the medical and nursing staff at St. James’s Hospital, Dublin.
2. The plaintiff was admitted to St. James’s Hospital under the care of Dr. Caroline Daly, Consultant Cardiologist, on 15th May, 2014, for the purpose of having a replacement pacemaker inserted. On 17th May, 2014, the plaintiff’s permanent pacemaker and lead wires were extracted by Mr. Michael Tolan, Consultant Cardiothoracic Surgeon in St. James’s Hospital. Dr. Daly and Mr. Tolan had decided not to insert a temporary pacemaker, also known as a temporary wire, due to the risk of infection. The plaintiff was scheduled to have a new permanent pacemaker implanted in the following days.
3. On 18th May, 2014, the plaintiff had an episode of syncope (meaning a stoppage of her heart leading to a blackout) as a result of which she fell while in the toilet and struck her head against the sink.
4. The plaintiff’s case in negligence against the defendant rests on two grounds:-
(a) It is alleged that having regard to the plaintiff’s prior history of syncope and falls, there was negligence on the part of Dr. Daly and Mr. Tolan in failing to insert a temporary wire, when her permanent pacemaker was removed on 17th May, 2014.
(b) It is alleged that having regard to the plaintiff’s prior history, there was negligence on the part of the medical and nursing staff in the hospital in respect of her postoperative management, for failure to ensure that she was confined to bed and only allowed to ambulate around the ward with assistance. It was further alleged by the plaintiff’s experts, that she should not have been placed in a coronary step down ward, as in fact happened, but should have been sent to the Coronary Care Unit post operatively.
5. The defendant denied that there was any negligence on the part of the medical or nursing staff in St. James’s Hospital, either as alleged or at all.
Brief Chronology of Relevant Dates
08/12/1960 Date of birth of the plaintiff. In her childhood and teenage years she experienced episodes of dizziness and fainting, without any definite diagnosis being made.
03/02/2003 The plaintiff fell in her kitchen due to sudden collapse and loss of consciousness. She was brought by ambulance to Sligo General Hospital. A Holter report of 06/02/2003 showed episodes of complete heart block.
07/02/2003 Letter sent on behalf of Dr. McSearraigh in Sligo General Hospital to Dr. Creane, Consultant Cardiologist, at St. James’s Hospital. He is informed that the plaintiff had presented to Sligo General Hospital with collapse and loss of consciousness for one minute. She had had a similar episode six months previously. ECG and brain scan had been normal. A Holter report showed episodes of complete heart block. A request was made that she be treated urgently especially as she was very young and active. A request for a pacemaker was also faxed up with the letter.
11/02/2003 A permanent pacemaker was implanted by Dr. Mulvihill in St. James’s Hospital.
27/01/2011 The plaintiff’s pacemaker battery was changed by Dr. Caroline Daly in St. James’s Hospital.
03/01/2014 The cardiac technician in Sligo General Hospital wrote to Dr. Murray, also in Sligo General Hospital, informing him of a suspected problem with the lead in the plaintiff’s pacemaker.
07/01/2014 Dr. Murray writes to Dr. Mulvihill. He forwards the letter to Dr. Daly.
18/02/2014 Dr. Daly directs that the plaintiff should be seen in the OPD with pacing check.
27/02/2014 The plaintiff was seen in OPD by Dr. Daly. She noted the lead warning on the ventricular lead. The plan was for pacemaker lead extraction and a new system to be implanted.
05/03/2014 Dr. Daly writes to Dr. Murray requesting further documentation. On the same date, Dr. Daly writes to Mr. Michael Tolan, informing him of the lead warning on the ventricular lead, with a low impedance and escalating ventricular threshold. She asked him to consider the plaintiff for pacemaker lead extraction. She stated that the intention was to implant a new system on the opposite side. She informed Mr. Tolan ” She is not pacing dependent “.
25/03/2014 Dr. Murray sends Dr. Daly the further documentation that she had requested. Dr. Daly directed that the documents should be added to the plaintiff’s notes and should be put on file.
15/05/2014 The plaintiff attends at St. James’s Hospital at 10:30hrs. Initially, it is thought that she is for the catheter lab, however, it is then realised that she is to be admitted for lead extraction by Mr. Tolan. She is formally admitted to St. James’s Hospital at 15:41hrs.
16/05/2014 The plaintiff is awaiting surgery. The notes of the cardiology surgical team for that day, state that they discussed the case with Dr. Daly. It was noted that the leads were showing increased impedance. The plaintiff had underlying rhythm. The leads were originally inserted in 2003 and the battery changed in 2011. It was noted that she required a device and lead extraction. It noted “awaiting pacemaker check”. It further noted ” all ok ” and ” bloods ok “. It noted ” discussed with Mr. Tolan – ? for PPM mane “.
17/05/2014 The permanent pacemaker and leads were extracted in theatre by Mr. Tolan. A temporary wire was not inserted. Post operatively, the plaintiff was brought to the Robert Adams Ward, circa 12:00hrs. She was given a private room. During the day, the plaintiff walked around the ward. She saw her visitors off at the top of the stairs. She was generally well.
18/05/2014 The plaintiff was generally well during the day. She had a visit from her husband and daughters during the evening. She saw them off from the top of the stairs at 22:00hrs. At 23:18hrs, the plaintiff went to her en-suite toilet. While there, she had a syncope episode lasting six seconds. She fell to the ground and hit her head against the sink. She received treatment for the head wound.
19/05/2014 At 00:30hrs, the plaintiff was transferred to the catheter lab for insertion of a temporary pacing wire. Following this procedure, she was admitted to the Coronary Care Unit.
20/05/2014 A new permanent pacemaker was inserted.
21/05/2014 The plaintiff was discharged from hospital.
The Plaintiff’s Evidence
6. The plaintiff is 58 years of age, having been born on 8th December, 1960. She married in 1981. She has three adult daughters and five grandchildren.
7. The plaintiff stated that she had dizziness and fainting episodes during her childhood and teenage years. Investigations carried out were unclear as to the cause of these complaints. She experienced more frequent episodes of dizziness and fainting in the years prior to 2003. She had had some minor injuries as a result of the fainting episodes.
8. On 3rd February, 2003, the plaintiff fainted while in her kitchen and hit her head. She was admitted to Sligo General Hospital under Dr. McSearraigh. The plaintiff stated that she had had a fall in the six months prior to that, while she was engaged in cleaning windows. She had a small bump on her head as a result of that fall. ECG and CT brain scan done in Sligo General Hospital were normal. However, a Holter report dated 6th February, 2003, showed intermittent complete heart block. The plaintiff stated that while she was in the Coronary Care Unit at Sligo General Hospital, she was not allowed out of bed without assistance. She was transferred by ambulance, accompanied by a doctor and a nurse, to St. James’s Hospital, where a pacemaker was implanted by Dr. Mulvihill on 11th February, 2003.
9. The plaintiff was seen in St. James’s Hospital on a number of occasions subsequently, for unrelated complaints. On 27th January, 2011, the plaintiff came under the care of Dr. Caroline Daly, as Dr. Mulvihill had moved to a different section. She inserted a new battery in the plaintiff’s pacemaker on that date.
10. In 2014, when reviewed in the cardiology clinic in Sligo General Hospital, the cardiac technician noticed that there was a problem with one of the wires leading from the pacemaker. The technician wrote to Dr. Murray in the cardiac department of Sligo General Hospital, informing him of the suspected problem with the lead. Dr. Murray wrote to Dr. Mulvihill in St. James’s Hospital. He, in turn, referred the letter on to Dr. Daly.
11. On 18th February, 2014, Dr. Daly directed that the plaintiff should attend OPD for a pacing check. She reviewed the plaintiff in OPD on 27th February, 2014. A decision was made that the plaintiff would be admitted to St. James’s Hospital for a replacement of her permanent pacemaker.
12. On 15th May, 2014, the plaintiff attended at St. James’s Hospital at 10:30hrs. Initially, it was thought that she was going to go to the catheter lab for replacement of the pacemaker. However, it was soon realised that she was for admission, as there was going to be a lead extraction procedure under Mr. Tolan. The plaintiff was formally admitted to the hospital at approximately 15:41hrs.
13. At the time of admission, a falls risk assessment known as “Stratify” was carried out. This was described as being a fairly rudimentary set of questions designed to ascertain if the plaintiff had any mobility problems. The plaintiff was not in any way compromised in terms of her mobility, so she scored zero on the test, meaning that she was fully mobile and was, therefore, not a falls risk.
14. The plaintiff spent 16th May, 2014, awaiting surgery. On the following day, the plaintiff was taken to theatre, where the generator box and the leads were extracted by Mr. Tolan. That procedure was uneventful in itself. A temporary pacemaker was not inserted. It had been planned that the plaintiff would be brought to the Cardiac Care Unit (CCU) postoperatively. However, when there was no bed available in CCU, the plaintiff was sent instead to a cardiac stepdown ward, the Robert Adams Ward. She was given a private room close to the nurse’s station. This room had an en-suite toilet. The plaintiff was on telemetry postoperatively.
15. During the rest of that day, 17th May, 2014, the plaintiff was generally well. She was able to walk around her room and in the general ward area. She was visited during the day by her adult daughters. She walked with them to the top of the stairs when they were leaving.
16. A further Stratify falls risk assessment was carried out on 18th May, 2014. The plaintiff again scored zero on that assessment. That evening, the plaintiff received a visit from her husband and daughters. She walked with them to the top of the stairs, when they were leaving at approximately 22:00hrs.
17. Sometime later that evening, at a time that is unclear from the notes, but was probably circa 23:18hrs, the plaintiff went to the en-suite bathroom to use the toilet. While there, she suffered a syncope episode, causing her to fall to the ground. She struck her head in the area of her forehead, while falling.
18. In her evidence, the plaintiff stated that she had gone to the bathroom to use the toilet. While there, she lost consciousness. She awoke to find herself lying on the floor with two nurses reassuring her that she would be alright. She had a large gash on the left side of her forehead. She was placed on a trolley. The nurses informed her that they would have to notify her next of kin. However, she did not want that due to the late hour.
19. When her head wound had been seen to, she was brought to the catheter lab, where a temporary wire was inserted through a vein in her leg. She was then admitted to the CCU, where she remained until the permanent pacemaker was put in place on Tuesday, 20th May, 2014.
20. It is necessary to deviate from the plaintiff’s evidence at this point to deal with the issue of the exact timing of the plaintiff’s fall and the sequence of events surrounding that.
21. There was no viva voce evidence on this issue, as the defendant did not call any of the nursing staff to give evidence. Unfortunately, the hospital records are somewhat difficult to reconcile in relation to the exact sequence of events. The plaintiff’s telemetry was being monitored in the CCU. Their notes recorded that at 23:18hrs, there was ” ventricular standstill and then loss of leads – contact lost “. Robert Adams Ward was contacted. It went on to record that the patient had been found in the bathroom. She was unconscious on the floor and had hit her head against the sink. It noted that the leads had come off the patient due to the fall. She had abrasions and swelling to the forehead.
22. The CCU notes go on to record at 23:19hrs ” leads off/junctional Brady ” (meaning Bradycardia). The notes recorded that at 23:20hrs, ” run complete heart block and leads off” . The timing of the next entry is unfortunately partially illegible. It reads 23.?5hrs, it could be 23:35hrs or 23:45hrs. Portion of the note is also illegible. The legible portion reads as follows:-
“On arrival to Robert Adams Ward; patient drowsy; blood pressure 170/80; electrocardiogram nil acute and sinus rhythm 80s. Taken to Cath Lab for placement of DPW into the groin, right groin failed attempt. Diazemul 10mg given intravenously.”
23. The rest of the note goes on to document the plaintiff’s condition on arrival at CCU, where neurological assessment revealed her to be alert and orientated and moving all extremities. The timing of events in the CCU notes as stated above, is difficult to reconcile with the nursing notes from the Robert Adams Ward, which recorded as follows at 23:45hrs:-
“Nursed as per care plan. Connie was comfortable early in the night. CCU rang at 23:30hrs and informed that Connie’s rate is very low. On checking, Connie was found on the toilet floor. Appeared to have bleeding from the forehead. She was conscious. Brought her back to bed. (as per patient, she did not know what happened in the toilet). Vital signs checked. BPE was high. HR 97. Early warning score 1. ECG taken. As per CCU staff, her rhythm looked like she had 6 seconds of ventricular standstill. Icepack applied to forehead. No further losing. Reviewed by Cardiac SHO. Impression syncope second to AV block. Plan for registrar review. Reviewed by cardiac registrar. Plan – for temporary pacing wire and transfer to CCU. Patient happy with the same.”
24. Thus, it can be seen that there is a discrepancy between the two sets of notes. The CCU notes indicate that Robert Adams Ward was contacted at 23:18hrs. Whereas the nursing notes from that ward, which were made at 23:45hrs, indicate that the call from CCU had been received at the ward at 23:30hrs. Thus, there is a twelve minute discrepancy between the timings given in the two sets of notes. The nurse who found the plaintiff was not called to give evidence, so it is not possible for the court to resolve this discrepancy in the notes. However, this confusion in the notes may not be that relevant, as the plaintiff’s cardiology expert, Dr. Cripps, accepted that the plaintiff was probably found by the nurse within seconds of the syncope episode appearing on telemetry.
25. In the course of cross examination, the plaintiff accepted that there was a call bell in her room, by which she could call for assistance from the nursing staff. She further accepted that she had been told that she could use the bell if she required any assistance.
26. It was further put to her that she was informed that she should not go out of the ward, as she had to remain within range of the telemetry, which was being monitored in the CCU. The plaintiff accepted that that was correct. However, other than an instruction to stay within range of the telemetry monitor, she was not restricted in moving about her room, or the general areas of the Robert Adams Ward. The plaintiff’s evidence in relation to her injuries will be dealt with later in the judgment.
Other Evidence on Behalf of the Plaintiff
27. Evidence was given by the plaintiff’s husband, Mr. Francis Anderson. He stated that in February 2003, his wife had fallen in the kitchen in their house and had cut her head. He brought her to the A&E Department of Sligo General Hospital. They carried out various tests over the following days, which revealed that she had intermittent heart block. She was in the Coronary Care Unit at that time. While there, she had to remain in bed. When she went to the toilet, there was a nurse behind her, who escorted her to the toilet.
28. In 2014, when her pacemaker had been removed, he visited the plaintiff in hospital. She was in a private room on the Robert Adams Ward. She was in and out of the bed a number of times. She walked him down the corridor when he was leaving. She walked other visitors to the top of the stairs.
Evidence of Dr. Timothy Cripps
29. On the temporary wire issue, the plaintiff’s main liability witness was Dr. Timothy Cripps. He is a consultant cardiologist at Bristol Royal Infirmary, which is a major surgical and teaching hospital in the south west of England. He retired from the NHS in March 2018, but he continues to do private work. His main area of specialisation is in cardiac pacing. He stated that during his career, he has been one of the main consultants in the south west of England for people with pacing problems. He implants a large number of pacemakers each year. He has done hundreds of pacemaker and extraction procedures. His hospital caters for a population of approximately two million. He has treated patients with a very large range of cardiac diseases and conditions.
30. Dr. Cripps was critical of the decision made by Dr. Daly and Mr. Tolan not to insert a temporary wire, following extraction of the plaintiff’s permanent pacemaker on 17th May, 2014. He was of the opinion that that decision was inappropriate, because it did not take sufficient account of the plaintiff’s significant prior history, particularly prior to insertion of the original pacemaker in 2003. It was highly relevant that according to the notes from Sligo General Hospital, she had had not one, but two, significant syncope episodes leading to falls and injury. It was in those circumstances that the original decision had been made to insert a permanent pacemaker, which was an entirely correct decision. Thus, it was known at that time that the plaintiff had had episodes of syncope, which had led to falls and injury. Once the pacemaker was inserted, her difficulties with syncopacy had been resolved.
31. This was highly significant, because it was clearly foreseeable to the doctors that, once her pacemaker was removed, she would revert to her pre-2003 condition, meaning that she was again at risk of syncope episodes leading to falls and possible injury. In these circumstances, he felt that insertion of the temporary wire was clearly mandated.
32. Dr. Cripps stated that in the plaintiff’s case, once one removed the pacemaker and did not insert a temporary wire, she was again at risk of having episodes of complete heart block, which carried with it the attendant risks of falls and injury. The fact that she had been put on telemetry postoperatively, did not mitigate that risk. Telemetry merely records the heart rate in real time, it does not prevent a syncope occurring. This was clearly seen in the present case, where the telemetry had revealed that the heart block had lasted for approximately six seconds.
33. Dr. Cripps stated that the insertion of a temporary wire, was a relatively straightforward procedure. It could either be inserted through a vein at the top of the leg, which would be accessed through the groin, or one could use the central line which had been put in place by the anaesthetist. In this case, a central line had been inserted via the plaintiff’s neck. Dr. Cripps stated that that could easily have been used for insertion of the temporary wire.
34. Dr. Cripps stated that insertion of a temporary wire for use in the interval between removal of the old pacemaker and implanting of the new pacemaker, was a very common procedure. It is usually done by the cardiologist before the old pacemaker is removed, either in the catheter lab or in theatre.
35. It was put to Dr. Cripps that Dr. Daly and Mr. Tolan, would say that they considered putting in a temporary wire, but, having regard to the fact that she was not pacing dependent, as she only required the pacemaker for 2% of the time, and having regard to the risk of infection caused by insertion of a temporary wire, they had come to the conclusion that it was not appropriate to insert a temporary wire on this occasion. Dr. Cripps accepted that the risk of infection was slightly increased when one inserted a temporary wire. However, the risk of infection caused by use of a temporary wire, remained very low at circa 2%.
36. Dr. Cripps accepted that what was involved was essentially a balancing exercise, with the risk of infection caused by use of a temporary wire, being offset against the risk of the patient having syncope episodes and falls, if she was left without any pacemaker. It was known that she required pacing approximately 2% of the time. This meant that in a 24 hour period, she would require pacing for a total of 28.8 minutes. Given that she had had a syncope episode lasting six seconds at the time of her fall, this meant that there were approximately 288 opportunities for a six second pause in any 24 hours. He felt that this was a significant risk.
37. When balancing the risk of syncope episodes, with the attendant risk of a fall, against the risk of infection, Dr. Cripps felt that in the plaintiff’s case, the actual risk of infection was very low. This was due to the fact that the figure given for the risk of infection by use of a temporary wire, was based on literature which had largely looked at older patients, who had comorbidities, such as diabetes and renal failure. There were also other factors which were in the plaintiff’s favour. Firstly, she did not have any pre-existing infection or fever. Secondly, she had been given prophylactic antibiotics in advance of the operation. In these circumstances, he felt that the risk of infection by insertion of a temporary wire, was quite low. He thought that it was a much lower risk, than that of leaving the plaintiff without a pacemaker. Accordingly, he was of opinion that a temporary wire should have been inserted.
38. Dr. Cripps accepted that the fact that the plaintiff required pacing 2% of the time, did not mean that she had suffered complete heart block for that entire period. The pacemaker would kick in once the heart rate fell below a set level, usually 60bpm. Thus, there would not have been complete heart block the entire period during which the pacemaker was activated. However, he was of opinion that having regard to the plaintiff’s history prior to insertion of the pacemaker in 2003, where she had had two significant falls in the six months prior to February 2003, and where there was a need for pacing for 2% of the time, it was not appropriate to take the risk that she would have such an episode, leading to a fall and possible injury. A patient should not need to have a fall, before deciding to put in a temporary wire. Falls should be avoided if at all possible. If the plaintiff had had a temporary wire in place on 18th May, 2014, she would not have had her fall.
39. Dr. Cripps stated that complete heart block in itself is a serious condition. If the stoppage of the heart is for a prolonged period, there is a risk of death; even if the stoppage is for lesser periods, if there is a fall, that can have serious consequences, because the patient could fracture their skull leading to a cerebral haemorrhage. Thus, the consequences of a fall could be very serious. One had to look not only at the percentage chance of a particular risk happening, but also at the consequences of the risk, if it should come to pass. In this case, the treating doctors knew that the plaintiff had had intermittent complete heart blocks leading to blackouts, falls and injury. They also knew that there was a requirement for pacing 2% of the time; even when weighed against the risk of infection, the use of the temporary wire was clearly mandated.
40. In the course of cross examination, it was put to the witness that the literature which would be relied upon by the defendant’s expert, Dr. Quigley, clearly showed that there was a significant risk of infection caused by use of a temporary wire. The main paper referred to by Dr. Quigley was the Klug paper. Dr. Cripps noted that in that that study, the infection rate for de novo systems, which was arguably applicable in the plaintiff’s case, as the new system was implanted in a new pacing site, was 0.56%. While a temporary pacemaker increased the risk by 2.5 times, this still represented a very low risk of 0.56 x 2.5 = 1.4%. Even for non de novo systems, the risk of infection was only 0.99%, so the increased risk amounted to 0.99 x 2.5 = 2.5%.
41. He noted that the multivariate analysis had identified various risk factors for those who had fever in the 24 hours prior to implant, for those who had cutaneous lesions, for situations where there were more than three persons in the operating room, where there was a need for early intervention following implant, for example, for haematoma or lead displacement and also noted an increase in risk of 2.46 where there was insertion of a temporary wire. On the other hand, the risk was reduced by a factor of 0.46 for de novo implantation, which was arguably applicable in this case and by a factor of 0.40 for antibiotic prophylaxis. This meant that the plaintiff’s overall risk was, therefore, probably less than the average, even despite the risk from the temporary wire.
42. In relation to the other papers mentioned by Dr. Quigley, he felt that the Kosaify paper was not relevant, as it came from Lebanon, and contained a reference to the role of reuse leads contributing to the infection rate; this was not practiced in Europe. He noted that the references given to validate the 10% infection rate, did not seem to contain that data.
43. The McCann paper, although from the UK, was only published in an Indian journal, suggesting that it was not well peer reviewed in the UK. Also, it appeared to take its data, over a very long period, which may not reflect current practice. Nor did it stratify according to risk. It was noted that the complication rate was much lower in specialist centres. In addition, the complication rate in the study included minor complications, such as failure to achieve access, which was the most common complication.
44. The Lopez Ayerbe paper appeared to refer to older patients, who would probably have had co-morbidities. Finally, the paper by Aggerwal showed an infection rate of 2.9% in those with a temporary pacemaker, versus 0.4% in those without. He did not think that that was enough of a risk to contra-indicate pacing in a patient such as the plaintiff, who had no high risk features, such as advanced age, pre-existing infection, comorbidity, or a long duration of temporary pacing. He felt that the conclusion that there was a sevenfold increase in the rate of infection when temporary pacing was used, was misleading, due to the fact that the risk itself remained small.
45. Dr. Cripps was asked what management should have been put in place for the plaintiff, once it was decided not to insert a temporary wire. He stated that if a temporary wire was not going to be used, the plaintiff should have been placed in CCU, with an instruction to the nursing staff that she was to stay in bed on continuous monitoring. She should not have been allowed to ambulate without assistance.
46. In cross examination, it was put to the witness that Dr. Daly would say that, as the plaintiff was in a busy hospital, the risk of infection was quite high. This was even more so when the patient would have visitors and would be examined by medical staff. In such circumstances, there was a far greater risk of infection, than the risk from a syncope episode. Dr. Cripps did not agree. He stated that all hospitals have visitors. In the Klug paper it gave a risk of 2.46%. He did not think that the risk was any higher than that and he thought that in the plaintiff’s case, the risk rate was actually lower. The fact that it was a specialist centre of excellence, meant that the hygiene standards would probably have been higher than elsewhere.
47. It was put to the witness that if she had gone on to develop an infection, her life could have been at risk. Dr. Cripps stated that it was possible that if she fell she could have fractured her skull and suffered a cerebral haemorrhage. It was put to him that Dr. Daly had balanced the risk of syncope and blackout, against the risk of infection and in such circumstances her decision had been reasonable. Dr. Cripps disagreed, stating that that decision ignored the fact that the risk of infection from a temporary wire was very low.
48. Dr. Cripps accepted the statement in the paper by Austin et al entitled ” Analysis of Pacemaker Malfunction and Complications of Temporary Pacing in the Coronary Care Unit” , that none of the complications looked at had resulted in death. That paper went on to state:-
“Sepsis, phlebitis and pulmonary embolus were more common with temporary pacemakers in place for 7 hours or longer (p = 0.04). Recognition of the problems peculiar to each pacing catheter site and shortening the duration of pacing should help minimize problems with temporary pacing.”
49. However, he stated that a lack of literature did not prove that a particular practice was reasonable. In this case, once the pacemaker was removed, the plaintiff was back in a situation of being at risk of blackout, as she had been prior to 2003.
50. It was put to Dr. Cripps that the McCann paper noted that temporary cardiac pacing wires were usually inserted in an emergency situation. It was a procedure not practiced often, with the average general internal medical doctor in the UK performing less than five per year. It went on to note that complications were common, occurring in 10% to 59.9% of procedures. Dr. Cripps accepted that there were risks with the insertion of a temporary wire. However, the paper went back over the literature over a considerable number of years. It was not the same as the Klug paper. Also it referred to procedures carried out by ordinary doctors, not consultants. He pointed out that for a patient in a centre of excellence, who was under the care of a specialist, they would be at a very low risk, as demonstrated by Figure 2 on p. 44 of the article. He accepted that as the plaintiff was a young woman, she would need a number of pacemakers during her life. However, that did not put her at higher risk of infection.
51. In relation to the mortality rate of 6% given in the Lopez Ayerbe paper, death there was due to heart attack. It was not due to the temporary wire. Furthermore, the level of complications recorded in that paper from that particular hospital, showed that it was not a centre of excellence. He thought that if St. James’s Hospital had that level of complications, they would be very disappointed. As a result, he thought that the results in that paper were somewhat of an outlier, insofar as they referred to a clinic that was clearly not performing well.
52. It was put to the witness that in the Klug paper at p. 159, it stated:-
“The rate of infectious complications in patients who undergo multiple implantations of devices in their lifetime is inordinately high.”
53. Dr. Cripps stated that that did not refer to temporary wires, but to infectious complications from repeated procedures. He cautioned that one would have to be very careful when considering use of a temporary wire in this case. Here, it was warranted because of the plaintiff’s history of syncopacy with head injury.
54. Dr. Cripps was asked about the findings set out in table 4 of the Klug paper, where the adjusted odds ratio for infections caused by a temporary pacing wire were 2.46%. He pointed out that the base level was very low as stated at p. 157, which noted that infections developed over twelve months in 42 patients representing an incident of 0.68 per one hundred patients.
55. Finally, it was put to the witness that in the Aggarwal paper, it was stated at p. 164:-
“Pacing system removal for infection was, however, significantly more common in patients who had a temporary pacing lead in situ at the time of permanent pacemaker implantation (7 (2.9%) of 242) than in those who did not (3 (0.4%) of 817, p = 0.0014).”
56. Dr. Cripps stated that it was still a risk of 2.9%, against a risk of 1%, which was small when put against the risk of the plaintiff falling and hitting her head. He stated that no medical intervention was without risk. It was necessary to weigh up the relative risks and proceed in light of these.
57. In re-examination, Dr. Cripps pointed out that the risk of infection at 2.46% was reduced in this case due to the use of prophylactic antibiotics. That was standard practice now, but was not in use at the time of some of the studies quoted in the papers. Its use caused a significant drop in the risk of infection. Another important factor was whether the patient was already infected at the time that the temporary wire was inserted. That was not applicable in this case. Furthermore, background conditions such as diabetes and renal failure were not applicable in this case.
Evidence of Ms. Jayne Mudd
58. Ms. Jayne Mudd, Nurse Consultant in Cardiac Rhythm Management (CRM), was called on behalf of the plaintiff. Ms. Mudd is based at James Cook University Hospital (JCHU), Middlesbrough, Cleveland, England. She has a Bachelor of Science in Advanced Nursing Practice, as well as two years of study at Masters level. She is currently working towards a doctorate. Aside from her clinical role at JCHU, she has developed a national course for nurses specialising in arrhythmia management. Ms. Mudd has acted as a nurse representative in the Department of Health arrhythmia board in the United Kingdom. She is a trustee of the Atrial Fibrillation Association and an executive member of the Arrhythmia Alliance. In 2013 she was awarded and MBE for her services to health care.
59. Commenting on the nursing care provided to the plaintiff at St. James’s Hospital, Ms. Mudd stated that the plaintiff should have been advised to inform nursing staff if she needed to go to the bathroom or elsewhere. There was no documentation in the notes to confirm whether, or not, the plaintiff was advised to do this. The plaintiff had had a history of syncope due to intermittent complete heart block, and therefore Ms. Mudd stated that no reasonable nurse would have allowed the plaintiff to roam freely around the ward without the nursing staff being aware of her whereabouts and observing her closely.
60. Ms. Mudd stated that the plaintiff was nursed on a general ward rather than a Coronary Care Unit, which she asserted would have allowed for closer nursing observation. She was of the opinion that the plaintiff was at risk of collapse and therefore should have been advised by nursing staff to make them aware if she needed to go to the bathroom or elsewhere. It is unclear from the nursing notes if this advice was given to the plaintiff. If this advice was not given, Ms. Mudd stated that that would be a breach of the duty of care.
61. Ms. Mudd was of the opinion that one would have expected a patient without a temporary pacemaker, in similar situation to the plaintiff, to have been nursed in a coronary care environment, or in a monitored bay. This would have allowed for closer monitoring and there would be more nurses to a smaller number of patients. The witness stated that the nurses would therefore not be in a compromised position.
62. Ms. Mudd explained the difference between a Coronary Care Unit and a monitored bay. A Coronary Care Unit is for patients who are acutely unwell with cardiac conditions and require a higher level of monitoring. A monitored bay is a similar environment, but the patients are not as acutely unwell. Nurses are equipped with the same level of expertise and specialist training in both wards.
63. Ms. Mudd accepted that the plaintiff had been in a single room, with its own toilet facilities. She stated that this was not ideal, as the nurses would not be able to see exactly what a patient was doing if they were in a side room. The witness was of the opinion that it would have been better for the plaintiff to be in a bay, as it would have been easier to monitor her.
64. She felt that the general ward on which the plaintiff was nursed was inappropriate, but she accepted that this may have been influenced by bed availability.
65. Ms. Mudd further noted that as the plaintiff did not have a temporary pacemaker in place, she should have been advised to use the buzzer if she needed to go to the bathroom, and that a nurse would have helped with that. Ms Mudd further commented that she would have expected there to be clear instruction communicated to the plaintiff, as to what to do if she needed to go to the bathroom. She would not have expected the plaintiff to have been allowed roam freely whilst on telemetry. One would have expected there to be some documentation within the notes, to say that this advice had been communicated to the plaintiff. To her knowledge no such instruction had been given to the plaintiff to notify nursing staff if she wished to leave her bed.
66. It was put the witness that the plaintiff had been moving around the floor on which she was a patient, and had gone with her family to the top of the stairs, to wave them off. The witness was asked whether this was a safe thing for the plaintiff to be allowed do, given the particular circumstances. Ms. Mudd answered in the negative. She further commented that there was no clear guidance or instruction given to the nursing staff following the removal of the plaintiff’s pacemaker. Ms. Mudd was of the opinion that that was quite important.
67. Ms. Mudd stated that having reviewed the plaintiff’s clinical notes and history, there was nothing that indicated to the nursing staff that the plaintiff had already a suffered blackout and fall in 2003. The witness was of the opinion that this information was extremely significant from the point of view of nursing care, as it would have highlighted the risk of the patient suffering another collapse.
68. Ms. Mudd discussed the false reassurance given by the Stratify fall risk assessment tool. She did not think that it was particularly relevant to the plaintiff. Ms. Mudd stated that it was important to use Stratify alongside clinical judgment. The fact that the plaintiff scored a 0 on Stratify, and was therefore deemed safe and not a risk of falls, was futile. She asserted that clinical judgment should have been used and this would have identified that the plaintiff was indeed at risk of collapsing.
69. Ms. Mudd acknowledged that there was a care plan for telemetry monitoring provided for within the nursing notes, but she reiterated that there was no guidance around what the patient should do, if they needed to go to the bathroom. Ms. Mudd was of the opinion that once the increased risk of falling had been identified, another plan should have been put together to manage that risk. She stated that she could not see this in the nursing notes.
70. During cross examination, Ms. Mudd accepted that it was part of the standard patient care plan for the nurses to welcome a patient to the ward, to orientate them in their surroundings, to direct them to the location of the toilets and the nurses’ station, to provide the patient with a call bell and show them how to use it.
71. It was put to Ms. Mudd that she was critical in her report of the nursing care. She responded by saying that she was not critical of the nurses per se. She did find, however, that some areas were not well documented, or there was no evidence of whether or not the plaintiff was clearly instructed as to what to do when she needed to go to the bathroom. She further stated that she thought it was the wrong environment in which to nurse the plaintiff and she believed that the nurses had been put in a difficult position because of that.
72. It was put to Ms. Mudd that the ward the plaintiff was in was as close to a monitored bay as you could get, in the circumstances. The plaintiff was under telemetry, there were cardiac nurses available, and she was only steps away from the nurses station. Ms. Mudd was of the opinion that given these facts, she would question even more so as to why the plaintiff was allowed to mobilise freely.
73. It was put to the witness under cross examination that even if a nurse had accompanied the plaintiff to the toilet, she would have collapsed in the same way. Ms. Mudd responded by saying that in her hospital they would have taken a patient, in a similar situation to the plaintiff, to the toilet in a wheelchair.
74. Ms. Mudd finished giving evidence by saying that she did not believe that it was the nurses decision to put the plaintiff on that particular ward, and that it was not their decision not to put in a temporary wire.
Evidence of Dr. Caroline Daly
75. Dr. Caroline Daly qualified as a doctor in 1995. Having done her initial training in Tallaght Hospital, she did her Ph.D. in Imperial College in London in 2003/2004. She was involved in writing the guidelines on the management of stable angina, which are used throughout Europe. She did an advanced fellowship in Boston for one year. She has been a consultant cardiologist in St. James’s Hospital since 2010.
76. Dr. Mulvihill had implanted the plaintiff’s first pacemaker in 2003. Dr. Daly had taken over from Professor Walsh in 2010. In 2011, she changed the generator in the plaintiff’s pacemaker. This was done in the catheter laboratory. Thereafter, the plaintiff continued to have regular pacing checks in Sligo General Hospital. She was aware that the plaintiff had had syncopacy, caused by intermittent complete heart block. She was also aware that the plaintiff was not pacing dependent, as she only needed the pacemaker approximately two percent of the time. She was also aware that the plaintiff was on medication.
77. Dr. Daly was aware of the initial letter sent by a member of Dr. MacSearraigh’s team in Sligo General Hospital to Dr. Creane at St. James’s Hospital on 7th February, 2003. She was also aware of the Holter report and scan which had been faxed up with that letter. On the Holter report there was a handwritten note to the effect that the plaintiff had complete heart block and needed a pacer (PPM). That had been written in by Dr. Creane in Saint James’s Hospital.
78. Dr. Daly stated that from this documentation she had been aware that the plaintiff had had two collapses during the six months preceding her admission to Sligo General Hospital in February 2003. That letter had stated that the plaintiff had presented with a history of collapse and loss of consciousness for one minute. It noted that she had had a similar episode six months previously. There had been no other episodes of loss of consciousness, or collapse within the preceding six months. The plaintiff’s general health appeared to be quite good.
79. Dr. Daly stated that she first met the plaintiff in 2011, when she had been admitted on 27th January 2011 for a pacemaker box change. The leads from her pacemaker appeared to be working well at that time, so they were not replaced. This procedure had been uneventful. Dr. Daly wrote to the plaintiff’s GP on 18th April, 2011 informing him of the procedure and further informing him that the plaintiff would undergo follow up and pacing checks in Sligo General Hospital.
80. The next significant document was the letter from the Cardiac Technician, Ms. Frain to Dr. Murray in Sligo General Hospital on 3rd January, 2014. That letter informed him of a problem with the leads from the pacemaker. In the letter the technician had noted that the plaintiff was not pacemaker dependent and was paced less than two percent, with a sinus rhythm of 60 bpm. The plaintiff’s sinus rhythm was a little low, but she was on medication to slow her heartbeat. By stating that pacing was less than two percent, this meant that the pacemaker was not required ninety-eight percent of the time. That can be ascertained from interrogation of the pacemaker.
81. The letter that was sent by Dr. Murray to Dr. Mulvihill on 7th January, 2014. It was forwarded by Dr. Mulvihill to Dr. Daly. She directed that the plaintiff should be seen in OPD with a pacing check. She asked for that to be carried out “soon”.
82. Dr. Daly saw the plaintiff in OPD on 27th February, 2014. The problem on the ventricular lead was noted. The plan was for a pacemaker lead extraction and insertion of a new system.
83. On 5th March, 2014, Dr. Daly wrote two letters. The first was to Dr. Murray in Sligo General Hospital, requesting him to forward the echo reports and correspondence concerning the plaintiff’s medication. That documentation was subsequently received on 25th March, 2014, at which time Dr. Daly requested that the documents be added to the plaintiff’s notes and placed on file.
84. The second letter written on 5th March, 2014 was sent to Mr. Michael Tolan, Consultant Cardiothoracic Surgeon at Sligo General Hospital. She informed him of the problem with the ventricular lead. She asked him to consider the plaintiff for a pacemaker lead extraction and there would be subsequent implantation of a new system on the opposite side. The letter ended by stating that the plaintiff was “not pacing dependant”. Dr. Daly stated that she had decided to ask Mr. Tolan to take out the leads, as she felt that as they had been in-situ for a considerable period, they could be a source of infection. Accordingly, she had decided to remove the pacemaker and the wires. These would be replaced some days after the extraction. Dr. Daly stated that by telling Mr. Tolan that the plaintiff was not pacing dependant, she was telling him that the plaintiff would not need a temporary pacemaker.
85. Dr. Daly stated that she had made a considered decision in the circumstances not to insert a temporary wire. She made this decision in what she perceived to be the best interests of the patient. She made that decision because there was a significant risk of infection with insertion of a temporary wire, which varied depending on the access route. Access via the jugular vein was cleaner, whereas access via the femoral vein was more dirty. The subclavian vein was not available on this occasion, as they wanted that site for the permanent leads. Also, the fact that the plaintiff had a lead in situ on the right meant that if there was a problem on the left side of the heart, they would have to go in via the abdomen, which was less suitable.
86. Dr. Daly stated that because a temporary wire would breach the skin of the patient, that could be a means of introducing bacteria directly into the blood supply, which could be brought to every part of the body and in particular, to the heart. The temporary wire could acquire bacteria from the air, from peoples’ hands and from the patient’s skin. The wire acts as a pathway directly to the heart. For this reason, any infection can have serious consequences for the patient. Dr. Daly explained that the tip of the wire would be in the right ventricle in the heart, with the wire coming out the femoral vein. It would be secured by tape to the skin and then attached to a generator box which would be on a stand similar to a drip stand. The generator would be interrogated frequently. This would enable bacteria on the generator to track down the lead and go into the blood system and into the heart. In a busy hospital there was a large incidence of infection, due to the fact that there would be a lot of ill people in the same place. All the beds in St. James’s were in use, so the frequency of infection would be higher.
87. In relation to the decision in this case, Dr. Daly stated that it was relevant to note that the plaintiff had only had two episodes of syncope in the six months prior to her admission to Sligo General Hospital. The frequency of syncope and the fact that she had intermittent complete heart block was relevant.
88. Dr. Daly stated that generally, 50% of patients undergoing lead extraction, would require a temporary wire. She estimated that in St. James’s Hospital three/four temporary wires would be inserted per week. That would equate to circa. 200 per annum. While she accepted that it was a procedure that was frequently done, she maintained that a temporary wire would only be inserted where it was absolutely necessary.
89. Dr. Daly stated that there were also other risks involved in using a temporary wire, in particular as it was a blind procedure which had to be done under x-ray. This carried a risk of puncture to the femoral vein, or adjacent nerves. It was also possible to puncture the lung, or the carotid artery, or it was possible to perforate the right ventricle in the heart. That would be a very serious issue. It can cause tapenade, which can be fatal. She accepted that perforation was infrequent. However, while the percentage of patients suffering that complication was small, the consequences were huge. They could be fatal.
90. Dr. Daly stated that when she had worked in the United Kingdom she had experience of one patient, who had come into hospital with complete heart block. Postoperatively he developed infection due to the insertion of a temporary wire. He subsequently died from that infection.
91. Dr. Daly stated that even in the light of the events which had transpired, she still thought that her decision not to insert a temporary wire, was justified in this case. She would not change her view simply because the plaintiff had banged her head. The relevant factors for consideration, were the risk of infection, as against the risk of the plaintiff having syncope and a fall in the few days between extraction of the old pacemaker and insertion of the new one. She reiterated that her decision not to use a temporary wire had been a considered decision, which she had made in the best interests of her patient.
92. In relation to the plaintiff’s postoperative management, she stated that it had been her intention that the plaintiff would go to the CCU. However, St. James’s was a very busy hospital, as it was a centre of excellence for cardiac care, and therefore it was sometimes not possible to guarantee a bed in CCU at any given time. When there had been no bed available for the plaintiff after her operation, she had been admitted to the cardiac stepdown ward, which was one floor up from the CCU. The plaintiff was on continuous telemetry postoperatively, which was being monitored on a twenty-four-hour basis in the CCU. They had a “hotline” telephone, with which they could communicate directly with the Robert Adams Ward, if anything showed up on telemetry. Dr. Daly stated that she was not concerned when the plaintiff was in the Robert Adams Ward on telemetry.
93. Dr. Daly stated that when the plaintiff was on the Robert Adams Ward after removal of her pacemaker, she was completely well. She did not have any rhythm problems. Even had she been in the CCU, she would have been allowed to go to the toilet unsupervised. She would have been allowed walk around. Generally, a nurse would not go into a toilet with a patient, when the patient was perfectly well. She did not think that it was necessary for the plaintiff to be brought in a wheelchair to the toilet when she was perfectly well and had had thirty-six hours of good sinus rhythm.
94. She still thought that the risk of long term complaints caused by infection through the temporary wire, outweighed the risk of the plaintiff having syncope and a fall. She had weighed up the evidence, which had revealed that there was a significantly higher risk of infection in patients when they were on their second pacemaker. To double the risk by putting in a temporary wire, would not have been justified.
95. Dr. Daly accepted that it was quite easy to insert a temporary wire. She had not put one in because she did not think that it was the right thing to do. The guidelines and general practice were that a temporary wire would only be put in when it was absolutely necessary. This was usually done where there was a high dependency on pacing.
96. In cross-examination, the defendant stated that she had dealt with cases of intermittent complete heart block previously. She accepted that if a patient did not have a pacemaker, there could be transient complete stoppages of the heart. She accepted that the extent to which a person’s heart would restart after such a stoppage, was not known for certain. In this case the plaintiff’s heart had restarted quickly without any intervention. That was the most common outcome. However, she accepted that it was not the guaranteed outcome. Dr. Daly did not accept that mortality would be a significant risk, once the patient was in a hospital under telemetry. In such circumstances, her heart rate was under constant observation. Even when it dropped, there were experienced nurses on hand to deal with the matter. Once a patient was in a hospital, it was easier to restart the heart if it should stop, than it would be to stitch a hole in the heart caused by insertion of a temporary wire, or to treat an infection in the heart caused by such a wire. She stated that the guidelines issued in 2017 advised that a temporary wire should only be inserted when it was absolutely necessary.
97. Dr. Daly accepted that the plaintiff was young when she was diagnosed as needing a pacemaker in 2003. She accepted that she would need a number of pacemakers in the course of her life. She accepted that putting in a pacemaker itself carried a risk of infection. However, she felt that inserting a temporary wire would only double the risk of infection and one would try to avoid that, if possible.
98. Dr. Daly was asked about the rate of infection from temporary pacemakers in St. James’s hospital. She stated that she was unable to give a precise figure, as she had not audited the rate of infection from temporary wires. However, she was aware of a number of patients in the hospital who had been infected in that way. She would not like to guess at the total number. However, she was able to think of two patients, who had been infected in the previous three years. She accepted that those patients had had a preceding infection.
99. In relation to the decision which she had made, she accepted that when making such a decision it had to be patient specific. However she was aware that the plaintiff was reasonably young and was generally healthy. She was aware that she had a two percent pacing dependency, and that her sinus rhythm was 60 bpm.
100. Dr. Daly accepted that on 5th March, 2014 she had asked Dr. Murray for more information in relation to the echo cardiogram and in relation to her history and her medications. However, she felt that she had sufficient information before her to make the decision that a temporary wire was not necessary, because it was clear that the plaintiff was not pacing dependent. She had told Mr. Tolan in a letter of the same date that the plaintiff was not pacing dependent. She had also discussed the case with him, or with a member of his team. She recalled receiving a call from a member of his team, informing her that the cardiothoracic team wanted to know whether the plaintiff would need a temporary wire and she had responded in the negative.
101. Dr. Daly stated that in the notes for 16th May, 2014, it was recorded that she had had a discussion with the senior registrar on Mr. Tolan’s team. She recalled a telephone call in which it was decided that the plaintiff would need a pacing check and if she had a low level of pacing, she would not require a temporary wire, but would require monitoring on telemetry. She stated that it would have been her responsibility to insert the temporary wire, if one was going to be put in.
102. In relation to her conversations with the plaintiff, she had met the plaintiff on the day of her admission to the hospital. She had told the plaintiff that the pacemaker would be removed and that a new pacemaker would be inserted a day or two later. She did not recall discussing any specific risks that may arise in the days between removal of the old pacemaker and insertion of the new one.
103. Dr. Daly accepted that after removal of the pacemaker, the plaintiff would revert to her pre-March 2003 cardiac condition. Monitoring showed that it was a non-progressive condition, so she reverted to the 2003 position. She accepted that the 2003 position was that the plaintiff had had a collapse, leading to a head injury, necessitating her admission to Sligo General Hospital. The letter also noted that she had had a similar episode six months earlier. The Holter report showed that she had intermittent complete heart block, with pauses of three and six seconds. Dr. Daly accepted that she was aware of those matters when making her decision. She also accepted that the absence of a pacemaker, did alter the plaintiff’s risk of heart stoppage and potential fall. It was that possibility which was realised in the incident on 18th May, 2014. She accepted that the consequences of a blackout and/or fall, could vary depending on the location where it occurred.
104. It was put to the witness that no direction had been given to the plaintiff to follow any particular regime, given that she had no pacemaker and was therefore at a risk of falling. Dr. Daly stated that when the telemetry was fitted, she was advised not to leave the ward and to advise nursing staff if she was moving between bays in the ward. It was further put to the witness that the nurses were not advised that the plaintiff should be confined to bed and that they should be notified if the plaintiff wished to go to the toilet. Nor was any direction given to the nurses that the plaintiff should not ambulate without assistance. Dr. Daly accepted that she had not seen any such directions recorded in the notes. It was put to her, that she had not given any such directions. Dr. Daly agreed, but stated that on the ward round which she had conducted, the senior nurse was aware that the plaintiff had had her pacemaker removed and was being monitored because of a risk of falling. It was for that reason that she had been put in a room closest to the nurses’ station. In addition, the senior nurse would attend the ward rounds, where they would discuss the patient’s individual care needs, such as the requirement for telemetry and how best to monitor her.
105. It was put to Dr. Daly that the plaintiff had had blackouts and falls on previous occasions, prior to having her pacemaker inserted, but that was not known to the nursing staff on Robert Adams Ward. Dr. Daly accepted that the nurses would not have been aware of those facts unless told of them. She also confirmed that she had not given any instruction to the nurses that they should attend the bathroom with the plaintiff. Dr. Daly stated that the plaintiff’s history revealed that her episodes of complete heart block, was an intermittent problem, which only occurred very infrequently. However, she accepted that a pacemaker had been inserted, because one would not know when the heart would stop. That was why it was put in permanently.
106. Dr. Daly accepted that if there was no temporary pacemaker inserted, there should be additional supervision of the patient. That had been catered for by monitoring her heart rhythm by telemetry. It was put to the witness that if a patient had a history of falls and was at a risk of falls due to the absence of a temporary wire, they should be kept in bed. The defendant disagreed with that assertion. They do not direct that patients should always stay in bed. Once on telemetry, they may be allowed to sit beside the bed and even to ambulate. The plaintiff had been instructed that she was not to leave the ward given the range of the telemetry monitor. She was also told to let the nurses know where she was at all times. Dr. Daly accepted that the plaintiff was allowed to walk around the ward and to walk on the corridor.
107. It was put to Dr. Daly that the plaintiff had not been told of the risk of falling due to the removal of her pacemaker. The defendant stated that they had identified the plaintiff as a young and intelligent patient, who understood that her pacemaker had been removed. She also understood that the pacemaker had originally been put in due to syncopacy and that there would be a temporary period when she was without a pacemaker. It was put to the witness that the plaintiff was not told that she might fall, if she should go to the toilet unaccompanied. Dr. Daly agreed with that statement, but pointed out that the plaintiff had gone to the toilet on other occasions without falling.
108. In re-examination, Dr. Daly stated that she had not refrained from putting in a temporary wire on any grounds of convenience. She had made a decision not to put one in, having regard to the risk of infection that it posed. She pointed out that if she had put in a temporary wire and if the plaintiff had gone on to have an infection as a result of that with serious, and possibly lifelong consequences, she would have had to have explained why she had taken that course when it was not absolutely necessary. She was satisfied that she had done what she thought was in the best interests of her patient.
109. Dr. Daly stated that from her knowledge of other hospitals, she was aware that they do not put in temporary wires unless it is absolutely necessary. She pointed out that no temporary wire had been inserted when the plaintiff was admitted to Sligo General Hospital in 2003.
110. Dr. Daly was asked whether it was necessary to advise the nurses that the plaintiff should be required to remain in bed. Dr. Daly stated that she did not consider it necessary for the plaintiff to remain in bed. If she had had frequent pauses on monitoring, that advice might be necessary. However, the plaintiff was perfectly well and was on constant monitoring on telemetry. The plaintiff had only one risk factor for falls. There were other factors such as mobility or cognitive issues generally, which were not relevant in this case.
Evidence of Mr. Michael Tolan
111. Mr. Michael Tolan was called to give evidence on behalf of the defendant. He is a Consultant Cardiac Surgeon in St. James’s Hospital and in St. Vincent’s Hospital. He was appointed a consultant in 1999. He performs adult cardiac and thoracic surgery. He manages the lead extraction unit, which deals with the pacemaker procedures in Ireland.
112. Mr. Tolan was the cardiac surgeon who removed the plaintiff’s pacemaker. He briefly explained to the court this procedure. It is done using a very specialized laser, and the procedure can take anything between 30 minutes – 2½ hours. He explained how removing the pacing wires from the veins can be very dangerous.
113. It was put to Mr. Tolan that Dr. Cripps was critical of how Mr. Tolan and his surgical team had not inserted a temporary wire before extracting the plaintiff’s pacemaker. Mr. Tolan responded by saying that there are circumstances when it is appropriate to elect to not insert a temporary wire. He stated that the decision is made jointly between his cardiothoracic surgical team and Dr. Daly’s treating cardiology team.
114. Mr. Tolan stated that in approximately 50% of cases, the decision is made to not insert a temporary wire. During his time working at St. James’s Hospital, performing these procedures, Mr. Tolan stated that his team have never once regretted a decision to not insert a temporary wire.
115. When making a decision to use a temporary wire or not, Mr. Tolan explained that one has to assess the risks, and then balance the consequences of these risks. He stated that in a situation where there was an extremely low dependency on pacing, one would elect not to use a temporary wire.
116. It was put to the witness that Dr. Cripps had asserted that in circumstances where a patient was at risk of collapsing or falling, a temporary wire was necessary. The witness rejected this assertion, and said that it was appropriate to balance the risk of collapsing with other risks, such as infection.
117. Mr. Tolan was asked about the risk of infection, and what can happen if an infection gets into the system. He explained how an infection can begin at the cardiology ward when the pacing wire is put in. Mr. Tolan commented on inserting the wire via the groin, stating that it was an area that was prone to bugs and infection. Mr. Tolan also stated that the abdomen was not an ideal location to insert the wires.
118. It was put to Mr. Tolan that Dr. Cripps was of the view that when this procedure was carried out in a sterile environment, the risk of infection was negligible. Mr. Tolan stated, however, that although the risk was numerically negligible, the consequences of the risk were quite significant. Mr. Tolan was of the opinion, however, that the plaintiff was at high risk of infection, as it was her second pacemaker procedure.
119. Regarding the availability of beds in the Coronary Care Unit, Mr. Tolan stated that a bed could not be guaranteed. When no CCU beds were available, incoming patients go to the Robert Adams Ward, where they are monitored on telemetry. He commented that the nurses on the Robert Adams Ward are highly skilled and all the patients are closely monitored.
120. It was put to Mr. Tolan that Dr. Cripps was critical of the decision not to put in a temporary wire, in circumstances where the plaintiff presented with a risk of syncope. Mr. Tolan said that given the level of pacing the plaintiff required, and given that it was an extremely low dependency, he had no doubt that the plaintiff did not need a temporary wire.
121. Under cross-examination, Mr. Tolan stated that as a cardiac surgeon, all he needed to know was whether a patient was pacing dependent or not. Explaining the term “pacing dependency”, Mr. Tolan said that when a person’s heart does not beat without pacing, they are known to be 100% pacing dependent. The plaintiff had a 2% requirement for intervention by the pacemaker, some of which, Mr. Tolan explained, was due to a low heartbeat when asleep, and at other times it was attributable to her underlying congenital heart condition.
122. The plaintiff’s syncope occurred when she was going to the toilet. It was put to Mr. Tolan that prior to this, the plaintiff had mobilised around the ward and had gone to the top of the stairs, where she had bid her family goodbye. He agreed that that was correct. He also agreed that this syncope may not have happened if a temporary pacing wire had been in place. He further stated, however, that in an ideal situation, where there were no risks to temporary wires, everybody with a heart conditions would have a temporary wire put in. However there were risks and the risks had to be balanced, as was done in this case.
123. In light of evidence given by Dr. Daly, a question arose during the course of cross-examination regarding internal communication between this witness’s surgical team and Dr. Daly’s medical team. Mr. Tolan had stated in evidence that he had discussed temporary pacing with Dr. Daly prior to the plaintiff’s procedure. However, during cross-examination it was put to the witness that Dr. Daly had indicated that the discussion regarding temporary pacing of the plaintiff was not a communication which she had had personally with Mr. Tolan, but with a member of his team. Mr. Tolan agreed with that assertion.
124. During cross-examination however, Mr. Tolan rejected the assertion that he had proceeded in the absence of any discussion with Dr. Daly regarding the insertion of a temporary wire. He stated that there was full and adequate discussion between the two teams, that should be regarded as reasonable in a busy hospital, including a letter from Dr. Daly to the witness dated 5th March, 2014, which had stated that the plaintiff was not pacemaker dependant, and a further phone call on the 16th May, 2014, the day prior to the operation, to clarify this position, before the wires were cut.
125. Mr. Tolan confirmed that as long as he has received a communication from the cardiologist that a patient was not pacing dependant, and subject to clarifying that prior to the operation, he would proceed on the basis that a temporary pacing wire was not necessary.
126. Regarding the risk of infection when inserting a temporary wire, under cross-examination Mr. Tolan stated that it may be a small risk, but the consequences could be catastrophic.
Other Evidence on Behalf of the Defendant
Dr. Peter Quigley
127. Dr. Peter Quigley was called on behalf of the defendant. Dr. Quigley is a Consultant Cardiologist. He qualified from Trinity College Dublin in 1976 and completed his internship in the Royal City of Dublin Hospital, where he also began to specialise in cardiology. In 1984 he went to Kings College Hospital in London to work as a registrar in cardiology, where he did research and clinical work for two years. He then went to Duke University Medical Centre in 1986, where he spent three years specialising in coronary interventions, angioplasty and stenting. He subsequently began working in St. Vincent’s University Hospital until 2014, and now works exclusively at St. Vincent’s Private Hospital.
128. Dr. Quigley noted that the plaintiff’s most recent pacemaker check had indicated that she was not pacemaker dependant and only required pacemaker function 2% of the time. He interpreted the 2% dependency to mean that, when the plaintiff was having a new system put it, it was safe to leave her without a temporary pacemaker for a few days, as this avoided the potentially long term life morbidity or even mortality, which can be associated with subsequent infections of such systems. He stated that this risk of infection surmounted any other risk, and therefore minimising the risk of infection was paramount.
129. Dr. Quigley stated that it appeared most likely that the plaintiff’s collapse and subsequent injury was due to a transient period of low blood pressure brought on by a sudden dropping of the heart rate.
130. Dr. Quigley reviewed the plaintiff’s hospital notes and correspondence between the plaintiff’s GP, referring consultants and cardiothoracic surgery team. He was satisfied that there was sufficient documentation of the patient’s medical history, with appropriate dialogue between doctors. He was of the opinion that not putting in a temporary wire amounted to a considered decision on the part of the consultant medical team, a decision with which he fully concurred. When asked to expand on this, he stated that Dr. Daly and Mr. Tolan would have both been aware of the potential complications of putting in a temporary wire, and that it was not a trivial procedure, as Dr. Cripps had suggested. It was not a completely benign procedure and there could be serious adverse effects
131. Dr. Quigley referred to the study by Klug et al.. This was a major study carried out on 6,319 patients, which looked at the use of temporary pacing wires prior to the implantation procedure of a permanent pacemaker. That study found an overall infection rate of 0.56% for de novo implantations and 0.99% for non- de novo implantations. This clearly showed that the insertion of a temporary wire increased the risk of infection by 2.5 fold. According to Dr. Quigley, the Klug paper revealed that in the case of a non- de novo implantation, the risk of infection could be higher. Thus, if the decision had been made to insert a temporary wire in the plaintiff’s case, that would have given her a 2.5% chance of developing an infected pacemaker within a year of the procedure. Dr. Quigley stated that it was not the immediate risk of infection that represented the major concern in the plaintiff’s case, but rather the risk that placing a temporary wire prior to the insertion of a new pacemaker would predispose the plaintiff to an increased risk of infection with the new system, in the weeks or months following the procedure. According to Dr. Quigley, the rate of infection can rise to as high as 12.6% depending on the literature one referred to. It would also depend on the culture of individual hospitals.
132. Dr. Quigley stated in evidence that according to Klug’s paper, patients who undergo multiple implantations of devices, like the plaintiff, have an inordinately high rate of infectious complications.
133. It was put to Dr. Quigley that the risk of infection elicited from the literature was an acceptable level of risk, when placed against the idea that a person might be left unpaced and in circumstances where they may fall or collapse and suffer injury. Dr. Quigley disagreed with this assertion and said it was not an acceptable level of risk.
134. Dr. Quigley stated that using a telemetry monitoring system was considered the normal standard of care. He considered it reasonable, under the circumstances described, to allow the patient to go to the toilet unaccompanied. He stated that he did not think that hospital staff would normally go into a toilet with a patient. He was of the opinion that even if the plaintiff had been accompanied, it would not have guaranteed that such an event would not have happened. Dr. Quigley was asked what would have happened if the plaintiff was in the Coronary Care Unit and required to go to the bathroom. He stated that they would have allowed her to go to the bathroom. He thought it would be reasonable in this situation where the plaintiff had such a low likelihood of having a fall, to allow her that freedom and dignity. Ms. Mudd’s suggestion that the plaintiff should have been put into a wheelchair or commode and wheeled to the toilet was put to Dr. Quigley. He stated that he has never seen that sort of practice being done.
135. Dr. Quigley stated that the plaintiff had no mobility problems and he did not see it unreasonable to allow her mobilise freely. He was of the opinion that she was in a specialised step down ward, with experienced nurses who were well equipped to look after patients who have come back from these types of procedures.
136. When asked about the criticisms levelled at Dr. Daly, for failure to highlight in the plaintiff’s notes issues in relation to the potential of falling, Dr. Quigley stated that he was absolutely convinced that Dr. Daly would have spoken about the situation with a nurse, who was on the ward round with her. The fact that it was not in the plaintiff’s notes was not unusual, as they do not record everything that they talk about on the ward.
137. Dr. Quigley stated that the avoidance or minimization of the use of temporary pacing was the recommended standard of care, when managing patients who required a permanent pacemaker. This was stated in the Heart Rhythm Society expert consensus statement from 2017. Dr. Cripps had dismissed this document as it was post event. Dr. Quigley asserted, however, that the guidelines in the paper were a product of many years accumulation of data, which would have reflected best practice in 2014.
138. Dr. Quigley stated that when you have established a patient’s need for a pacemaker, you would advise a patient to stop driving, not to climb a ladder, not to do any work on a roof and not to swim. He stated that you would advise a patient in this situation to not do anything that might compromise them should they have a dizzy spell or a blackout.
Ms. Paula McCarthy
139. Ms. Paula McCarthy was called to give expert nursing evidence on behalf of the defendant. Ms. McCarthy qualified as a nurse over 30 years ago. She has extensive hospital experience, having worked in the Royal Victoria Eye and Ear Hospital, Dublin and in St. Vincent’s University Hospital and St. Vincent’s Private Hospital, Dublin. She stated that she had a wide range of experience across a range of disciplines, including extensive experience in cardiology. She has worked at all levels within hospitals, from bedside to senior management level. In 2018, she completed a course looking at international best practice in falls risk management, to reduce the risk of people falling primarily in the acute hospital setting.
140. Ms. McCarthy stated that the plaintiff had been assessed in respect of falls risk under the Stratify Falls Risk Assessment Tool, both at the time of admission and again on 18th May, 2014. On both occasions, she had achieved a zero score, meaning that she was not deemed to be at risk of falling. She had also been provided with a call bell in her room and had been instructed how to use it, should she require assistance from a nurse.
141. Ms. McCarthy stated that from the hospital records, it was seen that care plans had been put in place to deal with the plaintiff’s care at various stages during her stay in hospital. The purpose of these care plans was to maintain a safe environment for the patient at all times. There was also a telemetry care plan, which had been put in place because the plaintiff did not have any pacemaker in situ after the old one had been removed on 17th May, 2014. Accordingly, it was necessary that she be closely monitored. This was done by ensuring that she was on continuous telemetry, which would be observed by a nurse in the monitoring station in the CCU.
142. Ms. McCarthy stated that all details may not be documented in a patient’s notes. The doctor would have told the nurses that the pacemaker had been removed and that she needed cardiac monitoring, which had been put in place and in addition, she had been given a room nearest the nurses’ station in Robert Adams Ward. That was a step down cardiac ward, which would be staffed by very experienced cardiac nurses. The nurses would be told that the patient was on a telemetry monitor, they would be informed what her condition was and what consultant she was under.
143. It was put to the witness that the plaintiff’s expert, Ms. Mudd, had been critical of the lack of directions given by Dr. Daly to the nursing staff. Ms. McCarthy stated that the nurses needed accurate information to enable them to look after the patient. They are able to see all the clinical notes on her file and so were able to get a full picture of her medical condition during her stay in hospital. In addition, there would have been communication between the doctors and the nurses who were providing care, some communications may not have been written into the notes. This would arise when patients first came onto the ward and when a patient came back from theatre. The doctors would visit the patients on the ward and would inform the nurses of the up to date position. The doctors and nurses would be aware of the care plans and have an input into their development throughout the patient’s stay in hospital.
144. Ms. McCarthy did not accept the criticism made by Ms. Mudd that the plaintiff’s condition was not properly recorded and that she needed extra monitoring. It had been recorded in her notes that the plaintiff had a history of AV block, so the nurses would have known that the plaintiff was at risk of syncopacy and of falling. They were also aware that she did not have a pacing device in situ. The nurses had sufficient information to allow them to appropriately manage and care for the plaintiff.
145. The fact that the plaintiff was not brought to the CCU postoperatively, was a common situation. It could arise due to pressure on beds in the CCU. That was why there were step down cardiac units in the hospital. She was of opinion that it was appropriate in the circumstances for the plaintiff to be sent to the Robert Adams Ward.
146. Ms. McCarthy stated that in her opinion the plaintiff had been given the appropriate standard of care; she had been assessed in respect of falls risk on admission and again after the procedure; she had been put on telemetry and a care plan had been put in place. She was closely monitored. Even with these precautions in place, it was not possible to completely eliminate all risks. All they could do was to try to minimise the level of risk.
147. In relation to the suggestion by Ms. Mudd that the plaintiff should have been put in a wheelchair and brought from her bed to the toilet by that means, Ms. McCarthy did not think that that was necessary for the plaintiff, as she was a young woman and was not physically, or cognitively impaired. There was no reason why she could not go unaided to the toilet. She did not think that it would be appropriate for a nurse to go into the toilet with the plaintiff. They would normally afford a patient privacy while in the toilet. Even in CCU, patients would be allowed to go into the toilet unaided. The fact that she had an en suite toilet in her room was good, as it meant that the nurses would know where she was at all times.
148. In relation to the suggestion that a chair should have been put in front of the plaintiff while sitting on the toilet, she had never come across such a procedure being adopted. She thought that to do so would only increase the risk of injury if the plaintiff fell.
149. Ms. McCarthy stated that even if there had been a nurse accompanying the plaintiff, the nurse would not try to catch her if she fell, as this would pose a risk of injury to the nurse herself. Thus, even with 24 hour supervision, it was possible for patients to fall and be injured. One cannot absolutely prevent people falling. You try to minimise the risk of falling.
150. In cross examination, Ms. McCarthy accepted that the nurses must draw up a care plan so as to minimise the risk of falling. It is necessary to do specific things for the patient, such as assess the risk of falls. She accepted that even with a zero score on Stratify, one must still do a risk assessment in respect of the particular patient and the risk of falling. She accepted that one would have to look at all risks which might cause falling, not just at mobility issues. However, there were no grounds for concern disclosed when the plaintiff had been assessed on Stratify on 15th May, 2014.
151. In relation to the Stratify assessment carried out on 18th May, 2014, Ms. McCarthy accepted that there had been a change in circumstances since the previous assessment and that a fall’s risk had now come into play, because the plaintiff’s pacemaker had been removed. She was asked where that scenario was recorded in the plaintiff’s records. Ms. McCarthy stated that the risk of syncope was catered for by the use of telemetry to monitor her heart rate.
152. The witness was pressed as to where in the notes there was any reference to the plaintiff being a falls risk once her pacemaker had been removed. She stated that it made sense that if the plaintiff had abnormal rhythm and was at risk of syncopacy, that was dealt with by introducing telemetry and that it was necessary for the nurses to know where the plaintiff was at all times. The care plan provided for telemetry. It was specific to the particular issue which was causing the plaintiff to be at risk of falling. The telemetry care plan was there to address her specific issue of bradycardia and syncope and that had been implemented in her care plan.
153. Ms. McCarthy stated that following the repeat falls risk assessment, which had been carried out on 18th May, 2014, the plaintiff had been found not to be at risk of falls, so no specific falls risk care plan had been implemented. She was not a falls risk according to Stratify, however, the nurses knew that AV block causes dizziness and syncopacy and that the plaintiff was at risk of falling once her permanent pacemaker had been removed.
154. It was put to the witness that there was no reference in any of the care plans to the plaintiff being at risk of falls. Ms. McCarthy stated that the nurses reviewed the patient’s history and was aware that the permanent pacemaker had been removed and that the plaintiff was on telemetry. That would allow them to formulate an appropriate care plan. They would have seen that the hospital falls risk assessment was zero, so the plaintiff did not need the usual falls risk care plan.
155. Ms. McCarthy accepted that a patient should be informed of any specific risk that arises. Normally, the nurses would go through the care plan with the patient and also when putting telemetry on her and had informed her about the provision of a call bell. It was put to the witness that no such exercise had been carried out, even though it was possible to have a falls care plan, if there was a risk of falling. Ms. McCarthy stated that the nurses had implemented a care plan to address the plaintiff’s specific risks based on what was known to them.
156. The witness stated that if the plaintiff had a fall going to the toilet, she was on a cardiac ward and in a room closest to the nurses’ station, with an en suite bathroom, so she was always close to the nurses’ station. It was put to the witness that the plaintiff had been allowed to ambulate freely around the ward. She stated that the idea of putting the plaintiff on ambulatory cardiac monitoring, was designed to allow her some independent mobilisation. She was asked whether that was appropriate where the plaintiff was at risk of falling. Ms. McCarthy stated that everyone had a risk of falling, but they were able to mobilise freely, unless they had specific mobility difficulties.
157. It was put to the witness that a proper care plan in the circumstances of this case, would have included a direction that the plaintiff should be confined to bed. Ms. McCarthy stated that she could not think of a situation where a person, who was not physically restricted, would be confined to bed. Even if she had been, she could have had a syncope episode while in bed. It would not be normal to confine a patient to bed where there was no physical disability.
158. It was put to the witness that if a person had a history of falls, they would need an evaluation whether that was likely to arise once the pacemaker was removed and that should have been specifically addressed in the notes, rather than being left to the nurses’ discretion, so that the nurses could look at a falls risk care plan when coming on duty. Ms. McCarthy stated that the nurses had adequate information. They knew that the plaintiff was not pacemaker dependent; they knew that the doctors had made a decision to remove the permanent pacemaker without insertion of a temporary wire and to deal with that scenario, the plaintiff had been put on telemetry. In addition, the plaintiff had had normal sinus rhythm in the 36 hours prior to her fall. There was nothing to suggest any change in that condition. She felt that the nurses had managed the plaintiff well, with what they had available to them.
159. Ms. McCarthy accepted that she had not spoken to any of the nurses who had actually managed the plaintiff during her stay in St. James’s Hospital. It was put to the witness that in circumstances where there was no identification of a specific falls risk in the plaintiff’s records, no implementation of a plan to deal with that risk, and she had not spoken to any of the nurses who had actually cared for the plaintiff, all she could do was speculate that because the plaintiff had been on a cardiac unit, the nurses would have known that there was AV block and a risk of falls. Ms. McCarthy stated that once the telemetry care plan had been put in place, that would be known to all the nurses who came on duty during the plaintiff’s stay in the hospital. It indicated to them that the plaintiff needed heart monitoring. It was put to the witness that the existence of the telemetry care plan did not refer to the plaintiff having had previous falls, which had necessitated the original insertion of the pacemaker. Ms. McCarthy stated that she did not know what had been told to the plaintiff herself. It was put to her that there was no record of any instructions being given to the plaintiff about going to the toilet, or of the risk of micturition syncopacy. Ms. McCarthy stated that there was a psychological care plan in the records. As part of that, the nursing staff would have ascertained to what level of detail the plaintiff wished to be informed about her illness and her care. They would discuss her stay in hospital and what was being done. It all depended on what the patient wanted to know. She was able to ask questions if she wished to have more information. She had had a pacemaker since 2003, so she knew about her condition and had been given an opportunity to ask questions.
160. It was put to the witness that the plaintiff should have had advice and assistance when leaving her bed, particularly in light of her previous history and in light of the fact that there was no temporary wire in place. She should have been specifically advised of the risk of falling. Ms. McCarthy stated that that presumed that everyone who was a falls risk must ask permission when they wanted to leave their bed. That was not general practice. The plaintiff had been allowed to go to the bathroom. The fact that she had done so, was usual practice, even when a person had a falls risk.
161. It was put to the witness that if the patient, who was a falls risk, wanted to go to the toilet, it should be done in the company of a nurse and in general they should be confined to bed, as had been done in Sligo General Hospital in 2003. Ms. McCarthy stated that in Sligo Hospital in 2003, they probably did not have access to ambulatory telemetry at that time. Furthermore, if she did not have normal sinus rhythm when she was in Sligo Hospital, perhaps that was the reason for a different management regime. In May 2014, the plaintiff had ambulatory telemetry and had normal sinus rhythm, so it was reasonable to allow her to go to the toilet unaided. It was not the same position as she had been in when in Sligo in 2003. She thought that one was not comparing like with like.
162. Finally, it was put to the witness that if the doctors and nurses did nothing, the risk of falling could manifest itself. Ms. McCarthy stated that even if the plaintiff had been accompanied, the nurse would probably not have been in the bathroom with the plaintiff, so her presence would not have prevented the fall. The nurse would normally wait outside the toilet unit.
163. In re-examination, the witness was asked whether the plaintiff needed a specific falls’ risk care plan. She stated that none was needed, as it would not have changed the care that was actually given to her.
The Law
164. The principles of law applicable in this case have been long established. They were set down by Finlay C.J. in Dunne (An Infant) v. National Maternity Hospital & Jackson [1989] I.R. 91. While those principles are very well known, it is no harm to repeat them, lest their import be dulled by familiarity. The principles set down by Finlay C.J. were as follows:-
“1. The true test for establishing negligence in diagnosis or treatment on the part of a medical practitioner is whether he has been proved to be guilty of such failure as no medical practitioner of equal specialist or general status and skill would be guilty of if acting with ordinary care.
2. If the allegation of negligence against a medical practitioner is based on proof that he deviated from a general and approved practice, that will not establish negligence unless it is also proved that the course he did take was one which no medical practitioner of like specialisation and skill would have followed had he been taking the ordinary care required from a person of his qualifications.
3. If a medical practitioner charged with negligence defends his conduct by establishing that he followed a practice which was general, and which was approved of by his colleagues of similar specialisation and skill, he cannot escape liability if in reply the plaintiff establishes that such practice has inherent defects which ought to be obvious to any person giving the matter due consideration.
4. An honest difference of opinion between doctors as to which is the better of two ways of treating a patient does not provide any ground for leaving a question to the jury as to whether a person who has followed one course rather than the other has been negligent.
5. It is not for a jury (or for a judge) to decide which of two alternative courses of treatment is in their (or his) opinion preferable, but their (or his) function is merely to decide whether the course of treatment followed, on the evidence, complied with careful conduct of a medical practitioner of like specialisation and skill to that professed by the defendant.
6. If there is an issue of fact, the determination of which is necessary for the decision as to whether a particular medical practice is or is not general and approved within the meaning of these principles, that issue must in a trial held with a jury be left to the determination of the jury.”
165. It seems to me that principles 1, 4 and 5 are the relevant principles for consideration in this case.
Conclusions on the Temporary Wire Issue
166. All of the expert witnesses were agreed that Dr. Daly and Mr. Tolan had to carry out a balancing exercise when considering whether it was appropriate to insert a temporary wire in this case. They had to balance the risk of infection, which could be caused by insertion of a temporary wire, as against the risk of the plaintiff having syncope episodes and falls, if she was left without a temporary pacemaker.
167. Before considering the evidence in relation to the decision that was ultimately reached, it is necessary for the court to determine an issue of fact; whether Dr. Daly communicated with Mr. Tolan in relation to the question of whether or not a temporary wire would be inserted in this case. I accept the evidence given by Dr. Daly, Mr. Tolan and Dr. Quigley, that when Dr. Daly wrote in her letter to Mr. Tolan dated 5th March, 2014, that the plaintiff was not pacing dependent, she was effectively telling Mr. Tolan that in her opinion as the treating cardiologist, she had made the decision that no temporary wire would be necessary upon extraction of the permanent pacemaker.
168. I accept the evidence given by Dr. Daly that she had a recollection of receiving a call from the cardiothoracic team on 16th May, 2014, as they wanted to know whether it would necessary to insert a temporary wire for the plaintiff on the following day. She stated that she had instructed them that a wire would not be necessary. I accept the evidence given by Mr. Tolan that while he did not speak to Dr. Daly personally on 16th May, 2014, one of his team had done so. This was reflected in his notes for that date. It was recorded therein that the case had been discussed with Dr. Daly. It was noted that there was increased impedance in the leads leading to the pacemaker. The patient was noted to have underlying rhythm. I further accept his explanation for his notes that the entry which read ” patient had underlying rhythm”, meant that she did not need a temporary wire. His note that read ” awaiting pacemaker check “, which was also marked with an asterisk, was specifically related to the need for a temporary wire. It was a check to see if such a wire was needed. The subsequent note read ” all ok ” and ” bloods ok “.
169. Having regard to this evidence from Dr. Daly and Mr. Tolan, which I accept, I am satisfied that, while there may not have been direct verbal communication between Dr. Daly and Mr. Tolan, there was communication between Dr. Daly and a member of Mr. Tolan’s team. I am satisfied that the issue of a temporary wire was discussed and a decision was reached by the cardiologist that a temporary wire would not be required and that this decision was communicated to the surgical team. I am further satisfied that Mr. Tolan was in agreement with that decision.
170. Turning then to the issue of whether the decision not to insert a temporary wire was an appropriate decision to have made in all the circumstances, the evidence on behalf of the plaintiff, as given by Dr. Cripps and Ms. Mudd, was to the effect that, having regard to the plaintiff’s prior history of falls and injury, when she did not have a pacemaker in 2003, and having regard to the low risk of infection caused by insertion of a temporary wire, the appropriate decision to have made in the circumstances would have been to have inserted a temporary wire.
171. On the other hand, the defendant’s expert, Dr. Quigley, was of the view that Dr. Daly and Mr. Tolan had made the correct decision not to implant a temporary wire. This was based primarily on what was perceived as the serious risk of infection that could be caused by insertion of the temporary wire. In addition, as the plaintiff was going to be managed post operatively in a specialist cardiac ward and would be on ambulating telemetry, his opinion was that the correct decision had been made not to insert a temporary wire.
172. The court does not have to decide whether Dr. Cripps and Ms. Mudd, on the one hand, or Dr. Quigley and the treating doctors on the other hand, are correct in their respective opinions. Principles 4 and 5 of the Dunne case are relevant here. It is worth repeating them:-
“4. An honest difference of opinion between doctors as to which is the better of two ways of treating a patient does not provide any ground for leaving a question to the jury as to whether a person who has followed one course rather than the other has been negligent.
5. It is not for a jury (or for a judge) to decide which of two alternative courses of treatment is in their (or his) opinion preferable, but their (or his) function is merely to decide whether the course of treatment followed, on the evidence, complied with careful conduct of a medical practitioner of like specialisation and skill to that professed by the defendant.”
173. I am satisfied having regard to the evidence of Dr. Quigley, that the use of temporary wires in general has declined considerably in recent years due to the recognised risk of infection that they pose. I accept his evidence that in the area of angioplasty, while he had initially inserted temporary wires in all cases, that practice had changed over the years, such that temporary wires are hardly ever used now in angioplasty operations. Dr. Quigley went on to state that in other areas of cardiac surgery, such as when a pacemaker was being replaced, due to the risk of infection caused by the insertion of a temporary wire, their use had become less common.
174. The literature referred to by Dr. Quigley supports his propositions in this regard. In particular, the Klug paper was particularly relevant. It had looked at a total of 6,319 patients. That study found an overall infection rate of 0.56% for de novo implantations and 0.99% for non- de novo implantations. The study clearly showed that the insertion of a temporary wire increased the risk of infection by 2.46 times. Indeed, in the case of a non- de novo implantation, the risk of infection could be higher. Thus, if the decision had been made to insert a temporary wire in the plaintiff’s case, that would have given her a 2.5% chance of developing an infected pacemaker within a year.
175. Support for Dr. Quigley’s statement was also found in the 2017 Heart Rhythm Society Consensus Statement on Cardiovascular Implantable Electronic Device Lead Management and Extraction, which recommended minimising the use of temporary pacing. Dr. Cripps felt that it was inappropriate for the court to have regard to that consensus statement, as it had been issued some years after the events that are the subject matter of these proceedings. If this were a case where one was seeking to criticise the conduct of a doctor on the basis of standards or literature that only became available after the date of his or her actions, then Dr. Cripps’ objection would be well founded. However, where one is dealing with the converse, I am satisfied that the court is entitled to have regard to the fact that the actions which were taken by the doctor at some earlier date, were the same actions which were subsequently recommended in a consensus statement on good practice issued by a reputable medical organisation. I also accept Dr. Quigley’s evidence on this aspect, which was to the effect that, while the consensus statement only issued in 2017, the data on which it was based and the general practices which it recommended, had been in existence for quite some time prior to publication of the consensus statement. Accordingly, I accept his evidence that the decision made by Dr. Daly and Mr. Tolan was in accordance with standards which were subsequently embodied in the consensus statement issued in 2017. However, one must bear in mind that the consensus statement did not state that temporary wires should never be used, but that clinicians should try to minimise their use due to the risk of infection.
176. In considering this aspect, I have also had regard to the evidence of Dr. Quigley and Mr. Tolan that the consequences of infection can be very serious. They can range in severity from the site for the pacemaker becoming infected, thereby needing treatment with antibiotics and the possible relocation of the new pacemaker to the abdomen, which would be uncomfortable for the patient; to more serious consequences, including infection of the heart, giving rise to lifelong complications. There is also some risk, albeit a slight one, of perforation of the vein, or of the heart by the temporary wire, which in the latter case can cause tamponade, which can be fatal. Indeed, it was noteworthy that Dr. Daly herself had had an experience when working in the UK, where one of her elderly patients had died due to complications arising as a result of infection caused by insertion of a temporary wire. Thus, Dr. Daly was correct to consider not only the percentage risk of infection, but also the severity of the consequences should it come to pass.
177. I also accept the evidence of Dr. Quigley and Mr. Tolan that in making the decision, it was reasonable for Dr. Daly to have had regard to the level of pacing at 2%. I accept Mr. Tolan’s evidence that he would definitely put in a temporary wire where pacing was at 50%, but he would not usually do so where pacing was at 2%. He stated that somewhere in the region of 10% pacing was usually the threshold which would determine whether or not a temporary wire would be inserted. I also accept his evidence that in the weekend after he gave evidence, he was due to do four lead extraction operations, in respect of only one of which was a temporary wire due to be inserted. I further accept the evidence of Dr. Quigley, Dr. Daly and Mr. Tolan, that in general temporary wires would be inserted in approximately 50% of cases in Irish hospitals.
178. Insofar as Ms. Mudd gave evidence that a temporary wire would always be inserted in her hospital in the UK, I prefer the evidence of Mr. Tolan that in his experience working in hospitals in Cambridge for four years and in Southampton for six years, it was not universal practice to insert temporary wires. I accept his evidence that the general practice in Ireland reflects that generally applicable in hospitals in England.
179. It was also appropriate for Dr. Daly to have had regard to the frequency of the plaintiff’s syncope episodes. I accept that because she was 2% pacing dependent, that did not mean that she was having heart block for the entirety of that period. It merely meant that her heart rate fell below 60bpm, so that the pacemaker kicked in for 2% of the time. However, on the Holter report from 2003, it did show that there were heart stoppages during the 24 hour period. In considering whether a temporary wire should be used, Dr. Daly was also entitled to have regard to the fact that the frequency of the plaintiff’s syncope episodes leading to falls was not high. The plaintiff had had two falls in the six months prior to February 2003.
180. It is also significant that, notwithstanding the fall which the plaintiff suffered on 18th May, 2014, Dr. Daly, Mr. Tolan and Dr. Quigley remained of the opinion that the correct decision had been made not to insert a temporary wire upon removal of the plaintiff’s permanent pacemaker.
181. Taking all of these matters into consideration, I have come to the following conclusion: essentially, Dr. Daly and Mr. Tolan were faced with a choice. They had to choose one of two risks. Having regard to the fact that the risk of a fall or injury could be minimised, if not entirely eliminated in a hospital setting, if a proper care plan was put in place for the plaintiff, I find that in choosing not to insert a temporary wire on this occasion, Dr. Daly and Mr. Tolan were not negligent in their care of the plaintiff. That decision was justifiable on the grounds of the increased risk of infection that would be posed by insertion of a temporary wire, together with the severity of the consequences that could arise through infection.
182. I am satisfied on the evidence that the course of treatment followed by Dr. Daly and Mr. Tolan, complied with the careful conduct of a medical practitioner of like specialisation and skill to that professed by Dr. Daly and Mr. Tolan. While there may well be two schools of thought as to which was the appropriate course of treatment to adopt in the circumstances of this case, I am entirely satisfied that Dr. Daly and Mr. Tolan were not negligent in electing not to insert a temporary wire on this occasion.
Conclusions on the Management Issue
183. In looking at this issue, it is necessary to begin by making findings on issues of fact. Firstly, I am satisfied that the plaintiff was not instructed to stay in bed after extraction of her permanent pacemaker on 17th May, 2014. She was allowed to ambulate freely around her room and around Robert Adams Ward generally. I find that the only instruction that she was given, was that she was not to go out of range of the telemetry monitor. I accept the plaintiff’s evidence that she moved about her room and around the ward freely on 17th and 18th May, 2014.
184. I accept the evidence of the plaintiff and that of her husband, that she saw off her daughters from the top of the stairs on the evening of 17th May and did likewise when her husband and daughters were leaving on 18th May, 2014, at 22:00hrs. At no stage did any of the nursing staff reprimand her for being out of bed. Accordingly, I find as a fact that the plaintiff was not instructed to remain in bed after removal of her permanent pacemaker.
185. In relation to the call bell in her room, I am satisfied that the plaintiff was shown where the bell was in her room and was told that she could use it if she required assistance. However, I am satisfied that she was not instructed to use the bell if she wished to leave her bed, or go to the toilet. The defendant did not make the case that such an instruction was ever given to the plaintiff.
186. In relation to the issue whether the plaintiff suffered a loss of consciousness as a result of her fall in the toilet on 18th May, 2014, I note that there is some confusion in the hospital records. In the CCU notes, it was recorded that the plaintiff was found ” unconscious on floor, had hit head against sink” . Whereas in the note written by the nurse who found the plaintiff after her fall, it was recorded as follows ” On checking Connie was found on toilet floor. Appeared to have bleeding from the forehead. She was conscious. Brought her back to the bed”.
187. Having regard to the plaintiff’s evidence, which I accept, that she did not know what had happened, this suggests a sudden collapse without warning, with a probable transient loss of consciousness. I find as a fact that the plaintiff had a syncope episode while in the toilet and collapsed striking her head, leading to a transient loss of consciousness.
188. Turning to the kernel of this issue, as already noted, the doctors had had to elect between two risks. They had chosen to run the risk that the plaintiff would have syncope because there was no pacemaker in situ. It was accepted by Dr. Daly and Dr. Quigley that once the plaintiff’s pacemaker was removed, she would revert to her pre-morbid condition in 2003. It was known that she had had a history of falls and injury, when not on pacing in the six months prior to February 2003. All the doctors accepted that after removal of the pacemaker on 17th May, 2014, the plaintiff would once again be at risk of syncope and falls.
189. Once Dr. Daly had, for good reason, elected to run that risk, it was incumbent on her to minimise the consequence of that risk, namely that the plaintiff would have a fall and injure herself. To that end, Dr. Daly stated that she had directed that the plaintiff should be taken post operatively to CCU and should be placed on telemetry. In the events which transpired, the plaintiff was, in fact, taken to Robert Adams Ward. While Dr. Cripps and Ms. Mudd were critical of that decision, I am not satisfied that there was any negligence on the part of the doctors or hospital staff, in bringing the plaintiff to Robert Adams Ward.
190. St. James’s Hospital is a busy emergency hospital in a capital city. Beds in the CCU can be taken up at short notice when emergencies arise. I accept the evidence of Dr. Quigley and Ms. McCarthy that the nursing staff in Robert Adams Ward were very experienced cardiac nurses, who were highly trained in cardiac care. It is a specialised cardiac step down ward. In addition, the plaintiff was on ambulating telemetry. She was given her own room, which was nearest to the nurses’ station, which was circa 5m away. Dr. Nicola Ryan, a member of Dr. Daly’s team, had directed that the plaintiff be admitted to Robert Adams Ward, when no bed was available in the CCU. In these circumstances, I do not find that it was negligent to admit the plaintiff to the Robert Adams Ward.
191. In relation to the fact that the plaintiff was on telemetry, I accept the evidence of Dr. Cripps and Ms. Mudd, that this does not prevent syncope. It merely monitored the plaintiff’s heart rate in real time. It enabled the nurses to get to the plaintiff quickly if there should be a drop in her heart rate. Although, how effective the system was in reality is open to question, having regard to the discrepancies in the timings recorded in the notes in relation to her syncope episode, as referred to earlier.
192. Given that the key objective was to keep the plaintiff safe in the period when she was without a pacemaker, I find that it was negligent of Dr. Daly, either herself or through a member of her team, not to have given a clear instruction in the plaintiff’s notes that she was to be confined to bed and only allowed to ambulate under supervision.
193. I accept the evidence of Ms. Mudd that this instruction should have been given to the nursing staff in writing. It should have been recorded in the plaintiff’s notes. It would have been a simple matter to have given a direction such as: ” Falls risk. Confine to bed. Ambulate under supervision “, or words to that effect.
194. Dr. Daly knew of the plaintiff’s prior history of syncope leading to falls and injuries. She did not inform the nurses of that. She accepted that the nurses would not have known of that history, unless they were told it. While the nurses were aware that the plaintiff’s permanent pacemaker had been removed and that no temporary wire had been inserted and that she was on telemetry, they were not aware of her previous falls history. It was in the light of this lack of information, that Ms. Mudd said that she did not criticise the general care given by the nursing staff to the plaintiff. However, her opinion was that there should have been a clear instruction that the plaintiff should be confined to bed. She was of opinion that that was the appropriate management for the plaintiff, in particular, given her history of syncope and falls in 2003 when without a pacemaker. Dr. Cripps was of the same view.
195. It was suggested by the defendant that the nurses were aware of all relevant facts, because the senior nurse had been present on the ward round with Dr. Daly. In light of the fact that there was a clear allegation that there had been a want of care in the management of the plaintiff post operatively, it was surprising that none of the nurses who had actually cared for the plaintiff during the relevant period, were called to give evidence. While in certain circumstances, it is appropriate for a court to draw inferences from the fact that a party declined to call witnesses, who might be thought to be in a position to give relevant evidence on issues that are in dispute between the parties, I do not feel that I can draw any specific inference from the fact that none of the nurses were called to give evidence in this case. To do so, would be for the court to engage in speculation, which it would be inappropriate for it to do.
196. In addition to the instruction to the nursing staff, which should have been recorded in the notes, I am satisfied on the basis of the evidence given by Dr. Cripps and Ms. Mudd, that the plaintiff should have been instructed that she was to stay in bed, as there was a risk that she could fall, as she had no pacemaker in place. She should have been further instructed that if she wished to leave the bed to go to the toilet, or to go elsewhere, she should use the call bell located in her room. In the event that she needed to go to the toilet, I accept the evidence of Ms. Mudd that she should have been supervised while doing so. I prefer the evidence of Ms. Mudd to that of Ms. McCarthy in this regard. No such instruction was given to the plaintiff.
197. I accept the evidence of Ms. Mudd that allowing the plaintiff to ambulate freely was not a safe practice. To a certain extent, Dr. Quigley was in agreement with that general assertion. He was asked what should be done if a person, for whatever reason, had refused to have a pacemaker implanted, when they had a history of syncope. He said that if a person had refused a pacemaker when at risk of syncope, they should be advised not to drive a car, they should not ascend heights or go up a ladder, and they should not swim. The point being that if they were to have a syncope episode in these situations, it could cause very serious injury.
198. In this case, the plaintiff was allowed to be at a height when she did not have a pacemaker and was therefore at risk of syncope. She saw off her visitors on two occasions from the top of the stairs. If she had had a syncope episode at that time, she could have fallen down the stairs and suffered serious injury, such as a fractured skull leading to cerebral haemorrhage, as identified by Dr. Cripps, or she could have fractured her cervical spine leading to possible paralysis. Thus, allowing the plaintiff to ambulate freely around Robert Adams Ward, was in fact highly dangerous for her. She was fortunate that when she did have the syncope episode, she was in the toilet, rather than at the top of the stairs. Had it been at the latter location, her level of injury may have been of an altogether different magnitude.
199. It is also noteworthy that in the course of cross-examination, Mr. Tolan accepted that if a person did not have a temporary wire in situ, they would usually be placed on telemetry and would be in bed and be monitored. He accepted that if she had been in bed when she had had her syncope episode, she would not have been at risk of injury.
200. In the course of the evidence, the defendant laid stress on the fact that the plaintiff had been given the Stratify assessment on two occasions during her stay in the hospital; firstly, on admission and secondly on 18th May, 2014, on both of which occasions she had received a zero score, indicating that she was not a falls risk. I accept the evidence of Ms. Mudd that the Stratify assessment tool, while being a very helpful tool in general terms in predicting whether a person is at risk of falling, it in fact gave a false reassurance in this case.
This was due to the fact that the questions asked under the Stratify assessment, relate to any particular mobility difficulties that the patient may have. The plaintiff in this case had absolutely no mobility difficulties at all. Accordingly, she was assessed as having a zero risk of falls. That was misleading, because she did in fact have a risk of falls, due to her prior history of syncope and falls when she did not have a pacemaker in situ. All of the doctors agreed that once her permanent pacemaker was removed on 17th May, 2014, she reverted to her pre-2003 condition and therefore was at risk of having syncope episodes and resultant falls and possible injury. Accordingly, the fact that the Stratify assessments were carried out by the defendant, was somewhat irrelevant in this case, and were certainly not sufficient to identify the known falls risk, which all are agreed, did exist.
201. Finally, an issue of causation was raised in the evidence of Ms. McCarthy and was put to Ms. Mudd in the course of cross-examination. It was also raised in the submissions made by counsel on behalf of the defendant. It was submitted that it was well known that nurses and carers are instructed not to attempt to stop a person falling to the ground, as to do so, would expose them to a risk of injury. Thus, it was submitted that even if the plaintiff had been escorted to the toilet by a nurse on the evening in question, this would not have prevented the plaintiff’s fall, given the existence of that general instruction, which would be part of manual handling training given to all nursing staff.
202. I do not think that that proposition can be taken in such broad terms. While I accept that, where a patient has actually begun to fall to the ground, or to fall down a flight of stairs, a nurse or carer would be instructed not to place themselves in danger by trying to prevent the fall. This does not mean that there is no point in nurses or carers assisting vulnerable people to ambulate. It would be absurd to suggest that if a nurse or carer was assisting a vulnerable person to ambulate, they would simply do nothing if that person should start to fall to the ground. If that where the case, having nurses or carers beside a patient, or an elderly person, would be pointless. Every day nurses, and carers of the elderly in nursing homes, accompany people who are frail, or who have mobility difficulties for one reason or another, when they are ambulating. If they see that the patient, or elderly person, is starting to wobble or looks like they are about to fall, the carer will place their hands under the patient’s arms, or otherwise steady them, so as to prevent a fall occurring. To that extent, they serve a very real purpose in preventing a fall ensuing. It is noteworthy that in cross-examination, Mr. Tolan accepted the broad proposition that a nurse supervising a patient when ambulating, would step in to try to prevent them falling.
203. Accordingly, I do not accept the submission that, even if there had been a nurse walking beside or behind the plaintiff as she went into the toilet, the nurse would not have done anything to prevent the fall which actually occurred. I find that if the plaintiff had been ambulating under supervision, there was a good chance that if she had a syncope episode, the nurse would have supported the plaintiff under her arms, or elsewhere, so as to prevent a fall and injury occurring.
204. An alternative proposition was also put by the defendant. It was submitted that the nurse would not have actually accompanied the plaintiff into the toilet, but would have remained outside, so as to preserve the plaintiff’s dignity. That was a purely a hypothetical proposition. It would be speculation on the part of the court to say what might have happened if a nurse had brought the plaintiff to the door of the toilet and had offered to escort her into the toilet itself. That was never put to the plaintiff. We do not know what would have happened, because the plaintiff was not given that option.
205. The defendants cannot excuse their failure to ensure that the plaintiff did not ambulate freely around the ward, thereby putting herself at risk of serious injury, by inviting the court to speculate that had a nurse been present, which was not in fact the case, the plaintiff would have declined her assistance and that the accident would have happened anyway. The court is not going to speculate on an entirely hypothetical scenario, that never arose.
206. In conclusion, I am satisfied that there was negligence in the management and care of the plaintiff after her permanent pacemaker was removed on 17th May, 2014. Dr. Daly was negligent in not ensuring that clear instructions were given to the nursing staff that the plaintiff was a falls risk having regard to her previous history and therefore that she should be confined to bed and should only ambulate under supervision. As a result of that failure, the necessary instructions were not given to the plaintiff that she should stay in bed. Instead, she was allowed to ambulate freely within the range of the telemetry monitor, thereby exposing herself to a risk of serious injury. In these circumstances, I am satisfied that the plaintiff has established negligence on the part of the defendant in respect of the post-operative care given to her in St. James’s Hospital. I am further satisfied that due to that breach of duty, the plaintiff suffered injury when she had a fall at approximately 23:18 hours on 18th May, 2014.
Quantum
207. In relation to her injuries, the plaintiff stated that after her fall she experienced severe pain in her head. After her discharge from hospital, she went to her GP as she was very concerned about her heart condition and she did not want to return to St. James’s Hospital. Her head was extremely sore at that time. Due to continuing complaints of pain in her head, her GP referred her for x-rays of her skull. These were clear. She was very anxious and worried after her fall and was unable to sleep. She had some nightmares of being in hospital. She was given anxiolytic medication by her GP, which she took until January 2018. Her anxiety state had resolved by that time.
208. The plaintiff also experienced headaches and a feeling of numbness in her head. There was a sensation in the area of the scar when she moved her head and also when resting. She has been left with a scar, which she finds embarrassing, so she wears her hair over it. When the plaintiff remained concerned about her scar, her GP had recommended that she should see Mr. McHugh, Consultant Plastic Surgeon, in August 2014.
209. By agreement of the parties, a number of medical reports were admitted in evidence in relation to the plaintiff’s injuries from the both the plaintiff’s doctors and the defendant’s doctors. Accordingly, it is not necessary to set out in extenso the medical evidence in relation to those injuries; a brief summary will suffice.
210. In her first report, the plaintiff’s GP, Dr. Valerie McGowan, noted that the plaintiff had suffered severe bruising to the left periorbital region, together with a cut to the left upper forehead. No suturing was required at that time. The area of bruising had settled within approximately two months of the accident. The laceration to the forehead continued to cause pain in July 2014. The plaintiff complained of altered sensation in the area of the scar. Her headaches had resolved. Sensation was altered in the area both on movement and when at rest. As already noted, the plaintiff’s GP referred her for x-rays of the skull, which were reported as normal.
211. The plaintiff was seen by Mr. Matt McHugh on 28th August, 2014, some three months post-accident. She was very concerned about the scar to her left forehead. She complained of a peculiar sensation around the scar. Mr. McHugh was of opinion that there was underlying nerve damage as a result of the accident. It was too early to give a prognosis in relation to future recovery of the scar, or the nerve damage, at that time.
212. Mr. McHugh reviewed the plaintiff on 13th July, 2017, some three years post-accident. At that time, her biggest problem was numbness in her scalp. She also had difficulty sleeping, due to the fact that when she turned her head, she got a peculiar feeling in her scalp. She required sleeping tablets. Mr. McHugh was of the opinion that the underlying nerves had not recovered. He did not think that they would improve in the future.
213. The scar was still noticeable and visible. It had improved since his previous review, however, it was still whitish in appearance. It was half an inch in length. The plaintiff wore her hair so as to cover it. He was of opinion that the scar would not improve further. Accordingly, it was permanent. Plastic surgery had nothing to offer.
214. The plaintiff was reviewed by her GP on 14th August, 2015. She noted that the laceration to the left forehead continued to cause discomfort. The plaintiff again complained of altered sensation in the area, both on movement and at rest. At that time, the plaintiff remained in a situation where she had discomfort on the site of the cut, together with altered sensation in the area. The GP had decided to leave the problem to settle, as she remained hopeful that the area might settle with more time.
215. The plaintiff was seen by Dr. Mary Maguire, Consultant Psychiatrist, on 23rd September, 2014, four months post-accident. She stated that the plaintiff had become anxious since the accident and worried about the tingling feeling in her head. She found that very worrying. The plaintiff had lost faith in St. James’s Hospital. She had been prescribed anxiolytic medication by her GP. Her sleep pattern was also disturbed. Dr. Maguire was of opinion that the plaintiff had experienced a traumatic event, following which she had developed arousal symptoms of sleep disturbance, which was a symptom of acute stress disorder. She had good insight into her problem and it was to be expected that her sleep disturbance and excessive worrying would abate over the following six months.
216. The plaintiff was reviewed by Dr. Maguire on 8th June, 2018, four years post-accident. She noted that her anxiolytic medication had been changed to Pregablain, 50mg daily, which she had taken up to January 2018. She noted that the plaintiff had developed sleep disturbance and anxiety as symptoms of acute stress disorder following the accident. She had made good progress since then and her symptoms of anxiety had abated and normal sleep pattern had been restored. Psychotropic medication was no longer necessary. She was coping well without medication. The prognosis regarding her mental health was good.
217. On behalf of the defendant, a report was submitted from Thomas J. O’Reilly, Consultant Plastic Surgeon. He saw the plaintiff on 18th July, 2017, three years and two months post-accident. The plaintiff stated that she was aware of an irregular scar in her left forehead. She complained of ” tightening ” around the scar. She stated that the scar was quite sensitive to superficial contact. Turning her head to the left, bending down and closing her eyes, all caused intermittent pain and discomfort in the scar.
218. Examination revealed an oblique pale flat scar in the left upper forehead, measuring 12mm in length and 4mm in width. It was non-tender, but superficial and deep palpation elicited pain and discomfort around the scar.
219. Mr. O’Reilly was of opinion that the plaintiff had a permanent residual oblique scar on her left forehead. The appearance of the scar was satisfactory. It approximated to the transverse crease lines in her forehead. The scar was mobile and was not adherent to the underlying frontalis muscle. Deep palpation elicited pain and discomfort because there had been a crush type injury. These symptoms would be permanent. Due to the plaintiff’s ruddy complexation, the pale white scar stood out more. The scar was visible on close inspection from lateral or left lateral view of the forehead. It was not visible from the front. He concluded by stating that he would classify the scar as a minor permanent cosmetic disfigurement, with permanent associated sensitivity as described. He did not recommend surgical revision of the scar.
220. Finally, the plaintiff was seen by Dr. Paul O’Connell, Consultant Forensic Psychiatrist, on behalf of the defendant. He saw her on one occasion on 3rd May, 2018. He noted that as a result of the accident, the plaintiff had experienced a period of heightened anxiety, that lasted approximately eight months. She was treated with medication for that until January 2018. She had not been on medication since then. Her mental state had remained stable. She did not report the re-emergence of any depressive or anxiety symptoms.
221. Dr. O’Connell was of the view that the plaintiff’s account was consistent with experiencing an anxiety related adjustment reaction. The symptoms appeared to have largely resolved within eight months of the accident. As she had been asymptomatic at the time of his interview with her, her prognosis was excellent.
222. From the foregoing, I am satisfied that this 58 year old lady, suffered a moderate head injury as a result of her fall on 18th May, 2014. She suffered a blow to her head, which caused a laceration, which did not require suturing. However, she has been left with a permanent scar in the area of her left upper forehead. There is also permanent nerve damage in the general area, which causes her unpleasant symptoms of altered sensation in that area of her skull, both on movement and when at rest. The scar itself is permanent and will not benefit from revision surgery. In addition, the plaintiff suffered psychiatric injury in the form of anxiety and sleep disturbance, which are symptoms of acute stress disorder. This required treatment in the form of medication for approximately three and a half years after the accident. It appears that she has made a full recovery from her psychiatric injuries.
223. I have viewed the scar on two occasions. I accept the plaintiff’s evidence that she is embarrassed by it and as a result, tends to wear her hair in such a way as to cover the scar. While it cannot be described as an unsightly scar, it is still a permanent scar to her face. Taking all of these matters into account, I award the plaintiff the sum of €40,000 for general damages to date. I award €20,000 for general damages into the future. To this must be added the agreed sum for special damages of €3,112.48, giving an overall award of €63,112.48.
Balla Lease Developments Ltd -v- Keeling
[2006] IEHC 415 (21 December 2006)
JUDGMENT of Mr. Justice Kelly delivered the 21st day of December, 2006
Background
This case was at hearing before me for four days between 7th and 10th November, 2006, inclusive. The case was settled between the parties prior to the commencement of the fifth day of the hearing.
The plaintiff sought specific performance of an agreement in writing for the sale of land in Co. Dublin by the defendant to it. The agreement was dated 3rd December, 2002 and the sale price was €2 million.
The principal defence to the action was that a collateral agreement was made between the parties to the effect that the sale agreement would lapse and be of no legal force or effect in the event that no changes to capital gains tax legislation were made in the budget which was to be announced by the Minister for Finance on 4th December, 2002. No changes in capital gains tax legislation were in fact announced and so it was contended that the agreement of 3rd December, 2002, lapsed and was of no legal force or effect.
This judgment is not concerned with the merits of the plaintiff’s or defendant’s respective cases since they settled their differences. Rather it is concerned with a matter which emerged in the course of testimony and which was so serious as to warrant me directing a hearing into the conduct of Mr. Robert Taylor, a solicitor and partner in the firm of McKeever Taylor Solicitors who acted both in the transaction and in the litigation on behalf of the plaintiffs.
Mr. Taylor’s Conduct
Mr. Taylor qualified as a solicitor in 1998. His experience as a solicitor is almost exclusively confined to property and conveyancing transactions.
He acted for and advised the plaintiffs in relation to the contract of 3rd December, 2002. Subsequently relations between the parties soured and resulted in these proceedings being commenced on 11th March, 2005. It was quite clear from the evidence that prior to, around the time of, and subsequent to, the transaction of 3rd December, 2002, there were a number of meetings and telephone conversations involving Mr. Taylor. It is now accepted by Mr. Taylor that for most of these meetings and telephone calls he did not prepare contemporaneous attendances.
On 1st February, 2006, the defendant’s solicitors sought voluntary discovery from the plaintiffs.
Prior to that request being made Mr. Taylor began creating attendances in respect of the events from November, 2002, onwards. The creation of those records took place between December, 2005 and March, 2006. For example, an attendance note of 27th November, 2002, was on Mr. Taylor’s own evidence created on 8th January, 2006.
These attendance notes went into very considerable detail and were prepared in the majority of cases by Mr. Taylor reviewing his diary and his firm’s electronic telephone log. He accepts that neither his diary nor the telephone log contained any record of the substance of the meetings or telephone calls but merely recorded the dates and in some cases the times thereof. The substantive content of these attendances was prepared from memory. The attendances were dated as of the date of the meeting or telephone call rather than the date of their creation. Mr. Taylor accepts that there was nothing on the face of the attendances to indicate that they were prepared years after the meetings they described.
It would require an extraordinary feat of memory to be able to recount the detail that is contained in these attendances. Having had the opportunity of listening to Mr. Taylor and observing his demeanour over the period of time that he was in the witness box I am quite satisfied that he is not possessed of extraordinary powers of recall.
There is no doubt but that on looking on these various attendances in the form in which they were created a reasonable person would assume that they were contemporaneous with the events which they described. Indeed, Mr. Taylor accepted, in the course of his evidence, that when one speaks of a date of a document one generally speaks of the date of its creation. Applying that yardstick it is clear that the documents created by Mr. Taylor gave the impression that they were created on the date of the events described in them and not years later, as was in fact the case.
Mr. Taylor also asked me to believe that he prepared these attendances as “a memorandum for myself, for the purpose of the file and just to recall my recollection of events”. He denied that he prepared them because he knew that discovery was going to be required in the action and was creating a record for that purpose. He also denied that he prepared them to demonstrate that he was an efficient solicitor who kept a contemporaneous attendance of events as they took place.
The Request for Discovery
The defendant’s solicitors’ letter sought discovery of, inter alia, –
“All notes, memoranda and documentation (whether in written or electronic form) relating to and comprising the plaintiff’s file with McKeever Taylor, Solicitors, concerning the subject lands and the agreement of 3rd December, 2002 and to include all subsequent dealings including all communications, correspondence, advices, and meetings between the plaintiff and McKeever Taylor, Solicitors, concerning the lands the subject matter of these proceedings.”
On 13th February, 2006 Mr. Taylor agreed that the plaintiff would make voluntary discovery in the terms sought stating “We are happy to confirm that our clients are consenting to make the discovery sought”.
The plaintiff’s affidavit of discovery was sworn by Donagh Higgins, a director of it. The affidavit was sworn on 3rd April, 2006. It disclosed the attendances which had been created by Mr. Taylor but drew no distinction between the small number that had been prepared contemporaneously and those which had been prepared long after the events they described. The only dates that were given in the relevant schedule were those of the meetings or telephone calls being described. To return again to the attendance of 27th November, 2002, as an example, nowhere in the affidavit was it disclosed that in fact that record was created on 8th January, 2006.
It is now accepted by Mr. Taylor that the affidavit created a misleading impression to the effect that all of the discovered attendances were prepared contemporaneously. That of itself is serious.
Matters became much more serious however, when on 21st April, 2006, the defendant’s solicitors wrote and asked for confirmation that the attendances disclosed and furnished were contemporaneous with the events they described. They said:-
“We note that all attendances of Robert Taylor are typed attendances. No original file notes have been discovered. Please furnish copies of the original file notes.
With regard to the typed copy attendances furnished please confirm if these typed attendances are contemporaneous notes of the events. If they are not contemporaneous notes please advise when they were in fact typed.”
This letter was replied to by Mr. Taylor on 10th May, 2006. In his response he clearly represented that the typed attendances were contemporaneous and said:-
“We confirm that the typed attendances of Robert Taylor are contemporaneous notes of the events which it is the practice of Mr. Taylor to prepare from hand written notes which he does not retain. Accordingly no hand written attendances are available.”
The defendant’s solicitors sought clarification on whether the “typed attendances were typed after a significant time period had elapsed” (letter 19th May, 2006).
In response Mr. Taylor gave a description of the process by which the attendances were created and then clarified that all but two of them should not be regarded as contemporaneous. He said:-
“In relation to the attendances on meetings, to the best of our recollection some of these were typed at around the time that the meetings took place, and therefore are contemporaneous. However, in relation to other meetings, the attendances were typed some time after the meetings took place and accordingly should not be regarded as contemporaneous. The relevant meetings for which there are contemporaneous attendances are the meetings on 21st May, 2003 and 30th June, 2004.”
It is clear therefore that only in respect of two meetings were contemporaneous attendances discovered. All of the others were created long after the event.
In the response from which I have just quoted Mr. Taylor offered to swear a corrective affidavit of discovery clarifying the dates on which the attendances were created. He also consented to electronic discovery in terms which had been requested by the defendant. He also indicated that he had engaged a specialist to assist in ascertaining the dates on which the non-contemporaneous attendances were created.
A supplemental affidavit of discovery was sworn on 3rd July, 2006. It identified the approximate date of creation of the non-contemporaneous attendances.
Returning again, for example purposes, to the attendance of 27th November, 2002, this affidavit demonstrated that it had been created on 8th January, 2006, from memory and from an electronic telephone entry created on 27th November, 2002.
It is now accepted that Mr. Taylor’s letter of 10th May, 2006, created a misleading impression that all of his attendances were contemporaneous. That clearly was not the case. It was wrong to write that letter and he now accepts that. The letter was misleading and it referred to attendances at meetings which were very much in issue in the proceedings.
Mr. Taylor was heavily cross examined by counsel for the defence and indeed was asked a number of questions by me in respect of this whole sorry episode. I did not find him to be an impressive witness.
The Court’s Role
Despite the fact that the parties to this suit settled their differences I felt that I could not overlook the serious situation which emerged in relation to the making of discovery in this case. When the settlement was announced to me I informed counsel acting on behalf of the plaintiff that I was deeply troubled by the evidence that I heard and from what limited research I had been able to do, it appeared to me that Mr. Taylor had a case to answer in respect of his conduct which the court simply could not ignore. My research had suggested that the court had jurisdiction to deal with his conduct as part of its inherent jurisdiction to deal with contempt and/or to preserve the integrity of its process.
It is right that I should recall that at that stage Mr. Taylor readily apologised in respect of these matters. I advised him to retain the services of counsel and I afforded him a lengthy period to prepare for a hearing in respect of the matter which I conducted on 19th December, 2006.
Contempt
Mr. Collins S.C., on behalf of Mr. Taylor, argues that whatever the shortcomings of Mr. Taylor’s behaviour, it did not amount to a contempt of court, criminal or civil.
In the event it is not necessary for me to decide such question because Mr. Collins accepts that, quite apart from the jurisdiction to deal with civil and criminal contempt, the High Court does exercise an overall disciplinary jurisdiction over solicitors. (See the observations in this regard of the Court of Appeal in Weston v. Central Criminal Court Courts’ Administrator [1977] 1 Q.B. 32.) That jurisdiction can be exercised in the case of a solicitor who has been guilty of neglect or misconduct. It is that jurisdiction that I propose to exercise in this case.
Mr. Taylor’s Approach
In the course of the hearing of the action Mr. Taylor admitted –
(a) That the format of the first affidavit of discovery did not describe the attendances created in an appropriate way. He accepted that he should have clarified that a number of the attendances disclosed were not contemporaneous,
(b) That it was neither ethical or proper to have his client swear the first affidavit in the form in which it was drafted,
(c) That the preparation of the first affidavit of discovery was in error although he said that he did not intend to mislead anyone, and
(d) That the contents of his letter of 10th May, 2006, were incorrect and that the representation contained therein could be regarded as a lie although it was not intended as such by him.
Mr. Taylor apologised at the conclusion of the substantive case and repeated that apology on the 19th December hearing through counsel.
Solicitors and Discovery
The court is entitled to expect the highest standards of probity and ethical behaviour on the part of solicitors. That is particularly so in the conduct of litigation.
Discovery of documents is a most useful process in the conduct of litigation. The making of accurate and correct discovery relies to a very great extent upon solicitors who advise clients on the topic. It is to solicitors that the obligation primarily falls to ensure that discovery is made in accordance with both the letter and spirit of the agreement made for such discovery or the court order which directs it. There is a considerable element of trust involved in the whole discovery process. The court must be entitled to look to its officers to ensure that the process is conducted honestly, ethically and is not abused.
In the present case there can be no doubt but that Mr. Taylor fell short of the conduct which the court is entitled to expect in the way in which he dealt with the discovery in this case. The creation of attendances by him from memory years after the event without the fact of such creation being disclosed until it was challenged was a serious departure from what the court was entitled to expect. More serious, however, was the representation which was contained in his letter of 10th May, 2006, to the effect that the typed attendances were contemporaneous with the events recorded in them.
This behaviour on the part of Mr. Taylor represented such a departure from what the court is entitled to expect that I was satisfied I could not simply ignore it, hence the necessity for a hearing on Tuesday last and this judgment.
Mitigating Factors
Mr. Taylor is a solicitor of comparatively little experience. He has been qualified for eight years. He had no prior experience of litigation. His practice was exclusively confined to conveyancing transactions. He accepts that it was a mistake to assume responsibility for the conduct of these proceedings given his lack of experience as a litigation solicitor.
I am satisfied that the whole affair has been an extremely embarrassing one for him and one which he sincerely regrets. I am also satisfied that there is little or no risk of any repetition of this sort of behaviour.
The action itself was settled on terms which the plaintiff perceives to have been disadvantageous to it. Mr. Taylor’s relationship with his client is unlikely to have been improved by these events. He is involved in another commercial relationship with one of the directors of the plaintiff but I have no information as to whether that continues or not.
Remedies
If appropriate I could refer the papers in this matter to the Registrars Committee of the Law Society for investigation by it. I think there is little to be achieved by that course save delay which is undesirable. As Mr. Collins points out, I have had a much better opportunity of assessing Mr. Taylor’s situation, because he gave evidence viva voce before me over two days, than a committee dealing with the matter months hence.
Mr. Collins also accepts that it would be open to me to impose a fine but urges me not to do so.
Embarrassing and all as these events have been for Mr. Taylor it would not be appropriate simply to treat the hearing which took place on Tuesday, with all that entailed for him, as a sufficient mark of disapproval by the court of what occurred. Something more is required.
That much is accepted by Mr. Taylor since at the conclusion of his submissions Mr. Collins S.C. indicated that Mr. Taylor is prepared to make a contribution of up to €10,000 to a charity. Such a payment would be preferable to a fine and would be a sufficient mark of the courts disapproval of what occurred.
On Mr. Taylor’s undertaking to pay such a sum within 28 days I am prepared to make no further order in the matter.
Anne Marie Clifford v Health Service Executive & Kerry General Hospital
[2014 No. 4685 P.]
High Court
5 December 2019
unreported
[2019] IEHC 896
Mr. Justice Cross
December 05, 2019
JUDGMENT
1. The plaintiff was born on 31st May, 1971, and resides in Killarney, County Kerry and before the incident the subject matter of the proceedings she worked as a shop assistant. She has one 25-year-old son who is a photographer and in 2004 she suffered a traumatic termination of her relationship with her then partner and her mother dies tragically. As a result of these events she underwent a course of counselling which continued.
2. The plaintiff met her present partner, Mr. Soeren Kuhlmann, a dental technician around 2004 and they eventually cohabited.
3. The plaintiff and Mr. Kuhlmann tried for a baby but the plaintiff had difficulty in conceiving as she had only one fallopian tube but eventually she fell pregnant which resulted in the birth of a healthy baby daughter, Mia on 28th May, 2012.
4. It is the circumstances after the birth of Mia that are the subject matter of these proceedings.
5. After the birth of Mia, the plaintiff developed a significant haemorrhage which of itself is a recognised possible complication after delivery. The plaintiff’s case is that the defendants failed in their duty to take sufficient steps to stop the haemorrhage in time.
6. The plaintiff attended the defendants’ hospital on the evening of 26th May she was some 40 weeks pregnant at this stage and she was experiencing some spotting. She was admitted on the 27th and had a difficult course of labour until Mia was born at 14.54 on 28th May.
7. What was described as a “ small second degree tear ” was observed in the perineum and what was described as “ small bilateral grazes in the labia ”. Dr. C the SHO was contacted in order to repair the perineum, was present almost immediately and noted the presence of further vaginal bleeding. A massage was carried out as it was thought that the uterus was not well contracted.
8. Subsequently the plaintiff was given intravenous Oxytocin and large blood clots were expelled from the vagina. A haematoma was suspected inside the right labia and the registrar in obstetrics Dr. M was asked to attend at 15.08 hours due to the bleeding and possibility of haematoma. Dr. M attended at 15.24 and three minutes later the plaintiff was reported as not feeling well, a facial oxygen was provided and her blood pressure was recorded at 56/38mmhg which is extremely alarming but the midwife questioned the accuracy of the measurement due to the fact that the plaintiff was responsive though feeling nauseous.
9. In the nursing notes it is stated that a further request for Dr. M to attend was declined at 15.16. I accept the explanation from Dr. C that as a matter of probability a midwife asked her whether Dr. M should be further contacted and she declined as she was aware that Dr. M was already on his way.
10. The plaintiff’s blood pressure and pulse were regularly taken and the blood pressure had risen to the region of 80 which is low and of concern even for a postpartum and post epidural woman, and sometimes below 80 which is very worrying. The plaintiff however was responsive to questioning which was somewhat reassuring.
11. At 15.36 hours an intravenous of Gelofusine was provided and a second cannula was inserted at 15.44 and blood samples were collected for measurement.
12. The bleeding continued despite the fact that Dr. C was attempting to stitch and Dr. H, the consultant, was alerted at Dr. M’s request at 15.48 and at 15.50 the blood bank in the hospital was contacted in order to cross match units of blood for operation and at 16.04 Dr. H advised a vagina packing after suturing in order to stem the bleeding.
13. The pack was inserted at 16.09 following the completion of the repair of the tear however a steady trickling of blood was noted at 16.22 it was noted that the blood clot was enlarging and at 16.25 Dr. M and Dr. Hughes agreed that the plaintiff should be taken to a theatre for operation and she was transferred to theatre at 16.37.
14. While the blood loss was described from time to time in the notes as a “ trickle ” it is clear that it continued throughout the period in the labour ward and thereafter and all the measures undertaken by the team failed to prevent it. In addition, the haematoma which was removed in the labour ward by Dr. M was described as the size of orange which is significant.
15. The blood loss prior to transfer was estimated at between 1,000 and 1,500 millilitres. This is a considerable degree of blood loss.
16. The plaintiff was taken to the operation theatre and as it agreed between the parties the operation was difficult, the procedure commenced at 17.25 hours and completed at 19.15 hours.
17. The operative findings were (a) large perineal haematoma, (b) second degree perineal tear, (c) well contracted uterus and (d) right paravaginal tear.
18. There was a further approximate 1,000 millilitre loss of blood during the operation.
19. There is no criticism of the defendants in relation to the events leading up to the birth of Mia. There is no criticism of the defendants in relation to the events in the operation theatre. What the defendants are criticised however is in relation to the delay in sending the plaintiff to theatre after Mia’s birth when the bleeding was identified.
20. Mr. D, the consultant obstetrician and gynaecologist expert called on behalf of the plaintiff who gave his evidence via video link criticised as unacceptable and substandard the level of care not in relation to the steps undertaken by the defendants’ team once the bleeding and the tear was noted but rather the speed that those steps were undertaken and the fact that she had not been moved to the operating theatre by 16.01 rather than 16.37.
21. Mr. D stated that were the plaintiff to have been removed at 16.01 the blood loss would have been less and the trauma is likely to have been less as well.
22. A complaint about a 36-minute delay cannot be disregarded just because the time is relatively short. Significant trauma may occur due to that 36 minute delay and such a delay may indicate a breach of duty of care due to a lack of urgency.
23. The plaintiff claims that as a result of the defendants’ negligence and breach of duty she suffered an unnecessarily traumatic experience, she required an extensive blood transfusion, after the incident the plaintiff was extremely traumatised by the events and suffered an ongoing significant psychological injury.
24. After the operation the plaintiff has no memory for subsequent events until approximately three days later when she woke on what happened to be her birthday. In the time after awakening she was advised both by the medical team and principally by her partner as to what had occurred. Her partner recounted how he on the evening of the operation was advised that it was “touch and go” for the plaintiff and that it was not clear that she would survive the night and that her family should be called.
25. When the plaintiff was discharged home she was very weak, she could not walk unaided naturally for some time, she could not tend to baby Mia and this was done by her partner and she suffered what she has described as a Post Traumatic Stress Disorder (PTSD). In this view she has been supported by the consulting psychiatrist called on her behalf, Dr. M, and also by her general practitioner, Dr. MCC, who’s report has been agreed. The only dispute on this issue is that the defendants’ consulting psychiatrist, Professor S, believes that rather than a PTSD she suffered symptoms of PTSD. Professor S’s view is based upon the fact that the plaintiff has no recollection of the trauma herself but relies upon what she is told. Professor S accepts that under the American DSM criteria which are widely used in Ireland such second hand knowledge does qualify for PTSD but he relied upon the WHO guidelines in which the stressful event must be personally witnessed.
26. I think little turns on the distinction between PTSD and symptoms of PTSD as clearly the plaintiff was greatly affected and indeed traumatised by the incident. She was upset and tearful. She developed a reaction specifically to blood, doctors and the hospital. The plaintiff said that some three years ago she had turned a corner and was substantially better though whether or not it was the stress of giving evidence and the Court proceedings she clearly evidenced what I believe to be genuine distress in Court both while giving evidence and listening to the case unfold. I find that the plaintiff did indeed meet the criteria of PTSD and that her psychological distress continues.
27. In addition to the above injuries as a result of the trauma she has undergone the plaintiff has been unable to resume physical intimacy with her partner and despite the fact that the plaintiff has been in attendance in regular counselling including counselling with specialist sex therapists she has been unable to resume intimate relations with her partner who is extremely supportive both to her and baby Mia.
28. I accept the plaintiff as a completely genuine witness who gave her evidence truthfully. Any inconsistencies are fully explicable by the fact that the plaintiff is clearly traumatised by recollection of the incidents herself.
29. I also reject any criticism of the plaintiff for initially pleading losses of earnings as a result of the fact that she had been able to return to her work she would have been earning but, as the shop in which she worked closed down shortly after Mia’s birth, she is not now maintaining any claim for loss of earnings and similarly while she initially claimed for all her counselling bills of approximately €7,000 she has subsequently reduced this to limit it to the counselling that she has receipts for of some €4,000.
30. I fully accept that a plaintiff and her advisors may well have believed that there was a possible claim for loss of earnings which on advices of senior counsel were subsequently withdrawn and no criticism of the plaintiff is to be found on that basis.
31. Therefore, in addition to the immediate physical symptoms, the plaintiff suffered and is suffering from PTSD together with the anxiety symptoms, hypervigilant sensitivity to triggers, an avoidance of sexual intercourse as accepted by Professor S. There is no doubt that the plaintiff’s life has been significantly damaged by the events the subject matter of the proceedings. The first real question in this case is that of liability. The second question should it arise is that of causation.
32. Mr. D is not critical of the steps taken by the defendants after they identified the tear and the bleeding, what he does criticise is the slow progress and the lack of urgency in transferring the plaintiff to operation theatre where the problem had to be dealt with. Clearly the fact that the plaintiff’s stay in the operation theatre was considerable is indicative of the fact that the plaintiff was presenting with a number of problems of a serious and significant variety with possible life threatening implications.
33. On behalf of the defendant evidence was given by Professor M that the treatment was adequate for a community hospital in 2012. In particular, he stated that there was an appropriate escalation of the protocols following a bleed. The first step was communication and the midwife promptly communicated to the SHO, Dr. C, who subsequently communicated it to the registrar, Dr. M, who subsequently communicated it to the consultant, Dr. H, who operated with indeed the assistance of a second consultant.
34. The next step was resuscitation which was carried out by fluid and the oxygen and cross matching of blood, the third step was the monitoring and the fourth step was the arresting of the problem which was appropriately done first by tone in relation to the uterus and then by medication and stitching and attempt to blood clot, all of these remedies were carried out by the team led initially by Dr. C and subsequently by Dr. M and the midwives. Professor M was not of the opinion that the haemorrhage was massive but he did not dispute the fact that it was significant. The blood was regularly described in the notes as trickling, Professor M conceded that in a major national maternity such as the one that he worked in the steps taken would have been done somewhat more rapidly but that the treatment was acceptable and that the blood pressure stabilised though because it did not improve clearly the bleeding was continuing and the plaintiff remained unwell while in the labour ward.
35. In addition to the expert evidence I heard the evidence from defence witnesses, Dr. C, the SHO, and Dr. H, the consultant. Dr. M, the registrar, was apparently unavailable.
36. The test in relation to professional negligence in medical cases as that has set out by the Supreme Court in Dunne v. The National Maternity Hospital & another [1989] IR 91.
Dunne held that “ the true test for establishing negligence in diagnosis or treatment on the part of a medical practitioner is whether he has been proved to be guilty of such failure as no medical practitioner of equal specialist or general status and skill should be guilty of if acting with ordinary care.
2. If the allegation of negligence against the medical practitioner is based on proof that he diverted from a general and improved practice that will not establish negligence unless it is also proved that the course he did take was one which no medical practitioner of like specialisation and skill would have followed had he been taking the ordinary care required from a person of his qualification.
3. If a medical practitioner charged with negligence defends his conduct by establishing that he followed a practice which was general and which was approved of by his colleagues of similar specialisation and skill he cannot escape liability if in rely the plaintiff established that such practice has inherent effects which ought to have been obvious to any person giving the matter due consideration.” The fact that the allegations are against the hospital itself rather than a particular medical practitioner does not alter the fact that the principles in Dunne must mutatis mutandis be applied.
37. Mr. D stated that the fact of such a bleed, and the quantity of blood loss of approximately 1.5 litres before the plaintiff was taken to surgery indicates a very significant life threatening incident and meant that the speed of the defendants’ reactions was unacceptable. Professor M on behalf of the defendants indicated that all reasonable steps were undertaken and that while in a major maternity hospital it might have been done somewhat faster that no real criticism can lie against the defendants.
38. I accept the evidence of Professor M that the defendants followed the approved practice of a regional hospital at the time and the plaintiff has not demonstrated under the third part of Dunne (above) that this practice had inherent defects which ought to have been obvious to any person giving the matter due consideration.
39. Accordingly, the only issue in liability is whether the plaintiff has established on the balance of probability that the defendants were guilty of a failure such as no practitioners of equal specialist status or skill would be guilty if acting in ordinary care and I have come to the conclusion that the evidence from Mr. D while entirely honest in his opinion fails to meet that standard. I accept the evidence of Professor M that while the reactions of the hospital were not as rapid as would occur in a major maternity unit that still they were not unacceptable. The time difference between what is advocated by Mr. D and what actually occurred is some 36 minutes.
40. It is not necessary for a finding of professional negligence for an expert witness to follow the wording as set out in Dunne (above) it is for the Court to assess whether the evidence in its totality meets that test. I fully accept that the hospital might have acted more rapidly and referred the plaintiff to theatre sooner but in preferring Professor M’s analysis on this point to that of Mr. D other than concluding that things might have been done more rapidly, I cannot conclude anything more. Specifically I cannot conclude that the defendants were in any way negligent.
41. Accordingly, I do not have to consider issues of causation and whether the complained of delay of approximately 36 minutes would have resulted in any real extra loss to the plaintiff. However, in the interest of completeness I believe it is likely that had the plaintiff been taken to the operating theatre at 16.01 she would still have lost a significant quantity of blood, over 1 litre, and the repair would have taken a considerable time in theatre and accordingly she is likely to have been in a dangerous position and to have suffered as a result some psychological damage. However, I do believe that had the matter been dealt with sooner the plaintiff clearly would have suffered less of a blood loss and probably less psychiatric trauma however that is speculation and it is given my findings in relation to liability ultimately unnecessary speculation.
42. Accordingly, the plaintiff must fail in her case against the defendants and the case must be dismissed.
M.L. and K.A. v T.Q., X Limited and Y Limited
2018 9006 P
High Court
12 April 2019
unreported
[2019] IEHC 220
Mr Justice David Keane
April 12, 2019
JUDGMENT
Introduction
1. In this action, the plaintiffs seek damages for personal injuries that they claim were caused by the medical negligence of the defendants.
2. The first plaintiff, M.L., is a 37 year old woman who works in an administrative role. The second plaintiff, K.A., is a 45 year old man who works as an engineer. The plaintiffs are a couple and have three young children, all at or below primary school age.
3. In November 2017, Ms L was diagnosed with stage IV ovarian cancer.
4. The first defendant, T.Q., is a consultant radiologist. The second and third defendants, X Ltd and Y Ltd, provide magnetic resonance imaging (‘MRI’) services.
5. On 29 June 2016, Ms L underwent an MRI scan of her pelvis that Dr Q reported as normal on 1 July 2016.
6. Ms L alleges that the MRI scan showed features of a particular form of ovarian cancer that were not shown or reported upon due to the negligence of the defendants, resulting in a misdiagnosis or delayed diagnosis that has caused her grave personal injury in the form of a more advanced disease that was less susceptible to treatment when later diagnosed.
7. Mr A claims that he has also suffered loss or damage, namely the loss of the normal personal, physical and emotional relationship that he would have been able to enjoy with Ms L were it not for the failure to diagnose her disease from the June 2016 MRI scan.
8. Each of the defendants denies negligence.
9. As counsel for the plaintiffs acknowledged in the course of the trial, the only one of the particulars of alleged negligence capable of capturing the conduct of X Ltd and Y Ltd was that of ‘failing to produce a suitably sufficient image.’ However, in response to a request for further and better particulars of that claim that the second defendant raised on 16 November 2018, the plaintiffs replied on 17 November 2018 that they were not proceeding with that allegation. Thus, although the plaintiffs have never formally withdrawn their claim against those companies, in substance their claim at trial was pursued solely against Dr Q.
Non-identification Order
10. On the application of counsel for the plaintiffs towards the end of the trial, I granted an order, pursuant to the terms of s. 27 of the Civil Law (Miscellaneous Provisions) Act 2008, prohibiting the publication or broadcast of any matter relating to the proceedings which would, or would be likely to, identify Ms L.
11. I did so because I was satisfied that Ms L has a serious medical condition in the form of ovarian cancer; that her identification as a person with that medical condition would be likely to cause undue stress to her because of its potential effect upon her family and, in particular, her three young children; and that the order would not prejudice the interests of justice. The defendants did not oppose the application.
12. Thus, I have selected random initials or letters to describe each of the parties to the action. I have done so in describing the defendants because, as might be expected, each practices or operates in the part of the State where the plaintiffs live, so that the identification of the former might contribute to the identification of the latter through what is known as a ‘jigsaw identification’, whereby a person’s identity may be deduced from a combination of incidental personal details.
Background
13. From the testimony of the parties and from Ms L’s medical records, which were admitted into evidence by agreement between the parties without the need for formal proof, the following narrative of events emerges.
14. Each of Ms L’s three children was delivered by caesarean section, the youngest in October 2014. Ms L presented at the surgery of her general practitioner in September of the following year complaining of bladder discomfort in the form of frequent pressure to urinate, particularly in the morning.
15. Ms L presented at her GP’s surgery again in December, complaining that she had not felt right since her caesarean section in October of the previous year. The symptoms she reported were pressure to urinate in the morning, though with no incontinence, and – in the last few months – stomach bloatedness in the week prior to her period. On examination, her abdomen was found to be very tender on palpation of the supra-pubic region over the bladder. No abnormality was detected in her urine. Ms L testified that her GP was concerned about post-surgical adhesions from the caesarean section. The GP referred Ms L to a consultant gynaecologist.
16. Ms L attended for a gynaecological consultation on 26 January 2016. The gynaecologist conducted an abdominal ultrasound examination in his rooms. In his notes, he recorded that Ms L was not keen on a vaginal examination or transvaginal (that is to say, internal) ultrasound examination. In her evidence, Ms L explained that this was because, due to some delay in being seen, she had been unable to maintain the full bladder that is recommended to enable an effective examination to be carried out and also because the abdominal ultrasound had left her feeling painful and tender in that region. The gynaecologist decided to refer Ms L for a formal renal and pelvic ultrasound. The letter of referral noted that Ms L was complaining of pressure to urinate, frequency and abdominal bloating. The gynaecologist suggested a diagnostic laparoscopy, a surgical procedure involving the insertion of a fibre-optic instrument through the abdominal wall to view the organs there, but Ms L did not wish to undergo further surgery as she felt, based on her discussion with her GP, that post-surgical adhesions might be the problem.
17. Upon that referral, Dr Q performed an ultrasound examination of Ms L’s entire abdomen on 11 March 2016 and reported as follows:
‘Findings: Liver, kidneys, spleen and pancreas appear normal. Gallbladder and biliary are normal. Normal calibre aorta, no visible retroperitoneal mass or lymphadenopathy.
In the pelvis, uterus and ovaries are normal. No visible mass or free fluid.
Conclusion: Normal examination, no identifiable cause for patient’s symptoms.’
18. This result was reported to Ms L through her gynaecologist and GP. However, Ms L’s symptoms were getting worse and she asked her gynaecologist if an MRI scan could be arranged. Her reason for doing so was that the ultrasound was only producing a two-dimensional image and she wanted a more comprehensive examination of her gynaecological organs to see if there was anything there.
19. On 12 April 2016, the gynaecologist referred Ms L for an MRI scan of the abdomen and pelvis, noting in that referral that her symptoms were abdominal bloating and urinary frequency. In his evidence, Dr Q stated that the terms of the referral were slightly problematic because, while either a CT scan or an ultrasound examination of the abdomen and pelvis is a recognised procedure, an MRI scan is more specifically directed to a particular organ or local region, such as the liver, uterus, gallbladder, kidneys or small bowel. Thus, Dr Q appended a handwritten note to the referral letter recommending a CT scan, as Ms L’s reported symptoms were not a recognised indication for an MRI scan. By that, he meant that insurers wouldn’t reimburse for an MRI scan of that kind based on those symptoms. Dr Q explained that the usual thing would be that the imaging service provider would then engage with the referring doctor and perhaps also with the patient about what to do next.
20. On 26 April 2016, Ms L emailed her gynaecologist to follow up on her request for an MRI scan, explaining that she did not want to have a laparoscopy done both for cosmetic reasons and because it would entail an inpatient stay on the public day ward in the hospital. Nor did she want to have a CT scan done because she was concerned about what she perceived to be the associated radiation risks.
21. On 11 May 2016, Ms L’s GP wrote to the hospital where the MRI scan had been arranged to take place, setting out Ms L’s symptoms, medical history and current medication, and stating:
‘I referred her to [the gynaecologist] who offered investigative laparoscopic surgery but she is not keen on same. I would be grateful for MRI abdomen to rule out any renal or ovarian issue or post c-section adhesions or adenomyosis.’
22. In his evidence, Dr Q stated that this referral letter was passed to him on 11 May 2016 as it was considered problematic for the reasons he had already explained. Because it had been addressed to the MRI unit rather than him, and because it did not refer to the prior ultrasound he had performed, Dr Q first noted on that letter ‘not a recognised indication for MRI, recommend ultrasound’, before he was alerted later that day to the previous ultrasound he had performed and the previous letter of referral that the hospital had received. Dr Q rang Ms L’s gynaecologist that day to learn his thinking and to find out what his clinical suspicions were. The gynaecolgist explained on the telephone that, because of Ms L’s three previous caesarean sections, his overwhelming concern was that there may be tethering of bowel loops on to post caesarean section adhesions, causing intermittent bowel obstruction. Since Dr Q considered a CT scan of the abdomen and pelvis the the best examination short of a laparoscopy for investigating that suspicion, he strongly advised that course of action.
23. Dr Q arranged a CT scan for Ms L in a public hospital to which he was attached where – due to the vagaries of the healthcare system – the patient charge for a private referral is much lower than in a private hospital but, for reasons that were never made known to Dr Q but which seem to have been related to Ms L’s concerns about radiation risk, she did not undergo that scan.
24. Ms L’s medical records disclose a note, handwritten by her gynaecologist on 24 May 2016, which states:
‘Spoke to [Ms L]
MRI due to be done in next while as discussed with [Dr Q]
Aware of the limitations of MRI.’
In her evidence to the court, Ms L did not accept that her gynaecologist had made her aware of any such limitation but there may have been some confusion on the point as she appeared to believe that the reference was to limitations on her private insurance cover for an MRI scan, rather than to the limitations of that technology as an appropriate diagnostic tool, given her symptoms.
25. Dr Q stated in evidence that, on or about 8 June 2016, he spoke to Ms L’s gynaecologist again. During that discussion, it became clear that, despite its limitations and imperfections, the only investigation route available was an MRI scan of the pelvis. Dr Q felt that it should at least establish whether there was tethering of the bowel to a caesarean section scar or whether there was any muscular injury or muscle tearing. The uterus and ovaries would be included when the pelvis was imaged in that way. Dr Q appended a further handwritten note to the referral letter on that date, stating ‘MRI pelvis axial and coronal, T1, T2 and STIR’, which was his instruction for the type of MRI scan that was to be carried out and the sequences that were to be used.
26. The entry in the computer system maintained by X Ltd for Ms L’s hospital appointment to have that MRI scan on 29 June 2016 states:
‘1 x 30 mins fao [Dr Q]
ax and coronal t1 t2 and stir whole pelvis
144 – pelvic pain need to outrule ovarian mass’
In his evidence, Dr Q stated that the practice was for such entries to be made by radiographers or clerical staff. He didn’t write that entry or read it, since records of that type were prepared for purely administrative purposes and were never presented to him. Dr Q presumed that the reference ‘fao [Dr Q]’ meant that the scan results were to be brought to his attention, not that the relevant entry was. The figure ‘144’ was a code known as a ‘clinical indication code’. When clerical staff prepared claim forms for insurers, they had to provide that code because only certain clinical indications were recognised by insurers as qualifying a given procedure for reimbursement. The use of the phrase ‘pelvic pain need to outrule ovarian mass’ was not a medical interpretation nor the expression of a medical opinion and was never drawn to his attention. Dr Q speculated that the administrative staff member who entered it on the system had selected it as a clinical indication code that would qualify the MRI scan for reimbursement by the insurer concerned.
27. The MRI scan was carried out on 29 June 2016.
28. Dr Q produced a radiology report on it on 1 July 2016. That report stated (in material part):
‘Procedure:- MRI Pelvis (soft tissue)
Clinical Information:
Urgency, past Caesarean section, suprapubic tenderness.
Findings:
The uterus and adnexa appear normal, normal follicles in both ovaries without visible mass or free fluid. The urinary bladder is normal, there is no evidence of bowel dilation [or] tethering. The anterior abdominal wall appears normal. Normal signal from the soft tissues and marrow of bony pelvis.
Summary:
Normal examination, no identifiable cause for patient’s symptoms.’
29. Ms L was informed of this result by her GP on the telephone shortly afterwards. But her symptoms persisted, particularly that of stomach bloating, which led her GP to think there may be a dietary issue. Ms L was prescribed Buscopan, a prescription medication for abdominal cramps. Special diets were discussed and her GP suggested she consider a colonoscopy (an endoscopic examination of the lining of the large bowel) to rule out Irritable Bowel Syndrome (‘IBS’). However, Ms L felt there was nothing to warrant one, as – despite her other symptoms – she was not experiencing any bowel problems.
30. On 6 April 2017, when she attended her GP complaining of the same symptoms, Ms L was strongly advised to go back to her gynaecologist for a further opinion. She indicated that she would think about it.
31. On 15 June 2017, Ms L attended her GP complaining of neck spasms and a pain in her right shoulder after doing some home maintenance work. She was prescribed a short course of benzodiazepine as a muscle relaxant and referred for an MRI scan to rule out a rotator cuff tear of the tendons or muscles of her shoulder. That MRI scan was performed on 21 June 2017. A radiologist other than Dr Q reported on that scan on 25 June 2017, finding the rotator cuff and proximal biceps in Ms L’s right shoulder were intact, with no evidence of significant tendonitis or tear, before concluding: ‘No acute shoulder pathology demonstrated.’
32. Ms L presented at her GP on 21 July 2017, complaining again of a spasm in her right shoulder and neck. Once again, she was prescribed a short course of benzodiazepine, together with heat-pack analgesia, and recommended to try physiotherapy.
33. Ms L attended her GP on 9 September 2017, complaining of the same right shoulder pain that had now spread to the lower right hand side of her rib cage. She reported that she had attended a physiotherapist who felt it was a muscular spasm. On examination, the GP found Ms L’s chest clear with no signs of pleural effusion, no sound of pleural friction rub, and no history of trauma. The GP found tenderness palpating Ms L’s lower right rib cage, right shoulder and abdomen. The G.P.’s impression was that Ms L was experiencing muscular spasm or costochondritis (an inflammation of the junctions where the upper ribs join with the cartilage that holds them to the breastbone). The G.P.’s plan was to refer Ms L for an orthopaedic opinion and for a chest x-ray, while continuing to prescribe anti-inflammatories and analgesics, with advice to attend at the Accident and Emergency (‘A&E’) department at her nearest hospital, should her condition worsen.
34. Ms L attended hospital for a chest x-ray on 21 September 2017. A different radiologist reported on it, finding:
‘Heart size normal. The lungs are clear. No pneumothorax. No pleural effusion. The osseous structures are unremarkable given the patient’s age. No free air under the diaphragm.’
35. On 2 November 2017, Ms L presented at her GP complaining of a cough, breathlessness, wheezing and dizziness. The GP diagnosed a respiratory tract infection and prescribed antibiotics and steroidal anti-inflammatories.
36. On 8 November 2017, Ms L presented again at her GP and was given a letter of referral to A&E, which she attended on 13 November 2017, complaining of increasing breathlessness and right sided pleuritic chest pain. A chest x-ray revealed a right pleural effusion (i.e fluid on the lung) and Ms L was admitted to hospital. A chest drain was inserted on her right side. A sample of pleuritic fluid was sent for testing on 14 November 2017. Ms L discharged herself over the intervening weekend (as she wanted to be at home because her father was unwell) but was readmitted on 20 November 2017, showing signs of a left pleural effusion. She had a CT scan and bronchoscopy (endoscopic examination of the lungs) and a left pleural drain was inserted.
37. The CT scan was performed on 23 November 2017 and Dr Q reported on it the same day. In summary, Dr Q noted large bilateral pleural effusion in the chest and bilaterally enlarged ovaries in the abdomen and pelvis. Dr Q concluded that there was a suspicious ovarian mass, which he described at the top of his report as a malignant cytology suggestive of gynaecological malignancy.
38. In the meantime, the cytology report on the sample of pleural fluid taken from Ms L confirmed a malignant cytology. On 23 November 2017, having considered that report in conjunction with Dr Q’s report on Ms L’s CT scan, a consultant respiratory physician diagnosed a likely ovarian carcinoma with invasion of surrounding tissue. Ms L was informed of that diagnosis that day.
39. On 1 December 2017, Ms L was examined, and her case was reviewed, by a consultant medical oncologist who, in a report dated 4 December 2017, confirmed that she presented as a thirty-five year old woman with stage IV serous carcinoma of probable ovarian origin. That consultant explained to Ms L that surgery and radiotherapy were not appropriate treatments and discussed with her the use of chemotherapy for disease and symptom control, rather than cure. Ms L has since commenced that treatment. The prognosis is grave.
The proceedings
40. A personal injuries summons issued on behalf of Ms L and Mr A on 15 October 2018. That summons was twice amended, with the leave of the court, on 30 October and 13 November 2018. X Ltd and Y Ltd each delivered a defence on 16 November 2018. Dr Q delivered his defence on 30 November 2018.
41. The trial of the action took place over 11 days between 15 February and 6 March 2019. The plaintiffs were represented by Aidan Doyle SC and Declan Doyle SC with David Humphries BL, instructed by Cian O’Carroll, Solicitors. The defendants were represented by Eugene Gleeson SC with Padraic Hogan BL, instructed by William Fry, Solicitors.
The issues
42. To obtain the relief that they seek in the present action, the plaintiffs must surmount three successive hurdles.
43. First, they must establish that there was some negligence or breach of duty on the part of Dr Q in his conduct of, or report on, the ultrasound examination of Ms L’s abdomen on 11 March 2016 or the MRI scan of her pelvis on 29 June 2016, or both.
44. To do so, they rely almost exclusively on the expert evidence of Professor Graham Whitehouse, consultant diagnostic radiologist, with some tangential support, within the limits of their own fields, from the expert evidence of Mr Frederick David Skidmore, consultant surgical oncologist; Professor Bleddyn Jones, consultant clinical oncologist; and Professor Michael Wells, consultant gynaecological pathologist. In denying negligence, the defendants rely on the evidence of Dr Q and, thereafter, chiefly on the expert evidence of Professor Leo Lawler, consultant diagnostic and interventional radiologist, partly supported, within the limits of his own field, by Professor Seamus O’Reilly, consultant medical oncologist. The plaintiffs did not call either Ms L’s GP or her gynaecologist, although both were listed as witnesses to fact in every iteration of the plaintiffs’ disclosure schedule, up to and including the most recent dated 18 February 2019.
45. Second, if the plaintiffs can prove such negligence, they must next establish that it caused either or both of them to suffer a cognisable form of damage. Ms L claims that she has suffered damage in the form of the lost opportunity for earlier treatment, and probable cure, of her ovarian cancer, together with consequential psychiatric injury, and Mr A claims that he has suffered damage, flowing from Ms L’s injuries, in the form of his loss of the normal personal, physical and emotional relationship with Ms L that he might otherwise have enjoyed.
46. In that regard, the plaintiffs rely principally on the expert evidence of Mr Skidmore, Professor Jones and Professor Wells, together with that of Dr Tessa Neville, consultant psychiatrist. In denying that they have caused any such damage or injury to the plaintiffs, the defendants rely principally on the expert evidence of Professor O’Reilly, together with that of Professor Tom D’Arcy, consultant obstetrician/gynaecologist
47. Third, if the plaintiffs can prove cognisable damage caused by the defendants’ negligence, they must then establish the quantum, or extent, of that damage in financial terms to facilitate an appropriate award of damages by the court.
48. To that end, they rely on the evidence of Ms L and Mr A, together with the expert evidence of Ms Fiona Haughey, vocational assessor; Mr Kenneth Hennessy, architect; Ms Avril McElwain, occupational therapist (whose report was submitted in evidence without the need for proof by agreement between the parties); Professor Michael Fitzgerald, consultant child psychiatrist; Ms Noreen Roche, nursing care consultant; and Mr Nigel Tennant, consulting actuary. In contesting that aspect of the plaintiff’s case, the defendant’s rely on the expert evidence of Ms Moninna McAlinden, occupational therapist (whose report was also submitted in evidence by agreement); Dr Kieran Moore, consultant paediatric psychiatrist; Ms Mary Perryman; nursing care consultant; and Ms Maura Carter; consulting actuary.
49. By agreement between the parties and in order to expedite the trial, each expert witness was taken to have adopted the contents of his or her expert report(s) as part of his or her evidence in chief.
Negligence
i. the evidence of Professor Whitehouse
50. The particulars of the negligence that the plaintiffs allege against Dr Q are, in substance, drawn from the report of Professor Whitehouse, dated 12 October 2018.
51. In that report, Professor Whitehouse provided a summary of his instructions and of the documentation he had considered, and set out a brief clinical history of Ms L’s condition, before expressing an opinion both on the still images retained from the March 2016 ultrasound examination and, more significantly, on the digital record of the June 2016 MRI scan.
52. Professor Whitehouse reviewed 23 snapshot images of the March 2016 ultrasound. In the ‘conclusions’ section of his report, he expressed the view that neither Dr Q’s conduct of the examination nor his report on it was a breach of duty. However, Professor Whitehouse also expressed the opinion that the left ovary was not optimally demonstrated in the images he viewed. In the body of his report, Professor Whitehouse stated:
‘The left ovary, although measured as 23.2 mm in length is indistinct. Transvaginal imaging would have been the preferred method of demonstrating the ovaries, but unfortunately this method was not carried out. It is questionable as to what whether or not what was measured is in fact the left ovary. A cluster of rounded hypoechoic foci anterior to the measured feature could possibly represent the left ovary. With such limited images of the ovaries it is difficult to be sure, but from the presented images no features suspicious of pelvic malignancy are identified.’
53. In his evidence in chief, Professor Whitehouse reiterated the view that the image of the left ovary on the relevant still image(s) he had examined was a bit indistinct, which circumstance demanded that a transvaginal ultrasound examination should then have been carried out to obtain a clearer image. Professor Whitehouse stated that a doppler ultrasound examination also needed to be done to measure blood flow through the pelvic organs.
54. Professor Whitehouse’s written report addressed the MRI scan of 29 June 2016 in the following terms:
‘There are standard STIR, T1 and T2 weighted images in the coronal (front to back) and axial (cross sectional) plains.
The uterus and urinary bladder are normal in appearance.
The left ovary measures 20x20x15mm. It contains a multilocular, septated cystic mass. The septations are of variable thickness. Very little normal ovarian tissue is identified. These features by themselves could be due to a serous cystoadenoma, which is a benign lesion. However, there are some additional features which are highly suspicious of the lesion being a cystadenocarcinoma. There is some ascitic fluid, mainly on the left side of the pelvic cavity including adjacent to the left ovary. Ascites occurs in over 50% of malignant ovarian tumours of epithelial origin such as cystadenocarcinoma and is always associated with peritoneal spread of tumour. Whilst there are no papillary masses growing inwards from the wall into the cystic component, a frequent feature of cystadenocarcinoma, there is the suspicion of an exogenous tumour extension from the superolateral aspect of the ovarian mass lesion. The true extent of the tumour requires contrast enhancement by intravenous gadolinium and this is an essential part of the MRI examination in cases of suspected ovarian carcinoma.
The right ovary measures 24x22x17.5mm. It contains a lobulated septated cystic mass. Malignant ovarian tumours are bilateral in 62.5% of cases. It is therefore likely that this substantial cystic mass in the right ovary is either a malignant or borderline malignant cystadenocarcinoma. Two small cysts towards the periphery of the right ovary could possibly be follicular cysts.
There is no visible pelvic lymphadenopathy or other evidence of tumour spread within the pelvis and abdomen.
To complete the MRI examination, T1 weighted images should be repeated post gadolinium to more accurately delineate tumour presence and extent.’
55. In his evidence to the court, Professor Whitehouse stated that a suspected abnormality on an MRI scan would warrant the use of gadolinium or perhaps diffusion weighted scanning followed by the use of gadolinium where it disclosed a pattern highly suspicious of malignancy.
56. In addressing the images of the left ovary depicted in the MRI scan in his direct evidence, Professor Whitehouse seemed to resile significantly from the opinion expressed in his report. Pointing to the still image described as transverse image 16, Professor Whitehouse conceded that the fluid visible around the ovaries was compatible with the normal variation in such images and not, on balance, particularly worrisome. Referring to coronal image 17, Professor Whitehouse pointed to the superolateral (i.e. upper and outer) aspect of the ovarian capsule as demonstrating a slightly fuzzy edge (which he had referred to in his report as raising a suspicion of an exogenous tumour extension there), before acknowledging that the image could also be considered to depict a normal variant. In concluding his evidence in chief, Professor Whitehouse conceded that he would now ‘dilute’ the possibility of a cyst adenocarcinoma on the left ovary to one that was just slight.
57. Turning to the right ovary, Professor Whitehouse identified four features of the depiction of it in two still images from the MRI scan – coronal image 15 and transverse image 13 – that he believes prevented that scan from being properly reported as normal.
58. The first is what Professor Whitehouse acknowledged might be viewed as two normal follicular cysts close together but which he considered to be a single lobulated and septated cystic mass.
59. The second is what might be considered the adjoining surfaces of those two normal follicular cysts but what Professor Whitehouse considered to be a septation (or bridge) across the middle of that single lobulated cystic mass, together with what Professor Whitehouse felt might be another less developed septation more faintly visible in the lower part of that mass. In his evidence in chief, Professor Whitehouse referred to the first septation as ‘quite substantial.’
60. The third is what Professor Whitehouse considered an irregular edge on part of that cystic mass or lesion, suggestive to him of a possible carcinoma, adjacent to a black or grey fuzzy area external to that part of the edge of the cyst or mass, which he acknowledged might depict normal blood vessels but which he believes should have caused concern because carcinomas are vascular.
61. The fourth is what Professor Whitehouse considered to be an irregular portion of the southwestern edge of the capsule of the right ovary (as depicted in coronal image 15) with a small amount of tissue bulging out.
62. Under cross-examination, Professor Whitehouse accepted that he had been aware of Ms L’s current diagnosis of stage IV adenocarcinoma when he first viewed the MRI scan images, although he emphasised that he tried hard to avoid the element of retrospection. He accepted that, in those images, Ms L’s right ovary was normal in size. He also accepted that in his written report he had made no suggestion of any breach or rupture of the capsule of the right ovary nor had he subsequently delivered any addendum to that report.
ii. the evidence of the plaintiffs’ other experts on the negligence issue
63. For his part, Professor Jones acknowledged that, while his evidence was premised on the assumption that Professor Whitehouse’s interpretation of the June 2016 MRI scan was correct, that issue was outside the realm of his particular expertise. The evidence of Mr Skidmore was that, while the appropriate expert to offer evidence to the court on the proper interpretation of an MRI scan was a consultant radiologist, he did reserve the right as a surgical oncologist to criticise any statement of a radiologist that he did not agree with. He saw nothing to disagree with in Professor Whitehouse’s evidence on the June 2016 MRI scan. Perfectly understandably, as a gynaecological pathologist, Professor Wells did not express any view on the June 2016 MRI scan but, rather, indicated in his report that he was relying on Professor Whitehouse’s opinion that it demonstrated a ‘bilateral ovarian cystadenocarcinoma’.
64. Although the evidence of the non-radiological experts on each side was primarily directed to the second issue in the case (i.e. the likely stage of Ms L’s ovarian cancer in June 2016 and the prospects for successful treatment if it had been detected then, as those questions relate to her claim for loss of opportunity for therapy or cure), one aspect of the conflicting evidence of Professor Jones for the plaintiffs and Professor O’Reilly for the defendants was addressed by the plaintiffs’ counsel at considerable length with various witnesses as directly material to the issue of negligence. That is the conflict between Professor Jones’ opinion (based on a mathematical model) that ‘a small primary tumour probably would certainly have existed in June 2016’, and Professor O’Reilly’s opinion that ‘it is likely that the radiology assessments became positive in the months prior to November 2017’. For my part, I am not sure that that represents a real controversy. When a tumour came into existence, on the one hand, and when it became radiologically detectable in the ovaries, on the other, seem to me to be entirely distinct questions.
65. In his evidence, Professor O’Reilly observed that a high proportion of the high-grade tumours that cause ovarian cancer originate elsewhere in the body, so that you can scan the ovary early on without success because it is often the landing zone for the tumour, not its starting point. In his report, Professor O’Reilly noted that the majority of women who develop ovarian cancer present with late stage disease where curative therapy is not possible, which has prompted multiple studies to evaluate potential screening programmes, so far without success. The lack of benefit from attempts at screening relates to the biology of the disease, which develops insidiously, and to the shortcomings of existing blood tests and imaging modalities.
iii. the evidence of Dr Q
66. Dr Q gave evidence in his own defence. In doing so, he acknowledged the terrible situation in which Ms L and her family find themselves in that she is in the throes of an insidious and cruel disease.
67. Dr Q confirmed that Ms L had been referred to him by her consultant gynaecologist in February 2016 for an abdominal and pelvic ultrasound, which he carried out on 11 March 2016.
68. Dr Q explained how such examinations are generally conducted. Patients are asked to come in with a full bladder to enable good imaging to be produced of the uterus and ovaries. Contact gel is applied to the abdomen and a hand held probe is moved over it, transmitting moving images to the screen of an adjacent monitor. The operator compares those images shown in real time with his or her knowledge of the relevant anatomy in three dimensions. The frame rate of images produced is anything up to 20 frames per second, and the eye and the brain will perceive more detail and resolution from that high frame rate than they will from the limited number of representative snapshot images that the operator takes to archive for future reference. Dr Q stated that it follows that he would have had the benefit of clearer images than those later commented upon by Professor Whitehouse. The examination of the abdomen lasts 10 to 15 minutes. For women, it starts at the pelvis and progresses to the upper part of the abdomen. The length of time spent on the examination of the ovaries will depend on whether any abnormality is observed but that examination will be done in the first five minutes of the overall examination, assuming the patient’s bladder is adequately full.
69. Dr Q then described his ultrasound examination of Ms L’s ovaries. Her bladder had been adequately full. Her ovaries were of normal size and shape, had normal follicles, and contained no masses or abnormality. There was no ascites (that is, large buildup of fluid) present in the abdomen. The uterus appeared normal also.
70. Under cross-examination, Dr Q denied that his examination almost missed Ms L’s left ovary, pointing out that Professor Whitehouse appeared to have based his view to that effect on his interpretation of a limited number of static images. Dr Q stated that since the abdominal ultrasound examination he had performed disclosed that Ms L’s ovaries were normal in appearance, there was no need to perform a transvaginal ultrasound, an examination that Ms L had previously declined. Since he had obtained a clear image of normal ovaries, he did not agree that a transvaginal ultrasound was demanded by the results of the abdominal ultrasound as Professor Whitehouse had suggested. For the same reason, he did not accept that a doppler ultrasound was warranted.
71. Turning to the MRI scan that was carried out on 29 June 2016, Dr Q explained that T1, T2 and STIR are different types of MRI sequences. MRI works on the basis of emphasising the signal from the various cells in the body in proportion to their proton content. Protons are hydrogen ions. They vary in density according to the fluid content of tissue structures and there is an enormous spectrum of fluid content, and thus protons, throughout all tissues of the body. MRI is very good at discriminating in quite good detail between various tissue structures for that reason. To perform an MRI scan, a patient is placed within what is, essentially, a large bore of wound-up copper wire and is, thus, magnetised. That magnetisation is manipulated by turning on and off high frequency pulses of electricity and, in between those pulses, the protons within the body change position and shape, emitting a signal that is used to produce an image. Applying the pulses in different ways allows the signal from either water or fat to be emphasised. A T1 sequence emphasises the signal from fat; a T2 sequence that from water. There are myriad other sequences that combine or modify those two approaches in different ways. A STIR sequence is a modification that suppresses fat signal and enhances water signal. There are two relevant imaging planes: axial, representing slices of the body viewed from top to bottom; and coronal, representing slices of the body viewed from front to back.
72. A turbo spin echo sequence is a standard type of T2 sequence that shortens the time a patient needs to spend in the MRI machine. The average scan time is usually between 20 and 30 minutes. There is an obvious trade-off between the duration of a scan, on the one hand, and the variety and quality of image sequences that can be produced on the other. The optimum balance results in a broad average scan time of 20 to 30 minutes for most patients and most body parts.
73. The images that result from an MRI scan are stored in digital format. A consultant radiologist has access to a high specification monitor screen, usually viewed in a darkened room to eliminate noise and light distraction. There is a software programme that allows the images to be viewed in different ways. Dr Q’s usual habit would be to scroll through all of the different sequences that had been performed – in this case, six (T1, T2 and STIR sequences, both axial and coronal) – simultaneously on the same screen. By using a computer mouse, it is possible to scroll backwards and forwards, cross-checking images, so that no scan report is based on any one particular snapshot or image. A particular sequence can be viewed in isolation or in conjunction with other sequences, images can be magnified, and contrast can be adjusted to assist in interpretation.
74. Using equipment that had been installed in the courtroom, Dr Q went through the various images from the MRI scan of Ms L’s pelvis on 29 June 2016. Dr Q provided the following description of the the steps that he took in assessing the images of Ms L’s ovaries.
75. First, he looked at overall ovarian size. The average ovarian size in a woman between the age of 31 and 40 is 2.5 cm. The upper level of normal in that age group is 5.6 cm. Ms L’s right ovary was 2.5 cm.
76. Second, he looked for any follicles or cysts greater than 3 cm. As the word cyst has taken on a negative connotation, implying a pathology, and as cysts containing follicles are a normal – indeed, necessary – part of the physiology of the ovary, the convention is to describe cystic structures of up to 3 cm within the ovary as follicles if they are simple, by which is meant that they have thin, well-defined walls without any papillary projection (i.e. solid looking nodular excrescence) within them. The follicles within Ms L’s right ovary were simple, uniform and without any papillary, or nodular, excrescences.
77. Where Professor Whitehouse had identified what he believed might be a single lobulated and septated cystic mass in the right ovary, Dr Q saw two adjacent follicles abutting one another, one of which contained a single thin septation. Under cross-examination, Dr Q stated that the combined thickness of those abutting walls (or, in the view of Professor Whitehouse, that substantial septation) could be measured, using a feature of the imaging software, at no more than 1.89 mm, whereas the upper thickness limit for normal septation is 3mm. The single thin septation within one of those follicles was more clearly still within normal parameters. To refer to the first feature as a ‘quite substantial septation’ as Professor Whitehouse had done was to substitute a relativistic term and, hence, a subjective judgment, for the medical criterion (i.e. an objective measurement) that radiologists were expected to apply. By definition, features that are normal require no further investigation.
78. Outside the follicles in the right ovary, Dr Q observed connective tissue of the ovary (known as stroma) of normal size and regular appearance, the combination of bright and dark parts in the image reflecting the vascularity of, or blood flow through, that tissue.
79. On scrolling backwards and forwards between the various images in the relevant sequence, Dr Q stated that, despite what Professor Whitehouse considered to be an irregular portion of the southwestern edge of the capsule of the right ovary (as depicted in coronal image 15) with a small amount of tissue bulging out, the capsule of the ovary there was intact, which was confirmed in the equivalent STIR sequence images. In describing a small amount of tissue bulging out, Dr Q thought Professor Whitehouse might be referring to an area depicted in coronal image 15 just external to the southwestern edge of the right ovary. But scrolling through the coronal images and comparing them with the axial sequence, continuity of the wall or capsule of the ovary is evident. And while the resolution of the STIR sequence images is less clear, if there was tissue mass extending beyond the capsule wall they should depict a very clear, dark filling defect there but they do not.
80. To summarise his view on the MRI scan images of Ms L’s right ovary, Dr Q wished to emphasise that they depict a normal sized ovary with a normal appearance and the complete absence of any nodular projections from either septae or the follicular walls.
81. Turning to the left ovary, Dr Q noted that its appearance was slightly different. There was a greater number of tightly packed follicles, reducing the size of the medullary stroma, or connecting tissue, within the ovary in consequence. The ovary measured 2.4 cm and was therefore within the normal range. The divisions between the follicles were sharply defined and they were thin walled. By combining different images, it was possible to be satisfied that the capsule of the ovary had a regular appearance. There was an area of greyness outside the capsule that, to the unwary, might look like a filling defect but which was, in fact, the result of turbulence in the fluid in the T2 sequence caused by the use of the turbo spin echo technique. The slightly fuzzy edge that Professor Whitehouse had pointed to on the superolateral aspect of the left ovarian capsule in one particular image was, in Dr Q’s view, a common effect observed when viewing an intersection upon a curved surface and Dr Q could see nothing to justify any suspicion of an exogenous tumour extension there. Thus, his conclusion was that it was a normal ovary.
82. Under cross-examination, Dr Q explained that the capsule of an ovary is a spherical object, viewed in each MRI scan image across a single plane. Where a single slice or image intersects the curve of the surface of the capsule, a blurred image of that surface may result, creating a misleading impression that there may be a breach in the capsule at that point. For that reason, any such image must be viewed in conjunction with the surrounding images and perhaps also from another plane for the viewer to form an accurate overall impression. Adopting that standard approach in this case, Dr Q formed the opinion that the images of the capsule of Ms L’s left ovary were no different than those of the thousands of other ovaries that he has examined every year and, hence, that the ovary was normal in appearance.
83. In re-examination, Dr Q stated that he had been greatly puzzled by the reference in Professor Whitehouse’s report (though not in his evidence to the court) to ‘the suspicion of an exogenous tumour extension from the superolateral aspect of the ovarian mass lesion’ in the left ovary. Dr Q had observed no ovarian mass lesion in the left ovary and, indeed, in his evidence to the court, Professor Whitehouse appeared to abandon that suggestion. Dr Q was not sure what Professor Whitehouse intended to convey by his use of the term ‘exogenous tumour extension’. Did he mean a mass in the ovary extending outside it or a mass outside the ovary extending into it? Dr Q could identify neither such feature. Dr Q thought that Professor Whitehouse might have been referring to a certain grayness in the image at that location, which Dr Q believes clearly denotes typical T2 signal fluid. The sequence concerned is a turbo spin echo one. Such sequences misregister the turbulence of free fluid on T2 sequences as a filling defect, thereby creating a potentially misleading image. The STIR image of the same location demonstrates a uniform fluid signal. In Dr Q’s view the images of the left ovary depict a normal ovary with a capsule that was intact, with no external tumour extending into it and no internal tumour extending out of it.
84. Under further cross-examination, Dr Q stated that, when Ms L was referred to him in May 2016 for an MRI scan, the index of suspicion of ovarian cancer was low. Neither Ms L’s GP nor her gynaecologist had arranged for a CA 125 test, which is a protein marker blood test used to look for early signs of ovarian cancer, and Ms L had not presented with a family history of ovarian cancer. The March 2016 ultrasound of Ms L’s abdomen, including her ovaries, was normal. Ms L’s symptoms – identified in the GP’s letter of referral for an MRI scan as pressure to urinate, bloatedness, and tenderness in the suprapubic region over her bladder – were not specific to ovarian cancer, being found in thousands of women with normal ovaries who are suffering from other more common conditions, such as bowel obstruction The overarching concern of Ms L’s gynaecologist was bowel tethering and the possibility of adhesions from her most recent caesarean section. Dr Q stated that, nonetheless, caution is always the watchword and one of the great aphorisms that he was taught as a young radiologist is that it is not possible to exclude anything.
85. It was put to Dr Q that the evidence of Professor Whitehouse had been that, when professional persons were suggesting ovarian issues or an ovarian mass, that was enough to warrant the conduct of a scan using gadolinium as an enhancing agent. Dr Q replied that gadolinium should only be given where an abnormality of the ovaries had been found on an ultrasound examination or an MRI scan. The administration of gadolinium in the examination of a normal ovary is not recommended because it can result in false positive enhancement and because, as has become evident in the last four or five years, it creates the risk of deposition disease. Had any papillary projection been evident in the MRI scans that were conducted, then – balancing the risks – Dr Q would have administered gadolinium. But none was.
86. Dr Q also disagreed with Professor Whitehouse’s suggestion that a diffusion weighted sequence of images should have been taken. Dr Q stated that a diffusion weighted sequence is a modification of the basic T1 or T2 sequence, which is easily performed and useful for many purposes but which has no proven role in the detection of ovarian cancer. The best evidence for its use in the context of ovarian cancer is in analysing low T2 signal solid masses, not cystic masses. In Dr Q’s considerable experience of using diffusion weighting imaging in the staging of rectal cancers, he had found it unreliable in characterising the primary tumour, although it was of some use in the assessment of abnormally sized lymph glands in the region.
iv. the evidence of Professor Lawler
87. On behalf of the defendants, Professor Lawler was asked to report on the June 2016 MRI scan of Ms L’s abdomen. To eliminate – or, at least minimise – the risk of hindsight bias, Professor Lawler was initially given only the information that was available to Dr Q on that date and was not informed of Ms L’s subsequent medical history, culminating in the diagnosis of stage IV ovarian cancer in November 2017.
88. Professor Lawler reported as follows:
‘History. Pressure to urinate, frequency and abdominal bloating. Prior transabdominal ultrasound was reported as normal. Case discussed and MRI pelvis recommend.
Technique. T2 Haste localiser, Coronal & Axial STIR, Coronal and Axial T1 TSE, Coronal and Axial T2, No sagittal imaging. No contrast enhanced imaging.
No comparisons submitted.
FINDINGS
Uterus C-section scar suggested. Normal endometrial lining, junctional zone and myometrium. Prominent vasculature of LEFT myometrium – can be normal variant.
Small filling defect in the cervix below which we cannot discriminate further. MRI is not for cervix primary assessment if this is a concern. Normal cervix stroma.
Both ovaries identified and normal
No fallopian tube abnormalities
Small free fluid in the pelvis which can be a normal variant
Bladder and urethra normal
Limited imaging of rectum normal
Bone marrow signal normal. Visualised SI joints normal. Limited imaging of hips is normal.
No regional adenopathy
Normal flow voids of vascular structures
CONCLUSION
There is no finding concordant with the symptoms described in the referral.
MRI within normal limits.’
89. Professor Lawler was then apprised of Ms L’s subsequent medical history and of the allegations of negligence against Dr Q that are now being made on her behalf, in response to which he prepared a report dated 11 February 2019.
90. In that report, he first confirmed that, having been apprised of those matters, he did not believe that he would have interpreted the scan differently in his routine practice.
91. He then noted that the March 2016 ultrasound examination was done to investigate symptoms of ‘pressure to urinate, frequency and bloating.’ That was a reasonable test and was reported as normal, an interpretation supported by the results of the June 2016 MRI scan.
92. Professor Lawler considered that these imaging tests (ultrasound and MRI) were performed for reasonable clinical indication, done technically in an appropriate manner and interpreted correctly for the indications provided.
93. In cross-examination, it was put to Professor Lawler that the recommended form of ultrasound examination to rule out ovarian cancer is a transvaginal, rather than transabdominal, one. Professor Lawler answered that that is not the case when you are dealing with an undifferentiated patient presenting with the symptoms that Ms L exhibited in March 2016 – i.e. the same symptom complex as that which 999 other women without ovarian cancer might exhibit. It is not the practice to do a transvaginal sonogram on every menstrually active young woman demonstrating such symptoms because it is an invasive, undignified procedure that a lot of women will quite reasonably refuse to undergo. For that reason, it will only be done if something has been found on a transabdominal sonogram that requires further investigation.
94. On the views expressed by Professor Whitehouse about the imaging from the June 2016 MRI scan, Professor Lawler’s evidence was broadly as follows.
95. He did not see any of the things that Professor Whitehouse described in his report concerning the left ovary, and the language used in the description of those things was not common vernacular in his professional experience. He saw no features suspicious of cystadenocarcinoma. No guidelines or practices recommend an MRI scan as a reliable tool for the detection of cancer in ovaries less than 2.5 cm in diameter. What Professor Whitehouse identified in the pelvis as ascitic fluid of the kind evident in 50% of malignant ovarian tumours, Professor Lawler identified as normal physiologic fluid of the kind that is almost universal in normal female pelvic imaging. The presence of small quantities of pelvic fluid is not an independent predictor of ovarian malignancy and it would be highly unusual to find manifest malignant ascites in the absence of a large tumour primary lesion.
96. In particular, he did not see, or suspect, anything extending beyond the confines of that ovary, much less did he see, or suspect, an exogenous tumour extension. The term ‘exogenous’ is not part of the common terminology of radiology reports. The particular feature that he thought Professor Whitehouse might have been referring to was outside the ovary and did not fit any of the diagnostic criteria currently accepted as a sign of ovarian cancer. There was, thus, nothing in the imaging of the left ovary that called for contrast enhancement by the intravenous administration of gadolinium , a procedure that is not routinely used when an investigation is done for bloating and which comes with attendant risks. The main one under review at present is that of deposition of gadolinium on the brain. It is currently the subject of litigation in the United States of America.
97. On the right ovary, Professor Lawler did not accept that it contained a substantial cystic mass that was either a malignant or borderline malignant cystadenocarcinoma. In his view, ‘substantial’ is an imprecise term that is inappropriate to describe any mass found in a pelvic MRI. Modern MRI imaging software is replete with sophisticated tools for measuring volume, length, circumference and so forth. The ovary itself was normal in volume and size. If ‘substantial’ was intended to mean enlarged, neither the ovary nor any cyst within it met that criterion. MRI is poor at early detection of ovarian cancer precisely because it cannot resolve small volume malignant disease and because it is poor at differentiating such small changes from a myriad of benign entities. These are pathologies that pathologists struggle to identify under the microscope.
98. Professor Lawler acknowledged that, because MRI is a sophisticated technology, it is often perceived by lay persons as an infallible diagnostic one, before going on to state that it is not approved either nationally or internationally as an ovarian cancer screening tool because it has consistently failed in that task. In his own practice, he had rarely if ever diagnosed organ confined ovarian carcinoma in normal sized ovaries through such imaging. Sometimes, that diagnosis was made retrospectively after a patient’s ovaries had been surgically removed for other reasons (and, presumably, some tissue had been histopathologically examined). In those situations, where it transpired that the patient had previously undergone a hip or pelvic MRI, Professor Lawler was often asked to go back and look at the images to see if anything had been missed but could never find anything. He observed that, unfortunately, MRI works best in imaging ovarian cancer in those patients who benefit least from it, which is to say that it is good at characterising established disease but poor at excluding small organ confined disease.
99. Professor Lawler explained that the only tool accepted currently to triage patient risk for ovarian cancer is the Risk of Malignancy Index or RMI, which is based on ultrasound features of malignancy, menopausal status and biochemical CA-125 level. CA-125 is a protein marker that is a cancer antigen and there is a blood test for it. Levels increase sharply in people with ovarian cancer, though not necessarily in the early stages of the disease. Those levels also rise in the presence of a variety of other conditions. Thus, while a useful diagnostic tool, a CA-125 test is not definitive either way.
100. In cross-examination, it appeared to be suggested to Professor Lawler that Dr Q should have sought to convene a multidisciplinary team meeting (‘MDM’) in respect of Ms L. It was common case between the experts that MDMs are now a common feature of care and treatment in major cancer centres. Such meetings are attended by a combination of specialists (such as oncologists, radiologists, pathologists, gynaecologists and clinicians) involved in the treatment or care of patients who have been diagnosed with cancer or, at the very least, who are the subject of a very high index of suspicion of cancer. The suggestion on behalf of Ms L that Dr Q should have sought to convene an MDM appeared, in turn, to be the intended gateway for the argument that, having done so, Dr Q, a consultant radiologist, should then have suggested or directed, as part of his duty of care, a CA-125 blood test, or a CT scan, or a laparoscopy for Ms L, beyond the MRI scan of her pelvis upon which he had already reported.
101. Professor Lawler’s evidence was that such multidisciplinary team meetings are conducted almost universally for patients with an established cancer or, at the very least what he described as a post-operative ‘confounder’. Hospitals would not have the capacity to convene an MDM for every patient whose non-specific symptoms are under investigation simply because a diagnosis of ovarian cancer consistent with those symptoms has not yet been excluded, and no such practice exists.
102. On behalf of Ms L, it was put to Professor Lawler that, in effect, Dr Q should have been particularly alert to, or focussed upon, the risk of ovarian cancer in reviewing the June 2016 MRI scan. For example, it was suggested to him that Ms L’s reported symptoms at that time were not merely consistent with ovarian cancer but, in counsel’s words, ‘shouted it out’. Professor Lawler responded that that would be like concluding that, if everyone with tuberculosis has a cough, then everyone with a cough has tuberculosis. Professor Lawler estimated that, for every five thousand pre-menopausal women who present at his clinics, half would present with abdominal pain, bloating and bowel disturbance, whereas fortunately, less than 1 in 1,000 of the latter cohort will have ovarian cancer.
103. In relation to the suggestion that the reference in the MRI scan referral letter from Ms L’s gynaecologist to the ‘need to out-rule ovarian mass’ was language intended to indicate concern about the possibility of ovarian cancer, Professor Lawler observed that 80% to 90% of the ovarian masses found in women under 50 are not cancer. More fundamentally, Professor Lawler stated that, whether there was a high or low pre-existing suspicion of ovarian cancer, the level of suspicion should not have affected the manner in which the the relevant tests were done and Dr Q had done them appropriately.
104. Counsel for Ms L was critical of Professor Lawler’s inability to understand what Professor Whitehouse had meant when, in his evidence in chief, he had referred to the septation he perceived across a single lobulated cystic mass in Ms L’s right ovary as ‘quite substantial.’ Professor Lawler was asked to consider the contents of a paper in Radiology, the journal of the Radiological Society of North America, entitled Management of Asymptomatic Ovarian and Other Adnexal Cysts Imaged at US: Society of Radiologists in Ultrasound Consensus Conference Statement (Vol. 256: Number 3 – September 2010, 943). In particular, counsel pointed to the following text, at the commencement of a paragraph headed ‘Cysts with Characteristics Worrisome for Malignancy: Sonographic Features and Recommendations’ (at 948):
‘Thick septations (≥3 mm), solid elements with flow at Doppler US, and focal areas with wall thickening (≥3 mm) are very worrisome for a malignant neoplasm, particularly when seen in association with omental or peritoneal masses or a moderate or large amount of ascitic fluid in the pelvis ….’
105. In a telling exchange, counsel for Ms L put it to Professor Lawler that Professor Whitehouse’s use of the term ‘substantial septation’ should be understood in close relation to the term ‘thick septation’ as employed by the Society of Radiologists panel. Professor Lawler made two observations in response. First, as the earlier part of the text of the Conference Statement makes plain, there is no radiological reporting requirement at all in the context of any cyst of 3 cm or less in diameter in a woman of reproductive age. The diameter of Ms L’s right ovary (not to mention that of any cyst within it) was reported as just less than 2.5 cm in the June 2016 MRI scan. Second, the septation that Professor Whitehouse referred to as ‘quite substantial’ measured 1.89 mm (significantly less than 3 mm) and could not, therefore, have been considered ‘thick’ as the Conference Statement employs that term. Professor Lawler might have added that the term ‘substantial septation’ is given no definition in that Conference Statement and is, thus, devoid of objective meaning in that context.
The principles governing claims of medical negligence
106. The parties made no submission to the court on the applicable law. The controlling authority on the particular principles that govern claims of medical negligence remains the decision of the Supreme Court in Dunne v National Maternity Hospital [1989] IR 91 ( per Finlay CJ, Griffin and Hederman JJ concurring). The principles of direct or potential relevance in this case are the first five. They are stated as follows (at 109):
‘1. The true test for establishing negligence in diagnosis or treatment on the part of a medical practitioner is whether he has been proved to be guilty of such failure as no medical practitioner of equal specialist or general status and skill would be guilty of if acting with ordinary care.
2. If the allegation of negligence against a medical practitioner is based on proof that he deviated from a general and approved practice, that will not establish negligence unless it is also proved that the course he did take was one which no medical practitioner of like specialisation and skill would have followed had he been taking the ordinary care required from a person of his qualifications.
3. If a medical practitioner charged with negligence defends his conduct by establishing that he followed a practice which was general, and which was approved of by his colleagues of similar specialisation and skill, he cannot escape liability if in reply the plaintiff establishes that such practice has inherent defects which ought to be obvious to any person giving the matter due consideration.
4. An honest difference of opinion between doctors as to which is the better of two ways of treating a patient does not provide any ground for leaving a question to the jury as to whether a person who has followed one course rather than the other has been negligent.
5. It is not for a jury (or for a judge) to decide which of two alternative courses of treatment is in their (or his) opinion preferable, but their (or his) function is merely to decide whether the course of treatment followed, on the evidence, complied with the careful conduct of a medical practitioner of like specialisation and skill to that professed by the defendant.’
Findings on negligence
107. In conducting the live ultrasound examination in March 2016, Dr Q had full control of the imaging process and the benefit of moving images in real time; Professor Whitehouse was viewing only a limited number of still images from that examination and was doing so while subject to the risk of hindsight bias.
108. In reviewing the results of the June 2016 MRI scan, Dr Q did so contemporaneously and Professor Lawler did so blind. Professor Whitehouse was, once again, subject to the risk of hindsight bias because he was aware of Ms L’s later diagnosis when he did so. Professor Whitehouse stated that he tried hard to avoid the element of retrospection but I cannot be satisfied that his efforts were successful.
109. Both Dr Q and Professor Lawler were able to demonstrate that each had reviewed the relevant imaging by reference to objective criteria set out in widely accepted guidelines for cancer detection; e.g. whether the ovaries were enlarged beyond a specified normal size range; whether septation thicker than 3 mm was visible in a cyst or cysts larger than 3 cm; whether nodules or papillae were present in any cyst; whether blood flow was present or absent in any such nodule or papilla, and so on. The review conducted by Professor Whitehouse was more impressionistic and much less clearly or obviously linked to any identified objective criteria or published guidelines.
110. It is principally for those reasons that I prefer the evidence of Dr Q and Professor Lawler to that of Professor Whitehouse on each of the points in controversy between them.
111. Thus, I find that there was no failure of care on the part of Dr Q, nor did he deviate from any general or approved practice, nor did he follow any general or approved practice that was subject to an obvious inherent defect. He acted with the ordinary care which a medical practitioner of equal status and skill should have shown. It follows that, applying the Dunne principles, the plaintiffs have failed to discharge the onus of proof necessary to establish negligence on the part of Dr Q in the context of the failure to diagnose Ms L’s ovarian cancer prior to November 2017.
Conclusion
112. The plaintiffs’ claim is dismissed.
Christine Rossiter v Norma Donlon
2018 7379 P
High Court
28 February 2019
unreported
[2019] IEHC 105
Mr. Justice Barr
February 28, 2019
JUDGMENT
I. Introduction
1. The plaintiff is 36 years of age having been born on 12th March, 1982. She is a married lady with two children, aged 17 years and 7 years. The plaintiff has breast cancer, with metastatic disease in other parts of her body, namely her lower back, liver and brain. Her prognosis for survival in November 2018 was put at six months.
2. The defendant is a medical doctor, who at the time of the matters complained of, practiced as a GP in a two doctor practice known as the Hilltop Surgery, Raheny, Dublin.
3. In essence, the plaintiff’s case is that the defendant was negligent in the care and advice which she gave to the plaintiff when she attended the defendant on 24th September, 2014. It is the plaintiff’s case that in the three months prior to that visit, she had developed a lump in her left armpit, which she had discovered while in the shower. When it persisted, she became concerned and did an internet search. This revealed the possible connection between a lump in the armpit and breast cancer. The plaintiff was very concerned by this. She made an appointment to see a female GP, as she stated that she expected that a breast examination would be done.
4. It is alleged by the plaintiff that at a consultation which she had with the defendant on 24th September, 2014, the defendant performed an inadequate examination of her left axilla and did not offer to do a breast examination and, therefore, none was performed. The plaintiff alleges that the defendant simply reassured her that she could not find anything of concern following her examination of the axilla. It is alleged that the defendant was negligent in failing to carry out an adequate examination of the axilla and was further negligent in failing to offer and carry out a breast examination on that date.
5. The plaintiff further alleges that the defendant was negligent in failing to advise her to return for a review within two/six weeks, due to the fact that while the defendant could not find any lump under her arm on examination, the plaintiff was still able to feel the lump there.
6. It is alleged that in failing to do these things, the defendant acted negligently and in breach of the National Breast Cancer GP Referral Guidelines, issued by the HSE in April 2009.
7. In her defence, the defendant accepts that she saw the plaintiff on 24th September, 2014, when the plaintiff had a concern about a lump in her left armpit. The defendant candidly stated that with the exception of two things, she could not recall the details of that consultation. The two things which she did recall, were that the plaintiff said that she did not have any family history of breast cancer and that she had declined a breast examination when offered one by the defendant.
8. Other than that, the defendant had to rely on her notes, which had been made by her on the computer immediately after the plaintiff left the consultation room on 24th September, 2014. Those notes were in the following terms:-
“Concerned re? Axillary lump x 3 months
Non tender
o/e no lump palpable in axillae, declined breast exam —
no relevant FHX breast disease.
note long standing eczema o arms
imp – ? resolved LN secondary to ezcema
reassure
TCI if recurs.”
9. The defendant maintained that her notes represented an accurate account of what had been said and done at that consultation.
10. To summarise very briefly the events which transpired after September 2014, it is the plaintiff’s case that the lump in her left armpit persisted, but due to the reassurance which she had been given by the defendant, she did nothing about it.
11. On 16th August, 2016, the plaintiff attended a Dr. Mairead Redahan at a different clinic in Raheny. She went there because she was concerned about a lump on her breast, which she had noticed approximately three weeks previously. Dr. Redahan examined her breasts and found hardness in the left breast and inversion of the nipple. She did an axillary examination, which was negative. In view of her findings, she made an urgent referral to the Breast Clinic.
12. In the following weeks, scans revealed a tumour measuring 5cm in the plaintiff’s left breast. An ultrasound scan of the left axilla revealed mild cortical thickening. Due to this finding, a biopsy was carried out of the lymph node, which revealed malignancy in the node of the same type as that found in the breast. The original treatment plan was for the plaintiff to have a mastectomy and nodal clearance, to be followed by adjuvant chemotherapy and radiotherapy for her chest. However, subsequent scans revealed that the disease had spread to other parts of her body. For that reason, the surgery was not done. Instead, the cancer was treated with a variety of chemotherapy and hormone therapy drugs.
13. Unfortunately, while there was some limited response to hormone therapy, the treatment generally has not been successful. The plaintiff’s current prognosis is not good.
14. As well as the issues of negligence noted above, the court also had to consider a technical issue, which was what was the probable size of the breast tumour in 2014. For the purposes of this introduction, it is only necessary to describe the conflict between the experts on this issue in the briefest terms. The plaintiff’s expert, Prof. Bundred is of the view that extrapolating back from the size of the breast tumour found in August 2016, the breast tumour probably measured 1cm/1.5cm in September 2014.
15. The defendant’s expert, Prof. Price, is of the view that the breast tumour was more likely to have been in the region of 0.1cm/0.6cm in 2014.
16. The key area of difference between the experts arose due to the fact that they each came to a different conclusion as to the appropriate tumour doubling time to be adopted in this case. Prof. Bundred put that at between 100/130 days, whereas Prof. Price put it at 44/80 days. The significance of this issue lies in the fact that there was general agreement that a breast tumour of less than 1cm in size, would not be palpable on clinical examination. Thus, if the tumour in the breast was less than 1cm in size in 2014, it would probably not have been palpable on clinical examination by the GP
17. The final issue for the court was the question of quantum, which would arise if findings were made in favour of the plaintiff on the liability and technical issues.
II. Brief Chronology of Relevant Events
18. What follows is a very brief outline of some of the more relevant events in chronological order:-
2012/2014 The plaintiff attended both the Hilltop Clinic and the Centric Clinic in Raheny in relation to various longstanding complaints, including asthma, eczema and soft tissue injuries arising out of a RTA in 2008.
24/09/14 The plaintiff attended with the defendant for the consultation, the subject matter of these proceedings.
12/12/14 The plaintiff re-attended with the defendant with a complaint concerning her eczema.
Jan 2015 —
Aug 2016 The plaintiff had approximately ten visits to various doctors at both clinics in relation to various complaints. There was no complaint made in relation to her axilla.
16/08/16 The plaintiff attended with Dr. Mairead Redahan in relation to a lump on her breast. Dr. Redahan’s note was admitted in evidence without formal proof. It read as follows:-
“noted lump 3/52 ago.
nipple also appeared different
mastitis 5 years ago.
no fam hx breast ca
o/e:
some inversion left nipple (new)
hardness palpable behind left nipple 12 o’clock position ? lump
no other mass/LN palpable.
plan: refer breast clinic to r/o malignancy .”
23/08/16 Plaintiff seen in Breast Clinic. On clinical examination a lump was palpable at 4 o’clock underlying the areolar complex. The plaintiff was sent for a mammogram and ultrasound scan.
23/08/16 Mammogram revealed a spiculated mass of at least 50mm with associated nipple retraction and some overlying skin thickening. Right breast was normal.
23/08/16 Ultrasound of the left axilla revealed a lymph node with mild cortical thickening. A biopsy was taken. Following biopsy, histopathological report demonstrated an, at least, grade 2 invasive ductal carcinoma with associated high grade in situ carcinoma and probably lymphovascular invasion. The tumour was greater than 90% oestrogen and progesterone receptor positive and HER 2 negative. Ultrasound guided biopsy of the axilla showed metastatic disease of similar pathology.
30/08/16 Clinical examination on surgical review showed that there was a 4cm thickening behind the left nipple with some breast ulceration.
01/09/16 Initially CT of the chest and abdomen reported no evidence of metastatic disease. However, on review, at a multidisciplinary team meeting, an addendum was produced on 06/09/16, which noted a 2cm round lymph node in the aortopulmonary window which was suspicious of metastatic disease.
08/09/16 PET scan revealed focal increased uptake in L1 and L3 bones suggesting metastatic disease.
13/09/16 Bone scan demonstrated uptake in L1, which corresponded to a focal underlying lesion on PET – CT and uptake in L3, T12 and sacroiliac joint, which could not be identified on CT. The conclusion was that there was likely suspicion of metastases in, at least, L1 and L3.
04/10/16 A bronchoscopy and endobronchial ultrasound scan was undertaken and a 1cm node in the aortopulmonary region was biopsied. Histology showed metastatic breast cancer which was HER 2 negative, weekly progesterone receptor positive and too small a sample to assess oestrogen status. A diagnosis of metastatic breast cancer was made at this stage.
III. Summary of Evidence on behalf of the Plaintiff
III.I Evidence of the Plaintiff
19. By way of background, the plaintiff stated that her usual GP at the Hilltop Surgery was Dr. O’Connor. She had attended him over the years for various complaints including mastitis, eczema and soft tissue injuries arising out of an RTA.
20. In 2014 she noticed a lump in her left armpit when she was in the shower. At first, she did not think much of it. When the lump remained for a few months, she did a Google search in relation to it and discovered that it could be linked to breast cancer. She rang the clinic and made a request to be seen by a female doctor, as she expected that there would be a breast examination.
21. On 24th September, 2014 she arrived at the clinic for her appointment with the defendant. She was called into the doctor’s consultation room. She told the defendant that she had a lump under her left arm. The defendant entered this in the computer. She noted that the plaintiff was only 32 years old.
22. The plaintiff stated that she then went to the bed in the consultation room and lay down on it for an examination. She lifted her left arm up behind her head. She was not sure if she removed her top, as her armpit area may have been accessible if she was wearing light summer clothing. She was sure that she did not remove her bra. The plaintiff stated that the defendant came over to the bed and stood to her right and examined under the left armpit. On first examination, the GP was not able to find the lump. The plaintiff stated that she put her finger on the lump to indicate where it was. The GP then placed her fingers in the same area. However, she could not locate the lump. The plaintiff accepted that the defendant palpated her armpit and the surrounding area
23. The defendant told her that she could not find any lump. She told the plaintiff not to worry. The plaintiff stated that the defendant told her that she was too young to have breast cancer and that only older women above the age of 50 would be referred for a mammogram. The plaintiff stated that she had told the defendant that the lump had been present for circa 3 months and that it was non-tender. She recalled that she had been asked about any family history of breast cancer and had replied in the negative. She did not recall any conversation about her eczema being a possible diagnosis for a transient lump under her arm. She did not recall any discussion about eczema during that consultation.
24. The plaintiff was adamant that at no stage did the defendant offer to carry out a breast examination. In cross-examination it was put to the plaintiff that the defendant would say that when she offered to carry out a breast examination of the plaintiff, the plaintiff replied “ No you are grand” or “It’s fine ”. The plaintiff stated that she did not remember being offered a breast examination at all. She was adamant that she would not have refused a breast examination if offered one, because that was the very reason why she had made an appointment to be seen by a female GP.
25. In cross-examination it was further put to the plaintiff that the defendant would say that she did examine the plaintiff’s axilla and could not find any lump there. However, the defendant would say that that examination took place while the plaintiff was sitting in a chair with her left arm by her side and while the GP was supporting her bent elbow, so as to ensure that the muscles in her upper arm were totally relaxed. The plaintiff denied that that was correct. She stated that she clearly remembered lying on the bed with her arm behind her head. She stated that she was not mistaken in that recollection. It should be noted that in her evidence, the defendant said that the plaintiff had been sitting on the side of the examination bed for that examination.
26. The plaintiff denied that she was told by the defendant to return to the surgery if the lump should recur. She stated that if she had been told to return to the surgery, she would have done so. She stated that she could not recall the parting words at the end of the consultation.
27. The plaintiff accepted that her view that the defendant’s examination of her axilla had been cursory and that the consultation was somewhat quick, was only a view that she came to hold after she had received her diagnosis in 2016. Prior to that, she had not had any particular complaint about the consultation. Indeed, she had returned to the surgery and had been seen by the defendant in December 2014, July 2015 and July 2016 in relation to other matters. The plaintiff stated that up until she received her diagnosis in 2016, she had been relieved that the lump in her axilla was nothing to be concerned about, as she had been so assured by the defendant at the consultation on 24th September, 2014.
28. The plaintiff accepted that her visit to Dr. Redahan in August 2016 was in relation to a lump which she had noted in her breast approximately three weeks earlier. Her nipple also appeared different. It was in relation to those matters that she had consulted the doctor. She did not think that she told Dr. Redahan about the lump in her axilla. She could not recall if she mentioned it. She accepted that she may not have done so. She accepted that it was in Dr. Redahan’s notes that she had not found any lump in the axilla at that consultation.
29. It was put to the plaintiff that there was no record in the diary at the surgery that she had made any appointment prior to her arrival at the surgery that afternoon. It was put to her that she had been a “ walk-in ” patient, who had merely turned up at the surgery on spec. The plaintiff stated that she definitely made an appointment specifically to see a female GP and had been given a specific appointment time.
30. The plaintiff stated that she told the doctor that she was concerned about a lump in her armpit. She also mentioned that she was concerned about breast cancer. She recalled that she was asked whether she had any family history of breast cancer.
31. It was put to the plaintiff that the defendant would state that there was no discussion about her age as that was on the screen on the computer which was before the doctor. The plaintiff stated that she recalled the defendant mentioning her age a number of times and saying that mammograms were usually for people in their 50s.
32. It was put to the plaintiff that having googled the significance of a lump in the axilla and having regard to her evidence that she had gone in expecting a breast examination by a female GP, and that when none was done, she must have been disappointed and possibly even dissatisfied. The plaintiff stated that when the GP told her that she was fine, she accepted that, and left it at that. She accepted that her view that the consultation had been cursory and that the GP had been dismissive of her complaint, was a view that she only came to hold later after her diagnosis in 2016. She had started to think back about the consultation in 2014 after she had been diagnosed with cancer in 2016.
33. She stated that she did not consider legal action until 2018, as she was caught up in her diagnosis of cancer and the treatment thereof in 2016 and 2017.
III.II Evidence of Dr. Andrew Burton
34. Dr. Burton qualified as a GP in 1980. He has worked as a GP since then. He joined his current practice in 1986. He is a senior partner in a six doctor practice, with 10,200 patients. He has acted as an expert witness in a large number of cases. He has done 40/50 cases for the GMC in the UK on appropriate standards in general practice.
35. He thought that the defendant’s note was an acceptable note, but was not a detailed note. The entry “ concerned re-? Axillary lump x 3M ” could be very serious. The Irish guidelines indicate that an axillary lump warrants urgent referral. A duration of three months was significant, as it could indicate malignancy. Being described as “ non-tender ”, would lean against infection and could lean towards it being malignant. It would increase the suspicion of possible malignancy.
36. The reference to “ axillae ” indicated both were examined.
37. The note, “ declined breast exam – no relevant family history of breast disease ,” suggests a breast examination was offered, if not recommended. He would expect such examination to have been recommended. It was put to the witness that the defendant would say, that she told the plaintiff that she wanted to carry out a breast examination, he stated that that would be appropriate in the circumstances. It was put to him that it was declined according to the note. The witness stated that some women would decline a breast examination if they were with a male GP. Usually ladies would make an appointment with a lady GP for such an examination. It would be highly unusual for a patient to refuse a breast examination when seeing a female GP.
38. Dr. Burton said that the defendant’s reference to eczema in her note was a reasonable observation, if it was agreed between the doctor and patient that there was no lump present in the axilla. However, there was disagreement between the plaintiff and the doctor on this. The plaintiff says that she could still feel the lump. In these circumstances, most GP’s would either make a referral at that point, or tell the patient to come back in 4/6 weeks. At that stage, it would be necessary to do a further examination of the axilla to find the lump and a breast examination should also be recommended. If the patient still maintained that the lump was present, but not found by the GP, he would expect most GPs to refer the patient on.
39. Dr. Burton noted that when the plaintiff was seen on 20th August, 2014, in relation to eczema, Dr. O’Connor did not think that the eczema was infected at that stage. That note would have been before the defendant when she saw the plaintiff in September 2014. That note combined with the complaint that the lump had been there for three months, would indicate that if there had been infection, it was of less than three months duration. He also noted that when the plaintiff saw Dr. O’Connor in February 2014, there was no reference to infection of her eczema, months before she saw the defendant. That information was available to the defendant.
40. The defendant’s note indicated that she thought that the lump could have been due to an infectious flare-up in the past. However the plaintiff’s records did not disclose any such flare-up. Even if there was no documented flare-up, that could still be a possibility. If the plaintiff had had a flare-up of eczema, her lymph-node could also flare-up. It would usually decrease once the infection passed, but it could remain. The prior GP notes did not indicate any infection of eczema, in particular the previous note by Dr. O’Connor and the fact that he did not prescribe any antibiotic.
41. “TCI if recurs ”, that would be appropriate if the doctor and patient agreed that the lump had resolved. However that was unlikely, as the plaintiff would probably not have attended if the lump had disappeared. If the patient thought that the lump was still there, then it was not appropriate to note “ if recurs ”, because the patient thought that it was there all along, so there was no question of it recurring. If the plaintiff had accepted that the lump was not there on the occasion of her visit to the GP, then the defendant’s approach was reasonable. If the patient remained of the view that the lump was present, the doctor should either make a referral, or schedule a review appointment.
42. Dr. Burton stated that the National Breast Cancer GP Referral Guidelines, provided that if there was a discrete breast or axillary lump found on examination, this warranted an urgent referral (see Page 1). On Page 2, it provided that if there was a history of a breast lump, but none was found on examination by the GP, they should “ Reassure ?Reassess ”. If the patient accepts that there was no lump present at the time of the examination, it would be reasonable not to reassess. If the patient remained of the view that the lump was present, then one would reassess. Is it is a routine thing to reassess when one is not sure what is there. The plaintiff should have been reassessed in this case.
43. Dr. Burton gave his opinion in the following terms: based on the plaintiff’s evidence, if that was accepted by the court, the GP did not carry out an adequate examination of the axilla.
44. He noted that an examination of the breast was recommended practice. No breast examination had been performed. The plaintiff had stated that she wanted a breast examination. The defendant’s note indicated that the plaintiff declined a breast examination.
45. In relation to the GP’s duty to give adequate advice about further assessment, if both patient and doctor agreed that the lump had resolved at the time of the examination, then it would be reasonable following adequate examination to recommend a further assessment if the lump recurred. If the court accepts the plaintiff’s evidence that she thought she had a lump and the GP could not find it, most GPs would have erred on the side of caution and referred the patient on. Alternatively an acceptable alternative would have been to have recommended a further examination in 2 to 4 weeks. If at that time the situation remained unchanged and the plaintiff continued to think that there was a lump present and the defendant did not share that opinion, then in Dr. Burton’s opinion most GPs would have referred the patient on for further examination. This might have been done on a non-urgent basis. The plaintiff does not indicate that any advice was given other than reassurance that she did not have breast cancer. The Irish GP guidelines contained an algorithm for breast lumps and when no lump was found on examination, it states “ Reassure ?Reassess ”.
46. On 12th December, 2014, the plaintiff saw the defendant in relation to her eczema. If the plaintiff felt that the lump had not resolved in September, there should have been a review and this was the ideal opportunity to do that.
47. Dr. Burton summarised his conclusions as follows: (1) on the plaintiff’s account there was no adequate examination of the axilla, (2) a breast examination should have been done, and (3) if it was agreed between them that the lump had gone, then adequate advice was given to come back to the surgery if it recurred. However, if the patient still thought that the lump was present, then she should have been reassessed some weeks later and then referred if the status quo remained.
48. In his second report, Dr. Burton stated that if there was a disagreement as to the presence of the axilla lump, the doctor should reassess and then refer. If it was thought that the lump was secondary to eczema, the doctor should treat it, but the records show that there was no eczema infection in September 2014. If the patient continued to complain of a lump being present, then do a referral.
49. The witness was asked, if it was accepted by the court that the GP had asked the plaintiff could she examine her breast, to which she replied “There is no need to”, should the GP have referred the plaintiff for a breast examination, or recommended that she should re-attend the surgery in 2 – 4 weeks, if the problem was still there?
50. In Dr. Burton’s opinion, neither course would have been reasonable. The Irish guidelines contained an algorithm for breast (and axillary) lumps, and when no lump was felt on examination, it stated “ Reassure ?Reassess ”. It could be argued that reassessment was not mandatory. In his opinion in order not to refer a patient, who was convinced that an axillary lump was present, the following conditions would have to be met: first, no lump being felt during adequate examination of both axillae, paying particular attention to the site the patient was complaining of, including asking the patient to describe the lump and indicate the site of the lump as far as possible. The patient is asked to palpate the lump and the examiner then replaces the patient’s hand with their own. This exercise is often reversed if the examiner has felt a lump the patient is not aware of. The other axilla is used for comparison. Second, there should be a recommendation of examination of the breasts. Third, there should be reassessment after 2 – 4 weeks with no abnormality detected.
51. However in this scenario with the patient still considering that the lump was present, following reassurance from the doctor, in his opinion most GPs would have made a referral.
52. Dr. Burton stated that if he found a lump in the axilla, he would recommend a breast examination. If the doctor found a lump in the breast, that would support the presence of an axilla lump, so the GP should go back and examine the axilla again and should make a referral.
53. In relation to the defendant’s expert’s report, his opinion was based on the contemporaneous note made by the defendant. Dr. Burton did not accept that it was a detailed note by the GP. He noted that Dr. Boland based his opinion on the defendant’s account that the plaintiff had refused a breast examination. He did not take account of the plaintiff’s version of events, to the effect that she was not offered a breast examination.
54. He did not think it unusual that the plaintiff did not complain about the defendant’s examination of her in September 2014, due to the fact that she had left the surgery happy and reassured that she had no cause for concern. In such circumstances she was unlikely to mention the visit again. He was of opinion that a competent GP would find a lump on the breast if it measured 1cm or greater.
55. In cross-examination, Dr. Burton said that a GP’s note was primarily drawn up as an aide memoir to assist the doctor and it could also have a role in any subsequent litigation. It was good practice to make the note either during or immediately after the consultation. Usually things contained in the note, would be matters that were raised or discussed with the patient during the consultation, unless there was a specific afterthought that occurred to the doctor later on. In general terms, he found the defendant’s note satisfactory.
56. The previous note of 20th August, 2014 indicated that the eczema was not infected. It had become infected when the plaintiff re-attended with her GP in December 2014, at which time antibiotics were prescribed. He accepted that if the lump had disappeared, eczema was a possible cause.
57. He accepted that the plaintiff did not appear to hold the view that her consultation with the defendant in September 2014 had been dismissive. She only came to hold that view after her diagnosis in 2016.
58. It was put to the witness that when the doctor in 2016 could not find any axillary lump, this would suggest that the lump was not palpable in 2014. Dr. Burton accepted that it was plausible that the lump may not have been palpable in 2014, or the doctor in 2016, Dr. Redahan, may have been concentrating on the breast lump which had been discovered at that examination. It was put to the witness that usually a malignant lump would get bigger over time. If it could not be found on examination in 2016, it was plausible that it was not palpable in 2014. Dr. Burton stated that that was not his area, but he agreed that the finding of Dr. Redahan of there being no axilla lump in 2016 was surprising if it was a malignant lump, which had been in in existence in 2014.
59. He accepted that the defendant had asked about family history of breast cancer. He also accepted that the term “axillae” was in the plural. He accepted that 12 minutes would be a reasonable time for a consultation. He also accepted that if a patient declines to have a breast examination, it would be inappropriate for a doctor to perform one.
60. It was put to the witness that the defendant said to the plaintiff “I would like to do a breast examination” and that that was a normal and acceptable means of putting the proposition. Dr. Burton accepted that those words would be reasonable for the defendant to use in the circumstances.
61. Dr. Burton accepted that the proper method of examining the axilla was to do so when the patient is sitting in a chair, with the arm muscles relaxed. The patient’s arm would not be behind her head. It was put to him that the defendant would say that she held the plaintiff’s elbow, so as to ensure that her arm muscles were relaxed. Dr. Burton stated that that was the correct method for carrying out such an examination.
62. It was put to the witness that the defendant’s note stated “ reassure ”, which the defendant would say meant that she reassured the plaintiff that eczema was a possible explanation for an inflamed lymph-node. Dr. Burton agreed that it was a possible explanation.
63. It was put to the witness that if the doctor could not find the lump and the patient could not find it, it was reasonable to suggest that she should return if the lump recurred. Dr. Burton stated that that was appropriate if the patient agreed that the lump was not present.
64. In relation to the guidelines, it was put to the witness that while an axilla lump was specifically referred to on Page 1, the reference to “ breast lumps ” on Page 2 only referred to breast lumps and did not refer to axilla lumps. Dr. Burton accepted that on Page 2 it only referred to a breast lump, but the sight of the lump did not matter. If there was a complaint of an axillary lump, but it was not found, the appropriate course would be “ Reassure ?Reassess ”. He accepted that the algorithm referred to breast lumps, but he thought that it also included axillary lumps. In his opinion the same treatment protocol applied to a suspected axillary lump. However, he accepted that an axillary lump was a lower level of concern than a breast lump in terms of breast cancer.
65. It was put to the witness that the recording on ultrasound carried out on 23rd August, 2016 in relation to the lymph-node of “ mild cortical thickening ” meant that the lump in the lymph-node would not have been palpable. Dr. Burton stated that the technician carrying out the ultrasound commented on the lymph-node because he or she thought that there was something there. It was put to the witness that the note made by Mr. Alan “ axilla oe N ” meant that the axilla examination was negative. He stated that that was a clinical finding made by the surgeon.
66. It was put to him that the CT scan of 30th August, 2016 showed bilateral axillary lymph nodes less than 1cm, whose appearances were deemed not to be concerning. He accepted that those nodes were less than 1cm. Counsel suggested that if the plaintiff had cancer in the axilla, there was no reason that it would reduce over time. Dr. Burton stated that that question would have to be put to an appropriate expert. He would expect a lump of 1cm to be palpable, if it was located near the surface.
67. He was of opinion that a 1cm tumour in the breast, would be palpable by a GP. That was a rule of thumb. The lump may not be well-defined, in which case it may not be palpable. He accepted that a GP could discount a small lump less than 1cm.
68. He accepted that if the plaintiff had had a lump and it was then gone, this could indicate a recovered eczema infection as a plausible explanation for the lump. He would agree with the opinion of Dr. Boland that the guidelines had been adhered to, if the GP’s note is accepted as being correct.
69. In re-examination, Dr. Burton stated that the biopsy results indicated that the lymph-node in the axilla was similar to the cancer in the left breast. It was connected to the tumour found in the left breast.
70. He agreed that the question put at, Day 1, Page 111, Question 457, suggested that the defendant had no recollection of the plaintiff agreeing that there was no lump present.
71. Dr. Burton agreed that it would be very unusual and very unlikely that a patient would attend a GP with a concern in relation to breast cancer and yet refuse to have her breasts examined by a female GP.
III.III Evidence of Professor Nigel Bundred
72. Prof. Nigel Bundred was called as a witness for the plaintiff. He is a professor of surgical oncology and a consultant surgeon at the University Hospital of South Manchester NHS Foundation Trust. He qualified as a doctor in University of Newcastle-upon-Tyne in 1980. He has fellowships in the Royal College of Surgeons of Edinburgh, Glasgow and England.
73. In relation to tumour grade, Prof. Bundred stated that there are three grades of tumour. Grade 1 is the slower growing tumour. Grade 2 is faster growing and Grade 3 is more aggressive than the other two grades. When grading a tumour the histopathologist will look at the characteristics of the cells taken from the biopsy. Firstly, they will look at tubule formation, this is to ascertain whether there are holes in the cells. An aggressive tumour will not have tubules and this will tend to put them into Grade 3. Slower cancers tend to have a number of tubules in the cell. Secondly, the histopathologist will look at pleomorphism, this looks at the size of the nucleus and the shape and size of the cells themselves. They will be given a score on this analysis. Thirdly, the histopathologist will look at the mitotic count, this measures how many mitotic features the pathologist can count in 10 fields under the microscope. It is effectively a measure of the proliferation rate of the cancer. This is a key determinant in how fast the tumour is growing. If there are less than seven visible mitotic figures on the microscope this would get a score of one, which would mean that the tumour was slow-growing. If it was more than 20, it would get a score of M3, which is fast-growing. In order to grade the cancer you add the scores under these three headings on a scale of 1 to 3 each. The lowest score available would be a combined score of three. Anything from 3 to 5 is Grade 1. A score of 6 to 7 is Grade 2 and a score of 8 to 9 is Grade 3.
74. The plaintiff’s overall score was 3+3+1 giving a total of 7, which put the plaintiff at Grade 2. Both the plaintiff’s experts and the defendant’s experts agreed that the plaintiff had a score of M1 and an overall grade of 2.
75. Prof. Bundred was of the opinion that a diagnosis of breast cancer could have been made in 2014 if the plaintiff had been referred to a breast clinic. If diagnosed then, she would have required a mastectomy and an axillary clearance. She would also have needed adjuvant chemotherapy and possibly radiotherapy for her chest. That treatment would probably have cured her cancer.
76. In 2016 the plaintiff was found to have a 5cm lump in her breast, which was oestrogen and progesterone receptor positive, HER-2 negative, and Grade 2. The interval between presentation in September 2014 and diagnosis in August 2016 was 693 days. The imaging report from 2016 showed a 50mm lump and nipple retraction.
77. In explaining tumour doubling time, Prof. Bundred said that it was necessary to work back from the 5cm tumour discovered in 2016. A large number of studies had been undertaken over the years in relation to the growth rate of various tumours. It was found that when they had started breast screening initially, the signs were not picked up until later. By comparing the previous scan and the later scan it was possible to do a calculation of the time that it took for the tumour to double in size. That analysis was done by comparing a number of scans in chronological order. Tumour doubling time can vary from person to person depending on their family history, the grade of the tumour (Grade 2 being slower than Grade 3), and the age of the patient. For example Tilanus-Linthorst found a faster rate of growth in younger patients, who had a family history of breast cancer. Prof. Bundred had set out his method of calculating the tumour doubling time at page 35 of his first report.
78. In his first report, Prof. Bundred indicated that it was his view, that in women who are younger there was an increased speed of tumour doubling and for that reason he thought that 80 days was the correct doubling time for the plaintiff. Conventionally, they calculated the doubling time in premenopausal women based on Peer et al., which has a mean doubling time of 80 days (range 44 – 147 days). If they used a doubling time of 80 days, then the tumour which was 5cm at diagnosis, would have been around 0.8cm in size in 2014. The tumour would have been diagnosable because of the surrounding ductal carcinoma in situ at that time. It would also have been detected because of the axillary nodes which were involved.
79. Prof. Bundred stated that on reflection, he came to the view that his estimate of the tumour doubling time was incorrect. The tumour doubling time of 80 days given in the Peer et al. paper was not accurate in this case. That paper had been written in 1993. Of a total of circa 107 patients, only 32 were less than 50 years old. In 1993 50% of women less than 50 years, would have had Grade 3 tumours. In this case, the plaintiff had a Grade 2 tumour and her mitotic count was M1. So while in general it could be said that younger patients tend to have faster growing tumours, in this case the plaintiff was shown to have a slower growing tumour. For that reason it was not appropriate to take a tumour doubling time of 44 – 80 days.
80. Prof. Bundred stated that in giving his opinion in his first report, he had missed the significance of the histopathology report given by Dr. Staunton. In particular, he had not taken sufficient account of the specific factors concerning the plaintiff’s tumour and in particular the following: no family history of breast cancer, a Grade 2 tumour, an M1 score, and the fact that despite the fact that she had not responded well to therapy, she had exceeded the normal survival time from diagnosis of 24 months. All of this supported the conclusion that this was a slower growing tumour. For that reason, he had revised his opinion in relation to the tumour doubling time to somewhere between 100 days and 130 days. Using that calculation of the tumour doubling time, and applying that to a lump measuring 5cm in 2016, this would mean that there was a lump of approximately 1cm – 1.5cm in the breast in 2014.
81. The generally accepted threshold for a palpable tumour, was that anything of the size of 1cm or greater, should be palpable on examination by a doctor. Indeed, Prof. Bundred stated that it was possible that even a smaller mass may be detectable on palpation, depending on the position of the tumour.
82. Prof. Bundred stated that he based his analysis on the paper by Michaelson published in 2003. It summarised all the available data at that time. It was a very large study, based on 810 patients. The various estimates were set out in Table 3. The authors estimated a median doubling time of 130 days. Prof. Bundred felt that this paper was superior to the other papers as it was based on a larger number of patients.
83. Prof. Bundred stated that he had given a range of tumour doubling times calculated at 80 days, 100 days and 130 days. Given the factors applicable to this specific patient, he was of the view that the tumour doubling time in her case would be nearer the 130 day mark. If that was adopted, that would mean that the tumour was approximately 1.5cm in 2014. Even if 100 days was taken as the tumour doubling time, that would give a tumour of 1cm in 2014. These would both be easily detectable. A mammogram can detect a tumour down to 5mm.
84. The ultrasound of the left axilla in 2016 revealed “mild cortical thickening”. Any cortical thickening greater than 3mm, was indicative of a possibly malignant growth and therefore a biopsy was needed. Here the thickening was measured at 3.7mm, so a biopsy was done. The histopathology report of 23 August 2016 indicated that the lymph node in the left axilla had metastatic carcinoma similar to the left breast.
85. Prof. Bundred was asked if the plaintiff had told her GP in 2014 that there was a lump in her left axilla, which had been present for three months and if it was accepted that the lump remained from that time until 2016, what was his opinion as to how long the cancer had been in the lymph node. Prof. Bundred stated that he took the tumour doubling time at 130 days, it was clearly possible that the cancer was in the lymph nodes all along. It was also possible that the cancer had rested in the lymph nodes for a period. He thought it highly probable that there was cancer in the lymph nodes in 2014.
86. In relation to the likelihood of distant metastases in 2014, Prof Bundred pointed out that Norton et al. had indicated that nodes and metastases in distant organs occur by multiple tumour emboli, through the lymphatics and the bloodstream. The earlier a patient is diagnosed and the longer the delay between the presentation with the tumour and the subsequent diagnosis, the greater the chance that emboli will have left the primary tumour site and spread to the nodes and then distantly. The plaintiff had a 693 day delay (almost 2 years) and in that time the tumour had spread and grown in the breast. Richards et al. found delays longer than six months were associated with nodal metastases and a poorer survival from breast cancer.
87. He did not think that the plaintiff had distant metastases in 2014. That would mean that it was outside the regional lymph nodes, at which time a patient would have had a survival rate of 24 months. He thought that in 2014 this plaintiff had tumours in her breast and in her axilla only. These would have been treatable by surgery and other treatments. The Richards et al. paper had looked at 87 studies and found that the delay of 3 – 6 months was associated with a lesser survival rate.
88. Prof. Bundred was of the view that had the plaintiff been diagnosed in 2014, she would have had a survival rate of approximately 47 years. He remained of that view. The time period may shorten slightly if the tumour was held to have been 1.5cm in 2014.
89. He pointed out that in his report he had set out an actuarial survival table into which one would put the patient’s age, the size and the number of nodes and it would give the number of people who would die based on an actuarial calculation. For a healthy person of the plaintiff’s age, the figure of 49 years, would be shortened by 8.8 years. If the plaintiff had had treatment in 2014, the survival rate would improve by 6.1 years, which would mean that her shortening of lifespan would be 8.8 years less 6.1 years giving a 2.7 years reduction, meaning that she would have had a generally expected survival period of 47 years. If the tumour diameter was in the region of 1cm/1.5cm it might reduce life expectancy to 47 or 45 years.
90. In cross-examination Prof. Bundred accepted that he was not an expert in GP care, so he could not comment on that aspect. Nor could he comment on the conflict of evidence between the plaintiff and the defendant in relation to what actually happened at the consultation. If a patient was complaining of an axillary lump, that was a symptom of breast cancer. They may not have any other symptoms, but one would not usually have other symptoms in breast cancer at that stage.
91. The scan done in 2016 revealed a “ moderately differentiated cancer ”, which just meant that it was a Grade 2 cancer. It was oestrogen receptor and progesterone receptor positive, suggesting that the tumour was hormone sensitive. The diagnosis was made after the biopsy. When assessing the size of the tumour in 2016, you take the mammographic size of a tumour, which was 5cm, not the clinical size.
92. He accepted that the GP in 2016 did not find any axillary node. A cancer containing lymph node would feel different from an ordinary lymph node, in that it would be hard, not spongy. He accepted that Dr. Redahan had recorded that she could not feel any lymph node in 2016.
93. It was put to Prof. Bundred that if the node had been cancerous in 2014, one would expect it to be enlarged and to be palpable in 2016. He stated that that would not always be the case, because the cancer can spread to other nodes. It may not always grow in the initial node, perhaps not by any significant amount, if the tumour was slow-growing.
94. Prof. Bundred said that the defendant’s expert, Prof. Price, had not said what precise tumour doubling time she had used to calculate the size of the tumour in 2014. He estimated that she had used a tumour doubling time of 40 – 75 days which was lower than 80 days. He accepted that Prof. Price and he had used the same methodology for measuring tumour doubling time.
95. It was put to the witness that Prof. Price would say that a tumour in the breast of the size of 1cm, would not be palpable. The witness stated that it would depend on where the lump was. If it was close to, or behind the areola it could be detected on palpation. He accepted that the literature stated that a GP should be able to palpate the lump at 1cm or greater, but on occasion it would be palpable at a lower size. He accepted that 1cm was the normal threshold.
96. He disagreed with Prof. Price in relation to the presence of metastatic disease in 2014. He was of the view that the plaintiff developed that later, when she had distant metastases.
97. It was put to the Prof. Bundred that eczema could account for the node varying in size. He disagreed, stating that a node with cancer would feel very different. It is hard in texture. It was put to the witness that the plaintiff had been with her GP previously in relation to eczema infection and had returned to the GP in December 2014, so her eczema was active. Witness stated that usually treatment would deal with any intermittent infections.
98. The witness was asked about the finding on the ultrasound scan of “ mild cortical thickening ” in the left axilla. He stated that this was a way of making a diagnosis on the basis of the ultrasound scan. If there was thickening greater than 3mm then a biopsy was indicated. That had been done in this case and it confirmed a tumour.
99. The witness was questioned extensively in relation to his change of opinion in relation to the tumour doubling time and the probable size of the tumour in 2014 as given in his first report and the comments in his letter dated 9th January, 2019 and his change of opinion as set out in his second report dated 16th January, 2019. It was put to him that in his first report he had estimated that the tumour doubling time of 80 days was the correct doubling time for the plaintiff. Given a lump measuring 5cm in 2016, this meant that the plaintiff probably had a lump measuring 0.8cm in 2014.
100. It was further put to him that in his letter dated 9th January, 2019, he had stated that he calculated that the tumour would have originally been 0.8cm, which was “ little different ” to Prof. Price’s calculation of 0.6cm. However, in his second report dated 16 January 2019, he had opted for a tumour doubling time of 130 days, meaning that the breast tumour would have been 1.5cm in 2014.
101. Prof. Bundred explained that his change of view had come about because when he saw Prof. Price’s report, he saw that she had taken a tumour doubling time of less than 80 days. He had gone back and rechecked the medical records. He said he had missed the significance of the histopathology report from Dr. Staunton, which had given an overall score of seven, being a Grade 2 cancer, but more importantly had given a score of M1. He felt that these factors were highly significant when calculating the likely tumour doubling time in relation to this plaintiff. He accepted that he had missed the significance of the M1 score when initially giving his opinion.
102. He felt that having regard to the following factors: no family history of breast cancer, a Grade 2 cancer, the M1 score and the fact that although she had not responded to therapy, the plaintiff had exceeded the 24 month expected survival, all of this indicated that in the plaintiff’s case, she had a slow growing tumour.
103. In those circumstances based on the paper by Michaelson et al., it was appropriate to go for the median figure given in that study in table 3, where a median doubling time of 130 days was given. If that tumour doubling time was adopted, this would mean that the tumour measured 1.5cm in 2014.
104. He had also given a range of possible doubling times, ranging from 80 days (0.8cm), 100 days (1cm), and 130 days (1.5cm). He felt that given the combination of factors outlined above, it was more appropriate to opt for the estimate of 130 days, rather than any lower estimate. For that reason it was his opinion that the breast lump measured circa 1.5cm in 2014.
105. He felt that it was appropriate to go on the Michaelson et al. paper, because it was by far the largest study, having looked at 810 patients. He did not think that it was appropriate to look at the Tilanus-Linthorst paper, as the plaintiff had no relevant family history of breast cancer. The witness accepted that in his first report he had estimated the size of the lump in 2014 to have been 0.8cm, but when he factored in the significance of the M1 score, this caused him to come to a different conclusion, that the size of the lump was between 1cm/1.5cm.
106. It was put to the witness that the age of the patient was a significant factor, in that in this case the plaintiff was a young woman of 32 years of age in 2014. Prof. Bundred stated that while age was a significant factor, it was not determinative of the growth rate of the tumour. While one would take age into account, one had to have regard to the specific factors relevant to that specific patient. When one did that, age became a less relevant factor in itself. In this case, the patient specific factors outlined above, all pointed to the plaintiff’s tumour being a slow-growing one.
107. Prof. Bundred stated that most patients would present with a breast lump, but 1% would present with only an axillary lump. He did not think that the fact that the lump in the breast was behind the nipple, made it more difficult to find, it was actually an easier area in which to locate the lump, because it was pushed towards the surface.
108. The oestrogen receptors promote cell growth. He accepted that 70% of breast cancers were oestrogen positive. Oestrogen negative tumours are always M3 i.e. fast-growing.
109. Prof. Bundred accepted that he was aware of the plaintiff’s breast profile when doing his first report. He was also aware that the tumour had been classified as Grade 2 and he was aware of the plaintiff’s age and family history.
110. It was put to the witness that Prof. Price had set out her methodology at page 37 of her report. He noted that Prof. Price stated that she assessed tumour doubling time on the basis of the evidence set out in Table 2 in the paper from Peer et al.. He did not feel that that was the correct table to use. Nor did he accept the data set out in the third table in the Tilanus-Linthorst paper, as that was only for people who had particular genes and had a family history of breast cancer, accordingly that was not the appropriate table to use to calculate tumour doubling time.
111. He accepted that in his first report he had quoted from the Tilanus-Linthorst paper, because it had dealt with young women, but on reflection he thought that it was not an accurate statement of the plaintiff’s position because she had no family history of breast cancer.
112. He stated that it was now generally accepted that Peer et al. was not appropriate due to the necessity to take patient specific factors into account.
113. It was put to the witness that at page 35 of his first report, it was clear that he knew the plaintiff’s age and that she had no family history of breast cancer, he had accepted the papers by Tilanus-Linthorst and Peer et al. and he had come to the opinion that 80 days for tumour doubling time was correct. It was put to him that he only changed that view after he had seen Prof. Price’s report. Prof. Bundred stated that when he saw that report, he decided that it was necessary to take a wider view of the facts to take account of the specific factors in this case. He accepted that he had not given enough weight to the appropriate factors in his initial report. When he looked again at all the relevant factors, including the histopathology score of 3+3+1, this caused him to change his opinion of the tumour doubling time.
114. He accepted that the Tilanus-Linthorst and Peer et al. papers were the standard papers to use. However he had set out clearly why, in the light of the histopathology score of 3+3+1, it was appropriate to lengthen the tumour doubling time in this case. The paper by Peer et al. was a well-known paper, but it was somewhat old, dating from 1993. It did not give much detail about the number of patients aged 32 years, or even those under 50 years. It was put to the witness that in the Peer et al. paper, 80 days was the appropriate tumour doubling time for patients under 50 years, so Prof. Price was correct to take a tumour doubling time of 44-80 days. Prof. Bundred said that Peer et al. had nobody under 41 years. It was only a guide. That was all he was saying.
115. It was put to the witness that in the Tilanus-Linthorst paper from 2005, it found that amongst younger patients there was a shorter tumour doubling time. Prof. Bundred stated that that paper dealt with people who had a family history of breast cancer. Accordingly, it was not appropriate to be used for this plaintiff, who had no such history. On reflection, he was satisfied that the plaintiff did not fit into their paradigm. It was put to the witness that he knew the plaintiff’s family history when he quoted from that paper in his first report. He accepted that that was correct, but stated that on reflection he realised that the plaintiff was not in the particular cohort of patients covered in that paper. Once he saw the M1 score, he realised that he would have to revise his estimate of the tumour doubling time. He then looked back at the absence of any family history of breast cancer and on that account came to the conclusion that the Tilanus-Linthorst paper was not relevant. It was learning of the M1 score that caused him to change his view.
116. It was put to the witness that in his first report he had estimated the size of the tumour at 0.8cm, but after he saw Prof. Price’s report he changed that to 1.5cm. He was asked whether that was only due to learning the mitotic score. Prof. Bundred stated that in his first report he had given the standard tumour doubling time of 80 days. In his second report he had had regard to the M1 score and the absence of a family history, so he revised his views of the tumour doubling time and of the probable size of the tumour in 2014.
117. It was put to the witness that when he realised that the size of the tumour being less than 1cm, as per his original report, he knew that that would not have been palpable and this accounted for his change in opinion. The witness denied that that was the case. He stated that when he looked at the histopathology report initially, the 3+3+1 was somewhat of a throwaway and he did not pick up on it. He realised later that he had missed the mitotic score of one, so he went back and reviewed his opinion.
118. It was put to the witness that surely that had been a significant characteristic in determining growth rate. He stated that he only realised what it meant, when he looked at it again and in the light of that he did his second report. He accepted that he had done hundreds of cases in relation to tumour size. It was put to him that the Bloom-Richardson score was fundamental. He said no, that was only in relation to younger women, that it was important. He apologised for missing the significance of the M1 score in his first reading of the histopathology report. He accepted that he had seen that the plaintiff was 32 years old and had a Grade 2 tumour, but the specifics had been in the histopathology report, which he had missed. When he saw that, he then changed his opinion. Indeed he thought that Prof. Price had also missed that report.
119. Prof. Bundred stated that back extrapolation in relation to the size of a tumour at a previous point in time was done on a mathematical formula. Both Prof. Price and he had used the same formula. The size of the tumour in 2016 was ascertained. The size that it was in 2014, was based on what tumour doubling time you used. Prof. Price had used a tumour doubling time faster than 80 days. He thought that that was too short.
120. He stated that in his first report he had used the Michaelson et al. survival calculator. This involved inputting the node size, age, grade of tumour and the oestrogen and progesterone receptor status. He would go by that calculator. He thought that the Young et al. paper was a bit old. One can now use an actuarial calculator. It was worth noting the fact that the plaintiff had not responded to treatment and was still alive, that indicated that the tumour was not fast-growing; on that basis he had also gone for the tumour doubling time of 130 days, giving a tumour size in 2014 of 1.5cm.
121. It was put to the witness that he was of the view that the paper by Peer et al. was deficient in not taking account of patient specific factors and in particular her score of M1. The witness agreed and stated that one also had to take account of the fact that the tumour was Grade 2 and that M1 was the lowest possible score, which implied that the tumour was not growing very fast. It was put to him that mitotic score was only one factor. There were other factors such as the fact that she had no symptoms for two years prior to 2016, which should be taken into account. The witness stated that a lump in the lymph-node was a symptom in itself. He would not have expected any systemic symptoms at that time.
122. Prof. Bundred was questioned in relation to his letter to the plaintiff’s solicitor dated 9th January, 2019. It was put to the witness that the first paragraph in the letter and its general phraseology indicated that it was a private letter between him and his instructing solicitor, which he did not think would have to be disclosed, or did not intend should be disclosed to the opposite side. Prof. Bundred stated that he was aware of the rules in Ireland on disclosure and was aware that his letter would be disclosed as part of the general disclosure process.
123. In the third paragraph of the letter he had stated that he was concerned that Prof. Price referred to “ mild cortical thickening ” in the ultrasound of the axilla node in 2016, and assessed that as being mild/minor, implying that there was probably nothing there in 2014. He did not agree with that assertion. The cortical thickening meant that there was an indication to carry out a biopsy, which was in fact done. He accepted that in the letter he had said that it was important to get a copy of the ultrasound scan of the axilla.
124. It was put to the witness that the thrust of his second report was that he changed from a tumour doubling time of 80 days giving a breast lump of 0.8cm to 130 days and a breast lump measuring 1.5cm. It was put to him that he had said that this change in opinion was based on patient specific factors and he criticised Prof. Price’s reliance on the papers by Tilanus-Linthorst and Peer et al.. He stated that Prof. Price had reached the opinion that because the GP who examined the plaintiff in 2016 could not palpate the lymph nodes in the axilla, this meant that the GP who examined the plaintiff in 2014, would also not have been able to palpate them. Prof. Bundred stated that he thought that that was a key part of the case and he had said so in his letter. For that reason he advised obtaining a copy of the ultrasound scan. He felt it was important to look at the scan to see the extent of the cortical thickening. He said that it came to him that the M1 score and the ultrasound scan were important. He wanted to show that Prof. Price’s assertion that because there was only a small node in the axilla, that did not mean that there was only a small amount of disease present.
125. He accepted that in the letter he had calculated the size of the tumour in 2014 at 0.8cm and that Prof. Price had estimated it to have been 0.6cm, which was fairly close to his estimate. He accepted that the results reached in his first report and the conclusions in Prof. Price’s report were very close. He said that it was only when he reviewed the histopathology report and saw the 3+3+1 scores, that he realised that her estimate was wrong.
126. It was put to the witness that in his letter, he had said that his conclusion was “ little different ” to those reached by Prof. Price. He stated that the measurement of 0.8cm was based on a tumour doubling time of 80 days, so in order to get 0.6cm, Prof. Price must have used a faster doubling time.
127. He accepted that it was relevant that the clinicians were not able to feel the lymph node on examination in 2016. However, he thought that they may not have made a great effort in that regard, because she had presented with a large breast lump, so radiological examination was definitely warranted.
128. He was asked to comment on the note made by Dr. Allen which read “ Ax n N ”. He stated that this was an extremely brief note and it was not clear at all what it meant. He thought that it was a somewhat lax note. Perhaps because of the presence of the significant breast lump, the medical team were not as concerned with the axilla nodes.
129. It was put to the witness that the CT scan had reported bilateral nodes less than 1cm, which implied that when they were not concerning. He stated that the CT scan was less accurate in determining size. They knew that the axilla node was concerning, because that had been shown up on the ultrasound scan and a biopsy had been done in light of that scan. A CT scan was not the correct way to assess the size of the lymph-node.
130. Prof. Bundred was asked about the articles cited in his second report. In the Peer et al. paper, in Table 4 there was an analysis given of the literature on tumour doubling times. Tabanne gave a mean doubling time of 115, days with a mean age of 48 years. So the Peer et al. paper recognised that there was a difference in conclusions in different literature.
131. It was put to the witness that he had opted for Michaelson et al. which gave a tumour doubling time of 130 days whereas other papers had given different times. Prof. Bundred pointed out that Arnelove dealt with tumours of Grade 1, 2 and 3 in Table 4. There was a small number of samples for Grade 2, which showed a slower growth rate. The age range was 42 to 87 years in that paper.
132. It was put to the witness that age was a huge factor in relation to tumour growth and here the plaintiff was young at 32 years. Prof. Bundred stated that in assessing tumour doubling time you have to look at all the factors, such as whether the tumour was grade 1, 2 or 3 and not just at the age of the patient. Here the plaintiff was Grade 2 and she was M1, which implied a slow-growing tumour and on that basis he had taken a longer doubling time. He put her in the range of 130 days. Once you had a low grade of tumour and a low M1 score, age was not that relevant. It was the specific factors applying to this specific patient, that were the relevant factors.
133. It was put to the witness that in his first report he had estimated the tumour doubling time based on the Tilanus-Linthorst paper. The witness accepted that those people were not BRCA 1 or BRCA 2, but they had a family history of breast cancer. Their median doubling time was 83 days. However that was not relevant here, as the plaintiff did not have a positive family history for breast cancer.
134. It was put to the witness that he had stated that in younger women he thought that a tumour doubling time of 80 days was correct and that that was correct for the plaintiff, at a time when he knew that she was a young person and did not have a family history of breast cancer. He repeated that when he saw the M1 score, that was something that was specific to the plaintiff and accordingly he re-evaluated the doubling time from 80 days to 130 days.
135. It was put to the witness that in the Tilanus-Linthorst paper age and risk group were relevant. While they had acknowledge the limitations in getting data, he had been happy to quote that report and to use their estimate of a tumour doubling time of 80 days. The witness accepted that he had known that the plaintiff did not have a family history when he tried to estimate the tumour doubling time. When he saw the M1 score he saw that she would not conform to the analysis in the Tilanus-Linthorst paper. Age was not that relevant. It all depended on the type of tumour and the rate of growing, being the M1 score. He got a better guide once he knew that she was a Grade 2 and M1 score.
136. In relation to the Michaelson paper, Prof. Bundred stated that this was the largest study covering 810 patients from 2003. It contained mathematical calculations for tumour doubling time and gave a doubling time of 130 days. This plaintiff had a Grade 2 tumour which was M1. The Peer et al. paper only had 26 young patients, which was a very small cohort. That the plaintiff had an M1 score was agreed by both experts, as was the fact that the tumour was Grade 2. These were the most important factors in this case.
137. It was put to the witness that he had not even referred to the mitotic score in his first report. He said that it had been highlighted in his second report. Prof. Price did not agree that that score was very important so as to displace age as a relevant factor. The witness stated that Prof. Price had not even commented on the grade of the tumour in her first report. That was an important factor and it showed that they had both missed things in their first reports. It was put to him that Prof. Price would say that the mitotic score would not displace age to the extent that he argued. He stated that most clinicians would say that if a tumour was Grade 2 and had an M1 score, they were the most significant factors, because they were tumour specific factors for that particular patient. In those circumstances age per se was irrelevant.
138. Prof. Bundred accepted that Michaelson et al. had not focused on grade as a specific factor. It was a very large study which gave a general range. If one took 80 days as the median, where a person had a Grade 2 tumour and an M1 score, they would come in above 80 days, somewhere between 100 days and 130 days. It was put to the witness that the authors did not support his view that age was not relevant in face of specific factors. He stated that the key factors were the grade of tumour and how fast it was proliferating. Clinicians would individualise the treatment depending on the rate of growth of the tumour. In addition, in this case the plaintiff had exceeded the survival rate of 24 months. That indicated that the tumour must be slow-growing.
139. In relation to Prof. Price’s report at page 22, she merely said that as a younger woman she would use a tumour doubling time of less than 80 days. She did not say why she adopted that tumour doubling time. She did not factor in that the tumour was a Grade 2 tumour, which is slower growing. He reiterated that he did not think that 80 days was appropriate, where a person had a Grade 2 tumour and an M1 score. These were specific factors relevant to the patient.
140. Kuroishi did not deal with grade, but dealt with age. In Table 4 it was stated that for patients less than 39 years, the plaintiff was in the 31% who were found not to be not fast-growing, that paper showed that it did not depend on age, it depended on the type of tumour involved.
141. In Fournier it was highlighted that the diagnosis refers to the type of cancer, not the grade of growth. Type and speed of growth were not correlated. In Table 3 they put a tumour doubling time of 179 days in patients less than 50 years.
142. It was put to Prof. Bundred that the Lundgren paper was an old paper from 1977 and was based on a sample of only 15 patients. The witness stated that Table 1 showed that for a 38-year-old the appropriate tumour doubling time was 276 days. However one had to look at the individual factors of the tumour.
143. It was put to the witness that in the Sprat, May & Sprat paper which was from 1996, Table 4 showed that for patients aged 35 to 39 years, a tumour doubling time of 38 to 48 days was appropriate. The witness stated that in a lot of the papers different areas are general, but for each patient, one had to look at tumour specific factors for that patient.
III.IV Evidence of Dr. Marie Staunton
144. The plaintiff called Dr. Marie Staunton, Consultant Histopathologist, at Beaumont Hospital. Dr. Staunton was awarded her primary medical degree from NUI Galway in 1989. She has worked at consultant level since 1999. From 1999 – 2005, she worked as a Consultant Histopathologist in the Royal Victoria Infirmary in Newcastle Upon Tyne where she was the lead histopathologist for breast pathology. She has been working at Beaumont Hospital since 2008, where she is a member of the Breast Multidisciplinary Team, which plays a critical role in the diagnosis and prognosis for patients attending the Beaumont Breast Centre.
145. In the present case, Dr. Staunton prepared a histopathology report dated 26th August, 2016. This report was based on tissue, presented on slides, taken from an ultrasound guided biopsy which was carried out on the plaintiff on 23rd August, 2016. The slides display a snapshot of the biological processes of the cancerous breast tissue at the time the biopsy was taken, and allows for an assessment and grading of the tumour.
146. When examining the slides under a microscope, Dr. Staunton observed that the tissue bore no resemblance to normal benign breast tissue. Instead, she saw tumour proliferation, which had the features of an invasive carcinoma of a ductal subtype. “ Invasive ductal carcinoma ” means the cancer has invaded the fibrous, or fatty tissue, of the breast outside the duct. It can therefore gain access to the vascular system and potentially metastasise.
147. Dr. Staunton outlined the grading of tumours, which is known as the modified Bloom-Richardson grading system. A numeric score from 1 – 3 is given to three grading criteria, namely: Tubule Formation, Nuclear Pleomorphism and Mitotic Count. Each criterion is looked at objectively, independently assessed and assigned a numeric score based on the degree by which it has deviated from normal breast ductal cells. These scores are then added together to form a total score, which is used to determine the grade of cancer. Grading can range from Grade 1, slow growing tumours, to Grade 3, highly aggressive tumours. Most tumours are Grade 2, which is somewhere between slow growing and highly aggressive. Dr. Staunton accepted, however, that Grade 1 cancers have the potential to kill people, while people with Grade 3 cancers can survive.
148. Dr. Staunton explained the three grading criteria. Tubule Formation assesses what percentage of the tumour forms normal duct structures. Normal breast tissue has ducts with an open duct lumen. These structures are similar in appearance to tubes, and when halved, they look like donuts with holes in the centre. The more the tumour diverges from this norm, the higher the score will be. Lower grade ductal carcinomas have almost all tubule formation, and higher grade tumour have an almost completely solid growth pattern.
149. Pleomorphism is the variation in nuclear size. In normal breast cells, the nuclei are uniform and all grow and replicate in the same way. In an aggressive tumour, the cell nuclei are bigger, due to more DNA content, with the acquisition of mutations. The more the cells resemble the background breast cells, the lower the score for pleomorphism and the greater the probability to be a Grade 1 tumour.
150. Mitotic Count measures how many mitotic figures the pathologist can count. It is effectively a measure of the proliferation rate of the cancer. The mitotic rate is a measure of the number of cells undergoing mitosis i.e. cell division. A pathologist aims to get a representative sample of the tumour and counts the number of mitotic figures (structures in the tissue indicating cell division or markers of cell division) that are present in any given field. To arrive at a score, Dr. Staunton counted the number of figures she had seen over 10 fields. 1 – 7 figures would attribute 1 point, 8 – 14 figures would attribute 2 points, and 15 or more mitotic figures would be attributed 3 points.
151. The individual points from each criterion are then added up for an overall score and are given a corresponding grade to determine the grade of cancer. A score of up to 5 would receive Grade 1, a score of 6 or 7 would receive Grade 2, and a score of 8 or 9 would receive Grade 3. Dr. Staunton explained that based on the current material and the various criteria, the plaintiff “ probably ” had Grade 2 cancer based on the score of 3+3+1 for Tubule Formation, Nuclear Pleomorphism and Mitotic Count respectively. This was her opinion until the full tumour was removed and would be fully analysed post-surgery. However, that was never done. Hence she had used the word “ probably ”.
152. The oestrogen and progesterone hormone receptor assessment is important in the treatment planning phase of the disease, rather than being required for a diagnosis. It carries prognostic information about the possible biological behaviour of the tumour, and also provides a therapeutic option for the medical oncologist treating the patient. The report is generated by using a special technique called immunohistochemistry, whereby a coloured antibody is used to detect the presence of either of the hormone receptor antigens in the tumour.
153. Dr. Staunton’s report shows that the plaintiff was progesterone and oestrogen receptor positive, meaning the breast carcinomas were hormone driven. The growth of hormone receptor positive carcinomas can be stunted by blocking the amount of oestrogen in the body, by using anti-oestrogen therapies such as Tamoxifen. This will ultimately slow the growth of the tumour cells. She stated that hormone receptor positive tumours are generally less aggressive.
154. The histopathology report dated 23rd August, 2016 states that the plaintiff was HER-2 negative, meaning there was no point in treating her with anti-HER-2 therapies such as Herceptin. Hormone receptor positive and HER-2 negative tumours, as is the case for the plaintiff, were consistent with Grade 2. As a general rule, hormone receptor positive and HER-2 negative tumours are slow growing.
155. Dr. Staunton stated that the ultrasound guided core biopsy of the left axillary node was similar in morphology to the tissue extracted from the breast. This meant that the lymph node contained metastatic carcinoma, which looked exactly the same as the carcinoma in the plaintiff’s breast. Therefore, Dr. Staunton drew the conclusion that the cancer in the plaintiff’s lymph node was the same as the cancer present in the breast tissue, and that it most likely originated from the breast cancer. Dr. Staunton stated that an unrelated secondary cancer in the lymph node was highly unlikely.
156. Dr. Maeve Redmond’s histopathology report, dated 28th September, 2016 related to a lesion on the plaintiff’s liver. It noted that the tumour found there was biologically the same as that found in the breast. Dr. Redmond’s finding of the metastatic ductal carcinoma in the liver being CK7 positive and CK20 negative, was noted by Dr. Staunton as being very significant. It helped to predict the probability of the source of origin of this secondary tumour. Dr. Staunton stated that when you found a tumour which was CK7 positive and CK20 negative, in the setting of known breast carcinoma, then for all intents and purpose it was metastatic carcinoma of breast origin.
157. Dr. Redmond’s report contained a supplemental report of Professor Elaine Kay. This referred to a supplemental test request for PD-L1 (Programmed death-ligand). The plaintiff’s results revealed that a new category of drugs, which were available, would not work for her as she did not qualify.
158. Dr. Staunton also referred to the report of Dr. Christian Gulmann, dated 4th October, 2016. This related to a cytology specimen taken from the left paratracheal node. A small number of malignant cells showing similar features to the breast carcinoma were identified. They were found to be “ consistent with metastatic adenocarcinoma of breast origin ”. Dr. Gulmann’s report showed that the tumour cells were negative for TTF-1, which is positive in the majority of lung cancers, therefore indicating that the cancer located in the lung was not lung cancer, but rather cancer of breast origin.
159. Dr. Staunton further noted that apart from the grading of cancer, the cancer is also staged. When the plaintiff presented in 2016, the presence of a metastasis in her axillary lymph node brought about “ staging investigations ”, before any surgery would be carried out. Dr. Staunton noted that, in this case the tumour was likely to have been there in 2014, as the biological type of tumour, i.e. hormone receptor positive and HER-2 negative, tended to be relatively slow growing.
160. The reference to “ cortical thickening ” in a lymph node was a radiological indication of an abnormal lymph node, and given the setting of a known or probable breast cancer on mammogram, prompted the radiologist to do a needle core biopsy to confirm or exclude metastatic cancer.
161. Dr. Staunton explained that there is a molecular classification scheme for breast carcinoma, which can only be accurately performed by gene expression profiling. It is not in routine practice. The molecular classification can predict the likely behaviour of tumours. Inferring from features such as the hormone receptor status and the HER-2 status, the plaintiff’s tumour was likely to be a Luminal A type breast cancer, which should be, in theory, slow growing and less aggressive.
162. Dr. Staunton stated that when an oncologist is considering how a tumour might behave and what treatment would best suit the patient, they do not look at any one factor in isolation from that patient. Accordingly, they would not look at the histopathology report, or any component thereof, in isolation. She explained that the pathologist’s role was simply to comment on what they saw under the microscope. Based on the scientific analysis of what they saw, they would give their diagnosis of what type of tumour it was. However, it was for the oncologist to form an opinion as to how the tumour was likely to behave in the future, based on the pathologist’s report, and on other information relevant to the particular patient. Dr. Staunton’s role was solely to give a scientific opinion based on what she could see and prove in the laboratory.
163. In cross-examintion, Dr. Staunton stated that the three elements which went to make up the overall grading of a tumour, being Tubule Formation, Pleomorphism and Mitotic Count, were treated equally. The mitotic score was not given any special weighting. It was not more important than the other two criteria.
164. It was put to Dr. Staunton during cross-examination that Prof. Leen, Consultant Histpathologist for the defendant, had asserted in his report that a score of 3+3+1 was somewhat unusual, and may reflect delayed fixation. Dr. Staunton stated that she was aware of the procedures used in Beaumont Hospital for taking biopsies and preparing slides, which are then reviewed by the pathologists. She was satisfied that there was no delay in fixation on the part of the laboratory technicians who prepared the slides. She agreed that a delay in fixation could result in the mitotic count being falsely low, but that in the setting of biopsies carried out in Beaumont Hospital, delayed fixation was not an issue.
165. It was further put to Dr. Staunton that Prof. Leen was of the opinion that the “the presence of high grade DCIS may indicate that a more aggressive clone was present within this tumour ”. Dr. Staunton thought that this was speculation on his part as the entire tumour had not been available for analysis. She reiterated that the role of the histopathologist was merely to analyse and comment on what they saw before them under the microscope. Commenting on Prof. Leen’s assertions would be speculation on her part.
166. Dr. Staunton was asked to comment on Prof. Leen’s assertion that “ if the tumour was node positive back in 2014, this scenario would suggest very significant and persistent nodal disease unlikely to have remained occult for two years” . She further declined to comment on this, as it would be speculation on her part.
167. In the course of cross-examination, it was put to the witness that in a letter written by Prof. Morris, he had stated that the plaintiff’s tumour had behaved “ like an aggressive tumour ”. This implied that one had to consider how the particular cancer has behaved in a particular patient. Dr. Staunton agreed with this assertion.
168. Dr. Staunton was of the opinion that this was a fairly aggressive tumour. Proof of its aggressive behaviour, was the fact that the plaintiff had metastatic disease. It was clear from the progression of the disease that the tumour was fairly aggressive.
169. Evidence was also given on behalf of the plaintiff by her husband and by Prof. Morris. This evidence was primarily directed to issues of quantum.
IV. Summary of Evidence on behalf of the Defendant
IV.I Evidence of Dr. Norma Donlon
170. Dr. Donlon, the defendant in this case, graduated from Trinity College Dublin in 1998. She then did an internship year in Tallaght Hospital, and in 2001 she became a member of the Royal College of Physicians in Ireland. After that she went to the United Kingdom where she completed a GP registrar year, followed by membership of the Royal College of GPs. She began working at the Hilltop Surgery, Raheny, Dublin, in 2004.
171. With regards to the general procedure at the clinic for making appointments, Dr. Donlon explained how there were two receptionists working at the clinic, who would answer the phone and write down the appointment into a handwritten diary or appointment book. Then they would enter it into the electronic diary, where all appointments would be logged and you could see all the appointments that were booked for the day. When Dr. Donlon, or other doctors at the clinic, would open up their computer, the electronic appointment diary appears on their computer. It would show a patient’s name and an appointment time.
172. The consultation on 24th September, 2014, was on a Wednesday. The defendant usually worked all day Monday and Tuesday, and Friday mornings. On that particular day she was probably covering for Dr. O’Connor. She did not recall what exact notice she had been given that she would be working that day. Her normal start time was 15:00 hours. She had no recollection of anything specific concerning the patients that she had seen that day. Usually she would take a quick look at the patient’s chart on the computer prior to calling them in. She would look at the patient summary box, which would detail any ongoing chronic diseases and give a summary of the medication that she was on. She might also look at the previous visits to the clinic.
173. She had not seen the plaintiff previously as a patient, but she had a recollection that she may have met her on a previous occasion, when she came with one of her children. She went out to the waiting room and brought the plaintiff into the consultation room. The defendant said that she sat at her desk and the plaintiff sat on a chair to the side of the desk. The plaintiff’s file was open on the computer. She asked the reason for the visit, to which the plaintiff said that she was concerned about a lump under her arm. The defendant had no recollection of breast cancer being mentioned, other than when she asked the plaintiff if there was any family history of breast cancer. If she had mentioned a concern about breast cancer, she would have recorded that.
174. When taking the history from the plaintiff, she would have asked for descriptive factors of the lump such as its size, shape, whether it was tender, the location of the lump, the duration of the lump, and whether it had been there previously. She would only record any relevant positive or negative details. These questions were asked while the plaintiff was sitting at the desk and she was sitting at the computer. This was the history taking phase of the consultation.
175. She was relying on her note, which stated that the plaintiff had said that the lump was non-tender and it had been present for approximately three months.
176. The next phase was her examination of the plaintiff. She asked the plaintiff to sit on the edge of the bed and to bear her armpit. She could not recall what the plaintiff was wearing that day. She may have removed her outer top, but not her bra. She did not ask the plaintiff to lie on the bed at any stage. She was sitting on the edge of the examination bed. The plaintiff would have to lift her arm to show her the location of the lump. However the examination itself was done while she was supporting the plaintiff’s elbow and holding the arm slightly abducted from the body. This was necessary to ensure that the muscles in the upper arm and in the armpit were lax, thereby enabling a proper examination of the axilla. This was the method that they had been taught to carry out such examinations. In carrying out the examination she used the tip of her fingers to palpate the entire area of the axilla, being the walls and the apex of the axilla.
177. Having examined the axilla, she was unable to find any lump. She would have asked the plaintiff to point out where she thought the lump was and she then palpated the entire area again. She could still not find any lump. The defendant stated that she would have told the plaintiff that she could not find any lump in the axilla. The plaintiff did not give her any sense that she thought that the lump was still present. She did not communicate any such belief to her. She then examined the right axilla to ascertain if there was any lump present there and for comparative purposes. She had written the word “axillae” in her notes.
178. When she had completed the axilla examination, she would have suggested that a breast examination would be done. She would have used words to the effect “I would like to perform a breast examination”. She would try to keep the request in a conversational tone, as this was her first time seeing the plaintiff.
179. The defendant stated that she wanted to do a breast examination, as that was part and parcel of the examination of the axilla. At that time she had not found anything in the axilla and the index of suspicion of breast cancer was low, due to the plaintiff’s age and the absence of any family history of breast cancer, but a breast examination was still advisable. The defendant said that she could not recall the exact words used by the plaintiff, but she did have a recollection that her request was declined. That seemed unusual to her. She had no doubt that she had made the request and that it was declined.
180. The defendant stated that when the plaintiff declined the breast examination, that was a difficult situation. There can be reasons why a patient would refuse such an examination. She did not feel that she could push a breast examination at that time. She did not sense any unease or disquiet on the part of the plaintiff. If there had been she would have documented it. If there had been some disquiet on the plaintiff’s part, that would have stood out.
181. When the examination was complete, the patient would get dressed and the defendant would sit at her desk. There would then be the discussion phase of the consultation, where she would give her impression of a possible diagnosis and they would discuss a management plan for the future. It was put to the witness that the plaintiff had said that the defendant had assured her that someone of her age would not get breast cancer. The defendant stated that she would not ever give such a blanket assurance, as no doctor could reassure someone that they would not get cancer. The reference to “reassurance” in the notes, meant that she had reassured the plaintiff that she could not find any lump in her axilla and that inflammation of the lymph nodes could have been due to her eczema. She stated that whatever was written in her note had definitely been verbalised with the plaintiff.
182. The defendant stated that when she had confirmed to the plaintiff that she could not find any lump in the axilla, she had no sense of any divergence of opinion between her and the plaintiff in relation to the presence of the lump. If the plaintiff had maintained that the lump was still present, she would have noted that and the consultation would have gone in a different direction. She would have advised the plaintiff to return in a couple of weeks and she would have examined the axilla again. If there was still disagreement as to the existence of the lump at that consultation, she would probably have referred the plaintiff for an ultrasound scan.
183. She explained that portion of her notes which read “impression —? Resolved LN secondary to eczema” as meaning, that she would have told the plaintiff that she could not find any lump. That she noted that the plaintiff had had long-standing eczema and that she felt that it was probably a transient lymph-node secondary to eczema. The final part of her note recorded her advice to the plaintiff that she should return to the clinic if the lump recurred. This suggested to her that both she and the plaintiff were in agreement that the lump was not present that day. However, it was important that a patient should know that if the lump recurred, they should re-present to the surgery.
184. The defendant stated that her notes were written up immediately after the plaintiff left her consultation room and before the next patient was called in.
185. It was put to the defendant that the plaintiff’s expert had suggested that she should have told the plaintiff to return for further examination in 4 to 6 weeks. The defendant stated that she had been satisfied that there was no lump palpable and she was further satisfied that there was a plausible explanation for the transient lump. For that reason, she did not tell the plaintiff to return in a number of weeks. However the plaintiff understood that she was to return to the surgery, if the lump should recur.
186. She next saw the plaintiff in December 2014 in relation to infection of her eczema. There was no mention of the previous consultation, or of the axilla lump at that consultation. If the plaintiff had said that the axilla lump was still present, the defendant stated that she would have examined the axilla again and if the plaintiff still maintained that the lump was present, she would probably have referred her on for an ultrasound scan of the axilla.
187. The defendant saw the plaintiff again in relation to unrelated matters in July 2015 and July 2016. Again there was no mention of the axilla lump.
188. The defendant stated that she had no doubt, or sense that the plaintiff had left the consultation in September 2014 with any sense of unhappiness or disquiet. If there had been, she would have documented it.
189. In cross examination, the defendant accepted that early detection of breast cancer was important. She accepted that women are encouraged to go to their GP if they find a breast lump. She was not sure if they would be given such encouragement if they found a lump in the axilla. This was because there were many reasons for a lump in the axilla.
190. However, she accepted that a woman who found a lump in her axilla, should get it checked out. She accepted that on the Internet there was advice that an axilla lump could be connected to breast cancer.
191. The defendant accepted that many women, if they were due to have a breast examination, would specifically choose to go to a lady GP. She accepted that it would not be unusual for the plaintiff to come to see her rather than Dr O’Connor, if she thought that she might have to have a breast examination.
192. In relation to the notes of the plaintiff’s prior visits, the defendant stated that when she looked at the computer in 2014, she would only have had sight of the notes kept by the doctors at the Hilltop surgery, as the notes from the Raheny surgery were not amalgamated until after 2017. The Hilltop notes showed that the plaintiff had a history of asthma, eczema and soft tissue injuries from an RTA in 2008. Her last visit to the surgery had been on 20 August 2014 when she had complaints in relation to her eczema, but no infection was found.
193. It was put to the witness that there was no history of inflammation of her lymph nodes in the notes. She agreed that that was so, but there was no note that the lymph-nodes had been checked. She accepted that there was no prior complaint in relation to inflamed lymph-nodes, notwithstanding that the plaintiff had had eczema for many years.
194. In relation to the consultation on 24 September 2014, the defendant accepted that her only recollection of that consultation was that there was no conversation concerning breast cancer, other than her question in relation to any family history of breast disease. She also had a clear recollection that a breast examination was declined by the plaintiff. Other than those matters, she had to rely on her contemporaneous notes.
195. It had been recorded by the defendant that the plaintiff had been concerned about an axillary lump for three months. She accepted that that was a long period of time. However it was possible that if it was caused by eczema, it could last that long, depending on the size of the lump and the treatment that had been given. She accepted that no treatment had been given when she was seen in August 2014. However eczema was a recurring condition. It was put to the witness that if her eczema had recurred, it was reasonable to assume that she would have returned to see Dr O’Connor. The defendant stated that often people with eczema would not go to their GP, as it was a chronic condition. However she accepted that if the plaintiff had had a particular problem with her eczema, she would probably have returned to see Dr O’Connor.
196. It was put to the witness that as she had not returned to see Dr O’Connor after August 2014, it was reasonable to assume that there was no information in the lymph-node caused by eczema. The defendant stated that inflammation in the lymph-node could be caused by other things. Also the lymph-node had not been checked in August.
197. It was put to the witness that when she had seen Dr O’Connor in August 2014 in relation to eczema, the plaintiff had not mentioned the lump in her axilla, which according to the plaintiff was in existence at that time. The defendant stated that she may not have associated the axilla lump with her eczema. She would not expect a patient to make that connection.
198. The defendant accepted that the plaintiff’s concern at presentation in September 2014 was in relation to an axillary lump. The aetiology of that in the plaintiff’s mind was not clear. However she accepted the plaintiff’s evidence that the plaintiff had a concern due to her Internet search, that there may be a connection between the lump and breast cancer. It was put to the witness that the only reasonable explanation was that she had attended with the defendant because of a concern in relation to a lump in her axilla and the possible connection with breast cancer. The defendant stated that if the plaintiff had told her that she was concerned about breast cancer, that would have been documented. She did not accept that because the plaintiff may have looked at the Internet and seen a possible link between the two, she would definitely have mentioned it to her. Often patients can have a concern about something, but that may not be communicated to their GP. She had asked the plaintiff why she had attended the surgery and the plaintiff had said that she was concerned about a lump under her arm. Because not all lumps are connected to cancer, she may not have said that to the GP. It was put to the witness that here was a young lady, who had a lump under her arm for three months and had done an Internet search showing a possible link to breast cancer and in such circumstances it was suggested that it would be odd that she would not mention her concern in relation to breast cancer. The defendant reiterated that if there had been an expressed concern in relation to breast cancer, that would have been documented in the notes.
199. The plaintiff had said that the lump was non-tender. The defendant accepted that that indicated that it was not infected. So she had reported a non-tender lump present for three months meaning that it was probably not an infectious lump. It was put to the witness that that would take it out of the realm of a lump caused by eczema. The defendant did not agree. Lumps connected to eczema would come and go as the disease itself waxed and waned. She did not think it unusual that it had lasted three months. The lump can be transitory. One can have lymph adenopathy independent of infection as part of eczema.
200. The defendant stated that on this occasion the plaintiff had not mentioned any breast lump. She had come to the surgery with the complaint concerning an axillary lump. Accordingly she did not jump into a cancer conversation with the plaintiff. If a patient had told her that they were concerned in relation to breast cancer because of the axillary lump, one would go through the history of the lump and the patient’s family history and then do an examination of the axilla, followed by a breast examination.
201. It was put to the witness that if the patient was a young lady, would she not have said that it was unlikely that young ladies would have cancer. The witness denied that. She said that she would take a full history. Then do an examination leading to certain findings. If no axillary or breast lump was palpable and it was a young woman with no family history of breast disease, then she would tell the person that at 35 years the index of suspicion for breast cancer was low. She would not tell them that in most cases breast cancers were only in ladies over 50 years. She did not reassure the plaintiff that she was unlikely to have breast cancer being in her early 30s. She would only give that reassurance to young women, if there was no lump palpable in the axilla or the breast and no family history of breast cancer. If a person came in concerned about breast cancer, that would be documented in the notes, so that they could formulate an appropriate management plan.
202. The defendant stated that while she did not recall the exact words used at the consultation, if the plaintiff had still felt that there was a lump present at the end of the consultation, it would have taken a different path. The defendant stated that if the plaintiff thought that the lump in her axilla was still present, she did not communicate that to her. She had told the plaintiff that she could not find any lump. Her note suggested that the plaintiff agreed that there was no lump present at that time.
203. The witness was challenged on this, as counsel stated that it had not been put to the plaintiff that she had specifically agreed that there was no lump present. The defendant agreed with that assertion. However she reiterated that if it had been communicated to her that the plaintiff could still feel a lump, the consultation would have gone differently. She stated that there was no sense of discord or disagreement between them in relation to the absence of the lump at that consultation.
204. She was asked why she had not recorded that the plaintiff agreed that there was no lump present. The defendant stated that that would not be routinely recorded. In her view, consensus was implied in the note that she had written. She had recorded her findings on examination of the axilla.
205. It was put to the witness that it would be highly unusual for a woman to attend with her GP if the lump had actually gone or disappeared. The defendant disagreed, stating that it was not uncommon, that if a lady had had a lump in previous weeks, she might still go to her GP in relation to it. It was put to her that the note did not say that she had had a lump for the previous months, but that it had gone at the time of the consultation. The defendant accepted that her note did not state that. She accepted that the plaintiff had told her that she had a lump for three months and it felt non-tender. It was put to the witness that it was extraordinary to suggest that a patient would come in in relation to a lump that had disappeared. The defendant stated that that was not unusual.
206. She could only say that there was no lump palpable by her at that consultation. She had had situations where patients would complain of a lump, but she would not be able to find one on examination. The axilla was not a complex area to examine. If there was a lump there, she would usually be able to find it. While she agreed with the opinion of Dr Burton that a patient can have a sense of their own body, she did not agree that they could feel the lump when a doctor could not find the same lump on palpation. Occasionally a patient might feel something that was not in fact significant and the doctor would be able to reassure them in that regard.
207. She accepted that for a lady to come in with a concern in relation to breast cancer, but to decline a breast examination, would be very unusual. She had thought that she ought to examine the plaintiff’s breasts. The situation was that there had been no finding in the axilla, there was a long history of eczema, this was a 32-year-old patient with no family history of breast disease, so the index of suspicion for breast cancer was low and in addition, she had a plausible explanation for inflammation of the lymph nodes.
208. The defendant was asked whether in such circumstances she would remonstrate with the plaintiff in relation to the need to do a breast examination. The defendant stated that one had to look at all the circumstances: there was no lump in the axilla; no family history of breast disease; the patient had eczema and it was the first time that she had met the plaintiff. Accordingly, while she had requested to do a breast examination, she did not take it any further, when that was refused. She had documented the patient’s refusal to have such an examination.
209. While a breast examination was the preferable course, there had been no axilla lump palpable. Such examination was offered and had been declined by the patient in circumstances where the index of suspicion for breast cancer was low.
210. The defendant stated that cancer had been in her mind, or on her radar at that consultation. She had asked a question about there being any family history of breast cancer. However, she had not had a broad cancer conversation with the plaintiff. She had only asked if there was any family history of breast cancer, which was asked in the context of the presenting factor, which was a lump in the axilla, which she accepted could be connected to breast cancer. It was put to the witness that here, there was a young lady in her early 30s, there had been some discussion in relation to breast cancer and in these circumstances, was there any reason for her to refuse a breast examination. The defendant stated that she could not think of any rational explanation for such refusal. She accepted that such refusal was very unusual.
211. It was put to the witness that the offer and refusal had not happened and that she had tried to misinterpret her own notes. The defendant agreed that it was unlikely that the lady would refuse a breast examination, but it was not impossible. She was asked whether that would have rang alarm bells with her. She stated that the current presenting complaint had been an axilla lump. She had mentioned breast cancer in the context of family history, but did not have any wider discussion in relation to cancer. She accepted that breast cancer had been on her checklist because it was a very serious condition, but was very unlikely in the context of a presentation with an axillary lump. She had offered a breast examination for completeness, but it had been declined.
212. It was put to the witness that she had reassured the plaintiff that she was too young for breast cancer and that such disease was usually in people in their 50s and that on that account, she had left the consultation delighted. The defendant stated that she never gave any broad assurance in relation to cancer. It was not possible to give such reassurance. She had reassured her that she had not found any axilla lump and that there was a plausible explanation for that. She had concluded that the lump was probably a transient complication of the plaintiff’s eczema.
213. It was put to the witness that she had made a probable diagnosis that the lump was connected to the plaintiff’s eczema, when there was no prior history in the notes of any such lumps being connected to her eczema. The defendant accepted that her diagnosis of probable lymphadenopathy connected to eczema, was the first time that that had been diagnosed for the plaintiff. However, she stated that ezcema was a chronic process. A common cause of lymphadenopathy, would be a chronic condition such as eczema. Although she accepted that that had not been recorded in the plaintiff’s notes previously. However if she had had such nodes previously, it may not necessarily have been recorded in those notes, because the nodes may or may not have been palpable and they would wax and wane over time. Her impression was that the plaintiff had had transient lymph-node inflammation connected to her eczema, which had disappeared by the time that she had seen the plaintiff.
214. It was suggested to the witness that that theory was highly improbable. She disagreed, stating that transient lymph adenopathy was commonly connected to eczema. She accepted that it might have recurred over the time that the person had flare-ups of her eczema; a lot would depend on the treatment being given. It may or may not have presented before. It was put to the witness that that theory was highly improbable, given that the plaintiff had not presented with such complaint connected to eczema prior to 2014. The defendant stated that in the context of no lump being palpable in a young person, with no family history of breast cancer and given that swelling in the axilla was not usually the first sign of breast cancer, she felt that the eczema was the most likely explanation for the lymph adenopathy, but with the caveat that the patient should return if the lump recurred.
215. On 12th December, 2014, the defendant saw the plaintiff again with impetiginised eczema. She did not examine the axilla on that occasion. She was satisfied that there had been no lymph-node palpable in September 2014. There had been a plausible explanation for that. She had given guidance to the plaintiff to return to the surgery if the lump recurred. There had been no dispute in relation to that. She accepted that the plaintiff had returned in December 2014 with infected eczema and that an inflamed lymph-node can be part and parcel of that. However, she would only check the axilla if there was a complaint made in relation to that area.
216. She accepted that she had not made any reference to the plaintiff’s prior refusal of a breast examination. She accepted that that had been unusual and that she would have liked to have done a breast examination in September 2014. However there had been no lump palpable in the axilla, there was a possible explanation for that and the plaintiff had agreed to return to the surgery if the lump recurred. The plaintiff had not mentioned either the lump, or the breast examination in December 2014 and nor did she.
217. It was put to the witness that she might have told the plaintiff at that consultation that she was being a bit foolish to refuse a breast examination and that it would only take a minute to do. The defendant stated that she did not think that it was necessary to reopen the issue, unless the issue of a lump was presented to her. She denied that she had dismissed the lump in relation to a risk of cancer, as there had been no lump palpable in September 2014.
218. It was put to the defendant that if she had dismissed the lump in September 2014, that would explain why the plaintiff had not mentioned it subsequently. The defendant stated that she had not dismissed the lump. She had not found any lump. She had given specific reassurance that there was no lump palpable and advised the plaintiff to return if the lump recurred.
219. She had seen the plaintiff in July 2015 in relation to injuries arising out of her RTA. There was no reference to the lump, or to the refusal of a breast examination at that time.
220. In re-examination, the defendant reiterated that if the plaintiff had returned to her and still maintained that she had a lump in her axilla, and she could not find it, she would then have referred the plaintiff for an ultrasound scan of her axilla. She also reiterated that inflammation of the lymph-node was not synonymous with infection.
IV.II Evidence of Dr. Ronan Boland
221. Dr. Boland commenced by giving evidence of his qualifications and experience. He is currently principal partner in a busy GP practice in Cork city. It is a two doctor practice, with one nurse. He frequently does breast examinations. Many of his patients do not mind coming to him for such examinations. He would do an average of 2/3 breast examinations per week. He was a former president of the Irish Medical Organisation.
222. Dr. Boland said in summary, based on his assessment of the defendant’s account of events and the content of her contemporaneous notes, he was of the view that she had acted in a way that most competent GPs would have done in the circumstances.
223. Dr. Boland stated that a GP’s note was primarily an aide memoir when treating a patient on an ongoing basis and was also of assistance if there was any subsequent dispute as to what happened at the consultation. The note was necessary when the GP was seeing 4 – 6 patients per hour, which could be 25/30 patients per day. The note was also necessary if the patient should be seen by other doctors in the practice later on.
224. He thought that the defendant’s note in this case was an acceptable note. It was put to him that the plaintiff’s expert, Dr. Burton, thought that the note was adequate, but not detailed. Dr. Boland stated that any note could always be more detailed. It was necessary to record what happened at the consultation, while not taking away from the time that one had with the patient. It was necessary to strike a balance, given that one was seeing 25/30 patients per day, one had to be practical. He thought that the defendant’s note was a good one.
225. It was clear from the records that the plaintiff had chronic eczema. The defendant had noted that the plaintiff was concerned in relation to a possible axillary lump, which had been present for three months. A lymph node could be inflamed by infection, but it could also happen in the absence of infection. One can have either inflammation or infection as the cause of enlargement of the lymph node. If a patient had a flare-up of eczema, they could have lymphadenopathy. This could be transient, or it could persist. The fact that it had a duration of three months, was not a red flag in itself. It may not have been continuous for the entire three month period.
226. The note made by the defendant indicated that she had worked through a number of likely differential diagnoses, one of which low down on the list was breast cancer, which she had considered. With an axillary lump the connection to breast cancer was very small. For every one lump that was connected to breast disease, there would be hundreds which would be due to gland secretions.
227. Dr. Boland stated that if the defendant had said “I would like to examine your breasts”, that would be adequate. Generally the examination should be not offered in a way that would alarm the patient, as it was only being offered for completeness sake, in circumstances where no axillary lump had been found. When clinical examination of the axilla had been negative, a breast examination would be offered for completeness sake. According to the defendant, the plaintiff had refused such examination and that had been documented. Dr Boland thought that that was all the GP could have done in the circumstances.
228. If the axillary lump had been found, then it would have been necessary to explain to the patient why an examination was not just prudent, but was necessary.
229. In a consultation the first phase is to take a history from the patient. The next phase is to do an examination. If both axillae had been examined and nothing was found, that would be all that he as a GP would have noted down.
230. Dr. Boland explained that to perform an axillary examination, ideally the plaintiff would be in the seated position, with the weight of the arm supported, so as to release the muscles of the axilla to enable palpation of the area. He thought that most GPs would just document findings that were positive or negative on examination. They would not document how the examination had been carried out.
231. Dr. Boland stated that communication with the patient was a big part of GP training. They are taught to pick up both verbal and non-verbal cues from a patient. The management plan was a joint plan with the patient. If a patient was uneasy with the GP’s findings, or with their advice for future management, it would be necessary to tease that out, so as to try to achieve consensus with the patient. If a patient was not happy, then the issue was not resolved. If a patient was happy with the management plan advised, that would not be documented. However if the patient was not happy, the GP would be more likely to record that because the patient would be leaving unhappy with the outcome of the consultation.
232. In relation to the advice noted “TCI if recurs”, he thought that that was an adequate safety net in circumstances where a GP had done a normal examination and the plaintiff was happy with the outcome of that. It left the door open to the patient to return if he or she saw fit. Here the plaintiff had said that she left the consultation relieved that there was nothing to worry about. That reconfirmed his view that the advice to return to the surgery if the lump recurred, was the appropriate advice to give. It was put to the witness that the plaintiff’s expert, Dr. Burton, thought that the plaintiff should have been advised to return in 2/6 weeks. Dr. Boland stated that on the plaintiff’s history on presentation and on the findings on clinical examination and as there did not appear to be any disagreement on the part of the plaintiff on those findings, he would not have brought the patient back for review.
233. If there was disagreement with the plaintiff when she came back the second time, that would cause the doctor to take further notice and to do a further examination and if nothing was found on examination a second time, and the patient was not reassured, then he would have taken further action in the form of a referral for an ultrasound, or a referral to the surgical OPD.
234. If there was no consensus in relation to the presence of the lump at the first consultation, some further follow-up would be indicated, either with the same doctor, or with another doctor within 2 – 4 weeks. He would not make a referral at that stage. If at the second consultation, the axilla examination was negative and the patient refused a breast examination, he would refer the patient for imaging of the axilla and make a surgical referral. They would take a holistic view. That would be in the OPD. He would not refer the patient to the breast clinic.
235. In relation to the GP guidelines, page 2 was the most important page. It sets out the circumstances in which a referral should be made. Page 1 deals with the urgency of the referral. In relation to the box headed “ Breast Lumps ” on page 2, Dr. Boland did not think that that referred to axillary lumps, subject to the caveat that the tale of a breast cancer can extend partially into the axilla. If the lump was not in that area, it would not be within that algorithm. The guidelines stated that if no lump was found in the breast, the doctor should “ Reassure ?Reassess ”, meaning that the patient can be reassured, but it is left to the doctor’s clinical judgement whether a review is needed.
236. Page 1 of the guidelines dealt with the circumstances in which an urgent referral should be made. It stated that if a discrete lump was found in the axilla, or breast, in a person under 35 years, an urgent referral should be made. A large percentage of axilla lumps would have nothing to do with breast cancer and would not need to be referred.
237. Dr Boland did not think that the guidelines were relevant in this case. They would not be relevant until it was established either in the patient’s history, or on clinical examination that there was a breast problem. Here the presenting problem was an axillary problem, with nothing found on clinical examination of the axilla. Such examination would ideally have involved an examination of the breasts.
238. In relation to the plaintiff’s subsequent visits to the defendant, Dr. Boland stated that unless there was a lack of agreement at the first consultation as to the presence of the axillary lump, or some uncertainty in the matter, most GPs would feel that the matter had been satisfactorily concluded on 24 September 2014 and would not have reopened the issue at a subsequent visit, unless the patient raised a specific concern.
239. Dr. Boland stated that he had seen lymph adenopathy as a result of breast cancer, but not as a presentation of it. As a GP, he would have been aware of the plaintiff’s eczema condition. That would have been a plausible explanation for her complaint. As long as the doctor had done an examination to rule out other things, then they can act on the balance of probabilities as to the cause of the inflammation of the lymph-node. It was pointed out that in his evidence, Dr. Burton had said that on the notes he would not have expected to refer back to the axilla complaint on subsequent visits. Dr. Boland agreed with that analysis.
240. In cross-examination Dr. Boland stated that his opinion had been based primarily on the accuracy of the GP’s contemporaneous notes. If the plaintiff’s account was accepted by the court, then he would have criticism of the defendant’s conduct. If the plaintiff had presented with a concern about breast cancer and the defendant had discussed those concerns with the plaintiff and yet did not offer a breast examination and then documented that the plaintiff had refused such an examination, he would be critical of those actions on the part of the defendant.
241. He accepted that if a patient had attended the surgery worried about breast cancer and had an expectation that there would be a breast examination, there would be no reason not to do one. A breast examination was a straightforward examination, which would take approximately 3 – 4 minutes.
242. It was put to the witness that Dr. Burton was of the view that if a doctor’s actions were highly dependent upon clinical examination, it was necessary to proceed very carefully. Dr. Boland agreed with that. It was further put to the witness that in her evidence the plaintiff had stated that she had found the lump under her arm when in the shower. When it was there for a few months and after having done an Internet search she then became worried. He accepted that that was not untypical.
243. He accepted that an Internet search would show a possible link between a lump in the lymph nodes and breast cancer. He accepted that it was reasonable in those circumstances for the plaintiff to request that she be seen by a female GP. He accepted that she had had two children and so would have had intimate examinations in the past. He also accepted that if a person was worried about breast cancer, they would probably expect a breast examination when they attended with their GP.
244. It was put to the witness that the plaintiff stated that the defendant had said to her that in general she was unlikely to have breast cancer at the age of 32. Dr Boland stated that he would not have used those words. He would not say to any patient that there were too young to have breast cancer, but he would reassure such a patient that it was unlikely at such a young age.
245. It was put to the witness that in her evidence the plaintiff stated that she had tried to show the GP where the lump was, as she could feel it. The GP examined the area again, but could not find it. Dr. Boland accepted that that was the type of thing that could reasonably happen. The plaintiff’s evidence to the effect that the defendant had said that people in their 50s were more likely to have breast cancer and were more likely to be called for mammograms, was a reasonable statement in general.
246. Dr. Boland was asked as to the circumstances in which a patient might refuse a breast examination. He said that this could occur if a patient was seeing a male GP, or if she had not expected a breast examination on that visit, or if she was wearing unsuitable clothing, or it was possible that she may not have expected such an examination and may be embarrassed if it was late in the day and she was sweaty or unclean in the area to be examined. These were circumstances in which a patient might refuse such an examination.
247. Dr. Boland accepted that where a female patient specifically made an appointment to see a female GP and if she expected a breast examination, it would be very unusual for her to refuse such an examination.
248. It was put to the witness that patients do not normally make an appointment in respect of a lump that had gone. Dr. Boland stated that a patient may be concerned about an issue for some time, particularly if it tended to wax and wane. They might then grab the bull by the horns and make an appointment to see the doctor. If the lump had been waxing and waning over a period of three months, the patient might think that they better get it checked out. He accepted that if the lump was completely gone, it would be unusual for a patient to make an appointment to see their GP. He accepted that the defendant’s note did not say that the lump had waxed and waned.
249. Dr. Boland did not agree with the evidence given by Dr. Burton that one would normally expect a more detailed note in relation to the history of the lump, its size, et cetera. Dr. Boland thought that the note made by the defendant was better than average. It was certainly as good a note as the majority of doctors would have made on that presentation. The note is only a note of the key relevant findings. It may not record all the questions asked by the doctor. He accepted that there was no reference in the note to the shape of the lump. However he would not normally ask the patient about the shape of an axilla lump. He accepted that there was no reference to whether the lump had been present in the axilla before. There was a reference to the lump being non-tender. He thought that the note accurately reflected the doctor’s account of the consultation. He would not normally record whether there were lumps elsewhere, unless the patient had specifically reported lumps elsewhere in the body. He agreed that the questions suggested by Dr. Burton were reasonable. He pointed out that Dr. Burton had accepted that the defendant’s note was an adequate note.
250. It was put to the witness that the defendant had stated in her evidence that she had asked questions in relation to the lump, such as how big it was, where it was, whether the plaintiff had had it before, and were there lumps elsewhere. Dr Boland stated that those were reasonable questions. However, how much you would record in the note, would depend on the answers given by the patient and the findings on clinical examination. If the findings on examination were positive, then one would set out all the relevant facts in a referral letter. He accepted that the majority of those questions should have been asked.
251. Dr. Boland also accepted that the plaintiff’s evidence had been that the lump had been present continuously for the preceding three months. He accepted that there was no record of the lump waxing and waning, but there was a question mark over the possibility of the lump being there.
252. He reiterated that the GP guidelines in relation to breast cancer did not apply to this consultation because the plaintiff did not have symptoms or findings of breast cancer, so there was no basis for a breast referral. If the defendant’s note was accurate the breast guidelines would not apply in this case. He did not agree with Dr. Burton’s evidence that the guidelines at page 2 referred to both axillary lumps and breast lumps. Both he and the defendant had the same opinion in this regard and they were the doctors who operated under the Irish guidelines Dr. Burton would operate under the NICE code in the UK. There it was possible to get a referral within two weeks, whereas in Ireland it could take up to 6 months for an urgent referral. Accordingly Irish GPs had to be pragmatic which patients they would refer for urgent referral.
253. Dr. Boland agreed with Dr. Burton that in principle if the doctor could not find a lump in the axilla, but if the patient thought that the lump was there, then one should reassess the patient. If the patient agreed that there was no lump present, then it was only necessary to give reassurance. It was put to the witness that Dr. Burton had stated that if the patient thought that the lump was still there, the GP should either reassess or refer. Dr. Boland did not agree that there should be a referral at the first visit if there was disagreement; there should just be a reassessment after a few weeks. This was necessary because there was no consensus, but a referral at that stage would not be appropriate. The review should take place 2 – 6 weeks later. If on the second occasion the patient still thought that there was a lump, then a referral would be appropriate, even if only to reassure the patient.
254. It was put to the witness that Dr. Burton had stated that if one found an axilla lump and a lot of eczema, it would be appropriate for the GP to treat the eczema. Dr. Boland agreed that if there was inflamed eczema, it would be reasonable to treat that and then reassess the plaintiff, or tell the plaintiff that if the lump was still there after treatment, she should return. One would treat the eczema with antibiotics and steroids. Dr. Boland accepted that if the patient remained concerned about a lump, then the option of referral moves up the ladder.
255. Dr. Boland stated that if a GP was doing an axilla examination, he would always want to do a breast examination as well for completeness sake. If no breast examination was done at the first consultation, if on the second occasion the patient still thought that there was a lump present, the GP should be more vigorous in seeking to do a breast examination. The doctor should go into detail as to why a breast examination was necessary. The doctor would try harder on the second occasion to carry out such an examination. He accepted that it would be highly likely that a patient would consent to such an examination in those circumstances.
256. In terms of how he would put the request, Dr. Boland stated that he would say to the patient “ For completeness sake I would like to do a breast examination ” or “ It would be prudent to do a breast examination ”. Those words would be appropriate because the index of suspicion in the absence of a positive axilla examination was low. In such circumstances, the doctor would not pursue the issue of a breast examination more vigorously. If the patient returned on the second occasion, then he would be more vigorous in relation to the request for a breast examination.
257. On the defendant’s note, after a negative axilla examination, there would be a very low index of suspicion for breast cancer. The doctor would still do a breast examination for completeness, but would not push a refusal of such examination by the patient.
258. It was put to the witness, that if the plaintiff had been reassured that there was nothing to worry about, that would explain why she had not mentioned it at subsequent visits to the doctor. Dr. Boland accepted that that could explain why the plaintiff had not mentioned it when she had returned to the doctor.
259. In re-examination Dr. Boland stated that there was always a departure phase to the consultation. This was used to tie things together. The GP had taken a history from the patient, had carried out an examination and had formed a diagnosis and a treatment plan. The diagnosis and treatment plan would be discussed with the patient and agreed upon. This will include any advice in relation to whether the patient should return for review. This phase would include an assessment of whether the patient was in agreement with the diagnosis and the treatment plan.
260. “ TCI if recurs ” meant that the GP had not been able to find the lump. While the note did not specifically state that the plaintiff was in agreement, most doctors would not record a consensus. Consensus between doctor and patient would be implied, unless documented to the contrary. When the GP could not find the lump in the axilla and it was presumed that the plaintiff agreed with that assessment and she was advised to come back if the lump should return, then that was reasonable advice to give in the circumstances.
IV.III Evidence of Professor Pat Price
261. Prof. Pat Price was called to give evidence on behalf of the defendant. She is a qualified doctor with a research degree from the University of Cambridge on growth rates of tumours. She is a Fellow of the Royal College of Physicians and the Royal College of Radiologists. She is a clinical oncologist, and a specialist in cancer treatment. She has spent the last 30 years of her research career looking at the measurement and the assessment of growth rates of tumours and their response to therapy.
262. Prof Price began by explaining the term “mild cortical thickening” as being an indication in a lymph-node which was not obviously malignant, that there was something which would give rise to a suspicion that there may be malignancy present, hence the need to do a biopsy. The biopsy enabled the diagnosis to be made that there was disease in that node. In these circumstances the assumption would be that the mild cortical thickening was in fact an area of disease, but was not an enlarged node on clinical examination. The CT scan of the node had been relatively normal. The PET scan showed only a small area of uptake. This meant that there was some disease in the node, but it was not enough to enlarge the node. Given the small amount of disease present in 2016, one could conclude that there was no disease present in the node in 2014.
263. There was a difference between a tumour being aggressive and its growth rate. A tumour could be aggressive, meaning that it would invade other areas. Most faster growing tumours would tend to be aggressive. Growth was the balance between the growth or proliferation of cells and the dying off of cells in the tumour. The dying of cells is known as apoptosis. If the growth rate is bigger than the dying rate of the cells, the tumour will grow. Accordingly one does not just look at the mitotic rate alone. For example in skin cancer there was often a high mitotic rate, but there was also a high death rate of cells, so in general it was not a fast-growing cancer. The mitotic rate was just one factor to be looked at. It was not the dominant factor.
264. The Bloom Richardson scale was a combination of three scores. No one factor was more important than the other. One considers other factors as well when assessing the growth rate of the tumour. Even having done such an assessment, one cannot say for certain how a tumour will develop.
265. Prof. Price explained the purpose of histopathology. That department would examine a biopsy specimen under the microscope. The age of the patient would not affect what they saw under the microscope. In this case there was a fairly standard DCIS carcinoma, which would usually be a Grade 2 or 3. In reaching a prognosis, they had prognostic tools, into which they would put the variables and this would give an estimate of prognosis. That would it be used to decide future treatment. Age was one factor in the equation. Younger people did not tend to do so well.
266. Prof. Price explained that in looking at rates of tumour growth, age was the dominant factor. It was known clinically that the most dominant thing in relation to the tumour was the age of the patient. It was for this reason that in screening programmes age was the main factor determining how often people would be screened in general. In Ireland people in the age category 50 – 70 years would be screened every three years. The three-year interval is used because tumours tend to be slow-growing and therefore it was safe to screen at that interval. Over 70 years tumours would be very slow growing, so they did not routinely screen people over that age. In younger women, while it is rare to get breast cancer, it is known that tumours grow quicker in younger people. For this reason for younger women who are in the high risk categories, they could be screened every year, or perhaps even every six months. It was internationally accepted that in younger people tumours tend to grow faster.
267. Prof. Price explained that she did not look at age alone when determining the probable tumour doubling time. She also looked at information from the histopathology report from the biopsy; the fact that the plaintiff was oestrogen receptor positive and HER-2 negative; that she was Grade 2 (including her mitotic score); together with her individual factors post diagnosis.
268. Prof. Price stated that one would factor in the plaintiff’s young age in 2016, and then go on to look at the clinical factors, such as the primary tumour growth. One also had to look at how the metastatic disease had behaved. This would involve comparing progress of the disease between scans. If, for example, one had a scan and there was nothing on the scan and two weeks later there was a big 3cm mass present, then obviously that had grown very fast. It is that time interval that gave you what is called the disease-free interval. So in a patient with metastatic disease, they are constantly looking for what time it takes to metastasise and that would give them a flavour of how fast the disease was growing. They would also look at the response that there has been to therapy.
269. In this case the plaintiff had had some response to therapy, although Prof. Morris had stated that the response to hormone treatment had been disappointing. This was a poor prognostic disease, but she had had some very good treatment, but in comparison with other patients who had had early treatment and whose prognosis would be that 80% of them would be alive without disease at 10 years; in this case it was very close to the date of diagnosis and a much smaller amount of time had elapsed. So taking all of those factors together, it was her opinion that the tumour was more likely to be not at the tremendously fast end, but probably on the reasonably fast end of the scale. It was not on the slow end of the scale.
270. So looking at the applicable range for tumour doubling time, if one looked at the Tilanus-Linthorst paper a volume doubling time of 23 days was applicable at age 30 years. The Peer et al. paper went up to 148 days, with a mean of 80 days. In the circumstances of this case, she thought that between 44 and 80 days for this tumour was about right. That was her best guide to the court. Interestingly, she noted that Prof. Bundred had initially felt that 80 days was about right as well.
271. In relation to hormone levels, generally the higher level of oestrogen in younger women, would tend to increase growth rate. However it was usually people who were oestrogen receptor negative who were put into the fast tumour growth rate, but here the plaintiff was oestrogen receptor positive. Due to this fact, there was limited response to hormone therapy. It was not that effective. She has had good treatment, but the tumour was still progressing.
272. Prof Price was asked about the fact that the plaintiff had survived to the present time. She stated that for an average woman, if she was diagnosed with early-stage breast cancer, and had had the disease taken out, then even without further treatment, one would not expect her to have the disease 10 years later. However once a patient had metastatic disease, the average survival time was 24 months, but there can be variables within that. That just reflects the growth of the subclinical metastases that are likely to be there early on.
273. Once a person has got metastatic disease, there was data which suggested that with oestrogen receptor positive disease, the average survival was about 24 months. Now within that there was a huge range. At one extreme, you could get a patient who hadn’t relapsed for 15 years. If they then developed bone metastases, you would know because of that long disease-free interval, that they were probably going to last about 10 years once you treat them. These people who have had metastatic disease, we know that GPs have seen them all the time. They are patients that have metastatic disease for years. That is one extreme. The other extreme are patients that get early metastases and whatever you do they will only survive for something in the region of six months to a year. In this case the plaintiff had had extremely good treatment with newly available drugs. These were giving better treatment. The fact that the plaintiff was still alive. was a testament to the treatment that she had received. However it does not tell them whether the tumour is fast or slow-growing. The fact that she had exceeded the 24 month survival period, was more a comment on the effect of treatment, than on the rate of growth of the tumour.
274. Prof Price was asked whether it was likely that the plaintiff would have been node positive in 2014. She stated that this meant whether the disease had passed from the breast and had settled in the lymph-node and grown there. She stated that she believed that the plaintiff was not node positive in 2014.
275. She was asked whether the fact that the node had remained occult in the period between 2014 and 2016, was relevant. It was put to the witness that Prof. Bundred had stated that one could not really read anything into that. Prof. Price stated that the strongest evidence for her was that nobody had felt the node on examination in 2016. As already noted, all of the imaging done at that time, suggested that there was only a tiny amount of disease there in 2016. So, unless this tumour had not grown in the two years and it was just sitting there doing nothing for two years, or growing extremely slowly, which all of the evidence would suggest was not the case, then on the balance of probability, Prof. Price thought that the nodes were not involved in 2014.
276. Prof Price went on to say that in oncology they would never say “never” and perhaps this was an extremely unusual tumour that hadn’t grown in two years. However that was highly unlikely. It could be put at less than 0.1%. But the key issue was that at diagnosis, they knew that there was a 2cm node in the mediastinum, so logically one would have to say that that was there, so she had metastatic disease two years ago, so she was in the same position. The biology of it did not fit. But if that was the case, then if the lymph node was sub-cortical thickening in the axilla, the 2cm lymph-node in the mediastinum which was classified as metastatic disease, had to have been present. So it could be, but it was very unlikely.
277. It was put to the witness that Prof. Bundred had disagreed with that analysis. He had said that the disease could sit in the node for a substantial period of time and he explained that by referring to the difference between distant metastases and local or regional nodes. It was put to her that he was of the view that she was wrong, because she had failed to take account of that distinction. Prof Price stated that there were effectively two pathways by which the cancer could spread from the breast. Firstly, it could go down the lymphatics to various nodes in the body, or it could go down the bloodstream, where it would settle once it reached areas where the tumour liked to settle, such as in the bone, the liver, the brain and the lungs. That was a separate pathway to the lymphatics, where the cells would go down the lymphatic system into various nodes. One could hypothesise that there was a completely different growth rate between cells that land somewhere from the blood and cells that land via the lymphatic system. She thought that that was what Prof. Bundred must have been thinking of. So he may have concluded that the bone metastases may have come between 2014 and 2016 and grown very fast, but that did not explain the nodes in the plaintiff’s chest and supraclavicular fossa. She could not see how one could say that the tumour would have gone to one lymph node and then magically would not have gone to others and then they would grow in a different way. That just didn’t happen.
278. It was put to the witness that Prof. Bundred had said that the tumour could sit there for a period of time and she had not taken account of that. Prof Price disagreed, saying that one would have to postulate that the primary tumour and the node were extremely slow-growing and then suddenly it sat there and did not go into any other lymphatics, when that was the way that it would usually spread. Biologically it did not make any sense. The chance of it happening would be less than 0.01%.
279. Prof. Price stated that the Peer paper was commonly used in legal cases concerning breast cancer. It was the first paper to look at age and it referred to other papers, which had come to the same conclusions. They knew from screening which had been carried out, that there was a faster growth rate in younger people. It was necessary to look at two scans, so that one can compare the size of the tumour over time. The Peer paper was based on Scandinavian data where screening is done routinely from the age of 40 years.
280. The Tilanus-Linthorst data took it one step further, because they looked at high risk patients, they had gone right down to people aged 20, 30 and 40 years. Between the two papers one had the ranges of volume doubling times between 20 year olds and 50 year olds. A lot of the other papers did not give age-specific results. They instead do a mean doubling time and the average age of patients may be 60 years or similar ages, so obviously they are going to get a higher result. The two papers are important partly for the references they made in the back of them, but also in the details of what they were looking at. The Tilanus-Linthorst paper had specifically looked at the effect of the mitotic rate on this and it did not come out as a significant factor. They found that age dominated everything. There was no subsequent data which did not support the conclusions in that paper. Nobody had disputed the conclusions reached in Peer on tumour doubling time. These conclusions had influenced decisions made in relation to screening intervals.
281. It was put to the witness that Prof. Bundred had stated that while there were 236 patients assessed in the Peer paper, only 32 of those were under 50 and out of the entire cohort six could not be assessed, so there may be as few as 26 in the sample. He suggested that half of those under 50 years would be Grade 3. Prof. Price witness stated that the Peer paper did not record the grade. In the 70% of patients, who were around the menopausal or postmenopausal age, or were oestrogen receptor positive, there would be a difference between grades two and three, however the Peer data did not look at grade separately, it only looked at age. Prof. Price confirmed that it was still the data that was referred to by people like her when considering general screening programmes. There was no data that had come out that did not support the Peer conclusions. In fact, the Tilanus-Linthorst data, which looked at the age group between 40 and 50 years and older, their measurements exactly mirrored the Peer conclusions. This data had been accepted and that was why they had adopted the screening intervals which are in use commonly in the UK and Ireland. Nobody was disputing this data.
282. Prof Price accepted that in about 10% of younger women their tumour could be Grade 1. However Tilanus-Linthorst did not find that grade was the dominant factor in the overall consideration. It was simply something that you put into the mix and would consider with age and other factors in considering whether it was likely to be at the faster end, the slower end, or of the middle of the range.
283. In relation to the Michaelson paper, it was not looking at standard volume doubling times. Usually this would be measured from a comparison of serial measurements taken over time. However what they did there was that they tried to work out what would be the growth rate if you only had one measurement. What they did was, that they got a dataset from the MD Anderson hospital of 800 patients, who had only had one scan and they looked at the timing of when they had intervals in age, et cetera, so in fact the methodology was one of looking at the pathology size when you screened patients, versus the number of patients that were diagnosed. It was a very complicated model. They assessed that against the volume doubling time and said that was what it was, but in fact the dataset that came out at that 130 days, was actually based on only 110 patients who were screened and detected with one measurement and the average age was 61. So it was looking at an older age group and by that methodology one can only get a median, that’s the most commonly occurring doubling time rather than the average and you cannot get the range. Accordingly she did not think that that paper was terribly helpful. It was more useful to tell them how frequently in their hospitals they should undertake screening, that was all.
284. Prof. Price stated that in reaching her range for the correct tumour doubling time, she had had regard to the Tilanus-Linthorst paper, which suggested that because there was literally a range from age 50 years right down; if one did the intersect at 32/33 years you would expect something which could go down as low as a tumour doubling time of 23 days. However she had not taken the extreme lowest at 23 days, it could go up to 80 days. When one took into account all the factors that have been mentioned, she did not think it was likely to be at the extreme end, it was more likely to be in the range of 44/80 days. She was comfortable with that range because it was not moderately differentiated. That remained her opinion and nothing she had heard had led her to change that.
285. She confirmed that in reaching her opinion she had had regard to the histopathology report and to the 3+3+1 score, but had also looked at a number of other factors as outlined above.
286. It was put to her that Prof Bundred had stated that he did not think that anything less than 80 days was relevant. Prof Price stated that she did not know how he had reached that conclusion. He had not said what factors he looked at to reach such a conclusion. He had referred to the Tilanus-Linthorst paper in his first report and had come up with the same result as she had. The Tilanus-Linthorst paper contained important data, because it screened young women and also looked at whether they had the BRCA 1 gene. It did not matter if they had the BRCA 1 or BRCA 2 genes, but age was found to be relevant. This was important data. It showed that in young people, who were in the high risk category, they should be screened regularly. She considered that the conclusions in the Tilanus-Linthorst paper were still valid.
287. In relation to the Arnelove paper, that dealt with the S – phase fraction, which was a measurement which provided some guide to the proliferative component. They concluded that there was a weak correlation with volume doubling time, but they had not done the multifactorial analysis as to whether this came out. It was simply one factor that may be important. What you would need, was to have a paper that showed you that mitotic rate was completely related to growth rate. There was no paper that did that, whereas age was absolutely dominant. So it was not determinative, but was just one factor that had to be taken into account.
288. In relation to tumour palpability, this depended on breast size, but in general, one would not be able to palpate a tumour which was less than 1cm/1.5cm. That was the accepted threshold. In the literature it was put at 1.5cm in premenopausal women because they had more nodularity in their breasts. Tumours were normally found in the upper quadrant of the breast. If they were in the nipple area, they could be more difficult to palpate.
289. Prof Price explained the methodology for back extrapolation of the size of a tumour at an earlier date. She said that it was simply the application of a formula, which was available online. She noted that Prof Bundred had stated that the formula for the volume of a sphere was volume equals 4/3 pi r3. This meant that once one had a sphere, to work out the volume of that sphere, it can be assessed from the diameter. Volume was 4/3, that was a number, pi which was 3.1142, times the radius which was half the diameter cubed. So as long as one had the diameter one could assess the volume. Once one had the volume one had to try and find out what the tumour doubling time was, so as to back extrapolate the size of a tumour at an earlier date.
290. Volume doubling time was a standardisation, it was the time taken for the volume to double. If you have a volume which was, for example, 46.79 that can be entered in and if the time interval was 669 days, if it had an 80 day tumour doubling time that would mean it was 5.2 less in volume. You can work out what the volume would be and then get your volume and convert it back to a radius. She thought that that was probably what Prof Bundred had done. She used to do it in that manner. However it was a very difficult task and one needed a scientific calculator. It was much better to use a scientific calculator which was now available online, so the formula taken there had actually put the logarithmic value on it, so it actually does all of the assessment for you. She did not think that he had used that calculator because she had checked and triple checked the data in the formula and it gave the same result as she had reached. For this reason she thought that what Prof Bundred had done, was to do a small amount of rounding up, because he had done it sort of manually. She had checked the measurements against the published calculator and she had given the maths of how it can be worked out accurately, whereas all Prof Bundred had done was to give the method of how to work out one measurement. She could only assume that he had tried to do it manually to get it the other way.
291. Prof Price commented on Prof Bundred’s letter and stated that she was of opinion that he had misunderstood the image that she had produced in appendix 2 of her report, which he referred to as an image of the node, but it was in fact an image of the breast. Furthermore mild cortical thickening did not mean that the node was enlarged. If one looked at what was presented in 2016, the node was not palpable and there was only mild cortical thickening; accordingly, she was of the opinion that it was unlikely that there was a palpable node present in 2014. Dr Redahan’s note in 2016 clearly stated that there was no lymph-node palpable. Mr Allen’s note also referred to the axilla examination being negative, meaning that the surgeon had not found anything on palpation of the axilla. The CT scan did not record anything that caused concern. The nodes appeared normal in that scan. The scan done at the Blackrock clinic stated that there was increased FDG uptake in a 1cm left axillary node. This meant that the node looked normal, but there may be something in it.
292. Prof Price noted that the scan from the Blackrock clinic had specifically referred to a 1cm node, so that would not have been palpable.
293. From the mammogram, one could back extrapolate using a tumour doubling time of 80 days giving a tumour of 0.6cm in 2014. If it was back extrapolatednfrom the clinical examination in 2016, when it was thought to be 4cm, that would back extrapolate to 0.5cm in 2014.
294. In cross-examination, Prof Price accepted that sometimes a patient will be able to feel a lump, but the GP will not be able to do so. In this case as the GP was not able to palpate the lump in September 2014, she thought it was reasonable that she would reach the diagnosis that she had done, that it may have been a transient lump connected to the patient’s long-standing eczema. She accepted that a node that was infected would tend to be tender, whereas a malignant node would tend to be hard.
295. It was put to her that the plaintiff had attended complaining of a non-tender lump under her left armpit, which had been present for three months. Prof Price stated that her understanding was that the plaintiff had felt something in her axilla, but the GP was unable to find anything on palpation, so it was reasonable to conclude either that it may have been connected to the eczema and had gone, or that there was nothing there at all. Prof Price stated that she was aware that the plaintiff had stated that she had had the node for the two years prior to 2016.
296. Prof Price confirmed that in her letter accompanying her medical report she had stated that by back extrapolation, she had estimated the size of the tumour at between 1 – 5mm in 2014. That had been based on a 4cm lump in 2016 on clinical examination, if that was back extrapolated using a tumour doubling time of 80 days, it gives you 5mm in 2014. If that was extra back extrapolated using 44 days, one gets 1mm in 2014. If one takes account of the evidence from the surgeon, that it grew within a month from 4cm to 5cm between August and September 2016, that would put it more at the 40/44 days for tumour doubling time, which would put it more at the 1mm size in 2014. Both sizes were impalpable, therefore both would mean it was node negative. Accordingly, she did not think it mattered which estimate of tumour doubling time was taken.
297. Prof Price stated that it was impossible to give an absolutely definitive size. It was appropriate to give a range. She thought that the range she had given to the court was fair. As she had said before, she did not think that the tumour was so fast that it was less than 1mm, nor did she think that it was so slow, that it was more than 5mm in 2014.
298. Prof Price explained the TNM score. T was the tumour size, N was the nodal status in terms of regional nodes and M was the metastatic status. They knew that in 2016 the T stage was a T3. It was 3cm node positive in the axilla and it was metastatic. So we have got the TNM stage. What she had done was to back extrapolate that to 2014. She stated that in relation to the primary tumour, the clinical measurements were T1 a, and the importance of that was that it gave doctors a sort of slightly lookup table as to what the management should be and what was the broadly likely outcome. So the whole structure of the argument was that as an expert, you had to work out what was the description of the tumour there and what it was earlier. There were also other factors, such as the oestrogen receptor status and grade, which were important. The grade will stay the same, because that is the inherent biology of the tumour, as opposed to a description of where it is. Other factors such as the oestrogen status and the HER-2 status were also important. However those could vary with metastatic disease. But in this case, the biopsies has shown that these had not changed. They both remained oestrogen positive and HER-2 negative.
299. Prof Price was asked further about what the TNM stage of the assessment comprised. She explained that the T stage dealt with the size of the tumour. She had set out the various sizes ranging from TX to T1 c at appendix 9 to her report. In this case the tumour was size dependent. So the size of the tumour at diagnosis in 2016 was important. In this case it was found to be T1 a, which meant that the tumour was more than 0.1cm but not more than 0.5cm. The N stage dealt with nodal spread, which looks at whether any of the regional or distant nodes are affected by the cancer. And lastly there is the metastatic spread, which has a classification of MO meaning that there is no sign of cancer spread, or M1 meaning that the cancer has spread to another part of the body.
300. In addition to the TNM analysis, one also looks at one’s own clinical experience of the type of tumour involved. Some tumours are known to progress slowly, such as prostate cancer, whereas others are known to spread quickly, such as leukaemia. Then one looks at the available literature as set out in the various papers, to estimate what will be the likely tumour doubling time. One also takes account of tumour specific information in relation to the particular patient.
301. Clinical experience was critical to the evaluation. In this case, one could say that if in 2016 nobody had felt an axillary node and clinically there wasn’t an enlarged node, then from clinical experience one knows that tumours do not tend to shrink on their own, so on the balance of probability in 2014, there was not a clinically palpable node, or a clinically enlarged node.
302. Prof Price accepted that clinical axillary assessment was somewhat unreliable in relation to predicting the presence of cancer in the nodes. She stated that the figures were, that if one had a clinically negative axilla node, a person still had a 30% chance that there would be some microscopic spread of the cancer. Equally, if a person had enlarged nodes, they still had a chance that the nodes were not involved. In this case, the node felt clinically negative and on the ultrasound examination, a very small area was revealed, which was biopsied and that showed that the cancer was present in the node. This highlighted the difficulties that there were in assessing the presence of cancer from a clinical axillary examination.
303. When a patient presents with breast cancer it is necessary to know the nodal status. Accordingly they would do an ultrasound and if they saw something such as mild cortical thickening, then a biopsy would be done. If nothing was revealed on ultrasound, a sentinel node biopsy would be done at the time that surgery was being carried out on the breast. Thus as part of the treatment of breast cancer, one had to know the nodal status. There were a number of ways that that could be done. If there was an enlarged node, you could put a needle directly into it. If an ultrasound was done and something was shown up, then a biopsy could be done.
304. Prof Price was questioned about her clinical experience in the treatment of cancer. She stated that she was a primary treating consultant dealing with cancer from 1989 to 2000. She primarily dealt with the areas of gastrointestinal cancer and breast cancer. It was common for specialists to specialise in two areas. From 2000 onwards her primary focus had been on research. Her particular speciality was PET imaging, in respect of which she was an acknowledged world expert. However she had worked in the Imperial College Healthcare Trust Hospital as part of the NHS up to 2015, when she had had to give that up because she was doing work directly for the government. She continues to work in private practice in Harley Street in London. During all those years, although she was not the primary treating oncologist, she did participate in frequent multidisciplinary team meetings, where she would advise generally in relation to patients’ treatment, in particular whether they were suitable for radiotherapy.
305. She accepted that she had not had an NHS appointment since 2014/2015. However she reviews the breast cancer pathways for treatment that are implemented in the NHS. So she is operating at a senior level in research and management in relation to the treatment of breast cancer.
306. She has given evidence in relation to tumour doubling time in very many cases. In the area of growth rates of tumours, she felt that her opinion was highly relevant to the court. There would be other areas of treatment, for example in the treatment of a melanoma, where she would defer to others. In relation to Prof Bundred, she stated that he was a very experienced cancer surgeon. However he would not have had experience in the treatment of metastatic disease elsewhere in the body. Surgeons would not be involved in the treatment of metastatic disease, that was her area. As a surgeon, he would not be authorised to prescribe chemotherapy for a patient, as that is not his area.
307. It was put to the witness that Prof Bundred was of the view that one should take the mammographic size rather than the clinical size, because it was known that clinicians may not be that accurate. Prof Price accepted that in terms of accuracy the mammogram was more accurate. However, Prof Price explained that she had looked at the range of measurements that were available from various sources in 2016. The worst case scenario was that it was 5cm, which would put the lump at 0.6cm in 2014. If one went from the size at clinical examination of 4cm, then it would have been between 0.1/0.5cm in 2014.
308. She did not agree with Prof Bundred that one would always operate from the mammographic size, rather than the size on clinical examination, because the measurements taken tell you something different. However in general she would agree that the mammogram was more likely to be accurate in relation to the underlying size of the tumour. So she was in broad agreement with Prof Bundred on this aspect.
309. In relation to the formula used for back extrapolation, Prof Price stated that the maths used was not terribly complicated. It was possible to use a calculator on a computer system. At a tumour doubling time of 80 days, Prof Bundred got 0.8cm for the size of the tumour in 2014. She thought that that was actually incorrect; he appeared to have used a tumour doubling time of 90 days. When she used the same formula on a tumour doubling time of 80 days, she got a result of 0.6cm for the size of the tumour in 2014.
310. Prof Price accepted that if one took a tumour doubling time of 100 days the size of the tumour in 2014 would have been 9.94mm. At 130 days it would have been 14.44mm. It was put to her that if one was reading from the mammographic size, and if one used a tumour doubling time in the range of 100/130 days, it would back extrapolate to a tumour measuring 1cm/1.5cm in 2014. Prof. Price agreed that that was so.
311. While Prof Bundred’s back extrapolation formula was correct, if one used a tumour doubling time of 100/130 days, she did not agree that that was the correct tumour doubling time to use. She was of opinion that the correct tumour doubling time was in the region 44 – 80 days. She had relied on the papers by Peer and Tilanus-Linthorst in reaching her opinion.
312. Normally back extrapolation would be done from the pathological size of the tumour, which would be assessed after it had been excised. This was the gold standard. However that was not available in this case. In these circumstances it was appropriate to do a range of back extrapolation from the mammographic size, the size on clinical examination and the size as disclosed on ultrasound scan. She disagreed with Prof Bundred that one would only use the mammographic size. She thought that all three should be used.
313. Prof Price was asked, if one assumed a mammographic size of 5cm and a tumour doubling time of 100 days on 23 August 2016, what the likely size of the tumour would have been on 12 December 2014. She stated that on those figures the tumour would probably have been 11.94mm (1.2cm). Using a tumour doubling time of 135 days, the tumour would have measured 17.3mm in December, 2014.
314. Prof Price accepted that she had not referred to grade of tumour in her report, however she stated that it was one of the factors that she had taken into account. She had explained why she had not placed this tumour either at the very fast end, or at the very slow end of the scale for tumour growth. She stated that if she had not taken the fact that the tumour was Grade 2 into account, she would have been at the much lower end of the scale in relation to tumour doubling time, possibly as low as 25 days having regard to the plaintiff’s age. However given that she had a Grade 2 tumour, she had opted for a longer tumour doubling time.
315. In relation to the histopathology report, which stated that the tumour was “at least Grade 2”. The mitotic score component was arrived at by counting the number of mitoses visible under the microscope. If one only had a small sample, the number of mitoses may be small. So when the histopathologist said that the tumour was “at least grade 2”, he or she was indicating that the grade may go up. It could not go lower because it had the lowest score. So it could be a grade 3 tumour, or very close to it. The exact mitotic rate ascertained, could be erroneous given the size of the sample, because if there were more than seven mitoses, it would obtain a mitotic score of 2, which would have pushed it into a grade 3 tumour.
316. For the purpose of reaching her opinion, she had assumed that it was a grade 2 tumour. However, even if it was assumed to be a grade 3 tumour, that would not have changed her opinion. Accordingly the mitotic rate would probably not have changed her opinion, unless it was increased to a very large number. The mitotic score was a factor which had to be taken into account along with other factors. She had taken it into account, or else she would have arrived at a faster tumour doubling time.
317. Prof Price stated that she could not see any evidence or logic as to why Prof. Bundred had changed his opinion based on the mitotic score of one. If anything his second report had strengthened her opinion. The additional papers referred to therein, were on older women, so they did not appear to be very helpful.
318. Prof Price stated that she was not at all clear why Prof Bundred had opted for a tumour doubling time of 130 days. She did not agree that it was appropriate to base that on the Michaelson paper, because that was based on women who were 61 years of age, so she did not think that it could support a tumour doubling time of 130 days in this case. Furthermore that paper dealt with actually less patients than in the Peer paper. It took account of older patients and did not take account of grade. She could not see the evidence on which he had based his opinion that a tumour doubling time of 100 days could be relevant, or why he had opted for a tumour doubling time of 130 days. She could not see how he had arrived at those conclusions. A tumour doubling time in the range 100/130 days did not fit with the data in the Peer paper or the other papers, so she did not think that it was the correct tumour doubling time to adopt in this case.
319. In her report at paragraph 6.2 she had factored in the grade of the tumour, the conclusions in the Peer and Tilanus-Linthorst papers and her clinical experience. She came to the opinion that her estimate of the appropriate tumour doubling time meant that the tumour would have been between 1.2mm and 6.6mm on mammographic size, or clinically it would have been between 1mm and 5mm in 2014.
320. She pointed out that at paragraph 6.2 of her report she had stated “Therefore while the tumour would have been stage TI a, in September 2014, on the balance of probability it would not have been detectable on clinical examination and therefore likely no referral to the breast clinic made. Had a referral been made, the tumour may have been detected had a mammogram been performed”.
321. It was put to the witness that Prof Bundred had considered the grade of tumour, the mitotic rate and the progression of the disease in the particular patient. She agreed that progression of the disease in a patient was an important factor. Once you had metastatic disease and growth rate, you then proceeded to look at what was actually happening in the patient in front of you.
322. Prof Price stated that in reaching her opinion because of the patient’s age and in light of her clinical experience and in light of the fact that she had a grade 2 tumour, which was oestrogen receptor positive and HER-2 negative, and based on the conclusions in the Peer and Tilanus-Linthorst papers, she had ended with a likely range of tumour doubling time of 44 – 80 days. The essential factors were age, clinical experience, the literature and the specific experience of this tumour in the patient. She accepted that she could have been more detailed in her report in relation to the factors which she had taken into account when assessing tumour doubling time. She stated that she had taken account of clinical experience and the grade of tumour.
323. Prof Price accepted that it was appropriate to look at how tumours in similar cases had progressed in other patients and how they had responded to treatment. Doctors look at evidence-based studies of the general population to understand the progression of cancers generally.
324. In relation to the number of patients that formed part of a particular study, while she agreed in general that the larger the number of patients looked at, the greater the level of data would be; however just because there may be a smaller number looked at, might not be a particular disadvantage, depending on what was being looked for in the study.
325. The Peer paper did not set out to find if there was a correlation between grade of tumour and growth rate. It looked at people who had been screened on at least two occasions. The authors were looking at growth rates so as to know how often people should be screened. They had excluded some patients from the study and had been left with 236 remaining cancers. However these were not interval cancers, which is a cancer which arises between scheduled screenings. She did not understand how Prof. Bundred had come to that conclusion. The study was not confined to the study of interval cancers. His conclusions were based on patients who had had at least two mammographic screenings. If it was picked up on the second occasion of screening and then found to have existed at the time of the first screening, then it was not an interval cancer.
326. Table 2 in that paper showed that there were 32 patients in the range 41 years to 50 years. As six patients were taken out of the overall equation, one could have been looking at between 26 – 30 patients. She accepted that that was a small number. The Tilanus-Linthorst paper had looked at approximately 43 patients. It showed that on the data available in younger patients, there was a faster tumour doubling time. They had based national screening programmes on these conclusions. Therefore more frequent screening was put in place for younger people who are at risk of developing breast cancer. In the group of younger women who are at risk, they would scan on a yearly basis and in the very young, who are in the high risk category, they could be scanned as often as every six months.
327. Prof Price stated that the Peer paper and the Tilanus-Linthorst paper clearly established that the growth rate of a tumour was faster in younger people. As the Tilanus-Linthorst paper concluded for every decade there was a 10% change in the growth rate. Accordingly those in their 30s would be slower than those in their 20s, but it was only a marginal change. The essential point was that in younger people the tumour tended to grow faster. In those aged 50 to 70 years tumours tend to grow at a slower rate and in those over 70 it was slower again. That broad classification was not going to change. It had been well established over time.
328. Table 3 in the Peer paper showed that for the 40 – 50 age group, the range of tumour doubling time was from 44 – 147 days and the mean was 80 days. It was important to note that that data did not refer to patients who were in the 30 year old group. That was an important factor which explained why she had not gone for 147 days and why she did not think that 100/130 days was appropriate, because that would be slower than the average for the 41 to 50 year old age group. It was illogical to suggest that people in the 30 year old age group would be slower than the average in the 40 to 50 year old age group.
329. Prof Price explained that the figures 44 – 147 in table 3 referred to the confidence interval. It was not the range of applicable tumour doubling times to the patients in the sample. It was the confidence of what it was most likely to be. A computer would provide a statistical test. So there was not any patient who actually got 44 days, nor was there a patient that got 80, it was saying that 80 was the average and those were the confidence intervals, so that in that group of patients being 40 to 50-year-olds, it was likely to be in that range. However, on further questioning Prof Price accepted that there would have been some patients at around the 44 or 45 day mark and there would be some higher than the 147 mark and there would be some around the middle. She accepted that even in that small survey there was variability. It was put to her that this was a very large variability. Prof Price stated that the real benefit was in the comparison with the other age groups. In the 50 to 70 year age group, the mean was 157 days. So they would be in a different range altogether. The essential point was that the bulk of the people in the lower age group had a much shorter tumour doubling time than those in the higher age bracket.
330. There was only some small overlap between the lower section in the older age group and the upper section of the younger age group. Prof Price explained that the confidence intervals would be different between the two age groups due to the fact that there was no routine screening in the under 50s, whereas there was routine screening amongst the people aged 50 – 70 years and there was again no routine screening amongst those above 70 years. If one did a statistical test the confidence intervals are wider if you have less patients, but what was clearly shown in table 3 was that the mean tumour doubling times for the relevant age brackets of 80 days, 157 days and 188 days. That was the significant thing to take from table 3. There was a big difference in terms of age group and the question posed in the paper was, whether there was a difference between age and growth rate and the answer was clearly that there was a big difference, with three different mean tumour doubling times for each age group.
331. Counsel put it to the witness that in table 4, which contained a review of findings in other literature, only one paper dealt with those with a mean age of less than 45 years and that was the Kuroishi paper which showed a mean doubling time of 174 days. Prof Price pointed out that in commenting on the other studies the Peer paper had concluded: “The current study confirmed the positive correlation between age and tumour volume doubling time that was demonstrated in other studies.” That was their final conclusion in the matter and they also found that other studies had reached similar conclusions. It was not a controversial proposition that tumour doubling time was age-dependent.
332. It was put to the witness that Prof Bundred was of the view that the reason why younger patients tended to have a faster growing cancer, was that they were more likely to have a rapid growing cancer such as grade 3 tumours. Prof Price stated that Prof Bundred had not produced any evidence for that assertion and the evidence from the Tilanus-Linthorst paper was completely the opposite. They had actually studied patients closely and looked at the mitotic rate and grade of tumour and it fell out of the equation when age was factored in. Age trumped everything.
333. Prof Price stated that the literature clearly stated that younger patients had faster growing tumours. They may like to have a table similar to table 3 that instead of age down the left side would have had a column for tumours that were G2 and G3 or a mitosis score of one, two or three and if they had such a table showing that there was a difference in tumour doubling time with such tumours, that would be fine. However there was no literature of that sort in existence. Prof Bundred had not found any literature and all the literature that did exist suggested that there wasn’t a relationship along those lines.
334. Prof Price accepted that if a person was in their 20s they were more likely to have a grade 3 tumour. If they were in their 40s there was a 50-50 chance that they would have a grade 2 or grade 3 tumour. The Tilanus-Linthorst paper confirmed that. Patients in their 20s with breast cancer were more likely to have a higher grade tumour. Those in their early 30s were also more likely to have a higher grade, whereas those in their late 30s and early 40s would have nearer the 50-50 mark. She accepted that it was probably true that for those in their early 30s they were likely to have a higher grade tumour.
335. In relation to the Tilanus-Linthorst paper of 2005, as this was a study of younger patients, it was very important. In the UK people were not screened routinely below the age of 50 years unless there are in the high risk category. Over 50 years they were screened every three years. Patients with the BRCA 1 and BRCA 2 genes were at a higher risk of developing breast cancer. The patients studied in the Tilanus-Linthorst paper had these genes, or had a high family history of breast cancer. Accordingly they were at higher risk of developing cancer and therefore were screened at an earlier age. Prof Price accepted that there was no evidence that the plaintiff had either of these genes, or had a significant family history of breast cancer, however the Tilanus-Linthorst paper was still relevant. The reason why the young people in the Tilanus-Linthorst paper were screened was because they were at a higher risk of developing cancer, but those that did go on to develop cancer would have a growth rate that was the same for all people in that age group. Accordingly the conclusions in the paper were relevant to patients and the general population in this age group. The paper clearly concludes that growth rate in young people was faster.
336. It was put to the witness that Prof Bundred was of the view that this paper was not relevant to the plaintiff, as she had no relevant family history of breast cancer. Prof Price disagreed with that view. If one considered the results in the paper it was stated that there was no difference between those with the BRCA genes and the other patients in that age group. In light of that conclusion he may have to reconsider his opinion.
337. Prof Price stated that the important conclusion to draw from the paper and from the results of the study was the conclusion that once age was present, the mitotic rate or the grade of tumour fell out in terms of importance; the important thing was age. That was consistent with every other study produced to date. Nothing had been produced to say that grade affected those results.
338. Prof Price pointed out that at P. 1613 it stated as follows “ The tumour characteristics grade and mitotic count differed between the two risk groups. At univariate analysis, mitotic count correlated with DT (P = 0.03) while grade did not (P = 0.3). When mitotic count and grade were entered into the multivariate model the results remained essentially unchanged with P value for age, grade and mitotic count P equals 0.015, P equals 0.8 and P equals 0.4 respectively” . Prof Price stated that she had seen no study that said that there was an independent variable of M1 or grade.
339. Prof Price stated that in the Tilanus-Linthorst paper the patients were selected because they had a susceptibility to developing cancer. It was due to that susceptibility that they were chosen for screening. After that there was a correlation with age going right down and the mitotic rate and the grade were not relevant. The grade had no correlation and the mitotic rate was not terribly important. It was the age that dictated what the doubling time was. That was what the paper clearly showed. She referred in particular to the graph shown in figure 3, which went from 66 years down to 25 years. It was that correlation that was important, which is where they got the main result of this paper that every 10 years there was a 10% slowing in growth rate. The important thing about this paper was that it agreed with the data in the Peer paper, which had looked at the 41 to 60 year old age group and reached the same conclusions. So the Peer data was not selective, it fell exactly on the curve as shown in the graph in figure 3 in the Tilanus-Linthorst paper.
340. This was clearly stated in the conclusion section of the paper where it stated at P. 1617 “In conclusion, age at detection is the main indicator for growth rates of hereditary and familial breast cancers. If screening may prove indicated from a certain age on, the woman’s age and not the risk group should determine the screening interval. A high-sensitivity biannual test may be appropriate before age 40 years.”
341. Prof Price did not agree that the results in that paper were confined to a conclusion that age was the main indicator of growth rates in cases of hereditary and familial breast cancer only. The essential conclusion was that age was a relevant factor in treating and screening populations. This type of data was used now to make sure that the right screening interval was used. Nobody was saying that if a person did not have a family history they need not worry and need not be screened so often at that age group. She accepted that people under 30 were not routinely screened because they were not at a high risk of developing cancer. However the risk of developing cancer was unrelated to the growth rate, if it should develop. In that scenario age was the important factor as had been shown in the literature.
342. In relation to the Michaelson paper, Prof Price indicated that the author had gone through a very complex mathematical model, which was based on four types of population; women who are diagnosed at screening, interval ones, and prevalent screen and a recurrence rate and it put all those together to get a complex model to work out whether, if one finds a pathological size at screening and then you put in the numbers of patients, you come up with a broad measure of tumour doubling time. That depended on a number of different variables. However the group in which the figure of 130 days was based, was 111 patients with a mean age of 61. It was not based on the numbers under 50 years of age. That was a completely different group of patients, it was quite misleading.
343. Basically they had got the women who had come in at screening and said the number of women screened when we get the pathological size and that is the number of tumours versus the population and from this they got a growth rate. It was a very complicated model. There were a lot of assumptions. But they had validated it by saying that it was about the same as most of the volume doubling times and that was satisfactory. They excluded a few young patients. So it was a very different thing and for that reason she could not understand why Prof Bundred felt that that was the most relevant paper because it was 61 year old patients and there was only on 111 of them and it was a median that was given, there was not a range.
344. In fact what Michaelson did show in the paper was that the interval cancers occurred in the younger age group. There was no surprise there, they knew that. In his earlier paper he had a whole list of interval cancers and they were in the younger age group. That was consistent with other literature. Interval cancers were most likely to be the faster growing ones, which is why he got them in the younger age group. In summary she thought that it was a methodology paper which was kind of skewed and one could not get as much data out of it as one would wish.
345. Prof Price stated that she was aware of the Michaelson paper when doing her report. She had not relied on it for the reasons outlined. She was surprised that Prof Bundred had relied on it. She would be interested to know why he had done so. She thought that he may not have looked at the previous paper on which it was based, because initially he had said that he had looked at it because there were more patients, but that was not true. And then he went on to say that they found the interval cancers in the younger patients and that was nothing to do with grade. So she was not sure why he was using the paper.
346. It was put to the witness that this was because Michaelson had used a different methodology. She said not only did it use a different methodology; there was a non-opaque group of patients and when one got into it, it did not give you a range, it was not based on serial mammography. It was based on a mathematical model of the prevalence of tumours, which may be very specific for the hospital in question and they had said that in the papers.
347. Counsel put it to the witness that in the Arnelove paper it stated as follows “Tumours that are growing rapidly on mammography have higher specific values than the more slowly growing ones, which indicates a correlation between tumour growth rate and cellular proliferation.” Prof Price explained the meaning of S – phase fraction and stated that it was not the mitotic rate that has been looked at, it was the synthases rate. Then one looked at the peaks and would measure it. So it was one measure it was not quite the M1 measure, but it was broadly in that category. This was something that she had factored in when considering the applicable tumour doubling time. She had not factored in the S-phase fraction, because they do not measure that any more, but it was the M1 score which showed that the tumour was moderately differentiated. It had been factored in in her analysis and that is why the tumour doubling time was not at the lowest applicable end for young patients.
348. Prof Price agreed that the history of this particular disease in this particular patient was a very important factor. She had been diagnosed in August 2016 and broadly speaking of patients who had metastatic disease, their general survival rate from diagnosis would be 24 months. Prof Price accepted that the plaintiff had survived longer. However it was important to note that she had had a large amount of good treatment with very modern drugs and she had had a small volume of metastatic disease at diagnosis. She thought that the difference between the anticipated survival time of 24 months and the current survival rate of circa 28 months was due to a treatment effect. The original survival expectancy of 24 months had been based on the availability of holder medications. What one was seeing in this case was a treatment effect. It had nothing to do with the growth rate of the tumour.
349. She accepted that Prof Morris had said that the plaintiff’s tumour had not responded well to treatment. However she had had some response to hormone treatment, but as she was ER positive, they would have hoped for a better response to such treatment.
350. In relation to the axillary node, it was known that in 2016 there was cancer in other nodes. It was not in every single axilla node, but was in some of them and had spread to other nodes elsewhere in the body. They could only see one node on ultrasound, it was possible that they could find more if a surgeon had gone into the area. It was not known how many nodes were involved.
351. Prof Price accepted that tumour size and lymphovascular invasion were often predictors of axillary metastases. They were indicative of how likely one was to have the nodes involved in the axilla. That was contained in the Reyal paper. Her opinion was that if the tumour was only 1 – 5mm in 2014, she thought that it had probably not metastasised at that time, because statistically it was less likely to. While it was true that the larger the tumour the more it was in the lymphovascular space and the more likely that it was going to send out metastases through the armpit and elsewhere, but the prognosis was more dependent on nodal status, than the size of the tumour. It was put to the witness that in the Tilanus-Linthorst paper it said “Although breast cancer cells may disseminate early, tumour size and lymph-node status remain strong prognostic factors for survival ”. The witness agreed with that statement.
352. It was put to the witness that in her report she had put forward the proposition that had there been axillary node involvement in 2014, in her view the cancer was already metastatic breast cancer in the distant metastases and the prognosis ultimately would have been the same. The witness agreed stating that the mediastinal node was 2 cm, the supraclavicular fossa node was 1.5cm. If they were present there, that by definition was metastatic disease. That was in 2016, when the node in the axilla was only 1cm.
353. It was put to the witness that she was of the view that in 2014, if this was a slow-growing tumour as Prof Bundred suggested, that there was already distant metastatic disease present in 2014. The witness agreed. However it was not correct to say that a person with distant metastatic disease in 2014, was likely with treatment to have a life span of two years. This was because it was subclinical at that stage and one would have the lead time before it became discoverable. Then there was the question as to whether treatment is different if given earlier. Treatment will hold it for a period. If one had a smaller volume of metastatic disease and one received the treatment, it would hold the disease until the tumour became resistant to it. So she had concluded that had treatment been started two years earlier for metastatic disease, ultimately the outcome would be the same. She accepted that normally people who did not get any treatment at all, would have a worse outcome than people who did have treatment. It was put to her that as the plaintiff had not had any treatment for two years after 2014, that would surely worsen her outcome. Prof. Price stated that she had received treatment later on. Usually one could say that patients who do not receive treatment, versus those who do receive treatment, fare worse; however starting treatment earlier does not necessarily mean a worse or better outcome.
354. It was put to the witness that the Richards paper suggested that a delay in diagnosis can affect outcome. Prof Price stated that that paper was about diagnosis of early breast cancer itself. It was a population-based study, it was not done on an individual basis. He was talking about the primary disease and not metastatic disease.
355. It was put to the witness that the fact that the plaintiff was alive four years after August 2014 and coming into the fifth year was something that the court could take into account when looking back as to whether she had metastatic disease. Prof Price did not agree. She stated that usually metastases when they occur had been present for 2 to 3 years. That meant that those metastases would have been there earlier. She had felt that it was earlier, as it was a faster growth rate, which is why she thought that there was just a small window of opportunity when it wasn’t metastatic, but if it was left much longer it would become metastatic, because otherwise the time interval was very short. Two years was very very short. In her view the small window of opportunity was probably from September 2014 to about January/February 2015. After that it would already have metastasised because it would have been big enough. With a very slow growing tumour one would have a long disease-free interval, with a faster growing tumour the disease-free interval was much smaller. She felt that because there was evidence of fast growth, on balance she felt that this was not a very nice cancer and that had it been left for any long period, it would have already gone to other parts of the body and the outcome would have been the same. One could not get away from the fact that this was not a good cancer.
356. Finally, it was put to the witness that Prof Bundred had stated that the longer a tumour sits in the breast untreated, the more likely it was to spread to the lymph nodes and eventually when it had sat around long enough, it gives out emboli into the bloodstream and it grows and opens up more blood vessels to be able to spread. Eventually some of these cells that are leaving the tumour can survive in another organ and it develops metastases. It’s the length of time that it was sitting there that leads to metastasis. Prof Price stated that she would disagree with Prof Bundred when he said “It eventually goes to the lymph-node and eventually into the bloodstream”. It was thought that biologically it did both at the same time, which is why the nodal status is a predictor for prognosis in metastatic disease. It was not an incremental thing. It was not a question of staying in the nodes and then at a later time moving on. There were two different pathways. One predicts for the other, but it wasn’t one that causes the other, so she disagreed with him on that aspect. The tumour could spread through the lymphatic system and through the bloodstream, but it didn’t go from the lymphatic system to the blood system. There were separate pathways.
IV.IV Evidence of Professor Eamon Leen
357. Professor Eamon Leen is a Consultant Histopathologist at Connolly Hospital, Blanchardstown, and an Associate Clinical Professor of Pathology at the Royal College of Surgeons in Ireland. He received his primary degree from Trinity College Dublin in 1985, and has been working at consultancy level since 1996.
358. In the present case, he reviewed several slides processed at Beaumont Hospital of the plaintiff’s biopsy of the left breast and left axilla. He was asked to assess the biological aggressiveness of the tumour, for which he prepared a report, dated 28th January, 2019, based on what he saw on the slides, as well as taking into account the reports of Dr. Marie Staunton.
359. Prof. Leen commented that the sampling provided was quite limited, as no mastectomy was performed, meaning that it was difficult to fully analyse the tumour. He was also critical of the limited number of core samples available. He stated that only two core samples were less representative of the tumour. He did concede, however, that the core samples taken were good.
360. He commented that, with regards to the Bloom-Richardson scale, the score of 3+3+1 for Tubule Formation, Nuclear Pleomorphism and Mitotic Count respectively, was an unusual spread. He stated that you tend to get 3+3+2 or 2+2+1. He further noted that the Mitotic Count in the tumour was quite low, and this may have been due to delayed fixation in the process of preparing the slides for examination by the laboratory technicians in Beaumont Hospital. However he accepted Dr. Staunton’s assertion that there was no delay in fixation during the laboratory process in the hospital. He accepted that that assertion could be discounted.
361. In a situation where the Bloom-Richardson score was unusual, Prof. Leen asserted that a Ki 67 estimate would be desirable. It was not available in this situation and he did not criticize Dr. Staunton for that.
362. Prof. Leen commented that the strong oestrogen and progesterone receptor positivity, and the negative HER-2 status, all provided information about how the tumour was likely to behave.
363. Prof. Leen estimated in his report that the growth rate for the plaintiff’s tumour would be at the upper end of the scale.
364. Regarding the axilla lymph nodes, Prof. Leen referred to them as being “ shotty ” and “firm and non tender ”. He confirmed that if a person had a skin condition, the node may react, and this may be the cause of it inflaming. He was of the opinion that if such a tumour was indeed node positive in 2014, then given the particular factors of this situation, it was unlikely that it would have remained occult for two years. He would have expected the node to get bigger if it was in fact metastatic. He was therefore of the opinion that the lymphadenopathy in the left axilla, which was described by the plaintiff in 2014, was highly unlikely to have been associated with the “probably small” primary breast carcinoma, which would have been present in the breast at that time.
365. During cross-examination it was put to Prof. Leen that when grading tumours, the histopathological analysis was more important than the age of a patient. He disagreed with this proposition, and stated that many text books regarded age as an independent prognostic factor.
366. Prof. Leen agreed with Dr. Staunton that the cancer was “ at least ” Grade 2. There was a consensus to this phrasing between them, as it was pending the resection of the tumour. It was put to him that the grade can only increase. He agreed with this and said that the grade never goes down.
V. The Law
367. The legal principles which are applicable when a court is considering whether there was a breach of duty by a medical practitioner are well known. They were set out by the Supreme Court in Dunne (An Infant) v The National Maternity Hospital [1989] IR 91. Of relevance in this case, are the first two principles which were set out in the judgement of Finlay CJ at P. 109:
“1. The true test for establishing negligence in diagnosis or treatment on the part of a medical practitioner is whether he has been proved to be guilty of such failure as no medical practitioner of equal specialist or general status and skill would be guilty of if acting with ordinary care.
2. If the allegation of negligence against a medical practitioner is based on proof that he deviated from a general and approved practice, that will not establish negligence unless it is also proved that the course he did take was one which no medical practitioner of like specialisation and skill would have followed had he been taking the ordinary care required from a person of his qualifications.”
368. In Collins v Mid-Western Health Board [2000] IR 154, Baron J set out the principles that are applicable when one is considering whether there was a breach of duty by a general practitioner. In the course of his judgement, he set out the obligations which are on a general practitioner when acting with reasonable care, as follows: he must listen carefully to what he is told by the patient; he must ask questions of the patient in relation to what he has told him; he must ask questions on other relevant matters that are not mentioned by the patient; he must listen carefully to any information given by any family member of the patient, either at the consultation or when making the appointment; if appropriate, he must do a thorough clinical examination and while he may not be expected to be in a position to make a correct diagnosis, he is expected to be in a position to know when his patient should be referred to a specialist.
369. Later in his judgement, Baron J set out the test which the court must apply when considering whether the GP had been negligent. It was put in the following terms at P. 162:
“The test of the obligation of the general practitioner is whether a reasonably prudent general practitioner exercising ordinary care would have acted as he did in the circumstances. The reality of the test is to enquire whether or not the general practitioner acted reasonably in the circumstances as known to him.”
370. Baron J also cautioned against the danger of having regard to subsequent adverse events, when considering the reasonableness of the conduct of the GP, when he or she saw the patient at some earlier date. He stated as follows at P164:
“In this type of case, hindsight is a problem. At the hearing, it was common case that the deceased had suffered serious trauma to the brain on 20 February, 1991. It is all too easy to assume therefore that the doctor is negligent because he fails to diagnose it. That is not the test. The questions to be asked are, did the doctor do all that could reasonably be expected of a reasonably prudent general practitioner exercising ordinary care and, if not, would what he should have done have led to a correct diagnosis either by him or by a specialist to whom he would have been referred.”
371. It seems to me that the principles set out in these two cases, are the correct legal principles to apply in this case.
VI. Conclusions on the Technical Issue
372. On 12th November, 2018, the plaintiff’s expert, Prof. Bundred furnished a report in which he stated that in women who were younger, there was an increased speed of tumour growth, he thought that 80 days was the correct tumour doubling time for the plaintiff. Applying that doubling time to the plaintiff’s tumour which was 5cm at diagnosis, meant that her tumour would have been 0.8cm in size in 2014. In coming to those conclusions, he referred to the papers written by Peer et al in 1993 and by Tilanus-Linthorst in 2005.
373. On 17th December, 2018, the defendant’s expert, Prof. Price, furnished a report, in which she also relied on the papers by Peer et al and by Tilanus-Linthorst. She accepted that in young women, the growth rate, according to the Peer data, was in the region of an 80 day volume doubling time. However, in women under 35, that could be faster. For that reason, she had assumed a growth rate of between 44 and 80 days. She noted that the plaintiff’s tumour had been measured on mammogram in 2016 at 5cm, which would have meant that the plaintiff’s tumour in 2014 measured between 0.12cm and 0.66cm, depending on which actual tumour doubling time was chosen within the range given.
374. On 9th January, 2019, Prof. Bundred, wrote to the plaintiff’s solicitor in relation to various matters which he considered needed further investigation in light of Prof. Price’s report. His main area of concern was in relation to Prof. Price’s comments in relation to the size of the lymph node demonstrated on ultrasound scan in 2016. In relation to the size of the tumour in the breast, he noted as follows: “ With regards to the size, I calculated that the tumour would have originally been 8cm (should read 0.8cm), which is little different to Prof. Price’s calculation of 0.6cm.”
375. On 16th January, 2019, Prof. Bundred issued a second report. In that report, he came to a different conclusion in relation to the appropriate tumour doubling time. In essence, he stated that having reviewed the histopathology report of Dr. Staunton dated 23rd August, 2016, he had come to the view that the grade of tumour, being Grade 2, and the mitotic score of 1, as set out in that report were significant factors, which he had missed when giving his original opinion. He stated that these factors indicated that the plaintiff had a very slow growing tumour. He revised his opinion to give a new range for tumour doubling time of between 100 – 130 days, which based on a tumour size of 5cm as shown on the mammogram in 2016, would have back extrapolated to a tumour size of 1cm – 1.5cm in 2014. In the course of his evidence, when asked at which point on the scale he would estimate the correct tumour doubling time to be located, he opted for the figure of 130 days.
376. Thus, it can be seen that while the two experts were initially quite close in the conclusions that they had reached in relation to the appropriate tumour doubling time, Prof. Bundred had changed his opinion significantly to arrive at a new tumour doubling time, thereby giving rise to a revised opinion in relation to the probable size of the tumour in 2014, being somewhat larger than originally estimated by him. In cross examination, he was questioned about this change of opinion. He said that when he had looked at Prof. Price’s report and had seen that she had back extrapolated to a tumour size of 0.1cm – 0.6cm in 2014, based on a tumour doubling time of 44 – 80 days, he went back to the records to check his calculations. He said that in doing that, he realised that he had missed the significance of the histopathology report which put the tumour grade at Grade 2 and had also missed the significance of the overall scoring of 3+3+1, meaning that the plaintiff had a mitotic count of 1. He stated that the grade of tumour and mitotic score were significant factors which he had missed when preparing his first report.
377. In considering Prof. Bundred’s explanation as to why he had felt the need to revisit his calculations, it is hard to understand exactly why he would have had cause to revisit his conclusions in the light of Prof. Price’s report. Her conclusions had been broadly in agreement with the conclusions in his first report. His initial reaction to her report, had explicitly noted that they had reached broadly similar conclusions in relation to tumour size. That was set out clearly in his letter of 9th January, 2019. Thus, it is difficult to understand why it was that he decided to revisit his conclusions in the light of that report. Clearly, he had not any such intention when he wrote to the plaintiff’s solicitor. It is possible that his revisiting of the conclusions in his first report may have arisen as a result of a subsequent telephone conversation which he may have had with the plaintiff’s solicitor, as he had suggested a telephone consultation with her at the end of his letter.
378. In the course of cross examination, Prof. Bundred was questioned as to whether he had realised that his letter would have to be disclosed by the plaintiff’s solicitor to the defendant’s solicitor under the rules relating to disclosure in Irish law. He said that he was aware that his letter would be disclosed to the other side. It was put to him that the content and style of the letter were not of the type that would normally be in a document intended for disclosure to the other side by way of an addendum to a report, or a new report. In particular, it was pointed out that in the first paragraph of the letter, he dealt with travel details and his availability for the hearing. It was further put to him that the tone and content of the letter was more in the nature of a private discussion between an expert witness and his instructing solicitor, rather than a document which was intended to be furnished to the other side as part of the documents in the case. Prof. Bundred stated that he was aware that his letter would be disclosed to the defendant’s legal team. However, I note that while Prof. Bundred has given evidence on numerous occasions before, this was the first occasion on which he had been called to give evidence in the Irish courts. There is considerable strength in the point made by senior counsel for the defendant that this does not appear to be the type of letter that would normally be furnished by an expert, if he had intended it to be furnished to the opposing side. However, it does not seem to me to be necessary to resolve this issue. The important thing to note is that at the time of writing that letter, Prof. Bundred was satisfied that the conclusion reached in his first report was “ little different ” to that reached by the defendant’s expert.
379. Prof. Bundred’s explanation that he came to change his initial opinion because he had missed the significance of the histopathology report and in particular its conclusions that the plaintiff had a Grade 2 tumour and had a mitotic score of 1, is a little difficult to understand. Prof. Bundred is an expert witness with vast experience in the treatment of cancer. He was consulted, not as a liability witness, but as an expert to give an opinion on a discrete technical question; being the probable size of the plaintiff’s breast tumour in 2014. That involved calculating the growth rate of the tumour, so as to give an estimate of the appropriate tumour doubling size. Using that, and extrapolating back from the size of the tumour at diagnosis, one could estimate the possible size of the tumour approximately two years earlier, when the plaintiff had consulted with the defendant.
380. When preparing his first report, Prof. Bundred had had the histopathology report prepared by Dr. Staunton before him. Dr. Staunton stated that the report issued by her was in the same format as that used in hospitals in the UK. If grade of tumour and mitotic score are so central to the calculation of tumour doubling time, it is difficult to understand how Prof. Bundred could have missed such important details when issuing his first report. However, the court must not lose sight of the fact that we are all human and as such we can make mistakes. As Prof. Bundred is an expert witness, whose primary duty is to the court, I accept his explanation, that he had missed these details on his first reading of the papers.
381. Turning to the central issue, which is the conflict between Prof. Bundred and Prof. Price as to the correct tumour doubling time to adopt in this case, there are a number of factors that must be looked at. Firstly, in relation to the relevant literature, it is significant that initially both Prof. Bundred and Prof. Price relied on the data contained in the Peer and the Tilanus-Linthorst papers. Subsequently, not only did Prof. Bundred revise his central opinion based on his assessment of the grading of the plaintiff’s tumour and its mitotic score, but he also revised his opinion in relation to the relevance of these papers.
382. He discounted the conclusions in the Peer paper primarily on two grounds; that it was an old paper, having been written in 1993, and that it had only looked at a small number of patients who were less than 50 years of age. He discounted the Tilanus-Linthorst paper on the basis that while it had examined screening on a number of young women in Scandinavia, these were women in the high risk categories, having either BRCA1 or BRCA2 genes and/or had a high family history of breast cancer. For these reasons, he did not think that they were representative of the growth of tumours in the younger population generally.
383. Prof. Price did not agree that these papers should be discounted, or ignored. She pointed out that both papers had come to the same broad conclusion, that in general tumours grow at a faster rate in younger women. Her evidence was that no subsequent literature, or data, had emerged since the Peer et al paper in 1993, or the Tilanus-Linthorst paper in 2005, to cast doubt on these findings. That assertion was correct, insofar as no papers were produced by Prof. Bundred which had looked at young women and had come to a different conclusion in relation to the growth rate of tumours in young women and the appropriate tumour doubling time to take in such cases. In short, he had not produced any paper which cast doubt on the conclusions in the earlier papers.
384. Prof. Price’s opinion of the continuing validity of the conclusions reached in the Peer and Tilanus-Linthorst papers, was supported by the screening programs which had been put in place in the United Kingdom, and internationally. Having regard to her role at a senior level in the management of breast screening programs at a national level, she was ideally placed to give evidence on this aspect. I accept her evidence that based on the findings in the Peer and Tilanus-Linthorst papers, while health authorities do not screen young women routinely due to the very low risk of them getting cancer, for those young women who are in the high risk categories, they are screened on a frequent basis, perhaps every year, or in some cases every six months. These shorter screening intervals are chosen because it is accepted that tumours grow faster in younger women, hence the need for more frequent screening.
385. In contrast, when one moves to the population that is over 50 years, although the risk of contracting breast cancer increases dramatically, such tumours are likely to grow more slowly, therefore, it is only necessary to perform the screening every three years, which is the standard screening interval with women in the 50 – 70 years age group. For people over the age of 70 years, there is no routine screening, because if the person does contract cancer at that age, it is likely to grow very slowly. The fact that national screening policies are done on the basis of more frequent screening at a young age, is a validation of the conclusions in the Peer and Tilanus-Linthorst papers.
386. In relation to Prof. Bundred’s reasons for discounting the Tilanus-Linthorst paper, namely that these were young women who were in high risk categories and were therefore not representative of the general population, I prefer the evidence of Prof. Price, which was to the effect that while the young women were screened because they were in the high risk categories, those were merely factors which gave rise to an increased risk of them developing cancer in the first place. That was the reason why they were being screened at a young age. However, Prof. Price stated that the presence of the BRCA1 and BRCA2 genes, or the existence of a family history of breast cancer, only affected their chances of developing cancer, it did not influence the growth rate of the cancer, once it had developed. Accordingly, she stated that the conclusions in the Tilanus-Linthorst paper were relevant to the growth rates of tumours in young people generally. I find that evidence persuasive.
387. Prof. Bundred also discounted the Tilanus-Linthorst paper because he stated that it was primarily looking at interval cancers, which are cancers that emerge and develop between routine screening. Prof. Price did not agree with that assertion. What they had done, was look at serial mammography over a period of time in young women who were being routinely screened because they were in the high risk categories. When the cancer did develop, they could estimate the growth rate because there had been previous routine screening done at frequent intervals in the past. That enabled the authors to accurately estimate the growth rate of the tumour in the young women concerned. Indeed, at p. 1615 in the Tilanus-Linthorst paper, the authors specifically stated: “ Our study was performed in women with a well-defined hereditary risk, within surveillance schemes with complete follow up. The relatively low number of interval cancers (in five BRCA1 carriers only) may be due to the rather short screening intervals.”
388. In addition, at the end of that paper, the authors were able to come to a very clear conclusion, which did not indicate that they were looking at interval cancers. Their conclusion was in the following terms: “ In conclusion, age and detection is the main indicator for growth rates of heredity and familial breast cancers. If screening may prove indicated from a certain age on, the woman’s age and not the risk group should determine the screening interval. A high sensitivity biannual test may be appropriate before age 40 years.”
389. It was also relevant that the Peer paper had looked at other studies available at that time and had concluded that their study “ has confirmed the positive correlation between age and tumour volume DT that was documented in other studies ”.
390. Having regard to these matters, I am satisfied that the criticisms levelled by Prof. Bundred in his second report and in his evidence, in relation to the applicability of the data in the Peer and Tilanus-Linthorst papers, are not well founded.
391. In his second report, Prof. Bundred relied on the Michaelson paper. He maintained that because that had been a very large study of approximately 810 patients, the data contained therein was preferable to the earlier studies. In response, Prof. Price pointed out that the tumour doubling time of 130 days in Michaelson was based on a study of 111 patients, with a mean age of 61 years. That study was not based on a study of women under 50 years. As the women were older, the mean doubling time was much higher. She thought that it was inappropriate to apply that doubling time to a young woman in her early 30s.
392. I am of the view that Prof. Price’s comments in relation to the Michaelson paper are apposite in this case. While it may be a very valuable study in general terms, I accept her evidence that it is not particularly relevant to younger women. In particular, the tumour doubling time of 130 days would appear to be based on a totally different cohort of patients than the plaintiff. Accordingly, I find that the data contained in the Peer and Tilanus-Linthorst papers is the more relevant in this case. While other papers were referred to in evidence, it is not necessary to go through them in detail, as they do not cause me to change that opinion of the relevance of the Peer and Tilanus-Linthorst conclusions.
393. Turning to the actual assessment of the appropriate tumour doubling time in this case, both experts were agreed that in assessing this, it was necessary to factor in a number of matters. One of these was age. Prof. Bundred felt that age ceased to be all that relevant when one knew the grade of the tumour, the mitotic score and the patient’s own history post diagnosis. Prof. Price agreed that there were a number of factors which had to be taken into account, but she disagreed that age dropped out of the equation, once these other factors were known. She maintained that age always remained the dominant factor, although by no means the only one, when assessing tumour doubling time. Having regard to the literature referred to above, I prefer Prof. Price’s opinion that age remains the main factor when assessing tumour doubling time.
394. Prof. Bundred primarily based his revised opinion on the grade of the tumour being Grade 2 and mitotic score of 1. He said that these were important factors, which had caused him to come to the conclusion that the plaintiff’s tumour was a slow growing tumour. Prof. Price agreed that they were factors to be taken into account, but disagreed that they were highly determinative of the tumour growth rate. Insofar as Prof. Bundred had laid emphasis on the mitotic score of 1, I prefer the evidence of Prof. Price that mitotic score is but one of three factors which would be looked at by a histopathologist. It was no more important than tubule formation or pleomorphism, when assessing the overall score to determine the grade of tumour. Dr. Staunton’s evidence was to the same effect. Accordingly, I do not think that Prof. Bundred’s hypothesis that when one had a Grade 2 tumour with a mitotic score of 1, that that was highly suggestive of a slow growing tumour. Those factors are relevant, but are not determinative of the issue.
395. Both experts were agreed that there are a number of factors which must be taken into account when assessing the likely growth rate of a tumour. These include: grade of tumour, mitotic score, age of patient, type of tumour, and the patient’s history after diagnosis. Prof. Bundred lay stress on the last of these factors, pointing out that the plaintiff had survived for longer than the usual 24 month survival period for patients who were diagnosed with metastatic breast disease. He said that this was indicative of the plaintiff having a slow growing tumour.
396. Prof. Price accepted that the usual survival time for metastatic breast disease at diagnosis, was 24 months. However, she stated that, while the plaintiff had exceeded that period by a number of months by January 2019, that was probably due to what was termed a “ treatment effect ”. This patient had had very good treatment in the form of various types of chemotherapy and hormone therapy drugs, which had not been generally available at the time when the general survival time of 24 months had first been established. I find that reasoning persuasive. I find that the fact that the plaintiff has survived beyond the 24 month period initially anticipated, was probably due to the effect of modern treatment, rather than being indicative of her having a slow growing tumour. In addition on current prognosis, the plaintiff will only survive beyond the 24 month period by a number of months.
397. In support of her opinion on this aspect, Prof. Price pointed out that other measurements of the plaintiff’s breast tumour carried out in the months after diagnosis, which were contained in her hospital records, indicated that the tumour was developing at a reasonably fast rate.
398. It was put to Prof. Price in cross examination that in reaching her opinion on the appropriate tumour doubling time, she had not mentioned grade of tumour in her report. She accepted that in her report she had not set out in detail all the factors which she had considered in her assessment of the appropriate doubling time. However, she stated that she had had sight of the plaintiff’s records, including the histopathology report, when doing her report. She had taken account of all the relevant factors outlined earlier, including the grade of the tumour. She stated that it was specifically because of the tumour being a Grade 2 tumour, that she had arrived at her estimate of tumour doubling time at 44 – 80 days. She said that if she had discounted grade, she would have arrived at a much lower figure in terms of the tumour doubling time, possibly as low as 25 days.
399. Prof. Price stated that had she discounted grade of tumour from her assessment, she would have been at the lower end of the graph as shown in figure 3 in the Tilanus-Linthorst paper. However, she had not done that. She had factored in grade, along with the plaintiff’s age, her history since diagnosis and her own clinical experience of this type of tumour and had come to the opinion that the tumour doubling time of between 44 – 80 days was the appropriate figure.
400. In reaching a determination on the issue of the correct tumour doubling time, I prefer the approach of Prof. Price. I am satisfied that in discounting age as a factor, if not completely, then substantially and by elevating grade of tumour and mitotic count to the fore, Prof. Bundred has adopted an analysis that is not supported by the literature, which, as I have already found, clearly establishes that age is a highly relevant factor. In arriving at a tumour doubling time of 130 days, or even the range given of between 100 – 130 days, I am satisfied that he has not adopted the appropriate methodology in the circumstances of this case. That tumour doubling time was based primarily on the data in the Michaelson paper, which appears to be based on a small cohort of patients, who had a totally different mean age to that of the plaintiff.
401. I prefer the analysis performed by Prof. Price. She looked at the plaintiff’s age, her clinical experience of this type of tumour, the medical records, including the histopathology report giving the grade of tumour, and the patient specific factors, being her history post diagnosis, her negative family history of breast cancer, that she was progesterone receptor positive and HER-2 negative, and taking all of these factors into account has arrived at a tumour doubling time of 44 – 80 days. That is supported by the literature, which itself is accepted and used by health authorities internationally to determine appropriate screening intervals. As such, I am satisfied that her methodology and analysis is sound.
402. In these circumstances, I am of opinion that Prof. Price’s estimate of tumour doubling time at between 44 – 80 days the correct one to use in this case. When that tumour doubling time is used to back extrapolate the size of the plaintiff’s breast tumour in 2014, it results in a range of tumour size from 0.12cm to 0.66cm.
403. While there was some dispute as to whether one should back extrapolate from the mammographic size at diagnosis solely, or should one use other clinical findings at that time, I think it is better to work from the mammographic size, in the absence of a definitive pathological size after excision of the tumour. Accordingly, I hold that the tumour in the plaintiff’s breast in 2014, was likely to have been approximately 0.6cm in size based on a tumour doubling time of 80 days. The significance of that is, that it was below the threshold size for it to have been discoverable on clinical examination by means of palpation by a GP at that time.
VII. Conclusions on the Main Issue
404. In order to reach a conclusion on the central liability issues in this case, it is necessary to begin by resolving the conflicts in evidence in relation to what did or did not happen at the consultation on 24th September, 2014. The first issue which arises is whether the plaintiff made an appointment to see the defendant, or was merely a “ walk-in ” patient, who turned up at the surgery on spec. In the course of cross examination of the plaintiff, it was put to her that the usual practice when somebody phoned to make an appointment to see a particular doctor, was that their name and the appointment time given to them and the identity of the doctor who they were going to see, would be entered in a handwritten diary. This would later be transferred onto the computerised diary at the surgery. It was put to the plaintiff that there was no record of her having made any appointment to see the defendant on 24th September, 2014, in the handwritten diary kept at the surgery. However, the original of this diary, nor any copy thereof, was entered in evidence.
405. In response to that, the plaintiff was adamant that she had telephoned in advance of the appointment date and had received an appointment from the secretary to see the defendant at 16:00hrs on 24th September, 2014. The plaintiff stated that she had specially made the appointment to see the defendant, as she wished to be seen by a female GP, as she anticipated that an examination of her breasts would be necessary and for that reason she wished to be seen by a female doctor. It was further put to the plaintiff that 24th September, 2014, was a Wednesday and that the defendant did not usually work on Wednesdays, but was at the surgery on Mondays, Tuesdays and Fridays.
406. In the course of the hearing, the court was given a computer printout in relation to visits made by the plaintiff to the two clinics from 20th August, 2014, to 19th October, 2016. This printout recorded the arrival time of the patient at the relevant clinic, their wait time, the time the consultation started and the duration of the consultation. In respect of 24th September, 2014, it showed that the plaintiff arrived at the surgery at 15:58hrs. She was seen by the defendant at 16:00hrs. The consultation lasted twelve minutes.
407. In evidence, the defendant stated that she normally worked on Mondays, Tuesdays and Fridays, but on this occasion she was filling in for Dr. O’Connor. She could not recall exactly when she had been asked to cover his hours, but she conceded that it may have been some days in advance of that date.
408. On this aspect, I prefer the evidence of the plaintiff. I accept her evidence that having found a lump in her armpit, she had become concerned when it remained for an appreciable period of time. She then did an internet search and discovered that such a lump could be connected to breast cancer. I accept her evidence that for this reason, she specifically made an appointment to see the female GP at the practice. I accept her evidence that having telephoned the surgery, she was given an appointment to see the defendant at 16:00hrs on the day in question.
409. The absence of any entry in the written diary, while referred to by counsel in the course of cross examination, was not proved in evidence by the production of the original of the diary, nor any copy thereof. The computer printout of the patient visit history concerning the plaintiff, is supportive of her contention. I note from this printout that while waiting times in general seem to vary quite considerably, there were a number of visits where she only had to wait two, three and six minutes for her appointment. In respect of this particular visit, her wait time was only two minutes. If she had been a “ walk-in ” patient, meaning that she had turned up on spec, this would mean that when she turned up without any appointment seeking to see a doctor, and on a day when there was only one doctor in the surgery, there was a remarkable coincidence that that doctor happened to be free at that very moment. This meant that although she turned up on spec, she could arrive at 15:58 and be seen by the defendant at 16:00hrs. I do not think that that is likely to have happened.
410. Having regard to the evidence of the defendant, that she may have had a number of days notice that she was going to cover for Dr. O’Connor on the Wednesday, it is possible that when the plaintiff rang looking for an appointment with a female doctor, she was duly allocated an appointment time of 16:00hrs on the Wednesday. Accordingly, I find as a fact that the plaintiff did have an appointment to see the defendant on 24th September, 2014. I also find as a fact that in making that appointment, she had specifically done so in order to see a female doctor.
411. The second area of conflict in relation to the consultation is whether the plaintiff was examined while lying on the examination bed in the consultation room, with her left arm raised and her hand behind her head, as alleged by the plaintiff, or whether she was examined sitting on the bed with her left arm slightly abducted from her body and her elbow supported by the defendant, as alleged by the defendant. Both parties are agreed that the plaintiff either removed her outer top, or was able to pull it aside, as it may have been loose summer clothing, so as to reveal her axilla. Both the plaintiff and the defendant were agreed that the plaintiff did not remove her bra at any stage.
412. In relation to this conflict of evidence, I prefer the evidence of the defendant. Her evidence was that having taken the relevant history from the plaintiff, while sitting at a chair beside her desk, she asked the plaintiff to move over and sit on the examination bed. The defendant stated that it would not be appropriate to examine the axilla with the patient lying on the bed and with their arm lifted back over her head, because this would render the muscles and tissues in the underarm area taught. She stated that the method which they had been taught for examination of the axilla, was to have the patient sitting on a chair or on an examination bed with their arm slightly abducted away from the body. The doctor would support the arm at the elbow, so as to render the muscles of the axilla and upper arm lax. This was necessary to enable an adequate examination of the axilla by palpation.
413. The experts were agreed that the method as described by the defendant, was the appropriate method which would be adopted by a clinician when carrying out an examination of the axilla.
414. The defendant also stated that the examination bed was tight up against a wall. This would have meant that had the plaintiff been lying on the bed and had the defendant attempted to examine her left axilla, she would have had to approach the bed from the plaintiff’s right hand side and lean over her body to carry out such examination, which would have been a more difficult way of examining the axilla. In the circumstances, I prefer the defendant’s version as to how the axilla examination was carried out. Having watched and listened to the defendant carefully, it seems to me that there is no rational explanation why she would have carried out this examination by means of an inappropriate and incorrect method. Accordingly, I find that the plaintiff’s axilla was examined by the defendant while she was sitting on the edge of the examination bed in the manner described by the defendant.
415. A further area of conflict between the parties was in relation to whether the plaintiff had expressed any concern at the consultation about breast cancer. Her evidence was that, having done an Internet search, she did have a concern about the lump in her armpit possibly being connected to breast cancer. She stated that she had expressed this concern to the defendant at the consultation. For her part, the defendant stated that there had been no reference to breast cancer at the consultation, except for the question which she had asked of the plaintiff, whether she had any family history of breast disease. The response to that question had been recorded in her notes. She stated that had the plaintiff expressed any concern in relation to breast cancer, she would have recorded that concern in her notes. She was satisfied that the plaintiff had not expressed any such concern to her at the consultation.
416. In resolving this conflict, I prefer the evidence of the defendant. In particular, I attach significance to the fact that there is no reference to any such concern in the defendant’s contemporaneous notes. She had recorded the concern on the part of the plaintiff in relation to a possible lump in her left armpit. There was absolutely no reason why the defendant would have recorded that concern which was expressed to her by the plaintiff, but would not have recorded any other concern that was also expressed to her by the plaintiff. Accordingly, I am satisfied that the absence of any reference in her notes to the plaintiff been concerned about the possibility of having breast cancer, or been concerned about breast cancer generally, is persuasive that no such concern was expressed by the plaintiff to the defendant on that occasion and I so find.
417. The fourth issue which arises is whether the defendant carried out an adequate examination of the plaintiff’s axilla. In her evidence, the plaintiff stated that she thought that the defendant had been somewhat dismissive of her complaint that she had a lump under her arm and had carried out a somewhat cursory examination of her left axilla. She did not think that the right axilla had been examined at all. However, in cross-examination, she conceded that her views in relation to the adequacy of the defendant’s examination of her axilla, had not been formed at the time of that consultation, or in the months and years thereafter. She had only come to hold that view subsequent to her diagnosis with cancer in 2016. She stated that the reason for that was that she had not really thought about the examination very much, until she thought about matters in detail some considerable time after her diagnosis with cancer.
418. The plaintiff accepted that in examining her axilla, the defendant had palpated the underarm and surrounding area extensively. When she could not find anything, she had asked the plaintiff to point out where the lump was. The defendant had used that as an indication as to where a more in depth palpation should be carried out. She had palpated the entire area again.
419. In her evidence, the defendant stated that she had palpated the left axilla on two occasions in the manner described by the plaintiff. She stated that she had also palpated the right axilla for completeness and for comparison purposes. All such clinical examinations had been negative. The defendant stated that usually consultations at the surgery were scheduled to last ten minutes. However, they often ran over, possibly up to fifteen minutes. This was possible as her list was not always full. On this occasion the visit had been recorded as having lasted twelve minutes. The defendant stated that she had examined both axillae, because she had recorded this is in the plural in her notes.
420. The experts were agreed that a consultation lasting twelve minutes, would be a normal length of time in a busy GP practice and was appropriate for an axilla examination, which was estimated by Dr. Boland to take circa two minutes.
421. On this conflict, I prefer the evidence of the defendant. The plaintiff very fairly accepted in cross-examination that she did not have any complaint in relation to the way in which she had been examined in the months and years following the consultation on 24th September, 2014. It was only some considerable time later, after she had been diagnosed with cancer in 2016, that she came to the view that that consultation had been unsatisfactory. In view of the fact that the defendant had palpated the area on two occasions during that visit, I do not think that it can reasonably be held that the examination was cursory or inadequate. Furthermore, I accept the entry in her notes that both axillae were examined. That was entirely appropriate in the circumstances. Accordingly, I find as a fact that the defendant’s examination of the plaintiff’s left axilla was not inadequate, or done without due care and attention.
422. That brings me to the central conflict between the parties, which is whether the defendant offered the plaintiff a breast examination and whether the plaintiff refused it. The plaintiff’s account is straight forward. She says that she was not offered a breast examination and therefore did not refuse one.
423. The defendant’s account is that having palpated the two axillae, she said to the plaintiff in a conversational tone, “ I would like to perform a breast examination ”, or words to that effect. She could not recall the exact words that she had used. She said that this request had been made in a conversational tone, so as not to alarm the patient, because in light of the negative axilla examination, she did not believe that there was any indication that the plaintiff actually had breast cancer. Furthermore, the fact that the plaintiff was a young woman and had no family history of breast cancer, meant that the index of suspicion of breast cancer was low.
424. The defendant stated that when the plaintiff declined to have a breast examination, she did not feel that she could push the matter further. She was conscious that that was the first occasion on which she had actually treated the plaintiff as a patient, although she had met the plaintiff previously, when she brought in one of her children who was sick. Given that the index of suspicion for breast cancer was low, she did not push the matter any further. She stated that she did not sense any unease or disquiet on the part of the plaintiff at not having a breast examination. She stated that she had recorded the fact that the plaintiff had declined a breast examination in her notes, which had been entered onto the computer immediately after the plaintiff left the consultation room and before she called in the next patient.
425. In looking at this conflict, one has to have regard to the fact that the plaintiff’s evidence was based on her recollection of a twelve-minute consultation, which had been recalled for the first time after August, 2016 in respect of a consultation in September, 2014. The plaintiff stated that at the conclusion of the consultation, she had felt slightly embarrassed, but very relieved that she had been given the all clear by the defendant in relation to her complaint of an axillary lump. Importantly, on the plaintiff’s evidence, there was nothing in that consultation which would cause her to particularly recall the consultation itself. She had not been given any bad news, which she might have ruminated on or remembered in the following two years. It was only some time after her diagnosis with breast cancer in August, 2016, that she had cause to try to recall that consultation. In opening the case, the plaintiff’s counsel had stated that around the end of 2016, the plaintiff had telephoned the defendant to ascertain the date that she had seen her in 2014.
426. The defendant candidly admitted that she only had a specific recollection of two aspects of the consultation; that the plaintiff said that she did not have any relevant family history of breast cancer and that she had refused a breast examination. Other than that she had to rely on her notes, which were made immediately after the plaintiff left the consultation room.
427. A number of points can be made about the defendant’s notes. Firstly, I find that they are satisfactory notes, insofar as they give sufficient detail of the relevant matters discussed at the consultation. I accept the evidence of Dr. Boland that the defendant’s notes would be generally regarded as being of an adequate standard. Indeed, the plaintiff’s expert, Dr. Burton, did not disagree with that conclusion, save that he felt that they would not be described as being detailed notes, due to the fact that there was not more information elicited in the history section in relation to the size and shape of the lump reported by the plaintiff and whether she had had it before, or had such lumps elsewhere in her body. I accept the defendant’s evidence that she had asked relevant questions in relation to the lump, but it was her practice only to record relevant positive answers to those questions. I accept the evidence of Dr. Boland that these notes are adequate in terms of the level of detail contained therein.
428. Secondly, there was no challenge made at the trial of the action that these notes were made contemporaneously by the defendant in the manner described by her. Accordingly, I find as a fact that her notes were made immediately after her consultation with the plaintiff.
429. Thirdly, it is relevant to note that the plaintiff accepted the accuracy of certain aspects of the defendant’s notes. She agreed that she had attended with a concern in relation to an axillary lump, which she stated had been present for three months and that it was non tender. She also accepted that she had stated that she had no family history of breast cancer. All of these things were recorded in the notes.
430. Both the plaintiff and the defendant were also in agreement that the defendant had examined the left axilla twice and that she was unable to find any lump on clinical examination. Accordingly, her note is accurate in relation to the findings on clinical examination of the axilla.
431. The critical part of the notes is that portion which reads “declined breast exam”. While it was put to the defendant that she had not in fact offered the plaintiff a breast examination, it was not put to her that she had deliberately written a falsehood in her notes relating to that consultation. In the course of cross-examination, it was put to the defendant that she had in fact never offered the plaintiff a breast examination. It was put to her that she was tied to a misinterpretation of her own notes, to try to provide some kind of rationale on that issue. That was the only challenge that was put to her in relation to this entry in her notes.
432. If I were to find that no breast examination was offered by the defendant to the plaintiff at the consultation on 24th September, 2014, it follows that I would have to find as a fact that the defendant had, within minutes of the conclusion of that consultation, deliberately entered a falsehood in her notes, to the effect that the defendant had declined a breast examination. That would be an extremely serious finding to make against a doctor. It is only fair that if such a finding was to be made against a practising medical practitioner, at the very least, the allegation should have been put to them in clear terms and they should be given an opportunity to deny or explain that allegation, prior to any adverse finding being made against them.
433. The law in relation to the duty to put matters to witnesses in cross-examination has been long established at common law. In Browne v. Dunn [1894] 6R. 67, Herschell L.C. set out the rationale for this rule of evidence in the following terms at pp. 70-71:
“Now, my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he was a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and as it seems to me, that is not a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.”
434. Halsbury L.J. explained the principle in similar terms at pp 76-77:
“To my mind nothing would be more absolutely unjust than not to cross-examine witnesses upon evidence which may have been given, so as to give notice and to give them an opportunity of explanation, and an opportunity very often to defend their own character, and, not having given them such an opportunity, to ask the jury afterwards to disbelieve what they had said, although not one question has been directed either to their credit or to the accuracy of the facts they have disposed to.”
435. The principles set out in the Browne case were accepted as being a correct statement of the law by Laffoy J. in McNamee v. Revenue Commissioners [2016] IESC 33. Those principles were also accepted by Charleton J. in McDonagh v. Sunday Newspapers Limited [2017] IESC 46, where, having cited the cases referred to above, he stated at para. 41:
“The extent to which fairness requires cross-examination is essentially dependant on how a trial runs. Fairness, however, is what the law requires both in relation to procedures that are dedicated towards achieving a correct conclusion in a trial and in relation to the right of a witness to be given a real opportunity to comment on a verdict the implication of which may only be interpreted as adverse.”
436. Those statements of the law were also accepted by this Court in Browne v. Van Geene [2017] IEHC 612 and in Jedrusch v. Tesco Ireland Limited [2018] IEHC 205. Having regard to the state of the law, I am of opinion that two consequences flow from the failure to put the allegation to the defendant that she had deliberately written an untruth in her notes. Firstly, objection could have been taken by counsel on behalf of the defendant, that had the plaintiff sought to put such an allegation to any witnesses called after the defendant had given her evidence. Secondly, the specific allegation could not have been put before a jury, or before the trier of fact, if such allegation had not been put to the witness. Accordingly I am of the opinion that I would not be entitled to make any finding that the defendant had deliberately written a falsehood in her notes in relation to the plaintiff declining a breast examination, as that specific allegation was not put to her.
437. However I do not rest my judgment solely on this somewhat technical ground. Even if it had been put to the witness and denied by her, having watched the defendant carefully giving her evidence, I am satisfied that she would not deliberately write in her notes that the plaintiff had declined a breast examination, if that was not the case. I simply do not accept that she falsified her records.
438. I am fortified in that conclusion by the fact that there was no reason for her to enter such a falsehood in her notes. If she had for some reason omitted to offer the plaintiff a breast examination and had realised that in writing up her notes immediately on the departure of the plaintiff, there was no need for her to falsify her records; all she had to do was ask her secretary to contact the plaintiff and ask her to come in for a breast examination on the following Friday, or in the following week. There was absolutely no need for her to falsify her records, which would be a very serious thing for a doctor to do.
439. In relation to the defendant’s testimony generally, she gave her evidence in a clear and straight forward manner. She did not try to dodge any difficult questions, nor did she try to obfuscate in her answers. I am satisfied that she is essentially an honest witness.
440. On this conflict of evidence, I prefer the evidence of the defendant that the plaintiff declined a breast examination after the negative axillary examination. That evidence is supported by her notes, which were made contemporaneously. There is no evidence that would enable me to hold that the notes are not truthful or accurate. On this aspect, I prefer the evidence of the defendant which is supported by her contemporaneous notes. Accordingly, I find that a breast examination was offered and was declined by the plaintiff at the consultation on 24th September, 2014.
441. In saying that, I am not casting doubt on the plaintiff’s honesty, the doubt is solely in relation to the accuracy of her recollection. I am satisfied that her recollection of the consultation in this regard is mistaken. That may have been due to the fact that it was over two years later, when she had been sucked into a vortex of terrible diagnoses, with a devastating prognosis, that she first recalled certain aspects of the encounter, namely that she had attended the defendant with a concern about a lump in her axilla and that her breasts had not been examined on that occasion; both of which were true, but she wrongly came to the conclusion that that meant that no breast examination had been offered. Accordingly, I am satisfied that the plaintiff was merely mistaken in her recollection of what occurred at the consultation, rather than there being any deliberate attempt on her part to give false evidence.
442. In the course of cross-examination, it was put to the defendant and to other witnesses, that if a young woman had found a lump in her axilla, had done an internet search and discovered the possible link between such a lump and breast cancer and had specifically made an appointment to be seen by a female GP, with a view to having a breast examination, there was no rational reason why she would have refused one when offered it. Broadly speaking, the witnesses, including the defendant, agreed with that proposition. At first glance, there is certainly considerable strength in it. However, for reasons that will become clear presently, I am of the opinion that a refusal of a breast examination by the plaintiff on this occasion, may not have been such an irrational or unlikely outcome.
443. The next conflict between the parties, was whether there was consensus between the plaintiff and the defendant that there was no lump present in her axilla on 24th September, 2014. There was a fairly stark conflict between the evidence of the plaintiff and the evidence of the defendant on this aspect. The plaintiff maintained that she was able to feel the lump in her axilla at all times, including during the consultation and indeed during the two years thereafter.
444. The defendant’s evidence was to the effect that, having thoroughly palpated the axilla on two occasions during the consultation, there was a consensus between them that there was no lump present. The defendant stated that at no time did the plaintiff verbally communicate to her that she thought that the lump was still present. Nor did she get any sense from the plaintiff’s body language, or otherwise, that she thought that the lump was still present, despite the negative clinical examination of the axilla by the defendant.
445. Having considered the evidence of the plaintiff and the defendant on this issue, I prefer the evidence of the defendant for the following reasons: firstly, I accept the defendant’s evidence that the plaintiff did not verbally communicate any concern that she could still feel the lump. The plaintiff did not state in evidence that she had specifically told the defendant that the lump was still there. I also accept the defendant’s evidence that had she done so, it would have been recorded in her notes and the consultation would have taken a different direction. I also accept the defendant’s evidence that she did not pick up any sense of disquiet or disagreement on the part of the plaintiff with her conclusion following clinical examination, that there was no lump present.
446. The absence of any entry in the notes of any disagreement or concern on the part of the plaintiff that the lump was still present, is supportive of the defendant’s evidence in this regard. One must also take into account that the presence of a disagreement between a doctor and their patient in relation to the presence of a certain condition, such as a lump, is not something that reflects badly on the doctor. If there had been any disagreement between the plaintiff and the defendant, there was no reason why the defendant would not have recorded such lack of consensus in her notes. Accordingly, I regard the absence of any such entry in the notes as being significant.
447. There was also a positive entry in the notes which supports the defendant’s account. According to the notes, at the end of the consultation, the plaintiff was told to return if the lump should recur. This was recorded as “TCI if recurs”. The use of the word “recurs” in its ordinary meaning suggests that there was no lump on that examination, but if it should come back, the patient should return to the surgery. While the plaintiff stated in evidence that she had no recollection of any such advice being given to her towards the conclusion of the consultation, I prefer the accuracy of the written notes made contemporaneously and accordingly I find that such advice was given. The giving of such advice is supportive of the fact that there was consensus between them that there was no lump present at that time.
448. There are two further elements in the conduct of the plaintiff which are supportive of this conclusion. Firstly, the plaintiff was seen on approximately ten occasions between 24th September, 2014 and 16th August, 2016, when she went to Dr. Redahan about the lump in her breast. On three of these occasions she was reviewed by the defendant in relation to other complaints. On other occasions she was seen by different female doctors in a different clinic. On no occasion did she mention the lump to any doctor.
449. At the trial an attempt was made to explain this state of affairs by the assertion that, while the lump had persisted throughout the entirety of the intervening two years, the plaintiff had not worried about it, or mentioned it to any doctor, because the defendant had reassured her that it was nothing to worry about. I find that somewhat difficult to believe. If the lump had persisted for the entire two years after September, 2014, and during that time the plaintiff had been seen by different doctors in different clinics, I feel that on the balance of probabilities, even if only for reassurance, the plaintiff would have mentioned it to one of these doctors.
450. Of more significance, is the fact that when the plaintiff went to see Dr. Redahan in relation to the lump in her breast and knowing from her internet search that there was a possible connection between breast cancer and axillary lumps, it is significant that she did not mention to Dr. Redahan that she had had a lump in her axilla for over two years. I find it improbable that if she had had a lump in the axilla for that period prior to August, 2016, she would not have mentioned that to Dr. Redahan.
451. I have also had regard to the fact that no lump was found on clinical examination of the axilla by either Dr. Redahan, or Mr. Allen in August, 2016. If they could not find any lump in the axilla, which they were specifically looking for in the context of a positive finding of a lump in the breast, I do not think that the plaintiff could have felt it either.
452. Lastly, I accept the evidence of Prof. Price, that having regard to the various findings on clinical examination in August and September, 2016 and on the scanning undertaken in 2016, and having regard to the finding on ultrasound of mild cortical thickening in the axilla, and having regard to the amount of malignant disease in the node at that time, it was unlikely that the plaintiff had had an enlarged node in 2014.
453. For all these reasons, I prefer the evidence of the defendant that there was in fact a consensus between her and the plaintiff at the consultation on 24th September, 2014, that no lump was present in her axilla on that occasion.
454. In light of that finding, the declining by the plaintiff of the offer of a breast examination becomes more credible. It is certainly possible that, having gone to the doctor about a lump in her axilla, which could not be found by the doctor on careful examination and when the plaintiff was in at least tacit agreement that there was no lump present, when the offer of a breast examination was put to her in conversational tones, it is understandable that she may have declined such offer, as she did not have any concern about any lump in her breast at that time. This would also fit with her description of her feelings at the end of that consultation, that she was a little embarrassed to have troubled the doctor, but was relieved that nothing of concern had been found.
455. In light of these findings, one has to consider whether the defendant was negligent in either not insisting more strongly at the consultation on 24th September, 2014, that the plaintiff should have a breast examination, or whether she should have scheduled a review appointment some weeks later.
456. In relation to the first question, I accept the evidence of Dr. Boland, that having regard to the fact that there had been a negative axilla examination, a consensus between the doctor and the patient that there was no lump present on that occasion and in light of a plausible explanation for that state of affairs, being that there may have been a transitory inflamed or enlarged node due to her longstanding eczema, and in light of the plaintiff’s age and negative family history, it was reasonable for the defendant not to push the issue of a breast examination once it had been declined by the plaintiff.
457. Accordingly, I find that the defendant was not negligent in failing to make a second or more vigorous request to examine the plaintiff’s breasts at the consultation on 24th September, 2014.
458. In relation to the question of whether the defendant should have told the plaintiff to return for review in a few weeks, Dr. Burton’s opinion that that should have been done, was predicated on an assumption that notwithstanding the negative axilla examination, the plaintiff had still maintained that a lump was palpable and that if the defendant was not specifically made aware of that, she was, at least, aware of a lack of consensus between her and the plaintiff on that issue. Essentially, Dr. Burton and Dr. Boland were in agreement that if there was no consensus between the plaintiff and the defendant in relation to the presence of a lump, then a review was mandated.
459. However, where there was consensus, as I have found to have existed on this occasion, the evidence of Dr. Boland was that it was not necessary to schedule a review appointment; it was sufficient to give advice to the patient to return if the lump should recur. I accept that evidence and as I have found that that advice was, in fact, given, I find that the defendant was not negligent in failing to arrange a review appointment for the plaintiff some weeks later.
460. Nor do I accept that the defendant’s actions were in breach of the National Breast Cancer GP Referral Guidelines, issued by the HSE in April 2009. The advice given on p. 2 clearly states what should be done if a patient attends with a GP complaining of a breast lump. It stipulates that a full history should be taken, followed by an examination of the breasts. If no lump was found, the guidelines state “ Reassure ?Reassess ”. At the trial, it was maintained on behalf of the plaintiff, that the phrase “breast lumps” at the top of column 2, where that advice was given, included circumstances where a patient attended complaining of an axilla lump. This proposition was based on the fact that on p. 1 which refers to the different types of referrals that may be made, under the heading “ Urgent Referrals” , it provided that where a discreet breast or axillary lump was found, there should be an urgent referral.
461. I am satisfied that the reference to axillary lumps on p. 1, is in fact against the proposition put forward on behalf of the plaintiff. I am of opinion that if axillary lumps were to be included in the algorithm provided on p. 2 of the guidelines, axillary lumps would have been specifically stated, as had been done on page 1. There is no reason why such lumps would not be mentioned, if it had been intended to include them on page 2.
462. I prefer the evidence of Dr. Boland to the evidence of Dr. Burton that these guidelines, when referring to “ breast lumps ” on p. 2, do not include situations where patients complain of an axillary lump, but none is found. Dr. Boland’s evidence that the understanding of Irish GP’s of these guidelines is to the effect that the advice given on p. 2 does not include circumstances in relation to a complaint of an axillary lump, is persuasive.
463. I also accept the evidence given by Dr. Boland that if a patient was concerned about an axillary lump, but none was found on clinical examination and the plaintiff was happy with that conclusion, it was only necessary to reassure the patient and advise her to return if the lump should recur. That was what was done in this case. Accordingly, even if the guidelines on p. 2 did apply to this case, the defendant had complied with them. Dr. Burton stated that if the Court accepted that the defendant’s notes were accurate, then he agreed with the opinion of Dr. Boland that there was no breach of the guidelines by the defendant.
464. Having regard to my findings in relation to what transpired at the consultation on 24th September, 2014, I am satisfied that the defendant was not negligent in failing to raise the issue of the axillary lump when she saw the plaintiff on subsequent occasions.
465. Finally, even if I am wrong in relation to my conclusions that there was no negligence on the part of the defendant and if the defendant had been negligent in failing to carry out a breast examination on 24th September, 2014, that did not lead to any loss or injury, because having regard to my findings on the technical issue, I am satisfied that having regard to the probable size of the breast tumour in 2014, it would not have been palpable on clinical examination at that time. In other words, had the defendant examined the plaintiff’s breasts on 24th September, 2014, I am satisfied that on the balance of probabilities she would not have found any lump in the breast. In such circumstances, where there would have been negative breast and axillary examinations, then the defendant would, without any negligence on her part, simply have reassured the plaintiff that all was well. No further investigation would have been carried out at that time. However, in view of my primary findings in this case, this aspect does not require further elaboration.
466. For the reasons set out herein, and having regard to the principles laid down in Dunne (An Infant) v The National Maternity Hospital [1989] IR 91 and Collins v Mid-Western Health Board [2000] IR 154, I find that the defendant did not act negligently in her care of the plaintiff. Accordingly, I dismiss the plaintiff’s case against the defendant.
e proposition that where a plaintiff was successful in the overall action, but had been unsuccessful in respect of a significant portion of their claim, either on liability or quantum, they should not be awarded costs in respect of the period that was spent dealing with that issue on which the plaintiff had been unsuccessful.
10. Indeed, counsel for the defendant went further and submitted that in this case, the defendant should be awarded the costs of the four days which he submitted had been spent dealing with the temporary wire issue. This would mean that the plaintiff would be awarded the costs of two days of the trial and the defendant would be awarded the costs of the remaining four days. The two sets of costs could then be set off one against the other.
11. In response to these submissions, Mr. O’Neill, S.C., on behalf of the plaintiff submitted that while the plaintiff had been unsuccessful on the temporary wire issue, she had succeeded on the liability issue, in that she had been successful on the management issue. She had also recovered damages within the jurisdiction of the High Court in respect of her injuries. She had not been excessive in relation to the number of expert witnesses that she had called at the trial. She had called one witness in respect of the management issue. She had also called Mr. Cripps, who had given evidence on both the temporary wire issue and the management issue. The defendant had also called two expert witnesses. One of these was a nursing expert, who gave evidence on the management issue. The other, Dr. Quigley, gave evidence on both of the liability issues. In these circumstances, counsel submitted that there was nothing like four days spent dealing exclusively with the temporary wire issue. Nor were there any witnesses that were specifically called in relation to the temporary wire issue alone.
12. Counsel pointed out that the in the Wright case, Irvine J. had held that of the 21 days spent at hearing, 80% of that time had been spent dealing with issues on which the plaintiff had been ultimately unsuccessful. In that case, the plaintiff had made four separate allegations of negligence. She had only succeeded in establishing one of these heads of claim against the defendants. Notwithstanding that, Irvine J. had awarded her 65% of her costs.
13. Finally, it was submitted that as the expert witnesses in question, being Mr. Cripps and Dr. Quigley had given evidence on both of the liability issues and as there had been no appreciable prolonging of the hearing of the action as a result of the investigation of the temporary wire issue, it was just and fair that the plaintiff should be awarded the full costs of the action.
The Law
14. The law in relation to the awarding of costs in personal injury and other actions has been developed in a number of decisions in recent years. The seminal case is the judgment of Clarke J. (as he then was) in Veolia Water UK plc v. Fingal County Council [2007] 2 IR 81. The learned judge began by pointing out two fundamental principles that should always be kept in mind when deciding on the issue of costs. The first is that costs always remain discretionary in the hands of the trial judge. Secondly, the overriding starting position should remain that costs should follow the event. Parties who are required to bring a case to court in order to secure their rights are¸ prima facie , entitled to the reasonable costs of maintaining the proceedings. Parties who successfully defend proceedings are, again, prima facie , entitled to the costs to which they have been put in defending what, at the end of the day, the court has found to be unmeritorious proceedings.
15. Clarke J. went on to state that where the winning party has not succeeded on all issues which were argued before the court then, ordinarily, the court should consider whether it is reasonable to assume that the costs of the parties in pursuing the set of issues before the court were increased by virtue of the successful party having raised additional issues upon which it was not successful. He went on to outline what should happen where the winning party in the action, was not successful on all the issues that it raised at the trial of the action:-
“[13] 2.9 Where the court is so satisfied, then the court should attempt, as best it can, to reflect that fact in its order for costs. Where the matter before the court involved oral evidence and where the evidence of certain witnesses was directed solely towards an issue upon which the party who was, in the overall sense, successful, failed, then it seems to me that, ordinarily, the court should disallow any costs attributable to such witnesses and, indeed, should provide, by way of set off, for the recovery by the unsuccessful party of the costs attributable to any witnesses which it was forced to call in respect of the same issue. A similar approach should apply to any discrete item of expenditure incurred solely in respect of an issue upon which the otherwise successful party failed.
[14] 2.10 Similarly, where it is clear that the length of the trial of whatever issues were before the court was increased by virtue of the raising of issues upon which the party who was successful in an overall sense, failed, then the court should, again ordinarily, award to the successful party an amount of costs which reflects not only that that party should be refused costs attributable to any such elongated hearing, but should also have to, in effect, pay costs to the unsuccessful party in relation to whatever portion of the hearing the court assesses was attributable to the issue upon which the winning party was unsuccessful.”
16. In Wright v. HSE & Anor [2013] IEHC 363, Irvine J. had to consider what was the appropriate costs order in a medical negligence case, where the plaintiff had made four separate allegations of negligence in respect of her treatment in two different hospitals over a period of years and had ultimately only been successful in establishing liability in respect of one such occasion. The learned judge found that of the 21 days spent at hearing, less than 20% of that time was spent dealing with the plaintiff’s case between 12th and 16th March, 2006, being the only period in respect of which she had found that the defendants had been negligent. She was satisfied that in complex litigation, which included medical negligence actions, it was appropriate for the court to engage in a detailed analysis of the case when deciding what ultimate order for costs should be made at the conclusion of the proceedings.
17. Having reviewed the relevant authorities, Irvine J. set out the following principles as being applicable to a consideration of the issue of costs: –
“17. (i) The costs of proceedings in any court are ultimately a matter for the discretion of the trial judge.
(ii) In non-complex litigation a successful plaintiff will usually be entitled to an order for the reasonable costs of bringing their case to court to secure their rights. Similarly, a successful defendant will normally be entitled to an order providing for their reasonable costs of defending the action.
(iii) In complex litigation, where there are several events or relatively discrete issues which have not all been resolved in favour of the party who may be considered to have been the successful party in the overall sense, the court should look with greater scrutiny as to how the costs should be treated.
(iv) Where in complex litigation it can be concluded with some degree of certainty that the trial of any discrete issue of law and/or fact which was not resolved in favour of the successful party had the effect of increasing the costs of the proceedings by extending the duration of the hearing then the court should reflect this fact in its order for costs.
(v) Where in complex litigation the party who is in the overall sense considered to have been the successful party has unsuccessfully litigated an issue requiring evidence to be heard from witnesses directed solely towards that issue, the court should disallow the costs of that party’s witnesses and should consider making an order that the party who was successful on the issue be paid their costs which should then be set off against any order for costs made against them.
(vi) In complex litigation the court should seek to fashion an order for costs that will do more than award the costs to the winning side so as to discourage parties from raising additional unmeritorious issues.”
18. In applying those principles to the facts of the case before her, Irvine J. stated that the court had to fashion a costs order that would do justice between the parties:-
“31. […] The action involved a number of relatively discreet issues in respect of which the plaintiff failed and in light of the Court’s findings I believe it behoves the Court to fashion a costs order that will do justice between the parties having regard to those findings.”
32. Just because a plaintiff has one good point they should not, to my mind, be permitted to litigate a myriad of others and have the court make an order requiring the successful defendant on such issues to pay for that luxury. There must be some sanction in terms of costs should this occur. Further, in clinical negligence litigation, the career and reputation of the clinician is inevitably attacked and if there be no penalty for making allegations of negligence which fail, unless the plaintiff loses on every point, it seems to me that plaintiffs may be encouraged to pursue any point upon which they can garner even the most modest support and expect the defendant to cover their costs of having done so. It is not beyond the realms of possibility that an unscrupulous solicitor might use the potential costs of litigation as a type of battering ram to achieve a settlement in a case that a defendant might otherwise contest were it not for the exorbitant costs of defending the action… I do not believe that the plaintiff should enjoy absolute immunity in respect of the costs of their pursuit of allegations of negligence in respect of which they are unsuccessful if by pursuing the same they have significantly lengthened the trial or otherwise increased the costs of the proceedings by making their opponent retain additional witnesses in respect of those issues.”
19. Irvine J. noted that in those proceedings, the duration of the proceedings had been significantly extended due to the pursuit by the plaintiff of the allegation of negligence which had not been substantiated and which greatly increased the costs of both parties. She found that no more than 20% of the evidence touched upon the period when the plaintiff was actually successful in establishing negligence against the defendants. The learned judge went on to state that as the plaintiff had made a discrete allegation of negligence against a particular surgeon and as that issue probably took up about three days of court time in terms of expert evidence, she believed that that would have justified the court in making some type of costs order in favour of the defendant and then setting that off against the plaintiff’s costs. However, as that practice had not to date been customary in that type of litigation, she decided against such an approach and stated that she would do no more than reflect in a proportionate way, the plaintiff’s failure to succeed on that issue when reducing the level of costs to which she was entitled. Irvine J. awarded the plaintiff 65% of her costs.
20. In Godsil v. Ireland [2015] 4 IR 535, McKechnie J. set out the rationale behind the general rule in relation to the awarding of costs in the following terms at paras. 19 and 20:-
“19. Inter partes litigation for those unaided is, or can be, costly: certainly it carries with it that risk. It is therefore essential in furtherance of the high constitutional right of effective access to the courts on the one hand and the high constitutional right to defend oneself, having been brought there, on the other hand, that our legal system makes provision for costs orders. This is also essential as a safeguarding tool so as to regulate litigation, and the conduct and process thereof, by ensuring that it is carried on fairly, reasonably and in proportion to the matters in issue. Whilst the importance of such orders is therefore clearly self-evident, nevertheless some observations in that regard, even at a general level, are still worth noting.
20. A party who institutes proceedings in order to establish rights or assert entitlements, which are neither conceded nor compromised, is entitled to an expectation that he will, if successful, not have to suffer costs in so doing. At first, indeed at every level of principle, it would seem unjust if that were not so but, it is, with the “costs follow the event” rule, designed for this purpose. A defendant’s position is in principle no different: if the advanced claim is one of merit to which he has no answer, then the point should be conceded: thus in that way he has significant control over the legal process, including over court participation or attendance. If, however, he should contest an unmeritorious point, the consequences are his to suffer. On the other hand, if he successfully defeats a claim and thereby has been justified in the stance adopted, it would likewise be unjust for him to have to suffer any financial burden by so doing. So, the rule applies to a defendant as it applies to a plaintiff.”
21. McKechnie J. went on to explain the general rule in relation to the awarding of costs in the following terms at para. 23:-
“23. The general rule is that costs follow the event unless the court otherwise orders: O. 99, r. 1(3) and (4) of the Rules of the Superior Courts 1986. This applies to both the original action and to appeals to this court (Grimes v. Punchestown Developments Co. Ltd. [2002] 4 IR 515 and S.P.U.C. v. Coogan (No. 2) [1990] 1 I.R. 273). Although acknowledged as being discretionary, a court which is minded to disapply this rule can only do so on a reasoned basis, clearly explained, and one rationally connected to the facts of the case to include the conduct of the participants: in effect, the discretion so vested is not at large but must be exercised judicially (Dunne v. Minister for the Environment [2007] IESC 60, [2008] 2 IR 775 at pp. 783 and 784). The “overarching test” in this regard, as described by Laffoy J. in Fyffes plc v. DCC plc [2006] IEHC 32, [2009] 2 IR 417 at para. 16, p. 679, is justice related. It is only when justice demands should the general rule be departed from. On all occasions when such is asserted the onus is on the party who so claims.”
22. This Court had to consider the issue of costs in Dardis v. Poplovka [2017] IEHC 249. That case concerned an assessment of damages arising out of an RTA on 21st October, 2009. In the substantive judgment, the plaintiff was awarded damages of €84,688.52. An issue arose as to what order for costs should be made having regard to the fact that the plaintiff had put forward a claim for loss of earnings at the trial in the sum of €620,042.00, but had only recovered the sum of €20,000 in respect of loss of opportunity on the job market.
23. Having reviewed the authorities on costs which had been opened in the course of argument, the court set out the following general principles at para. 26:-
“26. (i) The general rule which should be applied is that costs follow the event. However, the court has a discretion to depart from this rule when the justice of the case so demands. If there was a discrete issue on which the plaintiff was unsuccessful, he may be denied his costs in respect of that issue, notwithstanding that he was successful in the action overall.
(ii) However, just because the plaintiff’s evidence may not have been accepted by the trial judge on one aspect of the case, does not necessarily mean that he should be deprived of any portion of his costs. There will be many issues on which there will be opposing evidence from each party. Just because the judge decides in favor of the defendant on a particular issue, does not mean that the plaintiff should necessarily be penalised in costs. As long as the claim made by the plaintiff was reasonably stateable on his evidence, he should not be penalised just because the judge preferred the defendant’s evidence on that issue. For example, there may be a dispute between the medical experts in relation to the level of the plaintiff’s disability into the future. The plaintiff’s doctors may have given the opinion that the plaintiff would be unfit for anything other than very light work, while the defendant’s doctors may have reached the opinion that the plaintiff would be capable of light/medium work, but not for heavy manual work. Even if the trial judge finds with the defendant’s doctors and as a result, rules out a portion of the plaintiff’s claim for future loss of earnings, or future care costs, the plaintiff should not be deprived of his costs, as long as there was some medical evidence on which he was justified in advancing the claim at the trial.
(iii) Where a plaintiff puts forward a distinct and separate claim, on which he loses completely, such as putting forward a totally unsustainable loss of earnings claim, then it may be appropriate to deny the plaintiff his costs for the time spent at the hearing dealing with the discrete issue on which he has lost. If that is appropriate, he should also be denied the costs of his witnesses, who were called to establish that aspect of his claim.
(iv) It seems to me that the distinction between these two levels is essentially one of degree. If a plaintiff had a stateable case on the issue, he should not be penalised just because the trial judge found in favour of the defendant. However, if the plaintiff has put forward a particular head of claim, that was ultimately held to be unstateable, then it would be appropriate that he should be deprived of his costs in respect of the time spent trying to establish such head of claim at the trial. Thus in order for the plaintiff to be deprived of his costs, there must be a discrete issue which the plaintiff looses completely and the hearing of that issue must have led to a definite elongation of the hearing of the action.
(v) The question then arises as to the circumstances in which it will be appropriate for the trial judge to go further and actually award the defendant some of his costs in dealing with the particular issue. Again it seems to me to be a question of degree. In Veolia Water U.K. plc. v. Fingal County Council, Clarke J. suggested at para. 14, that where the trial was prolonged by an appreciable amount due to the fact that the plaintiff put forward a particular claim on which he was ultimately unsuccessful, then it would be appropriate not only to deny the plaintiff his costs for that portion of the trial, but also to grant the defendant his costs of dealing with that claim for the period by which the hearing was unnecessarily prolonged.
(vi) It seems to me that the approach of Clarke J. in the Veolia case, is a logical and sensible approach to the consideration of whether it is appropriate to award the defendant some of his costs in dealing with a discrete issue. Where a trial has been prolonged by an ascertainable amount and where the defendant has had to incur extra expense in dealing with that head of claim, on which the defendant was ultimately successful at trial, it is appropriate that he should be given his costs in respect of that discrete issue. Thus the defendant would have to establish that he had incurred definite extra expenditure, such as calling witnesses, to deal specifically with that particular issue. In order to recover the witnesses’ expenses, it would have to be shown that those witnesses were retained solely to deal with the discrete issue on which the defendant succeeded and were not going to be called to give evidence on other issues in the trial.
(vii) These principles apply in the same way to the converse situation where the defendant is ultimately successful in the overall action, but where the plaintiff succeeds on one or more discrete issues.”
24. Having reviewed the evidence given at the trial, the court came to the conclusion that the hearing had been prolonged by approximately two days by virtue of the unmeritorious loss of earnings claim which had been made by the plaintiff. The court went on to hold that not only had the hearing been extended by that amount of time, but also that the defendant had been put to extra expense in dealing exclusively with that aspect of the case. In those circumstances, the plaintiff was disallowed two days’ costs and was also disallowed the costs in respect of two witnesses who had both been retained solely in relation to the loss of earnings claim. Furthermore, as the court was satisfied that the hearing had been extended by two days due to the unsustainable loss of earnings claim, it awarded the defendant his costs in respect of two days at hearing. The defendant was also awarded the costs payable to his accountant, who had been called to deal with the plaintiff’s loss of earnings claim. The order provided that when the respective costs had been ascertained, they could be set off one against the other.
25. Finally, in Naylor (otherwise Hoare) v. Maher [2018] IECA 32), the Court of Appeal looked at the costs issues which might arise where a plaintiff had been successful in one element of his claim, but had been unsuccessful in a significant element of his claim in the context of a probate action. In that case, the plaintiff had challenged the validity of a second will made by the testator on the grounds that same had been procured by undue influence exercised by the defendant over the testator. The court rejected that allegation. However, the court did find with the plaintiff in respect of an alternative claim, that he was entitled to the testator’s farm under the principle of promissory estoppel.
26. In a detailed judgment, Peart J. looked at the interaction between the principles laid down in the Veolia case, and the principles generally applied in probate actions, which had been set out in the decision of the Supreme Court in In Re Morelli, deceased, Vella v. Morelli [1968] I.R. 11. The learned judge stated that in probate actions, notwithstanding the decision in Vella , the Veolia principles still applied. He stated as follows at para. 38:-
“38. In my view, having regard to the decision in Vella v. Morelli, yet tempered by the more recent principles in Veolia, and taking into account the unusual length of the hearing in this case, and the undisputed fact that a significant amount of time was occupied by the failed issue of undue influence, it is appropriate that some deduction be made to the amount of costs to which the plaintiff should be entitled to have paid from the deceased’s estate.”
27. Applying those principles to the facts of the case, Peart J. held that the plaintiff should suffer a deduction of 25% of his costs, due the fact that he had been unsuccessful on the undue influence issue.
Conclusions
28. I am satisfied that counsel for the defendant is correct in his submission that this medical negligence action, which was heard over a period of seven days, is complex litigation of the type envisaged by Clarke J. in Veolia and by Irvine J. in Wright . Accordingly, it is appropriate for the court to adopt a more nuanced approach to the issue of costs, than merely a simple application of the ” costs follow the event ” rule.
29. I accept the submission of Mr. Nolan SC on behalf of the defendant that the Court should take into account the fact that the plaintiff was not successful on the temporary wire issue. However I am not satisfied that any additional witnesses were called as a result of this. Mr. Cripps gave evidence on behalf of the plaintiff on both issues, being the temporary wire issue and the management issue. The fact that he had to be recalled to the witness box, was due to the fact that the defendant’s expert had not referred in his medical report to medical literature to which he intended to refer to in his evidence. This only became known to the defendant’s counsel after Mr. Cripps had concluded his evidence and had returned to England. This necessitated the provision of a supplemental report from the defendant’s expert and further cross examination by the defendant’s counsel of the plaintiff’s expert, Mr. Cripps, for which purpose he had to be brought back from the UK. Thus, the reason why he had to give evidence again on Day 3 of the hearing, was entirely due to the defendant’s own making.
30. In relation to the submission that there should be no costs in respect of Day 2 of the hearing, which had had to be truncated due to the fact that the plaintiff’s nursing expert, Ms. Mudd, had become ill on her way to Manchester airport, it is noteworthy that on that day, evidence was taken from the plaintiff’s husband. That evidence, though short, was significant because he gave evidence that his wife had been allowed to ambulate freely about the ward and had accompanied him to the top of the stairs, at a time when she did not have any temporary wire in place. This was significant evidence. In these circumstances, I think it would be unreasonable to disallow the costs of that day.
31. Having regard to the principles of law enunciated in the cases referred to earlier in this judgment, I am not satisfied that the defendant was put to any appreciable additional expense in terms of the number of witnesses called to give evidence, as a result of the plaintiff not being successful on the temporary wire issue. The plaintiff’s cardiologist and the surgeon would have had to have given evidence in any event on the management issue. The defendant’s expert, Dr. Quigley, gave evidence on both issues. Thus, I am not satisfied that the defendant had to call any additional witnesses to deal solely with the temporary wire issue.
32. In terms of additional time at hearing on the temporary wire issue, I accept the submission on behalf of the defendant that the length of the trial was prolonged to some extent by virtue of the investigation of this aspects of the case. However, I do not agree with the submission made by counsel on behalf of the defendant, that this additional time amounted to four days out of the seven days at hearing. Given that the experts, Mr. Cripps and Dr. Quigley, gave evidence on both issues, it is simply not tenable to suggest that anything like that period of time was spent dealing with the temporary wire issue. However, in order to do justice between the parties, some deduction has to be made from the costs recoverable by the plaintiff to take account of the fact that the hearing was undoubtedly prolonged to some extent by an investigation of the temporary wire issue.
33. Having regard to the decision of Irvine J. in the Wright case, where the plaintiff failed in three out of four allegations of negligence, and where there was only 20% of the time spent dealing with the issue on which the plaintiff was successful; yet she recovered 65% of her costs, and having regard to the decision in Naylor , where the plaintiff failed on the undue influence point which consisted of 50% of his case; yet he was awarded 75% of his costs, and having regard to the fact that no additional witnesses were necessitated by the temporary wire issue in this case and that the length of the trial was only marginally prolonged by an investigation of that issue, I consider it just that the plaintiff should recover 80% of her costs in this case.
A and W v C and D
[2007] I.E.H.C. 120Judgment of Miss Justice Laffoy delivered on 28th March, 2007.
A. Introduction
In this judgment I deal with the following three actions which were heard together:
(1) the proceedings which were initiated by special summons under the above title on 14th August, 2001 (the s. 117 application);
(2) a plenary action initiated on 15th October, 2001 between A and W, as plaintiffs, and C and D, in their personal capacities, as defendants (the trespass/personal injuries action); and
(3) a plenary action initiated on 15th August, 2002 between A and W, as plaintiffs, and C and D, as personal representatives of T deceased, as defendants (the title action).
By agreement of the parties, the s. 117 application was heard on oral evidence and the three actions were heard together in camera, because of the requirement of s. 119 of the Succession Act, 1965 (the Act of 1965).
B. The Section 117 Application
The claim
The claim in these proceedings is brought by the plaintiff (A) pursuant to s. 117 of the Act of 1965 seeking a declaration that his late father, T (the Testator), who died on 24th October, 1999, failed in his moral duty to make proper provision for A in accordance with his means and that the court make such provision for him as the court thinks just. The defendants are the personal representatives of the Testator on foot of a grant of probate of his last will dated 8th May, 1998, which issued to them on 19th February, 2001. The Testator died unexpectedly, following a stroke, at the age of 70 years.
The provisions of the Testator’s will
The Testator devised and bequeathed the property he described as “my dwelling house and lands with the contents thereof” (Blackacre) to his son, the first defendant (C), together with his livestock, his Fiat tractor and his machinery at Blackacre, subject to and charged with the following:
(1) payment of the sum of IR£40,000 to his son, A, within five years from the date of his death;
(2) payment of sufficient sums for their maintenance and support for their lifetimes and the life of the survivor of them for his wife, (the widow), and his daughter, E; and
(3) payment of the sum of IR£40,000 to his son, B, within a period of five years from the date of his death.
The Testator added a proviso to deal with an eventuality, which did not happen, that C should predecease him, in which case the Blackacre was to pass to the second defendant (D), and, in the event that he should predecease the Testator, the devise and bequest of the Blackacre was to pass to E.
The Testator devised and bequeathed his dwelling house and the contents thereof and his lands at Whiteacre to the widow for her lifetime and as and from her death for his son D and his daughter E as tenants in common in equal shares. He added a proviso that, should D predecease him, which did not happen, or predecease the widow, his tenancy in common interest should pass to E.
The Testator bequeathed certain plant and equipment to A (a tarrup silerator, a five-sod plough, a small dung spreader, a slurry tank and a tipping trailer) and he gave his sand screener and “all plant and machinery in the sand pit” and a loader to B.
The Testator devised and bequeathed the residue of his estate to the widow.
The Testator’s assets at the date of his death
The Testator was the owner in fee simple of the Blackacre at the date of his death. The farm was registered on two Land Registry folios, Folio —- County —- and Folio —- County —-. According to the folios the lands aggregated 85.641 hectares or 211.62 acres. The Testator had acquired the lands under a marriage settlement from his father, G F (the grandfather), dated 13th June, 1957 and he had become registered owner on the folios on 30th August, 1957. Contemporaneously with the marriage settlement, the Testator signed an agreement with the grandfather, his mother, G M (the grandmother) and his sister, S, under which, inter alia, he agreed that whenever called upon by the grandfather or the grandmother he would execute the charges necessary to charge the lands with certain rights and payments, including the right of the grandfather to reside in the dwelling house on the lands registered on Folio —-, that is to say, Blackacre House, and to be therein supported and maintained during his life and a similar right in favour of the grandmother for her life and also a right of residence in favour of S during her life, such right to cease on her marriage. The grandfather lived in Blackacre House until his death in 1973 or 1974. The grandmother died in 1987. The right of residence of S ceased on her marriage in the early 1960s.
Blackacre House comprises a three-storey period residence, most of which has been occupied by A and his wife (W), since their marriage in late 1983, although one room has been used for the purposes of the farm enterprise carried on by the Testator during his lifetime and by C since his death, a farm yard and farm buildings and agricultural land, to which there was attached a 60,000 gallon milk quota. In the title action, A and his wife (W) claim to have acquired a possessory title to Blackacre House and part of the farmland comprising about 30 acres. For the reasons set out in section D of this judgment, I find that A and his wife have not established their claim to a possessory title. The value of the Blackacre was given as IR£1 million as at the date of the Testator’s death on the Inland Revenue affidavit filed with the Revenue Commissioners in relation to his estate.
Whiteacre, according to the Inland Revenue affidavit, is registered on Folio —- County —- and Folio —- County —- and comprises 31 acres, 2 roods and 32 perches. It was valued on the Inland Revenue affidavit as at the Testator’s death at IR£280,000. The Testator bought Whiteacre in the mid-1960s and he built a dwelling house on the lands. He occupied the dwelling house with his family, including the grandmother, after it was constructed in the early 1970s. Since his death, the widow has resided there with C and E.
The machinery and equipment bequeathed to A was valued on the Inland Revenue affidavit at IR£12,600 and the plant and machinery bequeathed to B was valued at IR£6,500. The livestock and machinery which passed to C was valued at IR£86,535. The net value of the estate at the date of death was IR£1,364,307, there being debts and liabilities in excess of IR£82,000. The value of the residuary estate was in the region of IR£60,000.
Other relevant properties
In the late 1960s, around the time he acquired Whiteacre, the Testator acquired another property known as Greyacre, which comprised 44 acres, which remained in his ownership until 1991 or 1992, when it was sold. Through the 1970s and 1980s the Testator farmed the properties he owned (Blackacre, Whiteacre and Greyacre) and he also ran an agricultural contracting business. From the late 1970s through the 1980s, A, B and C worked for him in the farming and agricultural contracting enterprise.
In the late 1980s, probably 1988, an additional farm was acquired for the enterprise, which was situate at Brownacre. That farm comprised 88 acres. A site comprising about half an acre was carved out of the holding and was transferred to A. That was intended as the site of a house for A. The transfer of the remainder of the lands was taken in the names of A, B and C as tenants in common. The acquisition was funded by a loan from Allied Irish Finance Limited and the loan was, apparently, secured by three endowment policies on the respective lives of A, B and C. On the evidence, it is clear that the acquisition was actually funded by the Testator, in the sense that whatever payments were required during the currency of the loan and the endowment policies were discharged by the Testator. The endowment policies ultimately did not yield what had been anticipated. The lands at Greyacre were sold around 1991 or 1992 and the proceeds of sale were used to discharge the amount outstanding to Allied Irish Finance Limited. So the Testator cleared the debt off Brownacre.
The position, accordingly, at the date of the Testator’s death was that A, B and C were the owners as tenants in common of the lands at Brownacre, which it was agreed at the hearing were worth about IR£500,000 at the date of the Testator’s death. Those lands had effectively been provided for them by the Testator. After the Testator’s death there was a dispute between B and C, on the one hand, and A on the other hand, in relation to the disposal of the lands at Brownacre. Proceedings were initiated in this Court by B and C, as plaintiffs, against A, as defendant, for the partition of the lands or a sale in lieu of partition. Ultimately, that action was compromised in July, 2003 on terms that the lands would be sold and the proceeds divided between the three owners, the sum of €100,000 to come out of A’s share and to be paid to B and C as a contribution towards their costs. The lands were ultimately sold at a price of €2,550,000. The net proceeds were shared between the parties in accordance with the compromise, so that B and C each got €826,067.70 and A got €726,067.70.
Through the 1990s and down to the date of the sale, the lands at Brownacre were farmed exclusively by A. There was a sand pit on the lands which was opened around 1990 and was operated more intensively by the Testator in the two years before his death. This explains the reference in the Testator’s will to “all plant and machinery in the sand pit”, which he bequeathed to B.
The Testator’s family at the date of his death
The Testator was survived by the widow and five children:
(1) A, who was born on 14th May, 1958, and who, as I have stated, married W in 1983. At the time of the Testator’s death they had one child, F, who was born in October, 1998.
(2) B, who was born on 21st July, 1961;
(3) C, who was born on 30th March, 1963;
(4) D, who was born on 5th June, 1965; and
(5) E, who was born on 3rd October, 1967.
Although the widow was notified of her right of election in relation to the Testator’s estate under s. 115 of the Act of 1965, she has not elected to take her legal right share of one-third of the Testator’s estate. The evidence is that the widow is 76 years of age and is in good health. She is in receipt of a pension, the nature of which was not established at the hearing. As I have already stated, she resides in the house on Whiteacre with C and E.
Before considering the relevant facts in relation to the Testator’s children, I propose outlining the provisions of s. 117 and the jurisprudence which has evolved in relation to its application.
The law
Sub-section (1) of s. 117 provides as follows:
“Where, on application by or on behalf of a child of a testator, the court is of opinion that the testator has failed in his moral duty to make proper provision for the child in accordance with his means, whether by his will or otherwise, the court may order that such provision shall be made for the child out of the estate as the court thinks just.”
Sub-section (2) provides as follows:
“The court shall consider the application from the point of view of a prudent and just parent, taking into account the position of each of the children of the testator and any other circumstances which the court may consider of assistance in arriving at a decision that will be as fair as possible to the child to whom the application relates and to the other children.”
As is frequently pointed out, the first attempt to lay down guidelines in relation to the application of s. 117 dates from 1970, when in B.M. v. T.A.M. (1970) 106 I.L.T.R. 82, Kenny J. stated as follows (at p. 82):
“It seems to me that the existence of a moral duty to make proper provision by will for a child must be judged by the facts existing at the date of death, and must depend upon
(a) the amount left to the surviving spouse or the value of the legal right if the survivor selects to take this,
(b) the number of the testator’s children, their ages and their positions in life at the date of the testator’s death,
(c) the means of the testator,
(d) the age of the child whose case is being considered and his or her financial position and prospects in life,
(e) whether the testator has already in his lifetime made proper provision for the child.”
More recently, in X.C. v. R.T. (Succession: Proper provision) [2003] 2 I.R. 250, in this Court Kearns J. set out eighteen relevant legal principles which, it was agreed by counsel on both sides in that case, as a result of the authorities which had been cited can be said to be derived under s. 117. One of the principles is that there is a high onus of proof placed on an applicant for relief under s. 117, which requires the establishment of a positive failure in moral duty. That moral duty is to make “proper provision” for the applicant in accordance with the testator’s means, not to make adequate provision. The principles set out in paras. (l) to (r) inclusive are relevant to the assessment this Court has to make in this case. They are as follows:
“(l) In dealing with a section 117 application, the position of an applicant child is not to be taken in isolation. The court’s duty is to consider the entirety of the testator’s affairs and to decide upon the application in the overall context. In other words, while the moral claim of a child may require a testator to make a particular provision for him, the moral claims of others may require such provision to be reduced or omitted altogether.
(m) Special circumstances giving rise to a moral duty may arise if a child is induced to believe that by, for example, working on a farm, he will ultimately become the owner of it, thereby causing him to shape his upbringing, training and life accordingly.
(n) Another example of special circumstances might be a child who had a long illness or an exceptional talent which it would be morally wrong not to foster.
(o) Special needs would also include physical or mental disability.
(p) Although the court has very wide powers both as to when to make provision for an applicant child and as to the nature of such provision, such powers must not be construed as giving the court a power to make a new will for the testator.
(q) The test to be applied is not which of the alternative courses open to the testator the court itself would have adopted if confronted with the same situation but, rather, whether the decision of the testator to opt for the course he did, of itself and without more, constituted a breach of moral duty to the plaintiff.
(r) The court must not disregard the fact that parents must be presumed to know their children better than anyone else.”
As is pointed out in Spierin on The Succession Act, 1965 and Related Legislation, 3rd edition, at para. [700] it has been repeatedly stated that the court’s function in adjudicating on an application under s. 117 is a two-stage process. The first stage is that the court must decide whether the testator has failed in his moral duty to make proper provision for the applicant child and that decision is made by reference to the circumstances which prevailed at the date of the death of the testator. It is only when the applicant child overcomes what the Supreme Court has described as the “relatively high onus” of proof that there has been “a positive failure in the moral duty” (Re IAC [1990] 2 IR 143) that the court proceeds to the second stage, which is to decide what provision is to be ordered for the applicant child. As Carroll J. pointed out in M.P.D. v. M.D. [1981] I.L.R.M. 179 (at p. 188), when the court moves to the second stage, the provision must be just at the time the court makes its order, so that the court must have regard to the value of the entire estate at the date of the hearing.
It seems to me that the requirement that the provision made be just may, having regard to the particular circumstances of a case, require the court to take account of changed economic circumstances, any variation in the value of assets, and any variation in the capacity of assets which are or form part of an enterprise which has passed on death as a going concern to yield income, including any regulatory changes which affect the profitability of the enterprise (e.g. changes in European Union law in relation to subsidisation of agricultural enterprises) between the date of the Testator’s death and the date of the hearing
A’s circumstances and the provision made for him
At the date of the Testator’s death A was 41 years of age, he was married and had one child, aged one.
A’s schooling had finished when he was about sixteen years of age. He had attended Vocational School to Intermediate Certificate level. After he left school, he served his time as an engineering draftsman at T Engineering for four years. After four years at T’s he left because, as he testified, he did not take to the work. Farming was in his blood. When he left T he went to work on his father’s farming enterprise on a full-time basis. Before that, like his brothers, he had helped out on the farm in the evenings and at weekends.
Prior to his marriage in 1983 A lived with his grandmother, parents, brothers and sisters in the house on Whiteacre, which is about seven miles from Blackacre. After he returned to work on the farm and until he got married A was paid a very small amount of money each week by his father for his work, about IR£10 per week. His evidence was that his father’s objective was to build up the agricultural contracting business with a view to making money to buy a farm for him in the future, although the time span was not specified. A obtained a HGV licence after he left T.
After A got married a number of changes occurred. His father paid him a wage for working in the enterprise, initially at the rate of IR£80 or IR£90 per week, which eventually increased to about IR£120 per week by 1992. At the time his brothers, B and C, were also involved full-time in the farming enterprise, but they were still living at home on Whiteacre and were being paid lower wages than A. The impression given by A’s evidence was that his weekly wage compared unfavourably with the average wage of a farm labourer.
The second change was that A was allowed to move into Blackacre House, which was vacant at the time he got married. After the death of the grandfather it had been let to a succession of tenants, but it was vacant at that stage, although there is a conflict as to how long it was vacant. A’s evidence was that he moved in with the grandmother’s consent. However, as is outlined in section D later, the reality is that the Testator was the owner of Blackacre and it was with his father’s consent that he lived in Blackacre House from 1983 onwards. I am satisfied on the evidence that Blackacre House was barely habitable even by 1983 standards when it was decided that A and his wife would move in. From the summer of 1983 until he moved in with is wife in December, 1983, A worked in the evenings repairing, refurbishing and improving Blackacre House. The work continued after he moved in and I am satisfied that there has been a continuous process of improving Blackacre House over the years. Initially, A got financial assistance from his father in relation to the work, in that his father paid for the materials used.
A’s working relationship with his father changed in 1992. In the interim, Brownacre farm had been acquired. A’s evidence was that his understanding was that his father’s ambition was that each of his sons would have a farm and that he was to have Brownacre. That may well have been his ambition and his intention. Indeed, C’s evidence was that the Testator’s “grand plan” was to set them all (which I take to mean A, B and C) up. However, as counsel for the defendants submitted, that ambition foundered in the early 1990s. While the evidence is anything but precise, it would seem to have perished on the rock of inadequate returns from endowment policies and high interest rates which were prevalent in the early 1990s.
The position from 1992 onwards was that A ceased to draw wages from the Testator’s farming enterprise. Thereafter, he farmed Brownacre with the Testator’s permission. About half of Brownacre was in tillage and the rest was returned to grass. His evidence was that he had his own herd number. He also used 30 acres of farm land at Blackacre where he grazed cattle and sheep. As I find when dealing with the title action in section D, he used this part of Blackacre with the permission of the Testator. When the sand pit operations in Brownacre intensified around 1998 he worked part-time in the sand pit. He also continued doing contract work, for example, lime spreading. He also continued to help out in the Testator’s farming enterprise at Blackacre as needed.
Because of the existence of these proceedings and the other actions since the Testator’s death, A has continued to reside with his wife and son in, and occupy, most of Blackacre House. A has continued to farm the 30 acres of farm land at Blackacre. Brownacre has been disposed of, but he has received his share of the proceeds of sale as outlined previously. He continued to do haulage work, but denied that it was his main business. He does what he described as a “small bit” of contracting work.
The circumstances of A’s siblings
B was 38 years of age at the date of his father’s death. Like A he attended Vocational School and his schooling finished at Intermediate Certificate level. After he left school he went to work in the Testator’s farming and agricultural contracting business. Around 1989 or 1990 he branched out on his own and established a plant hire business. On the evidence, I am satisfied that he was in no way reliant on the Testator’s assets and was making his living independent of the Testator at the time of the Testator’s death. By then he had married. His daughter was born about six months after the Testator’s death.
C was 36 years of age at the date of the Testator’s death. He also got his second level education at Vocational School, finishing at Group Certificate level. At that stage, the dairyman having left the farm, he was asked by his father to work on the farm. He had expected to go to agricultural college, but that was postponed and, in fact, never materialised. With the exception of approximately a year spent in Australia in 1989/1990 following a car crash, he worked for the Testator until the Testator’s death and he remained on the Testator’s payroll. He lived with his parents in the house on Whiteacre. C’s evidence was that his wage when he returned from Australia was IR£45 per week. It increased thereafter and at the time of the Testator’s death it was around IR£60 or IR£70 per week. C was candid in his evidence that, if he wanted extra money from his father, he got it. Around June or July, 1999 he bought a house in [a nearby provincial] town as an investment and the Testator guaranteed the loan. He is unmarried and still lives with the widow and E in the house on Whiteacre, although, as he testified, that arrangement would not be suitable if he wished to live with a partner. He farms at Whiteacre in the widow’s name, in the sense that he does the physical work but she gets the income, and he also farms Blackacre other than the 30 acre portion farmed by A.
D was 34 years of age when the Testator died. After receiving a second level education at Vocational School, D attended the Regional Technical College [in the nearby provincial town] for three years. He had more of an academic bent than his siblings. As an adult he did not work in the Testator’s enterprise and he has always had employment independent of the Testator and an income independent of the Testator’s assets. He married around 1999.
E was 32 years of age at the date of the Testator’s death. While she attended secondary school and did secretarial courses after secondary school, she has never had a job. She is unmarried. While A accepted that E has “special needs”, my understanding is that that expression was not used in any clinical sense, but that the family recognise that the probability is that a home is going to have to be provided for her at Whiteacre or elsewhere and that her financial needs are going to have to be provided for for the rest of her life. It is unlikely that she will be in a position to earn a livelihood or that she will marry and she will be dependent on the provision the Testator made for her.
Failure by Testator to make proper provision for A?
Of the Testator’s five children, only B and D were, in reality, financially independent of him and his assets at the date of his death. Aside from providing for the widow, who had legal entitlements under the Act of 1965, which she has not enforced, the Testator had moral duty to make proper provision for E and also for C because of the former’s needs and the latter’s commitment to working at a low wage in the Testator’s enterprise all his adult life. Given A’s special circumstances, in my view, the Testator also had a moral duty to make proper provision for him.
Those circumstances were that, by the time of the Testator’s death, A and his wife had resided in Blackacre House for sixteen years. For about seven years he had been primarily reliant on farming the Brownacre lands and on his farming activities at Blackacre to provide an income for himself and his wife, who did not work outside the home, and latterly his child. For upwards of twenty years, A had been dependent upon the Testator or the Testator’s assets to provide him with a livelihood. On the evidence, I think he was led to believe, that he did believe and that he had reasonable grounds for believing that his father would endeavour to provide him with a farm which would enable him to earn his living from farming for the rest of his life.
The death of the Testator and the provisions of his will effectively deprived A of his home and his primary means of livelihood. The Testator must have anticipated that after his death Brownacre would be sold and the proceeds of sale divided equally between A, B and C. In assessing whether the Testator made proper provision for A in accordance with his means, the overall provision made by the Testator for A, one-third of the proceeds of the sale of the 88-acre farm at Brownacre, the site at Brownacre, IR£40,000 and machinery valued for inheritance tax purposes at IR£12,600, the aggregate value of which would have been in the region of IR£230,000 on the basis of the value of agricultural land in 1999, must be assessed against what A effectively lost on the Testator’s death. A lost the facility of living in Blackacre House and he lost the facility of farming the entire 88 acres at Brownacre and about 30 acres at Blackacre. While the Testator could have withdrawn permission for him and his family to reside in Blackacre House at any time between 1983 and 1999, and could have withdrawn the facility to enable him to maintain his herd of sheep and cattle on Blackacre, he did not do so. Moreover, on the evidence, it is clear that it was the Testator’s presence which enabled A to farm the farmland at Brownacre exclusively. There is no doubt on the evidence that A, B and C regarded the Testator as the boss and as the person who determined what use Brownacre was to be put to. C acknowledged that the Testator treated Brownacre as his.
Having regard to A’s age and his family commitments, and his primary reliance on the Testator’s assets or assets the Testator effectively controlled for his income in 1999, in my view, the Testator failed in his moral duty to make proper provision for A in accordance with his means.
Just provision for A
In reality, there are only two assets of the estate out of which provision can be made for A, Whiteacre and Blackacre. The disposition by the Testator of Whiteacre benefits the widow during her life, and after her death benefits E and D. Aside from the restriction contained in sub-s. (3) of s. 117, which provides that an order under s. 117 shall not affect any devise or bequest to a surviving spouse who is the mother of an applicant child, I do not think it would be proper or fair to interfere with that disposition. The Testator was obviously conscious of E’s limited prospects in life and endeavoured to provide properly for her. Therefore, it would not be appropriate to interfere with her benefit and, indeed, A accepted that. As regards D, unlike his three brothers, he did not benefit from the sale of Brownacre and enjoy the Testator’s bounty in that way. I think it is reasonable to surmise that the benefit given to him in relation to Whiteacre, apart from being a safeguard for E, was intended to make up for that. Therefore, I do not think it would be appropriate to interfere with his benefit, which is contingent on him surviving the widow.
That leaves Blackacre. In relation to that asset, the court has to bear in mind that it is subject to the rights of the widow and E and that it is also subject to the payment of IR£40,000 to B. The evidence would suggest that C bore the brunt of the Testator’s liabilities, at any rate his bank liabilities, and discharged them out of his share of Brownacre. That also has to be taken into account.
The valuation evidence before the court has related primarily to Blackacre, which is located two miles from the nearby provincial town and about fifty miles from Dublin. There is no real dispute as to the value of Blackacre House as it stands, including the farm room, with a shared driveway, serviced by a septic tank and pump outside its curtilage, and its location beside a working farmyard. A valuer who testified put a value of €500,000 on it. Counsel for the defendants accepted that valuation. As regards the lands of Blackacre around Blackacre House farmed by A, the valuer suggested that the valuation was about €30,000 per acre, perhaps more because of the proximity of the lands to the town. The court does not have valuation evidence in relation to the entirety of Blackacre as a single entity. C’s evidence was that some of the land was prone to flooding every year and his assessment was that half of the acreage occupied by him since the Testator’s death would fetch only €15,000 per acre. His response to the proposition put to him that Blackacre in its entirety is worth between €4 million and €5 million was that like a lot of farmers he is “asset rich but cash poor”.
The just provision for A has to be made out of Blackacre. Because of the burdens imposed by the Testator on Blackacre, which either cannot or should not be interfered with, and because of the necessity of ensuring that Blackacre is a viable farm, which can provide an income for C, I have come to the conclusion that it would not be appropriate to make the provision by giving A either the house or part of the land. The geography and layout of Blackacre was also a factor in reaching that conclusion. I consider the just provision involves giving A a sum of money charged on Blackacre which takes account of, and is aimed at redressing, the consequences of the Testator’s death and the provisions of his will for A but does not make it unrealistic for C to meet the other obligations imposed on him, including the ongoing obligations to the widow and E, while at the same time allowing him to earn a living out of the property. That provision has to be translated to present day values. While, having regard to the state of the evidence, to do so is anything but an exact science, I think that the just provision for A is to substitute the sum of €750,000 for IR£40,000 in the will of the Testator.
Otherwise the will stands.
C. Trespass / personal injuries action
Facts
These proceedings arise out of an event which occurred on 10th May, 2000, which was preceded by inter partes correspondence, which I consider puts the event in context. The first letter was a letter of 10th April, 2000 from the solicitors acting for C and D, in their capacities as personal representatives of the estate of the Testator. C and D are the defendants in these proceedings but, as I have already pointed out, they are sued in their personal capacities. The letter was to A and his wife, who are the plaintiffs in these proceedings. In the letter, the solicitors complained about the construction of a wall in the yard of Blackacre House, which A had commenced building on the previous day. The complaint was that the wall restricted access to the farmyard and to the main farm and that the construction had been commenced without any consent from the personal representatives. The plaintiffs were called on to stop the construction work immediately and to reinstate the property. Legal proceedings were threatened if they did not do so. There was a response dated 20th April, 2000 from the plaintiffs’ solicitors, in which it was stated that the Testator had been consulted and had agreed to the construction of the wall in the interests of confining F to the area immediately behind Blackacre House. It was stated that this agreement was being implemented in the interests of safety as, immediately behind where the wall was being erected, there were open slurry pits and various items of scrapped cars and machinery and also areas containing livestock and working machinery. It was denied that access to the farmyard and the house would be restricted.
That letter was followed by a further letter of 26th April, 2000 from the plaintiffs’ solicitors to the solicitors acting in the administration of the estate on behalf of the personal representatives, which contained a complaint that on that day a bulldozer, which was being driven by B, who is not a party to these proceedings, “careered” through a portion of the wall demolishing it, despite B having a “banksman” with him who could have directed the machine. Proposals for the compensation of the plaintiffs for the damage to the wall and an assurance that there would be no repetition were sought to avoid court proceedings. The response from the solicitors acting in the administration of the estate was a letter dated 5th May, 2000. It was stated that no consultation had been engaged in with the personal representatives before the building of the wall commenced. That statement was incorrect because the evidence of both A and C was that they discussed the construction of the wall before it commenced. It was asserted that the location of the route of the wall was not in keeping with what was agreed with the Testator and it was already causing severe disruption to farming operations at Blackacre. It was stated that, in particular, the milk lorry had great difficulty in manoeuvring in the farmyard. The hope was expressed that the matter could be resolved without the necessity of proceedings.
What happened on 10th May, 2000 was that early in the morning a loading shovel driven by B was used to demolish the wall. I am satisfied that this occurred at 6 a.m. A had already left Blackacre House to go to work on Brownacre. His wife was in bed in Blackacre House. B arrived accompanied by C, D and a neighbour. When the demolition work commenced the wife was alerted by the noise. She looked out the bathroom window and saw what was happening. She became hysterical. She tried to use the telephone but it was not working. She ran out of the house in her nightdress, having pulled on Wellington boots, and got into a jeep and tried to stop the demolition. The jeep was hit by the loader when she reversed by mistake. I have no doubt on the evidence that the wife suffered a severe shock as a result of the demolition of the wall. Her behaviour bears this out. C in his evidence used the expression “crazy stuff” to describe it. She testified that she drove to Whiteacre to see if the widow could stop the defendants, but she did not remember talking to her. She said her mind was racing. Her recollection was that she then went to the garda station. When she returned to Blackacre the guards were there and A was there. Criminal charges against both C and A in relation to the incident are pending in the District Court.
The defendants admitted cutting off the electricity supply while the wall was being demolished, but denied cutting off the telephone to Blackacre House.
I have absolutely no doubt, although C denied it when it was put to him in cross-examination, that the defendants acted in a highly irresponsible and an extremely provocative manner in demolishing the wall. The reason giving by C for not awaiting the outcome of the correspondence between the solicitors was that he and his co-executor were frustrated at the pace at which the matter was moving. When he was asked in cross-examination whether he considered the risk of a serious incident if A was at home, his response was that he kind of expected that, but added that the wall was demolished in less than two minutes. C likened A to a child who is told he cannot have a sweet or a bully in the school yard when one tries to stand up to him. He said he, C, felt no responsibility for what happened and he had no regrets in relation to the manner in which the wall was removed. The quickest and least stressful method had been used from his perspective.
The plaintiffs’ case as pleaded
In their statement of claim delivered on 7th August, 2002 the plaintiffs alleged that the demolition of the wall amounted to trespass to their property and they claimed to have suffered loss and damage and it was claimed that W had suffered severe personal injury. The case was put on an alternative basis that, in demolishing the wall, the defendants had been guilty of negligence and breach of duty as a result of which the plaintiffs suffered loss and damage and W had suffered personal injury.
Because of the view I take that the claim made in the title action cannot succeed, I am of the view that the claim of trespass cannot succeed. Therefore, the issues which remain in these proceedings are whether a claim in negligence has been established against the defendants for the psychiatric injury which W alleges to have suffered as a consequence of the actions of the defendants, and, if so, the measure of damages to which she is entitled.
The claim in negligence: the law
The court had the benefit of helpful written submissions on this issue, and indeed on the legal issues in the other two actions, from counsel on both sides.
Counsel for the plaintiffs relied primarily on the decision of the Supreme Court in Kelly v. Hennessy [1995] 3 IR 253 and submitted that W’s claim satisfied the five criteria set out by Hamilton C.J. in his judgment (at p. 258) which must be established in order to succeed in an action for damages for nervous shock. It was also submitted that it was arguable that the defendants’ actions would satisfy the higher test of the tort of intentional or reckless infliction of emotional harm, referring to the leading case of Wilkinson v. Downton [1897] 2 QB 57 and the commentary on the topic contained in McMahon and Binchy on The Law of Torts, (3rd Edition) at paras. 22.28 to 22.34. In my view, the plaintiffs’ case as pleaded does not encompass that tort. Notwithstanding the finding I have made as to the reckless behaviour of the defendants, having regard to the state of the pleading, I do not consider it appropriate to consider that tort further.
Counsel for the defendants, in their written submission, also considered the criteria set out by Hamilton C.J. in Kelly v. Hennessy, in addition to considering other authorities both in the United Kingdom and in this jurisdiction relating to the circumstances in which a plaintiff in a negligence action can recover damages for a psychiatric injury unaccompanied by a physical injury. They referred to recent observations of the Supreme Court in Fletcher v. The Commissioners of Public Works [2003] 1 IR 465. In opening his exposition of the law in Fletcher v. The Commissioners of Public Works, Geoghegan J. (at p. 491) made some general observations which I propose summarising for the purpose of putting in context the passage from his judgment which, in my view, throws light on how W’s claim should be approached. He stated that it was clear from leading cases in common law jurisdictions that reasonable foreseeability was not the only determining factor in imposing liability for psychiatric injury and that other elements such as proximity, reasonableness in the imposition of a duty of care and public policy may all play a role. He also pointed out that in the law of tort there is a double aspect to “reasonable foreseeability”, in that it is relevant in considering whether a duty of care exists and, if it does and it has been breached, it is relevant in determining whether a particular item of damage alleged to have resulted is recoverable. He also pointed out that it would seem from the authorities that the test for each type of foreseeability is different: the test of foreseeability for the purposes of liability to a non-primary victim, at least for psychiatric injury, is based on a person of “normal fortitude”, whereas in assessing damages on the application of reasonable foreseeability to items of damage, the “thin skull” principle would come into play.
Geoghegan J. then went on to state as follows in the passage which I think is enlightening for present purposes:
“In an ordinary motor accident or factories injury or even, indeed, a medical negligence action, the trial judge does not normally have to consider aspects of the tort of negligence other than reasonable foreseeability. The ‘neighbour’ of a motorist, for the purposes of negligence liability, is the person who can be reasonably foreseen he may injure through the negligent use of a motor car. It has always been considered reasonable that liability should arise in such circumstances and reasonable foreseeability and proximity effectively become merged. In the vast majority of negligence actions, therefore, a close analysis of the different constituents of the tort, i.e. duty of care, the breach of that duty and the damage which results, is not necessary.”
In my view, this case does not warrant the type of analysis which courts have had to embark on in the so-called “nervous shock” cases, such as Kelly v. Hennessy, or the so-called “fear of disease” cases, such as Fletcher v. The Commissioners of Public Works. It seems to me that this case is more akin to the ordinary motor accident or workplace injury case than to the nervous shock case. If an adjoining landowner, at 6 a.m., demolishes a contentious wall at the back of a house in which a family reside, which is within earshot and sight of the house, a person in the house whom it may reasonably be foreseen may be traumatised by the manner in which the demolition is carried out must come within the “neighbour” principle.
If I am wrong in that conclusion, then the criteria set out by Hamilton C.J. in Kelly v. Hennessy for recovery of damages for nervous shock are applicable. Adopting the truncated version of the criteria set out by Keane C.J. in his judgment in Fletcher v. The Commissioners of Public Works at p. 474, these are:
“1. A plaintiff must establish that he or she actually suffered ‘nervous shock’. This term has been used to describe ‘any recognisable psychiatric illness, and a plaintiff must prove that he or she suffered a recognised psychiatric illness if he or she is to recover damages for “nervous shock”’…
2. A plaintiff must establish that his or her reasonable psychiatric illness was ‘shock-induced’ …
3. A plaintiff must prove that the nervous shock was caused by a defendant’s act or omission …
4. The nervous shock sustained by a plaintiff must be by reason of an actual or apprehended physical injury to the plaintiff or a person other than the plaintiff …
5. If a plaintiff wishes to overcome damages for negligently inflicted nervous shock he must show that the defendant owed him or her a duty of care not to cause him a reasonably foreseeable injury in the form of nervous shock.”
Application of the law to the facts
The construction of the wall by A had been the subject of the correspondence which I have outlined. The concerns of the plaintiffs in relation to the safety of F, who was then about eighteen months old, were specifically raised in the correspondence and must have been known to the defendants. While B, who is not a party to these proceedings, drove the machine, it was the defendants, as personal representatives of the Testator, who were objecting to the existence of the wall and they must be assumed to have been directing operations. The wall was within sight and earshot of Blackacre House. The defendants must have anticipated that W would be in the house and that, even if she was asleep, the noise of the demolition work would waken her. In the light of the correspondence which had passed between the solicitors, they must have anticipated that the demolition of the wall in the circumstances in which it was undertaken would cause her distress.
In relation to the application of the five criteria identified by Hamilton C.J. in Kelly v. Hennessy, the position is as follows:
1. It has been established that W actually suffered a recognisable psychiatric illness. This was clearly established by Dr. John A. Griffin, the Consultant Psychiatrist who has treated, and continued to treat, W in his reports of 30th April, 2001 and 30th January, 2005, which were put in evidence, and in his oral testimony.
2. There is no doubt, on the evidence, that W’s psychiatric illness was “shock-induced”, in the sense that, being vulnerable to stress and anxiety and having a history of psychiatric illness, the shock which the incident on 10th May, 2000 caused exacerbated her condition. This is evident from her behaviour on that day. It is also supported by the evidence of Dr. Griffin. It is consistent with the opinion expressed by Dr. David Shanley, who examined W on behalf of the defendants, in his report dated 12th June, 2006, in which he stated that it is likely that the wall and its subsequent removal may have been a contributory factor to her subsequent admissions to Hospital under Dr. Griffin’s care.
3. W’s shock and the reaction, stress and anxiety which ensued were caused by the defendants’ actions in having the wall demolished and the manner in which it was demolished.
4. Despite the urging of counsel for the defendants that this finding is not justified, in my view, the shock sustained by W was by reason of actual or apprehended physical injury to a person. While it would appear that she did not apprehend any physical injury to herself on the occasion, it is absolutely clear that the whole focus of her distress, stress and anxiety related to her perception that, because of the demolition of the wall, F was in imminent danger of serious physical injury. Dr. Shanley in his report expressed the opinion that it is reasonable to suggest that she was very concerned about F’s safety and became obsessed about that aspect. Dr. Griffin used the same word, obsessed, in his oral evidence. He said she was “obsessed” about the wall and that its demolition had a devastating effect on her mental health. When he first saw her after the demolition of the wall, which was on 11th November, 2000, she was very distressed and referred constantly to the demolition of the wall and her fears in relation to F.
5. I have no doubt that the defendants did owe a duty of care to W and that injury in the form of nervous shock to W was reasonably foreseeable. It is at this point that, because of the similarity to a motor accident or a workplace injury case, any deeper analysis can be dispensed with. However, viewing the factual circumstances objectively, in my view, a reasonable person would have foreseen that the actions which the defendants intended to embark on were likely to have serious psychological consequences for W.
Accordingly, I am satisfied that the defendants are liable in damages for the psychiatric injury which their actions in demolishing the wall caused W.
The medical evidence
W had a history of psychiatric illness before the wall was demolished. She first attended Dr. Griffin in November, 1983 suffering from stress and depression. At the time, although her symptoms were not severe, she was admitted to [a psychiatric hospital] for a period of about two weeks. Following treatment she made a good recovery. Her last out-patient appointment was on 14th March, 1984.
W was admitted to hospital again after the birth of F in April, 1999, suffering from stress and depression. At that stage she spent six weeks in [the psychiatric hospital]. Dr. Griffin’s evidence was that there was an element of post-natal depression involved. She was treated with anti-depressants, anxiolytic medication and sleeping tablets. When she was discharged she was normal.
After the demolition of the wall, before Dr. Griffin gave his first report in April, 2001, W had four periods of hospitalisation in the psychiatric hospital: between 9th November, 2000 and 20th November, 2000; between 4th December, 2000 and 11th December, 2000; between 12th December, 2000 and 23rd December, 2000; and between 4th January, 2001 and 5th March, 2001. Dr. Griffin’s opinion was that the worries and stresses about the safety of F played a part in each of those admissions. In between admissions he had seen her at numerous out-patient consultations and had to take telephone calls from her, perhaps, three or four times a week.
After Dr. Griffin gave his first report, W had a further period of hospitalisation in 2001 under his care: from 17th May, 2001 to 25th August, 2001.
W’s Voluntary Health Insurance cover ran out in August, 2001. She had two periods of hospitalisation in a midland psychiatric hospital, which I understand is a public hospital. The first was from 27th November, 2002 to 14th January, 2003 and the second was from 11th June, 2003 to 14th November, 2003. No medical evidence was adduced in relation to those periods of hospitalisation.
After her Voluntary Health Insurance cover resumed, W was back under the care of Dr. Griffin. She had a further period of hospitalisation, this time in the psychiatric hospital, from 6th November, 2003 to 10th February, 2004. Again she was treated with anti-depressants and anxiolytic medication. When she was discharged on 10th February, 2004, she was on maintenance doses.
W had eight periods of hospitalisation between November, 2001 and February, 2004 for periods ranging from one week to two months (2), three months, four months and five months. At the time of her first hospitalisation, F was only two years old. The fact that she was separated from him at that time understandably is a matter of great regret for her.
When Dr. Griffin reviewed W in his report of 13th January, 2005, he stated that she had been well for the previous three months. However, he recorded the medication she was on at the time and commented that she was on three powerful anti-depressants and mood stabilising medications which she required to take on a daily basis. He also reiterated his opinion that the constant distress she had suffered from in relation to the wall being knocked down and the fact that her son might fall into a drain or slurry pit had exacerbated and prolonged her clinical state.
At the hearing Dr. Griffin testified that W’s condition was very much improved. Since 16th August, 2006 she had had no need for anti-depressant or other medication. As regards the prognosis, he said it was guardedly good. She had coped reasonably well. He was guardedly optimistic that she could avoid hospitalisation but she would continue to need out-patient consultation.
The case was made by counsel for the defendants that W had many other stressors in her life at the time, apart from the demolition of the wall, the litigation in relation to the estate of the Testator and related matters being mentioned. This was put to Dr. Griffin, whose response was that she constantly talked about the wall rather than the other matters, which she adverted to at times.
In his report, Dr. Shanley said that when he examined W on 6th June, 2006 there was no evidence of depression. She had maintained that she remained well from a psychiatric point of view, largely because F had reached the age of seven and a half years and that much of the fears she had previously had receded by then.
In his first report of 30th April, 2001 Dr. Griffin referred to the adverse effect which W’s “legal case”, obviously referring to these proceedings, was having on her in a tone veering on desperation. He pointed out that unless and until the legal situation was resolved expeditiously, it would be very difficult to help her in a meaningful way. It was obvious in the course of the hearing that she was under severe stress. It is reasonable to assume that her stress will be alleviated and her condition will improve when these proceedings are out of the way.
Damages
There is no claim for special damages before the court. I assess the general damages to which she is entitled at €50,000, comprising €40,000 for pain and suffering to date and €10,000 for pain and suffering in the future.
D. The title action
The claim as pleaded and presented
The title action was the last of the three actions to be initiated. As I have stated in the introduction, the plaintiffs in the title action are A and W, whom I will refer to as the plaintiffs in this section, and C and D, qua personal representatives of the Testator, are the defendants. The property to which the title action relates is described in the schedule to the statement of claim as “the lands and premises known as Blackacre … consisting of a dwelling house, small yard front and back and entrance avenue shown outlined in red on the map annexed …”. However, the agreed position at the hearing was that the claim related to the entire of the area outlined in blue, including the area outlined in red on the map identified on the second day of the hearing. The land in issue comprises an area of about 30 acres. The case pleaded in the statement of claim, on my reading of it, seems to relate only to Blackacre House. However, I will deal with the case as presented at the hearing.
The case as pleaded by the plaintiffs is that in 1983, following their marriage and with the consent of the grandmother, they commenced to restore and occupy “the Property”. It was asserted that the grandmother was “the life tenant … under a family settlement” of “the Property” and that on her death in 1987 the remainder man under the family settlement was the Testator. The basis of the plaintiffs’ claim in the title action as pleaded is that, since the death of the grandmother in 1987, they have been in sole and exclusive occupation of “the Property” without acknowledging the title of the Testator or his estate and, accordingly, they have barred the title of the Testator’s estate. On that basis they claimed a declaration that all the estate or interest of the estate of the Testator in “the Property” had been extinguished by the adverse possession of the plaintiffs and that they are entitled to the entire legal and beneficial interest therein.
Two alternative claims were advanced in the statement of claim based on the assertion that the plaintiffs had carried out extensive work to restore “the Property” as a dwelling house fit for habitation. The first was an assertion that the estate of the Testator was estopped from recovering possession of “the Property”. The second was that the estate of the Testator had been enriched by the works and improvements carried out by the plaintiffs and that it would be just and equitable that the estate should compensate the plaintiffs in respect of the cost of the works and the enhancement of the value of the dwelling house and lands. The plaintiffs sought an injunction restraining the defendants from trespassing on “the Property” and damages as compensation for unjust enrichment.
As I have stated, the plaintiffs’ case was presented on the basis that the title claim extended not only to Blackacre House and yard but also to lands comprising about 30 acres, being part of Blackacre, which the plaintiffs asserted that A farmed to the exclusion of the Testator and his estate for upwards of twelve years prior to the initiation of these proceedings.
The defendants denied that the plaintiffs were in sole and exclusive occupation of Blackacre House since 1987 and contended that –
(a) the plaintiffs have only ever occupied a portion of Blackacre House, the remainder having been used by the Testator during his lifetime, and thereafter by C;
(b) the plaintiffs have never occupied the yard or the entrance avenue, but have made use of them in common with the Testator during his lifetime and, after his death, with C; and
(c) that the plaintiffs’ occupation of the portion of Blackacre House after 1987 and during the lifetime of the Testator was with the licence or permission of the Testator and was part of his consideration for working on the family farm.
It was also contended by the defendants that A used the farmland with the permission of the Testator. The defendants have counterclaimed for an injunction restraining the plaintiffs from trespassing on the Property, on the basis that the defendants, as personal representatives of the Testator, have revoked the permission given by the Testator to the plaintiffs. They also have claimed damages for trespass.
The law
The plaintiffs’ claim is that they have acquired title by adverse possession to the property in issue and that claim is based on the Statute of Limitations, 1957 (the Act of 1957). Section 13(2) of the Act of 1957 provides that no action to recover land shall be brought by any person, other than a State authority, “after the expiration of twelve years from the date on which the right of action accrued to the person bringing it”. The accrual of a right of action to recover land is dealt with in s. 18, sub-s. (1) of which provides:
“No right of action to recover land shall be deemed to accrue unless the land is in the possession (in this section referred to as adverse possession) of some person in whose favour the period of limitation can run.”
Section 24 provides that, at the expiration of the period fixed for a person to bring an action to recover land, the title of that person to the land shall be extinguished.
Counsel for the defendants, in their written submissions, have referred to s. 51 of the Act of 1957 which, in effect, provides that, in the case of an action to recover land, if a person in possession acknowledges the title of the owner during the limitation period, the limitation period starts running again from the date of the acknowledgment. However, “acknowledgement” has a very specific meaning for the purposes of s. 51: by virtue of s. 58 it must be in writing and signed by the person making the acknowledgement. On the evidence, I am satisfied that s. 51 does not come into play, because no acknowledgement which complies with the requirements of s. 58 had been identified.
The real issue in this case is whether the plaintiffs have been in adverse possession within the meaning of that expression in s. 18 since 1987, as they contended, or, indeed, at any time.
The authorities on the meaning of the expression “adverse possession” in s. 18 address two concepts: the type of use and occupation of land which constitutes possession; and the circumstances in which possession is adverse. The law in relation to both concepts is well settled. Both concepts were considered in this Court by Costello J., as he then was, in Murphy v. Murphy [1980] I.R. 183. In relation to the first concept, he stated as follows (at p. 193):
“The first question of fact to be determined is whether the defendant was ever in ‘possession’ of the widow’s lands. In a passage which was quoted with approval in Treloar v. Nute [1976] 1 W.L.R. 1295, Lord O’Hagan in The Lord Advocate v. Lord Lovat (1880) 5 App. Cas. 273 at p. 288 of the report:-
‘As to possession, it must be considered in every case with reference to the peculiar circumstances. The acts, implying possession in one case, may be wholly inadequate to prove it in another. The character and value of the property, the suitable and natural mode of using it, the course of conduct which the proprietor might reasonably be expected to follow with due regard to his own interests – all these things, greatly varying as they must, under various conditions, are to be taken into account in determining the sufficiency of a possession.’”
In addressing the question whether the possession was adverse, Costello J. stated as follows (at p. 195):
“Turning, then, to the nature of the defendant’s possession, I think the test I should apply is this. Was the defendant’s possession inconsistent with and in denial of the widow’s rights as the legal owner of the land? … If it was, then the defendant would be ‘a person in whose favour the period of limitation could run’ within the meaning of s. 18 of the Act of 1957 and his possession would be adverse. In considering a problem of this sort, the relationship between the owner of the land and the person in possession and the nature of the lands in controversy are highly relevant matters to be taken into account. If a person is in possession of lands with the consent or licence of the owner, then his possession is not adverse: see Hughes v. Griffin [1969] 1 W.L.R. 1295. The inference of the existence of a licence is one that may be drawn more readily where the relationship is a family one than where no family ties exist.”
On the appeal to the Supreme Court in Murphy v. Murphy, which was dismissed, Kenny J. in his judgment (at p. 202), having traced the history of the concept of adverse possession, stated as follows:
“In section 18 of the Act of 1957 adverse possession means possession of land which is inconsistent with the title of the true owner: this inconsistency necessarily involves an intention to exclude the true owner, and all other persons, from enjoyment of the estate or interest which is being acquired. Adverse possession requires that there should be a person in possession in whose favour time can run. Thus it cannot run in favour of a licensee or a person in possession as a servant or caretaker or a beneficiary under a trust: Hughes v. Griffin …”
At the end of his judgment Kenny J. stated that whether a person in possession of land has been in adverse possession is ultimately a question of fact.
In Seamus Durack Manufacturing Limited v. Considine [1987] I.R. 677, Barron J. reiterated what Kenny J. had said in Murphy v. Murphy: that each case must be decided on its own facts. He then continued (at p. 683):
“Adverse possession depends on the existence of animus possidendi and it is the presence or absence of this state of mind which must be determined. Where no use is being made of the land and the claimant knows that the owner intends to use it for a specific purpose in the future, this is a factor to be taken into account. The principle has relevance only insofar as that when the factor is present it is easier to hold an absence of animus possidendi.”
More recently, what constitutes possession was considered by this Court (O’Hanlon J.) in the following passage in his judgment in Doyle v. O’Neill (Unreported, 13th January, 1995):
“In order to defeat the title of the original landowner, I am of opinion that the adverse user must be of definite and positive character and such as could leave no doubt in the mind of a landowner alerted to his rights that occupation adverse to his title was taking place. This is particularly the case when the parcel of land involved is for the time being worthless or valueless for the purposes of the original owner.”
The last sentence in that quotation has no relevance to the facts of this case. In the case before him, O’Hanlon J. held on the facts that the acts of user which it was asserted constituted possession, which he found were casual, sporadic and of an inconclusive nature, were not such as to ground a claim to a possessory title.
The legal ownership
It is clear from the statement of claim in the title action that at the time it was delivered the plaintiffs did not have documentary evidence of the title to the lands registered on Folios —- and —– County —-. I have set out the details in relation to the title in section B of this judgment. The grandmother was not a life tenant of Blackacre House between 1957 and her death in 1987. She merely had a contractual right to be granted a right of residence, support and maintenance by way of charge. As such, she had no title to the house or land and she was not a person who could have brought an action to recover possession of the house or land. The Testator was the owner of the house and land in fee simple at all times after 1957 until his death and he was the person against whom the plaintiffs must show they were in adverse possession. The plaintiffs’ claim is that they were in adverse possession against him since 1987.
Adverse possession by plaintiffs?
In determining whether the plaintiffs’ use of either the part of Blackacre House occupied by A and his wife since 1983 or the 30 acres of farmland, the yard and farm buildings which A used for the purposes of his farming activities and for the maintenance of his sheep and cattle herds, was of a type which ousted the legal title of the Testator before his death or of his estate after his death, the core issue is whether such use and occupation amounted to adverse possession within the meaning of the Act of 1957. In my view, it did not because on the evidence the occupation of the house and the use of the land were with the permission of the Testator.
In their written submissions counsel for the defendants have listed a variety of factors which they contend illustrate that the actuality of the occupation and use by the plaintiffs of the property of which they claim they were in adverse possession is inconsistent with the concept of adverse possession: that A continued to draw wages from the farming enterprise until 1992; that the materials used for the initial repairs of Blackacre House in 1983 and 1984 were funded by the Testator; that a site for a house for A was provided at Brownacre when that property was acquired; that A believed that Brownacre was to be his; that the permission of the Testator and the executors were sought for the construction of the wall in the yard; and the sharing of resources and machinery and the shared use of the yard. Counsel for the defendants submitted that the evidence established that A had the express permission of the Testator to use the house and farm. Alternatively, it was submitted that the relationship between the Testator and A was such that a licence would inevitably have been inferred.
I have no doubt, taking an overview of the evidence, that the plaintiffs’ use and occupation of the part of Blackacre House which they have occupied over the years since 1983 and A’s use of the 30 acres of farmland was with the permission of the Testator. Moreover, I have no doubt that, whether the permission was actually expressed by the Testator in terms that, the occupation and use could continue for as long as the Testator wished, that was what A understood to be the position. On at least three occasions in the 1990s, the Testator demonstrated that he was in control of Blackacre and the plaintiffs did not demur.
First, in May, 1994 the Testator instructed his solicitors to write to A requesting that he remove all his stock, cattle and sheep which were his (A’s) property from the lands at Blackacre. The letter was dated 12th May, 1994 and the request was to remove the stock before 31st May, 1994. A’s evidence was that at the time there was dissention between him and the Testator. He wanted the Testator to buy extra machinery, but the Testator was “in trouble with the bank” and would not. A’s evidence was that the Testator dismissed everything he said and would lash back at him saying that, if A did not do what he told him, he was to get his sheep and cattle out of Blackacre. As A put it, the Testator would “fire up and cool down”. A’s evidence was that, while he was surprised to receive the letter, he did not respond because he thought things would cool down and they did until the next letter.
That next letter was a further solicitor’s letter of 21st December, 1994. There were two complaints in that letter. The first was that A’s sheep and lambs were grazing the lands of Blackacre with the result that in the following spring there would be no grass available for cattle, resulting in serious loss to the farming operation. A was asked to remove his sheep from the lands on or before 31st December, 1994. The second complaint was that an application had been made to the Department of Agriculture for sheep headage payments in the name of the Testator without his permission. It was stated that, if the practice did not stop immediately, the Testator intended bringing the matter to the attention of the appropriate authorities. The letter also stated that the Testator wished that the house at Blackacre be vacated on or before 30th June, 1995. Again, A did not respond to that letter. His evidence was that he thought it as well not to start an argument. In any event, he could not move out because he had no money. He also testified that he felt that the Testator was not entitled to make him leave because he had promised to buy him a farm and he, A, had worked hard for the Testator, having worked longer hours than the labourers.
The third occasion was in May, 1998 following an argument between A and the Testator after the Testator had tipped a load of sand on the drive to Blackacre House and during which argument the door of the Testator’s tractor was damaged. That incident resulted in a letter of 19th May, 1998 from the Testator’s solicitors to A in which A was admonished that there was to be no repetition of his conduct towards his father and was advised that the use of the lands should be vacated by the end of July, 1998. I think it reasonable to infer that the instructions for that letter were contemporaneous with the making of the Testator’s will on 8th May, 1998; it referred to the Testator having consulted his solicitor recently concerning the incident.
As counsel for the defendants put it, there was a rapprochement between the Testator and A when the Testator’s first grandchild, F, was born in October, 1998. Despite the arguments between them, the Testator never took steps to eject the plaintiffs from Blackacre House or the farmland. However, in my view, that did not alter the permissive nature of the plaintiffs’ occupation and use of Blackacre House and the farmland. In my view, it is clear on the evidence that A never had the animus possidendi necessary to render the occupation and use adverse possession within the meaning of s. 18 of the Act of 1957. In his evidence, A was very forthright about his expectations. He never expected that Blackacre would be left to him by the Testator. His understanding was that Blackacre would be split between C and B and that he would get Brownacre. His understanding and expectation when Brownacre was acquired was that it would be his. He would work with the Testator until the loan on Brownacre was paid off. His evidence was that the Testator said that when the loan was paid off he would get C and B “to sign off”. Having regard to the evidence, it is impossible to infer that A ever formed the intention of ousting the Testator’s title to Blackacre.
For all of the foregoing reasons the plaintiffs’ claim to have established title by adverse possession must fail.
In their written submissions, counsel for the plaintiffs, in making the case for the application of the doctrine of proprietary estoppel have outlined the relevant legal principles by drawing on the commentary and the authorities cited in Delany -on Equity and the Law of Trusts in Ireland, 3rd Edition, at p. 637 et seq. However, in applying the principles to the facts of this case, it seems to me that they have strayed beyond the parameters of the case made in the plaintiffs’ statement of claim, which has focussed on the works and improvements carried out by the plaintiffs to Blackhorse House, rather than the fact that A worked for the Testator for over ten years at low pay. Aside from that, it is clear on the evidence that the Testator never gave A an assurance that Blackacre House would be his. Moreover, A never had any expectation that Blackacre House would be his. It is reasonable to infer that the reason why A carried out the works and improvements to Blackacre House, the extent of which is disputed, was for the comfort and ease of living of himself and his family. The plaintiffs have had the use of the house free of rent since December, 1983. In my view, they have not made out a case for a claim in equity arising from the works and improvements they carried out to the house, nor for damages.
E. Orders
The court will make the following orders:
(1) In the s. 117 application, a declaration that the Testator has failed in his moral duty to make proper provision for the plaintiff in accordance with his means and an order providing that the devise and bequest of the lands of Blackacre to the first defendant shall be subject to and charged with the payment thereout of the sum of €750,000 to the plaintiff, in substitution for the sum of IR£40,000, provided for in the will, the said sum to be paid by 31st October, 2007.
(2) In the trespass/personal injuries action, an order that the defendants pay to the second plaintiff the sum of €50,000 for damages for negligence and an order dismissing the other claims.
(3) In relation to the title action, an order dismissing the plaintiffs’ claim and an order on the defendant’s counterclaim granting injunctions in the terms of paragraphs (a) and (b) of the prayer on the counterclaim with a stay until 31st October, 2007 or until the payment of the sum of €750,000 to the first plaintiff by the defendants as personal representatives of the Testator, whichever occurs last, and orders dismissing the other claims and counterclaims.
proved: Laffoy J.
Devlin v National Maternity Hospital [2007] I.E.S.C. 50 Judgment delivered the 14th day of November, 2007 by Denham J.
1. This case arises in the tragic circumstances of the death of a child. The issues relate to a post-mortem, the retention of organs, and nervous shock.
2. This is an appeal from the dismissal by the High Court of the plaintiffs’ claim for damages arising from the negligence, breach of duty, including breach of statutory duty, and/or breach of contract, on the part of the National Maternity Hospital, its servants or agents (hereinafter referred to as ‘the hospital’), by reason of which it was claimed that the plaintiffs sustained serious personal injuries, loss, damage, and/or expense.
3. Counsel on behalf of the hospital applied, on the sixth day of the hearing of the case, for a non-suit, indicating that if it were unsuccessful he would go into evidence. The learned trial judge permitted the application, and having heard the submissions, acceded to the application. Judgment was given on the 1st July, 2004, when both actions were dismissed.
4. An appeal was filed on behalf of the plaintiffs. The Notice of Appeal sets out five grounds of appeal, being that the learned High Court judge:-
(i) Erred in law in his application of the principles set out in Kelly v. Hennessy [1995] 3 IR 253, as recited in Fletcher v. The Commissioner of Public Works, [2003] 2 ILRM 94 in holding that in order to recover compensation the plaintiffs had to suffer a physical or apprehension of a physical injury. Further and/or alternatively he erred in law in applying the principle of Kelly v. Hennessy in this case.
(ii) Erred in law in holding that in order to recover damages for nervous shock and/or a psychiatric injury the plaintiffs had to have suffered and sustained a physical or apprehension of a physical injury.
(iii) Erred in law and in fact, in light of the plaintiffs’ then state of knowledge, in finding that the plaintiffs’ claim against the hospital for the unauthorised carrying out of a port-mortem and the complaints and injuries arising therefrom was statute barred.
(iv) Erred in fact and in law in not distinguishing between having knowledge a post-mortem had taken place and not knowing the infant’s organs had been removed and retained.
(v) Erred in law and in fact in acceding to the hospital’s application for a direction.
5. In addition, the hospital has filed a notice to vary the judgment and order of the High Court. The three grounds in the notice to vary are as follows:-
(i) That the learned trial judge erred in law and in fact and on a mixed question of law and fact in not imputing to the plaintiffs and each of them by virtue of the operation of the provisions of s. 2 (2) of the Statute of Limitations (Amendment) Act, 1991 the knowledge that the plaintiffs expert, Dr. Barson, Consultant Pathologist, had, that organs and tissue had been retained when the expert furnished his report, dated the 23rd day of August, 1991 (and supporting documentation) to the plaintiffs solicitors which clearly demonstrated and/or indicated that organs and tissue had been removed and retained from the plaintiffs’ stillborn infant, Laura.
(ii) That the learned trial judge erred in law and in fact and on a mixed question of law and fact in finding that for the purposes of the operation of the Statute of Limitations Acts, 1957 – 1991 that time only commenced to run against the plaintiffs’ on receipt of the letter from the hospital dated 24th March, 2000.
(iii) That the learned trial judge erred in law and in fact and on a mixed question of law and fact in failing to hold that the plaintiffs did not establish any personal injury loss and damage arising out of the alleged negligence and breach of duty on the part of the hospital where the first named plaintiff gave evidence to the effect that even if consent had been obtained for the post-mortem the letter dated 24th March, 2000, could have caused same and/or similar personal injury, loss and damage as was allegedly caused by the alleged lack of consent.
6. Direction
Although it is the last ground of appeal, I will consider it first. It was submitted that the High Court erred in acceding to the hospital’s application for a direction.
7. On the application for a direction the High Court applied a test, that is whether, treating the plaintiffs’ case at its highest, the Court would be entitled to arrive at the conclusion that the hospital had a case to meet. The High Court held that it must assume the truth of all factual evidence given on behalf of the plaintiffs, referring to O’Donovan v. Southern Health Board [2001] 3 IR 385. This it then did.
8. The learned High Court judge assumed the following matters:
“… for the purpose of this application I must assume, as I do, firstly that the plaintiffs did not give their consent to a post-mortem examination being carried out on their deceased daughter; secondly, that the plaintiffs did not know that in the course of that post-mortem examination organs would be removed from the deceased and retained by the defendants; thirdly, that the plaintiffs did not actually learn of the fact that the organs had been retained until they received a letter on that behalf dated 24th March, 2000, from Dr. Declan Keane, then Master of the defendant’s hospital; and fourthly, that on learning that the organs of her deceased daughter had been retained by the defendants the first named plaintiff, Bridget Devlin, suffered shock and post-traumatic stress.”
9. I am satisfied that on the application for a direction the High Court applied the correct principles of law. The High Court assumed the truth of the evidence given on behalf of the plaintiffs, and determined the application on that basis. This is the correct approach, and there was no error made in this regard by the learned High Court judge. Consequently, I would dismiss the appeal insofar as it is grounded on the basis of a claim of error of the High Court in acceding to the hospital’s application for a direction.
10. Single Appellant
In considering this appeal, I do so on the basis that it is an appeal by Mrs Bridget Devlin, and not by Mr Terence Devlin. In the High Court counsel for the hospital submitted that, irrespective of how the Court determined the issue of liability between the parties, no cause of action was established on the part of Mr Terence Devlin, in that there was no evidence that he had suffered an injury or damage as a result of the matters in issue. The High Court held:-
“Not only was there no medical evidence to suggest that Mr Devlin suffered an injury as a result of the matters complained of but he himself in the course of his evidence did not say one word which suggested that he personally had suffered an injury. He had a lot to say about how his wife had suffered but nothing about himself. In this regard, I reject the suggestion by Mr McCartan Senior Counsel on his behalf that I should infer from the evidence which I heard that Mr Devlin had suffered distress, as Mr McCartan suggested that Peart J. had approved of in the course of an unreported judgment which he delivered on 11 March of this year in the case of Philip -v- Ryan and the Bon Secours Hospital.
In my view, I cannot manufacture evidence which is not there. Accordingly, I am satisfied that Mr Devlin has not proved any injury or loss as a result of the matters of which he complains; therefore, even if he were to succeed on the liability issue it would be a case of damnum absque injuria. Accordingly, I will accede to Mr Meenan’s application to non-suit Mr Devlin.”
11. These were findings of fact by the High Court. Given the jurisprudence of this Court, for example as stated in Hay v. O’Grady [1992] 1 I.R. 210, I would not interfere in these findings. While no specific grounds of appeal would appear to expressly relate to the issue of Mr Terence Devlin’s appeal, if and insofar as any appeal was lodged on his behalf, I would dismiss it, affirming the decision of the High Court.
12. Statute Barred
I shall consider next the issue as to whether the claim is statute barred. The High Court dealt with this matter under two headings, and I will adopt the same approach. First, there is the submission of a lack of consent to the post-mortem examination; and secondly, the issue of the retention of organs.
13. Post-mortem
On the issue of the lack of consent for the post-mortem, the High Court held:-
“Insofar as the [hospital] carried out the post-mortem examination without the consent of the plaintiffs, which for the purpose of this application I must accept to be a fact, both of the plaintiffs conceded in evidence that they were aware that a post-mortem had been carried out by the [hospital] within a very short time of the event and both expressed shock and anger at learning of that fact. Yet, although the plaintiffs instructed their solicitor with regard to other matters relating to the death of their stillborn child, no complaint was made on their behalf with regard to the alleged unauthorised autopsy carried out by the [hospital] and no proceedings on that behalf were taken by the plaintiffs until the proceedings herein were instituted on 26th July in the year 2002.
Given that the plaintiffs, on their own admission, not only were aware of the fact that the alleged unauthorised post-mortem had taken place, but that they were angered by that fact as far back as May, 1988 and yet made no claim on that behalf until July, 2002, it follows that, on the face of it the plaintiffs’ complaint with regard to carrying out that post-mortem examination without their consent would appear to be statute barred.
However, in the circumstance that there was evidence on behalf of the plaintiff, evidence which for the purpose of this application I must accept as the truth, that a nurse in Holles Street Hospital told Mr. Devlin that, in the case of a stillbirth, it was the standard practice of the hospital to carry out a post-mortem examination, although admittedly that was said after the post-mortem examination on Laura Devlin had taken place. It was submitted by Mr. McCartan on behalf of the plaintiffs that Mr. Devlin was thereby induced into believing that he would have had no choice as to whether or not a post-mortem examination should be carried out and, therefore, the plaintiffs did not know that they had been wronged insofar as the carrying out of the post-mortem was concerned until these proceedings commenced.
Accordingly, it was submitted that the complaint with regard to the alleged unauthorised post-mortem was not statute barred. I cannot accept that. If it is a fact, which I accept for the purpose of this application that it is, that a post-mortem examination was carried out without the plaintiffs’ consent there is no doubt but that they were aware of the fact shortly afterwards and equally there is no doubt that they knew that they had been wronged because they were angry. I have no doubt but that they told their solicitor all about what had happened.
Accordingly, I am not persuaded that there was any justification for the failure to institute proceedings in that behalf within the appropriate statutory time limit. I do not accept that what the nurse said to Mr. Devlin with regard to the standard practice of carrying out a post-mortem on a stillborn could or did have the effect of preventing the statute from running against the plaintiffs.
It follows, in my view, that all complaints by the plaintiffs arising out of the failure of the [hospital] to obtain their consent to a post-mortem examination are indeed statute barred.”
The High Court found, and carefully analysed, the relevant facts on this issue in the above judgment. I am satisfied that no error of the High Court has been established. Accordingly, I would affirm this aspect of the judgment.
14. Retention of Organs
The High Court considered also whether or not the plaintiffs’ claim as to the wrongful retention of organs is statute barred. The learned High Court judge accepted, as he was bound to do for the purpose of the direction being sought, that the plaintiffs were not aware of the fact that the organs had been retained until they received the letter from Dr Keane of 24th March, 2000.
15. The hospital submitted that the plaintiffs had constructive knowledge of that fact pursuant to the law in s.2(2)(b) of the Statute of Limitations (Amendment)Act, 1991. Section 2(2)(b) provides:
“For the purpose of this Section a person’s knowledge includes knowledge which he might reasonably have expected to acquire from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek.”
16. On this issue the High Court held as follows:-
“In that regard, Dr. Tony Barson, a consultant pathologist who gave evidence on behalf of the plaintiff, said that in the month of August, 1991 he had seen the autopsy report of 31st May 1988, on the late Laura Devlin which had been prepared by Dr. Kelehan; a report with regard to that post-mortem which he, Dr. Kelehan, had carried out. It was clear from that report that, in the course of that post-mortem examination, organs had been taken from the deceased.
In that regard, while Dr. Barson appeared to say that he conveyed that fact to the plaintiffs’ then solicitor Mr. Lambe, it transpired that he thought that it was evident from the autopsy report that that is what had happened. That is, that the organs had been removed. The fact of the matter was that, in his report to the plaintiffs’ solicitor, he never mentioned that organs had been removed in the course of the post-mortem examination. He himself did not address the subject because it was not something to which he had been asked to address.
Accordingly, while Dr. Barson himself may well have known that organs had been retained, as he appears to have kept this knowledge to himself because at the time he did not think it relevant, I do not think that that knowledge can be imputed to the plaintiffs by virtue of the provisions of Section 2(2)(b) of the 1991 Act because I do not think that, at that time, it would have been reasonable for the plaintiffs to have sought advice from Dr. Barson in that regard.
With regard to Mr. Meenan’s submission that, had the plaintiffs pursued a claim against the [hospital] for carrying out the post-mortem examination, as they allege, without their consent, they would inevitably have discovered that organs had been retained by the [hospital] and therefore as the claim with regard to carrying out the post-mortem without consent is statute barred so also is the claim with regard to the retention of the organs. I do not think that that follows. I would agree that, had the plaintiffs pursued a claim with regard to carrying out the post-mortem examination without consent in 1988, it is probable that they would have then learned about the retention of organs, but they were under no obligation to pursue such a claim at that time and I do not accept that, because they failed to pursue such a claim and allowed it to become statute barred, as I believe it is, thereby depriving themselves of the opportunity to find out that the organs had been retained, that by the same default they also allowed the claim in respect of the retention of organs to become statute barred.
Accordingly, I reject the submission that the plaintiffs’ claims in respect of the retention of organs are statute barred.”
17. I am not persuaded there was any error by the learned High Court judge in his decision on this aspect of the case. Consequently, I would adopt and affirm this finding.
18. Recoverable Loss?
The next issue to be considered is whether there is a recoverable loss on foot of the retention of the organs. As to the cause of action, the High Court held:-
“With regard to the submission that the plaintiff had not identified a recoverable loss is concerned; as I understand the submission, because there was uncontradicted evidence from Dr. Barson and also from Dr. Henry that, in the 1980s, it was an accepted practice that where there was consent to the carrying out of a post-mortem it was implicit that the pathologist had permission to remove and retain organs; it follows that, had the plaintiffs’ consent to the post-mortem in this case been obtained, the position of Mr. and Ms. Devlin would be no different than it actually was. That is, that they would have learnt in the year 2000 that their baby’s organs had been retained with all the consequences that that knowledge involved.
Accordingly, it was submitted by Mr. Meenan that as there would have been no duty on the defendants in 1988 to advise the plaintiffs that organs would be removed in the course of a post-mortem to which they had consented, the fact that they did not consent to that post-mortem, which at present I am obliged to accept, made no difference whatsoever, because with or without consent to the post-mortem they would not have learnt until the year 2000 that organs had been retained. Even if there had been consent to the post-mortem, the defendants were under no duty to advise the plaintiffs that organs would be retained at the post-mortem.
In the absence of such a duty there could be no negligence on the part of the defendants which gave rise to a liability in damages.
However, whatever may have been the practice where consent to a post-mortem was given in the 1980s, I heard no evidence to suggest that there was any practice when a post-mortem was carried out without the consent of the next of kin. On the other hand, it was agreed that consent of the parties to the post-mortem of a stillborn should be obtained before the post-mortem is carried out. I am obliged to accept for the purpose of this application that this consent had not been forthcoming.
Therefore, I must conclude that the [hospital] was not entitled to carry out the post-mortem and it follows, as night follows day, that if they were not so entitled that they were equally not entitled to remove and retain organs. In this regard, the fact that the plaintiffs’ claim against the [hospital] arising from them performing the post-mortem without consent is statute barred does not, in my view, alter the fact that the defendants without consent had no right to carry out the post-mortem examination and to remove and retain organs.
In the absence of such a right, it seems to me that the [hospital] owed to the plaintiffs a duty not to interfere with the remains of the deceased. In my view, it is reasonably foreseeable that, had they done so, as they did, it was probable that the plaintiffs would suffer distress on that account.
Accordingly, if it is a fact that the [hospital] carried out a post-mortem examination on the deceased without the consent of the plaintiffs, I do not accept that the plaintiffs have not established a cause of action.”
Thus, the High Court concluded that it did not accept that the plaintiffs had not established a cause of action.
19. I endorse the analysis of the learned High Court judge. The High Court referred to the accepted practice of the 1980s as to the situation when there had been consent to the post-mortem: that it was implicit that the pathologist had permission to remove or retain organs. This practice, and implicit acceptance, stemmed from Victorian times. Probably with the best of motives parents were not “troubled” with the grim reality of a post-mortem and the need to retain organs and samples of tissue. This practice was exercised with a complete lack of understanding as to the rights of parents in relation to their children, and the retention of organs indefinitely and without consultation.
The position of parents, their rights, and family rights, and the dignity of the child, are now acknowledged. However, this case stems from a time when a paternalistic attitude to parents was endemic in hospitals. In this case the parents did not consent to the removal of their child’s organs at post-mortem, and the court is required to consider the consequences.
20. Nervous Shock
‘Nervous shock’ is a legal term relevant to this case. In Kelly v Hennessy [1995] 3 IR 253 at p. 269 I stated:-
“‘Nervous shock’ is a legal term used to connote a mental as opposed to physical injury to a person. It has been accepted in Irish law that such an injury can be the subject of damages.”
It is the plaintiff’s submission that she suffered nervous shock, or that the law as to nervous shock should be extended to cover her situation. The hospital has submitted that the circumstances in which damages for nervous shock are recoverable do not arise in this case.
21. The relevant facts are that the plaintiff did not learn of the fact that the organs of her baby had been retained until she received a letter dated 24th November, 2000 from Dr Declan Keane, then Master of the hospital. On learning that the organs of her deceased daughter had been retained by the hospital the plaintiff, Bridget Devlin, suffered shock and post traumatic stress, a psychiatric illness.
22. The learned High Court judge considered the common law. He referred
to Kelly v. Hennessy [1995] 3 IR 253, and to the judgment of Hamilton C.J., which set out circumstances under which damages for nervous shock could be recovered. Hamilton C.J., with whom Egan J. agreed, held that in order to recover damages for nervous shock a plaintiff must establish:-
(a) that he or she actually suffered a recognisable psychiatric illness;
(b) that such illness was shock induced;
(c) that the nervous shock was caused by the defendant’s act or omission;
(d) that the nervous shock sustained was by reason of actual or apprehended physical injury to the plaintiff or a person other than the plaintiff;
(e) that the defendant owed him or her a duty of care not to cause him or her a reasonably foreseeable injury in the form of nervous shock as opposed to personal injury in general.
The High Court found that ground (a) above was met; that the first named plaintiff suffered a post-traumatic stress, which is a psychiatric illness. Ground (b) was also found to have been met, in that the psychiatric illness was induced by the shock of learning that the organs of her child had been retained. The High Court accepted that ground (c) had been met. As to ground (e) the learned High Court judge was of the opinion that the condition was satisfied.
However, the High Court held that the fourth condition, (d), as set down by Hamilton C.J. had not been met. That condition requires that the nervous shock, sustained by the first named plaintiff, must have been by reason of actual or physical injury to the plaintiff or to a person other than the plaintiff. The High Court pointed out that there was no evidence that the first named plaintiff suffered any physical injury or that any other person suffered a physical injury. Thus the High Court concluded that condition (d) was not satisfied and that therefore the plaintiff was not entitled to recover damages.
23. Counsel for the plaintiffs had submitted in the High Court that the facts in Hennessy were different and that the High Court should have regard to that. The learned High Court judge pointed out that the facts in Fletcher v. The Commissioners of Public Works [2003] 2 ILRM 94 were different also but that this Court found favour with Hennessy. Consequently, the learned High Court judge held that, while most of the conditions set out by Hamilton C.J. were met,
“… it seems to me that the fourth condition laid down by Hamilton C.J. has not been satisfied in this case.”
The High Court held that all the circumstances necessary to establish in order to succeed in an action for damages for nervous shock had not been established by the plaintiffs, and the plaintiffs’ claims were dismissed.
24. Issue
The core issue in this appeal is a matter of law. Did the High Court err in holding that in order to recover damages for ‘nervous shock’ sustained by the first named plaintiff it was necessary that there be actual or apprehended physical injury to the plaintiff or to a person other than the plaintiff? In essence, the query is whether condition (d) as set out by Hamilton C.J. is a requirement of law.
25. The High Court was of the view that Fletcher v. The Commissioners of Public Works [2003] 2 I.L.R.M. p.94 endorsed and supported the analysis of Hamilton C.J. in Hennessy.
26. Well Established Common Law
Damages for ‘nervous shock’ have been recoverable in an Irish court for over 100 years. The early cases related to fright in an accident situation, in which the plaintiff was not physically injured but where he/she feared for the injury of others. Byrne v. Great Southern and Western Railway Company of Ireland (1884) cited at 26 L.R. (Ir)428, and Bell v. Great Northern Railway Company of Ireland (1890) 26 L.R. (Ir) 428 are referred to in McMahon and Binchy, Law of Torts, 3rd ed., (Butterworths 2000) chapter 17.
27. In Byrne v. Southern and Western Railway Company, Court of Appeal, 1884 (discussed in Bell v. GN Railway Company (1890) 26 L.R. (Ir) 428 at p.p.441 to 442) the plaintiff was superintendent of the telegraph office at Limerick Junction. His office was a small building at the end of one of the railway sidings, between it and the office there was a buffer. One day, because the railway points were negligently left open, a train entered the siding and broke down the buffer and the wall of the telegraph office. The plaintiff heard the noise and saw the wall falling, and “he sustained nervous shock which resulted in certain injuries to his health”. The plaintiff received an award of damages. He described that he got no physical injury but that he got a great fright and shock, and that apart from the noise of the crash, he heard the shouts of the clerks saying they were killed.
In Bell the plaintiff herself was in a train when part of it became unhooked and reversed with speed down a hill. The plaintiff suffered severe shock. Her mental health was seriously affected and there was medical evidence that her condition might involve paralysis.
Thus the early cases recognised ‘nervous shock’, an archaic term covering psychiatric illness. These early cases related to situations where the plaintiff, or other persons who were close to the plaintiff, were in danger of physical injury or had been physically injured.
In Bell Palles CB stated:-
“… as the relation between fright and injury to the nerve and brain structures of the body is a matter which depends entirely upon scientific and medical testimony, it is impossible for any Court to lay down, as a matter of law, that if negligence causes fright, and such fright, in its turn, so affects such structures as to cause injury to health, such injury cannot be ‘a consequence which, in the ordinary course of things would flow from the’ negligence unless such injury ‘accompany such negligence in point of time’.”
These words could be construed in a broad fashion. Thus, if negligence caused fright, and fright leads to a psychiatric illness, the nexus may be established. However, the words were spoken in a context and that context is very important. The context was an accident – rail or car – and of witnesses to that event or its aftermath. Thus the negligence arises in what may be called ‘aftermath’ cases, where witnesses to an accident, who themselves are not injured, may be caught up in the aftermath of the accident and injured.
28. In Mullaly v. Bus Eireann and Anor [1992] ILRM 722 the plaintiff was exposed to traumatic scenes after a road traffic accident which caused her post traumatic stress disorder. The plaintiff’s husband, together with three of their sons, set off by CIE bus from Limerick to go to watch a soccer match in Midleton. The plaintiff spent the day with her brother and mother in Thurles. She received a message that there had been a serious bus accident involving her family. The bus had overturned, resulting in three deaths and injuries to 49 passengers. The plaintiff went to the Regional Hospital in Limerick where two of her sons were being treated. While there she witnessed some terrifying and appalling scenes. She then continued to Barrington’s Hospital where her husband and a son were hospitalised. Her husband and two of her sons were very seriously injured. Within a week or so it became clear that two of her sons and her husband would recover. One of her sons was very ill for months and had to undergo several operations. The plaintiff spent a great deal of time with him. Ultimately, eight months after the accident, he died. The plaintiff suffered post traumatic stress disorder. It was held that post traumatic stress disorder was covered by the term ‘nervous shock’, that the plaintiff suffered the nervous shock as a consequence of the road traffic accident and its aftermath in the hospitals; that there was a legal nexus between the actions of the defendant causing the accident and its resultant aftermath and her injuries (being the psychiatric illness), and that the plaintiff was entitled to damages. Thus this was a classic ‘aftermath’ case.
29. Kelly v. Hennessy [1995] 3 IR 253 was also an “aftermath” case. In that case the plaintiff claimed, successfully, damages for nervous shock which was caused by the negligence of the defendant in the driving of a motor vehicle on 14th April, 1987, which was involved in a collision as a result of which the plaintiff’s husband and two daughters suffered severe personal injuries. The plaintiff was not involved in the collision but shortly after 9.30 p.m. on the evening was informed by her niece of the fact of the collision and that her husband and two daughters were seriously injured. The trial judge found that the plaintiff went into shock, and that while being brought to hospital to see her husband and two daughters she became ill. She saw her family in hospital. She was traumatised. The post traumatic stress disorder continued up to 1992 and she continued to suffer a depression. On these facts Hamilton C.J. set out five conditions, see para. 22 above, which he applied, and found the plaintiff entitled to recover damages against the defendant for nervous shock.
In that case it had been submitted on behalf of the defendant that the cause was not the immediate traumatisation of the plaintiff but that it occurred over the months after the accident and that the plaintiff was outside the contemplation of the defendant, that Mulally v Bus Eireann was distinguishable. These submissions were not successful, but they illustrate the fact that the common law applying liability in negligence from nervous shock to those exposed to the aftermath of an accident is tightly drawn.
30. Fletcher v. Commissioners of Public Works [2003] 2 ILRM 94 was a case where the facts were of a different nature. It was heard at the same time as four other appeals. As Keane C.J. pointed out, all five cases arose out of what was admitted to be the failure of the defendants, as employers, to take proper precautions for the safety, health and welfare of the plaintiffs, their employees. As a result of that failure, as was conceded by the defendants, the plaintiffs were exposed to significant quantities of asbestos dust in the course of their employment and, as a further consequence, were exposed to the risk of contracting in later life the disease of mesothelioma which, when contracted, is potentially fatal. There was evidence in each case from psychiatrists that the plaintiffs, as a result of their having been informed of that risk, suffered from a recognisable psychiatric disorder. In each case the High Court found that the defendants were liable to pay damages in respect of the psychiatric illness – which decisions were appealed to this Court. In giving judgment Keane C.J. referred to Bell and Byrne, and pointed out that damages were not recoverable for grief or sorrow alone, but nervous shock, even when there was no physical injury or even fear of such injury, was compensatable when caused by the negligence of the defendant.
Keane C.J. stated at p. 105:-
“The circumstances in which damages for nervous shock are recoverable were set out as follows by Hamilton CJ in Kelly –v- Hennessy: [1995] 3 I.R. 263 …:
1. The plaintiff must establish that he or she actually suffered ‘nervous shock’. This term has been used to describe ‘any recognisable psychiatric illness’ and a plaintiff must prove that he or she suffered a recognisable psychiatric illness if he or she is to recover damages for ‘nervous shock’.
2. A plaintiff must establish that his or her reasonable psychiatric illness was ‘shock induced’ …
3. A plaintiff must prove that the nervous shock was caused by a defendant’s act or omission …
4. The nervous shock sustained by a plaintiff must be by reason of actual or apprehended physical injury to the plaintiff or a person other than the plaintiff …
5. If a plaintiff wishes to recover damages for negligently inflicted nervous shock he must show that the defendant owed him or her a duty of care not to cause him a reasonably foreseeable injury in the form of nervous shock.”
Keane C.J. then addressed the issue of whether Fletcher was a nervous shock case. He stated at p.110:-
“The central issue in this case, accordingly, is not whether the defendants ought to have foreseen that the plaintiff would suffer psychiatric injury. It is whether the claim by the plaintiff comes within the category of ‘nervous shock’ cases in which the courts have awarded damages for such psychiatric injury, even in the absence of any physical injury, and, if not, whether the plaintiff was nonetheless entitled to recover damages in respect of the reasonably foreseeable psychiatric illness which was the consequence of his having been negligently exposed to the risk of contracting mesothelioma. That further inquiry is necessary because of the care with which the courts have approached claims for psychiatric illness, unaccompanied by physical injury, arising out of alleged negligence: the reasons for that cautious approach are considered at a later point in this judgment.”
Keane C.J. stated that the circumstances which, when they give rise to a specific psychiatric disorder unaccompanied by physical injury that was the reasonably foreseeable consequence of a breach of duty of the defendant, may lead to a finding of liability, were described by Hamilton C.J. in Kelly v Hennessy, in other words – provided the conditions stated were met.
31. The central issue in this case is whether the claim of the plaintiff comes within the category of ‘nervous shock’ cases in which the courts have awarded damages for psychiatric injury, even in the absence of physical injury, and, if not, whether the plaintiff is nonetheless entitled to recover damages.
32. Grief
Grief and sorrow are not a basis upon which to recover damages. There has to be a proven psychiatric illness. That exists in this case. It is accepted for these proceedings that the first named plaintiff has suffered a psychiatric illness.
33. Event
The common law has evolved by reference to the occurrence of a specific event – a railway or car accident. In Alcock & Ors v. Chief Constable of South Yorkshire Police [1992] 1 AC 310 Lord Ackmer said at p.401:-
“‘Shock’, in the context of this cause of action, involves the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind. It has yet to include psychiatric illness caused by the accumulation over a period of time of more gradual assaults on the nervous system.”
This statement reflects the common law in Ireland where the ‘aftermath’ cases either relate to the event, or the situation in its immediate aftermath.
34. Current Law
It is clear that the common law was stated by Hamilton C.J. in Kelly v Hennessy, with five conditions, subsequently endorsed by Keane C.J. in Fletcher. On this law the plaintiff is not entitled to succeed because the fourth condition is not met. The learned High Court judge was correct in his identification and application of the law. On this basis the plaintiff is not entitled to succeed and the appeals would be dismissed.
35. Policy
However, counsel for the plaintiff pressed the Court, if it found that the current law did not apply, to extend it on general principles of the law of negligence.
This is a matter of significant general importance. Such a decision could have serious repercussions. In considering the extension of the common law liability for ‘nervous shock’, policy issues arise.
In Fletcher the issue as to whether the law should be extended also arose for consideration. This Court refused to do so. Keane C.J. stated that the law in this jurisdiction should not be extended by the courts so as to allow the recovery by those plaintiffs of damages for psychiatric injury resulting from a fear of contracting a disease because of their negligent exposure to health risks by their employers, where the risk was characterised by their medical advisers as very remote.
Thus there are limits in law to liability for nervous shock. The common law provides illustrations of successful cases where damages for nervous shock were awarded. However, those cases relate to persons perceiving an accident or its immediate aftermath.
This is a tragic case. In essence it arises because of the receipt of bad and sad news in a letter from the hospital. It is a hard case. The parents are entitled to deepest sympathy for their loss. However, the law as it stands does not entitle them to damages and I would not extend the law. Any such development would give rise to uncertainty in the law of liability generally and to potentially unforeseeable repercussions. Consequently I would dismiss this aspect of the appeal also.
36. Conclusion
For the reasons given I would dismiss the appeal and affirm the order of the High Court dismissing the action.
37. This judgment is a decision of law. It should not be read as an endorsement of the practice, now abandoned, of the hospital.
Post-mortems are part of the continuing care of a patient. They inform of the cause of death. This may be of importance to the family at the time and in the future, to any other children they may have, and to the community in general. Post-mortems are also important in assisting research, education, and training of the nursing and medical professions.
The hospital’s practice in relation to post-mortems of children in the 1980s was rooted in times long past. Probably with the best of motives, the policies were paternalistic and inappropriate. While it may have been thought kind not to trouble or disturb the parents, the decision to be made as to a post-mortem and their child’s body is theirs to make. Post-mortems will usually involve the taking of organs, so that identification of the cause of death and the nature of the illness are determined. This information may have been considered too stressful to be given to parents. This was a misunderstanding, by the medical profession, of the rights of the parents.
While parents may choose not to receive full information at the time, they must be given that choice when they are requested to authorise a post-mortem of a child. In the tragic and stressful situation of the death of a child parents may not wish to receive all the information at that time, but they are entitled to receive it specifically in relation to their child then, or later, or to receive it generally from printed information.
In the midst of the dreadful tragedy that is a child’s death, parents and the community should be fully informed of the benefits which flow from the authorisation by parents to permit a post-mortem.
O’Mahony (An Infant) v. Tyndale
[2001] IESC 62 (13 July 2001)
THE SUPREME COURT
KEANE C.J.
MURPHY J.
HARDIMAN J.
156/2000
BETWEEN:
JUDGMENT delivered the 13th day of July 2001 by Keane C.J.
The plaintiff in these proceedings was born on the 11th May 1987 in the Bons Secours Hospital, Cork. The first named defendant is the nominee of the trustees, owners and managers of the hospital. It was not in dispute at the time of the hearing in the High Court that the plaintiff- who at that time was aged 12
– was suffering from a serious degree of mental handicap, manifesting itself in severe intellectual, linguistic and behavioural retardation and a significant
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epileptic disorder. It was also not in dispute that this condition is static and that the plaintiff has a life expectancy of approximately 50 years of age.
The second named defendant is a consultant obstetrician attached to the hospital. In the proceedings, the plaintiff, suing by his mother and next friend Ann O’Mahony (hereafter “Mrs. 0’Mahony”), claims damages for the negligence and breach of duty of the defendants in the care of the plaintiff and Mrs. O’Mahony during the period beginning with her admission to the hospital on the 8th May 1987 and ending with her discharge from the hospital on 15th May. After a hearing lasting 46 days in the High Court, the plaintiff’s claim against both defendants was dismissed by Quirke J. in a written judgment delivered on the 7th April 2000. From that judgment and order, the plaintiff now appeals to this court.
At the outset, the sequence of events preceding Mrs. O’Mahony’s admission to the hospital and during her stay in the hospital, insofar as they are not in controversy, should be set out. Her pregnancy – which was her first – was uneventful until the last few weeks prior to delivery, where there was an indication of excessive gain of weight and of oedema or retention of fluid. Neither of these, of themselves and unaccompanied by any other symptoms, would be a cause for concern. However, on the 8th May, which was around the
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time of her expected delivery, Mrs. O’Mahony attended her general practitioner, who ascertained that her blood pressure had risen and that protein was present in her urine. These were indications of the development of a condition unique to pregnancy called pre-eclampsia, which is particularly prevalent in first pregnancies. It is a serious condition which can lead to the end stage of eclampsia, a condition manifested by convulsions which can seriously damage the mother and the baby.
Mrs. O’Mahony’s general practitioner told her that she should go straight to the hospital, which she did. This was on a Friday. At the hospital her blood pressure and urine was monitored and she was informed that the monitoring would continue over the weekend and that the delivery would be induced on the Monday. It was not in controversy that in the light of the condition of pre-eclampsia, it was essential that the baby should be delivered without delay.
Mrs. O’Mahony’s labour was, accordingly, induced on the morning of the 11th May and continued uneventfully until what can be loosely described as the final period of the labour when the plaintiff developed a severe bradycardia, i.e. a significant fall in the beating rate of the foetal heart. The second named defendant (hereafter “Dr. Corr”), who was Mrs. O’Mahony’s consultant
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obstetrician, arrived sometime after the bradycardia had developed and effected the delivery of the plaintiff by forceps. He was then taken to a unit called the 24 hour observation nursery where he spent the next 19 hours. He was brought back to Mrs. O’Mahony in the postnatal ward on May 12th and, as already noted, mother and baby were discharged on the 15th May.
During the early months of the plaintiff’s life at home, Mrs. O’Mahony and her husband were concerned by the fact that he appeared to be irritable and unsettled and they brought him to a number of doctors in the hope of finding out what was wrong and how it could be dealt with. He was admitted to the hospital in September 1987 and had a lumbar puncture but it was not until February 1988, i.e. when he was nine months old, that he was diagnosed by Dr. Rosemary Manning, a general practitioner with paediatric training, as suffering from what she described as “cerebral palsy “. (The implications of that description will be referred to at a later stage.) Mrs. O’Mahony and her husband then obtained further medical advice as to what might have caused the plaintiff’s condition and ultimately these proceedings were instituted on the 9th May, 1990, the plaintiff then being aged 3. In the statement of claim, delivered on the 9th July, 1992, when the plaintiff was aged 5, it was alleged that the severe condition of mental and physical retardation from which the plaintiff was then suffering had been caused by the negligence of the hospital and Dr.
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Corr. Defences denying any such negligence having been delivered on behalf of the hospital and Dr. Corr, the case came on for hearing in October 1999.
The claim in the pleadings as originally delivered and the case as opened by counsel on behalf of the plaintiff at the beginning of the trial against the hospital was that in the light of the condition of pre-eclampsia from which Mrs. O’Mahony was suffering a consultant obstetrician or registrar should have been in attendance to effect the speedy delivery of the plaintiff when the condition of bradycardia developed and, as it was said, an emergency arose as a result. In the event, it was said, Dr. Corr was not present until a significant period of time had elapsed from the onset of the emergency. During this period, it was said, the plaintiff suffered irreversible brain damage in the final stage of the labour because of an inadequate supply of oxygen, a condition known as hypoxia. The claim against the hospital was that, because of the system employed in the hospital a consultant obstetrician or registrar was not available to effect the delivery when the emergency began and that, in the result, the plaintiff suffered irreversible brain damage before he was actually delivered.
The claim against Dr. Corr was that he had
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(a) failed to detect signs of intra-uterine hypoxia and to deliver the plaintiff immediately signs of foetal distress were discernible; and
(b) actively participated in a hospital system which he knew or ought reasonably to have known was defective and unsuitable for the plaintiff and for Mrs. O’Mahony in that it did not make any adequate provision for the availability of trained or qualified obstetric staff for the emergency delivery of the plaintiff, a risk which was reasonably foreseeable having regard to the condition of pre-eclampsia which had led to the admission of Mrs. O’Mahony to the hospital.
Some features of the system in operation at the hospital at that time should be mentioned at this point. The foetal heart rate of the plaintiff was measured by an instrument called a cardiotocograph (CTG) which provided an electronic recording on paper of the heart rate of the foetus and the uterine contractions, recorded by way of an electrode attached to the foetal scan internally or by an external microphone on the maternal abdomen. The heart rate, recorded in beats per minute (bpm), should normally be between 160 and 120 bpm. The condition of bradycardia is said to develop when the rate falls below 120 bpm. In the present case, the plaintiff’s heart rate, as so recorded, dropped from about 140 bpm to 100 bpm and, approximately seven minutes
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later, to 60 bpm. However, the tracing recording the bpm for the final twenty-six minutes before the delivery was not available at the hearing. The absence of the tracing for that period was explained as follows by the solicitors to the defendants in a letter of the 2nd October 1998:-
“In 1987 the Bons Secours Hospital had one CTG monitor. That monitor was required to be shared among the patients in the maternity unit at that time. Furthermore, it was then hospital policy to bill patients for the tracings according to the length of time on such tracings. For those reasons we have been provided with a number of short readings often minutes or so, in relation to Mrs. 0 ‘Mahony, in addition to the main CTG reading. Evidence will be given that this was standard practice. Ultimately, as labour progressed the monitor would be prioritised to Mrs. 0’Mahony and used in relation to the final stage of labour, leading to the delivery of (the plaintiff). When changing the CTG monitor from one patient to another, it was hospital policy to tear the CTG reading at the perforation nearest the end of the patient’s reading. For that reason each short CTG reading and indeed the main tracing commenced with the tail end of a previous patient’s tracing. This explains the sudden commencement and abrupt termination of each reading.”
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They enclosed by way of illustration a sample short CTG reading of another patient whose name was not disclosed fully since of confidentiality. There was thus no tracing of the bpm for the final 26 minutes of the labour.
A record was also kept of the various stages of Mrs. O’Mahony’s labour, including details of times, anaesthesia, medication and other features by the nursing and midwifery staff of the labour ward on a document described as a “partogram”.
The evidence was that under the system then prevailing in the hospital newly born infants, after some preliminary checks as to their condition on delivery had been carried out by the nursing and midwifery staff, were transferred to a unit called the 24 hour observation nursery. While in many cases their stay there would be relatively short before they were brought back to their mothers in the postnatal ward, in the case of the plaintiff he was kept there for 19 hours, Mrs. O’Mahony having been detained for observation in the labour ward after the delivery because of her condition of pre-eclampsia rather than being returned immediately to the postnatal ward. There was also a neonatal unit, consisting of a special care unit and an intensive care unit to which babies whose condition required special attention were transferred.
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At the hearing, Mrs. O’Mahony gave evidence as to the history of her pregnancy and her admission to the hospital. She said that she was conscious, during the course of the labour, of the recording of the bpm of the foetal heart by the CTG and of the digital display on the unit. At about 4.30, she complained about a pain in her back and was told by the nurses, who seemed very surprised, that she was “ready for pushing”. They told her that Dr. Corr would be there soon, but that they would start her off in the meantime. She said that during the next stage of the labour, the heartbeat on the monitor started beating slower and the numbers changed. She said that she saw the nurses “panicking” and that she was told that they had called Dr. Corr, that he was on his way and that “all is fine “. She also said that one of the nurses put her hands over her (Mrs. O’Mahony’s) ears in order to prevent her hearing the monitor. Her pubic area then having been shaved and oxygen put on, she was wheeled into an operating theatre.
She said that then “Dr. Corr sort of came in fast. He had his sleeves rolled up and gloves on him and he said ‘take off the oxygen…” He had no medical clothes on. She then gave details of the delivery of the baby which, she said, was delivered within minutes. Dr. Corr handed the baby to a nurse. She said that her husband came in then and she told him that the baby had brain damage. She also said that Dr. Corr pointed out to the nurses that she
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(Mrs. O’Mahony) had a hard prominent coccyx. She said that the nurses then brought her the plaintiff wrapped in “a little sheety thing” and put him into her arms for maybe a minute or two and then took him away. She was then taken into the labour ward where she was told she was being kept because of her blood pressure. She said that at eight o’clock one of the nurses came in with the baby wrapped up tightly and gave her the baby to hold for about four to five minutes. She said that she did not see the baby until the following morning between twelve and one when they gave her the baby, saying that the sister had said to tell her that she had “a very cranky baby “. Nothing eventful took place then between the 12th and the day of her discharge on the 16th May. She said that she recalled meeting one of the nurses, Kathleen Barry, in the supermarket on the evening of her discharge, who said to her “you frightened the life out of us “. She also gave evidence that the plaintiff was thereafter “really, really cranky” and that she brought him to the hospital a number of times and then ultimately to Dr. Manning.
The plaintiff’s father also gave evidence of what he saw while he was in the hospital during the course of Mrs. O’Mahony’s labour and after the delivery of the plaintiff.
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Professor William Thompson, Professor of Obstetrics and Gynaecology at Queen’s University Belfast, gave evidence that the only logical explanation of the drop in the foetal heart rate was that the baby was suffering from intra-uterine hypoxia, i.e. a lack of oxygen supplied to the brain. He said that he would have expected in these circumstances that the baby on delivery would have required resuscitation after delivery and that he found it difficult to understand how what is known as the “Apgar score” (which is referred to in more detail at a later stage) did not indicate that the baby was in that condition after delivery. He said that she should have been admitted to a unit where facilities were available to cope with the complication, i.e. eclampsia.
Professor Alan Weindling, a Professor of Perinatal Medicine at the University of Liverpool and a Consultant Neonatologist, gave evidence that the plaintiff was suffering from cerebral palsy caused by brain damage sustained within the final minutes before his birth as a consequence of hypoxia.
Evidence was also given by Professor Ronald Gabriel, Clinical Professor of Neurology and Paediatrics at the University of California. He said that the plaintiff’s present condition was due to the complications that occurred at the end of his labour and delivery, which had resulted in a reduced blood flow to his brain resulting in “watershed injuries “. He said that the hypoxia ischemia,
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as it was called, which had been sustained did not affect what he described as the deep regions of the brain. Evidence was also given by Dr. Werner Schutte, a consultant paediatric neurologist, that the plaintiff was suffering from cerebral palsy and that this must have been the result of a hypoxic ischaemic injury to the brain during his labour. Mr. Roger Clements, a consultant obstetrician and gynaecologist, also gave evidence that the plaintiff appeared to have suffered from a severe hypoxia during the period of labour.
That, in necessarily highly abbreviated form, was the expert medical evidence adduced on behalf of the plaintiff during the first thirteen days of the hearing. On the 13th day, evidence was being led as to the plaintiff’s claim for damages. At that stage, the case was adjourned for approximately two weeks because the trial judge was unavailable during that period. When the hearing resumed, Mr. Hickey S.C. on behalf of the plaintiff informed the trial judge that during the interval Mrs. O’Mahony had brought the plaintiff to Liverpool to have a MEl scan performed on him. He said that she had previously been under the impression that such a scan should not be taken because of treatment that the plaintiff was receiving, but that she had been told by Professor Gabriel during the course of the earlier hearing that this was not so. At that stage, Mr. Hickey indicated that while it might be necessary to recall some of his witnesses to deal with the new scan, he did not think it would necessitate the
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amendment of the pleadings. However, on the 17th day of the hearing, he applied to the trial judge to amend the pleadings so as to include the following additional particulars:
“The defendants were negligent and in breach of duty to the plaintiff in that they, their servants or agents:
‘5. Caused, allowed and permitted the plaintiff to develop the condition of hypoglycemia as a consequence of the hypoxia suffered by the plaintiff resulting from the negligence of the defendants and each of them in failing to deliver the plaintiff promptly after the development of foetal bradycardia.
W In the knowledge of the plaintiff suffered hypoxia/foetal distress prior to birth and the plaintiff’s mother having had pre-eclampsia for three days prior to the birth of the plaintiff failed to check adequately or at all as to whether the plaintiff had developed a hypoglycemia by carrying out routine blood glucose tests.
X Failed to diagnose that the plaintiff developed hypoglycemia and to continue to suffer from it with the result that the plaintiff suffered brain damage.
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Y Failed to treat the plaintiff for hypoglycemia by replacing/restoring his blood glucose level by appropriate feeding, if necessary by tube.
Z. (i) Failed to check that the treatment which should have been afforded to the plaintiff for hypoglycemia was successful and in the event that it was not in failing to call a doctor and administer intravenous glucose.
(ii) Failed adequately or at all to monitor or observe the plaintiff in particular for hypoglycemia in the period he was detained or kept in this area referred to as the observation nursery by the defendants.”
Neonatal hypoglycemia is a condition which consists of the lowering of the blood glucose level in infants, particularly in the hours after their birth, which can give rise to brain injury. As already noted, none of the medical experts who had at this stage given evidence on behalf of the plaintiff had referred to it as a possible cause of the plaintiff’s present condition: their evidence was all to the effect that it had been caused by an episode of hypoxic ischemia in the course of labour. The making of this new case at this stage – the case had now been 17 days at hearing – was strenuously resisted on behalf of the defendants. The trial judge, however, having heard lengthy submissions,
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permitted the necessary amendment of the pleadings to be made as against the hospital but not as against Dr. Corr. There was no appeal against his amendment of the pleadings in the case of the hospital: the plaintiff has, however, appealed inter alia against the judge’s refusal to permit an amendment of the pleadings as against Dr. Corr.
Evidence was then given by Dr. W. Pilling, a consultant paediatric radiologist attached to the Alder Hey Hospital in Liverpool, as to the conclusions to be drawn from the newly obtained MRJ scan. Dr. Schutte and Professor Windling were also recalled and gave evidence as to the conclusions they drew from the new MRI scan. There was also evidence on behalf of the plaintiff by Dr. Evans, a consultant paediatrician. That evidence will be referred to in more detail at a later point.
Evidence was given on behalf of the defendants by Dr. Corr, a number of nurses who were on duty during the period of Mrs. O’Mahony’s stay in the hospital, Dr. Seamus O’Donoghue who had been a consultant paediatrician in the hospital at the time of Mrs. O’Mahony’s admission, Professor Thomas Matthews, Professor of Paediatrics in University College Dublin, Dr. Peter Boylan, an obstetrician and gynaecologist in the National Maternity Hospital, Dr. Michael Turner, an obstetrician and gynaecologist in the Coombe Hospital,
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Dr. James Tolan, a consultant neuro-radiologist in Beaumont Hospital, and Dr. Mary King, a consultant paediatric neurologist attached to the Children’s Hospital, Temple Street, the Rotunda Hospital and Beaumont Hospital.
In his judgment, the trial judge reviewed carefully and comprehensively the course of events at the hospital from the time of Mrs. O’Mahony’s admission until her discharge. I will indicate at a later point those aspects of his summary of events with which counsel for the plaintiff take issue. Having then referred to the respective contentions on behalf of the parties, he set out the principles of law which he considered applicable, i.e. those identified by Finlay C.J. giving the judgment of this court in Dunne (an infant) .v. National Maternity Hospital (1989) JR 91.
The learned trial judge considered first the claim against Dr. Corr. He said that his consulting rooms were at the time in question located within a five-minute car drive from the hospital. He said that he was satisfied that, as a matter of probability, Dr. Corr was notified between 4.30 and 4.40 p.m. that Mrs. O’Mahoney had achieved full dilatation and that, in response to that notification Dr. Corr, as the trial judge put it, “within a comparatively short time but without any sense of urgency, left his consulting rooms and made his way to the hospital “. He also said that it was probable that Dr. Corr did not
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arrive at the labour ward of the hospital until some time after 5.00 p.m.: the plaintiff was delivered at approximately 5.15 p.m. He summarised his findings from this
aspect of the case as follows:-
“Accordingly,I am satisfied that as a matter of probability, Dr. Corr was notified between 4.30 and 4.40 p.m. that Mrs. 0 ‘Mahony had achieved full dilatation and that the interval of something over twenty minutes which elapsed between that notification and his arrival at the hospital was not unreasonable in the circumstances and did not fall short of the requisite standard of care which Mrs. 0 ‘Mahony was entitled to expect from Dr. Corr and did not represent a departure from the general and approved medical practice which applied to the circumstance in which Dr. Corr then found himself
‘It follows further that Dr. Corr did not discover that (the plaintiff) had suffered a bradycardia and was therefore at risk of intra uterine hypoxia until he arrived at the hospital shortly after 5.00 p.m. and I am satisfied on the evidence (and indeed it was not disputed) that Dr. Corr delivered (the plaintiff) as soon as was reasonably possible after signs of foetal distress became discernible to him.”
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Having made that finding in respect of the first limb of the claim against Dr. Corr, the trial judge then turned to the second limb of the claim. He pointed out that the system adopted by the hospital and which was in force in 1987 for dealing with emergencies during childbirth required the attendance of a consultant obstetrician or gynaecologist within approximately ten minutes of the occurrence of the emergency. He said that it was acknowledged that neither the senior house officers nor the nursing or midwifery staff were appropriately qualified to deal with such emergencies so that total reliance was placed upon the availability of a consultant obstetrician or gynaecologist within a very short time after the occurrence of the emergency.
The trial judge also referred to evidence adduced on behalf of the hospital that the consulting rooms of other obstetricians and gynaecologists were located closer to the hospital than those of Dr. Corr, the rooms of three consultants being actually located within the hospital complex. The evidence on behalf of the hospital was that the average time within which a consultant should and would reach the labour ward following an emergency call would be less than five minutes.
The trial judge referred to the evidence of Mr. Clements that this system was “a perfectly reasonable system” and of Professor Thompson that it was
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broadly in line with what he would expect. He then summed up his conclusions as to the second limb of the case against Dr. Corr as follows:-
“Prima facie the system adopted by the hospital for dealing with emergencies or potential emergencies during childbirth was a reasonable system and Dr. Corr was entitled to expect that it would be operated by the hospital efficiently. No evidence was adduced on behalf of the plaintiff or otherwise indicating that the system had been inefficiently operated on any other occasion by the hospital or had ever given rise to problems prior to 1987 and while it was suggested to Dr. Corr in cross-examination that he ought to have had misgivings about the system and to have moved Mrs. 0’Mahony to another maternity unit in Cork City that suggestion was not supported by way of any expert evidence from either Professor Thompson or Mr. Clements or from any other witness.
“In the light of my finding that the system adopted by the hospital was not prima facie defective and that Dr. Corr was entitled to expect the system to be operated efficiently it follows that Dr. Corr did not acquiesce or participate in a defective hospital system for dealing with emergencies or potential emergencies during childbirth.”
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He accordingly dismissed the claim as against Dr. Corr.
The trial judge then proceeded to consider the case against the hospital. Having considered in detail the inferences which he considered could be drawn from the partogram and the CTG, he said
“… I am satisfied that while the evidence has not been able to perform the almost impossible task of establishing the precise moment when (the plaintiff’s) heart rate dropped to 100 bpm it has established that it is unlikely that Mrs. 0 ‘Mahony achieved full dilatation before 4.30 p.m. on the 11th May 1987 and that it was probable that she achieved full dilatation between 4.30 and 4.35 p.m. on that date. It follows that the evidence has established that [the plaintiff’s] heart rate probably dropped from 140bpm to 100bpm at a time which was not before 4.40p.m. and not later than 4.45p.m. on the 11th May 1987.
It is acknowledged on behalf of all the parties to these proceedings that [the plaintiff] was born at 5.15p.m. on the 11th May 1987 so that the findings which I have just made leads to the conclusion that as a matter of probability [the plaintiff] was born no earlier than thirty-five minutes after the
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moment when his heart rate first dropped from 140 bpm to 100 bpm.”
At the hearing before this court it was contended on behalf of the plaintiff that the trial judge was in error in concluding that dilatation took place “between 4.30 and 4.35 p.m. “: it was said that the only finding he could have made was that it was 4.30 p.m. This, however, was ultimately of no significance since having considered the evidence, not merely of Professor Thompson and Mr. Clements on behalf of the plaintiff but also of Dr. Boylan and Dr. Turner who had been called on behalf of the defendants, he concluded that
“… Since I have found that the attendance of a consultant obstetrician took between seven and twelve minutes longer than the hospital system contemplated and provided for it follows that (the plaintiff’s) delivery took a period of between seven and twelve minutes longer than was reasonably possible after the bradycardia had been confirmed by the nursing staff”
That finding has not been challenged on appeal by the defendants.
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In the case of the hospital, however, a further issue arose which the learned trial judge defined as follows:-
“Did the hospital:-
(c) Cause or permit (the plaintiff) to develop either
irreversible brain damage, or
hypoglycemia, or
a combination of brain damage and hypoglycemia as a consequence of hypoxia
Fail to take appropriate steps
to investigate
to monitor (the plaintiff’s) condition
to diagnose the presence of hypoglycemia within a reasonable time after his birth, and
to treat that condition either adequately or at all?”
As has already been noted, the trial judge had acceded to an application on behalf of the plaintiff on the 17th day of the trial for an amendment of the pleadings so as to enable the case to be advanced for the first time that the condition from which the plaintiff was now suffering was not solely the result of hypoxic ischaemic brain damage which occurred before delivery but was the result of a condition of hypoglycemia which had not been treated adequately or
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at all by the hospital. When Professor Windling was recalled to give evidence as to the conclusions that should be drawn from the MRI scan, he said that he had changed his view and was now satisfied that the plaintiff had not suffered brain damage prior to the delivery, since the scan did not disclose damage to the area known as “the basal ganglia “. In answer to questions from the trial judge, he said:-
“What I believe happened is the (plaintiff’s) glycogen stores became depleted during the hypoxic ischaemic stress that he was subjected to, and that then he had no longer sufficient glucose reserves to be able to protect himself”
He agreed with the trial judge that he did not have irreversible brain damage at that point: it happened subsequently. It could, moreover, have been detected and dealt with by the nursing staff in the hospital but, in his opinion, had not been.
Dr. Schutte, when recalled to give his views on the new MRJ scan, said that he was now satisfied that the condition from which the plaintiff was now suffering had been caused by what he called a “cascade” of events, the pre-eclampsia condition, the hypoxic episode and the development of hypoglycemia which had not been detected and handled appropriately.
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Dr. David William Pilling, a consultant paediatric radiologist attached to the Alder Hey Hospital in Liverpool, gave evidence as to the new MRI scan. He said there were features of the scan which suggested that there had been atrophy or shrinkage of part of the brain underneath that area of fluid. That appearance was restricted to the part of the brain known as “the posterior parietal cortex” and the literature suggested that this was an area that was particularly affected by the neonatal hypoglycemia. He added
“This is not to say that this is diagnostic of neonatal hypoglycemia but this area seems to be particularly affected by neonatal hypoglycemia.”
He considered that the changes in this area were more likely to have been caused by neonatal hypoglycemia than by hypoxic ischaemic damage but that there was no way in imaging that he could differentiate between the two.
Dr. Evans, a consultant paediatrician, also gave evidence on behalf of the plaintiff He said that the fact that the plaintiff had been placed in an incubator in the observation ward and was described as being pale would indicate some degree of illness or abnormality. He also said that it would have been routine to test the blood sugar levels of the baby in order to determine whether
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hypoglycemia existed, but that there were no records to indicate that this had been done. He was also of the view that the probable cause of his present condition was depletion of his reserves of glucose during the period of bradycardia leading to the condition of hypoglycemia. He thought that this was confirmed by the description given by the nurse to Mrs. O’Mahony of the plaintiff as “a very cranky baby” and by the indications of irritability that he showed throughout his first few months of life.
Again, in necessarily abbreviated form, that was the expert evidence adduced on behalf of the plaintiff The plaintiff’s case, however, against the hospital was also based on what was claimed to be an absence of records that should have been kept by the hospital but were either not kept or were subsequently destroyed. It is, accordingly, necessary at this point to refer to the evidence which was before the trial judge in relation to these matters. The nature of the CTG trace which recorded the beats per minute (bpm) of the foetal heart has already been referred to. It was not in dispute that, while the trace recording the bpm was available for nearly the entire of the period while Mrs. O’Mahony was in labour, the trace in respect of the final twenty-six minutes was not. It was, accordingly, not possible to reach a conclusion as to whether the episode of bradycardia continued throughout the whole of that twenty-six minute period or whether the heart rate improved or disimproved further. As
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already noted, the paper on which the trace was recorded consisted of a number of blocks separated by perforations and the evidence by the nursing staff was that it was the usual practice when detaching the trace to tear it off at the last perforation rather than to go on to the next one, because going on to the next one would result in a higher charge to the patient.
It was not in dispute that records relating to the plaintiff and Mrs. O’Mahony up to the time when the plaintiff was admitted to the observation nursery had been kept. Those records indicated that the baby “cried at birth “, was of normal weight and – at 5.30 – had a temperature of 100 and was pale. The evidence of the nurses who were on the duty in the observation unit where the plaintiff was for the next 19 hours was that they would note down anything that seemed of any significance to them on jotters or scraps of paper which they would shred or discard at the end of their shift. There was no system of recording the temperature of the babies in that unit or the times at which they were fed. When the plaintiff was transferred to the postnatal ward after 19 hours, records were kept of the feeding of the plaintiff and were available: these describe the plaintiff as at one point as ‘feeding fairly well” and a later point as ‘feeding well”. In accordance with a normal procedure, he was examined by one of the consultant paediatricians attached to the hospital,
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Dr. Seamus O’Donoghue, on the 12th May before he was discharged. That examination indicated no abnormalities.
I now turn to the evidence on behalf of the defendants. Neither Dr. Corr nor the nurses who gave evidence were able to recall twelve years later all the details of what happened from the time Mrs. O’Mahony was admitted to the hospital until her discharge with the plaintiff. Dr. Corr did, however, recall the delivery of the baby. Although it was necessary to effect the delivery by forceps which, it was clear from his evidence, he considered in this case to be a delicate procedure, he recalled the baby being perfectly normal and healthy, displaying no unusual features, and not requiring any form of resuscitation or other intervention~ He said that he recalled pointing out to the nurses that he had had to effect the delivery in what is known as the occipito posterior position owing to the flatness of the sacrum and the hard coccyx. He said that, while he pointed this out as an interesting finding, he would not have been engaged in that discussion if the baby was sick.
Ms. Marian Collins gave evidence that she was a registered general nurse and a registered midwife and was working on the 11th May 1987 as a staff midwife in the hospital. She said that she had no recollection of the delivery of the plaintiff but was able to identify her writing on the partogram as indicating
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that she was on duty as a nurse/midwife during the labour and delivery. She said that the procedure she would normally have followed would have been to observe the baby immediately on delivery to see whether it was well and healthy, to place it on a receptacle called the “Ohio” in order to assess its well-being and then to record what is called the “Apgar score “. That score was assessed approximately a minute after delivery.
The Apgar score, named after an English paediatrician, is a method of assessing a baby’s condition at birth. Professor Matthews described it as “slightly old fashioned” but said that nobody had come up with a better way of assessing a baby’s condition at birth. There was no disagreement with his view that the Apgar score is universally used by paediatricians.
Mrs. Collins said that the record indicated an Apgar score of “8” which, in common with other witnesses, she said was the sign of “a very well baby “. An unwell baby would be taken immediately to the neonatal unit and would be seen by a paediatric SHO.
Evidence was also given by the nurses who were on duty in the 24-hour nursery. They said that there was a regime in that nursery under which new-born infants were fed at 1 to 1 1/2 hours after birth and not later than 4 hours
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and thereafter at 4 hourly intervals. They said that any matter of concern to them would have resulted in the calling of the paediatrics staff They also said that they were trained to watch for signs of hypoglycemia and that they were fully aware of the symptoms and the consequences of a failure to treat that condition. They also said that the plaintiff would not have been brought on a visit to his mother on the 11th May nor transferred back to the postnatal ward on May 12th unless he was in a good condition.
Dr. O’Donoghue, who was the consultant paediatrician on duty during the week when the plaintiff was born in the hospital, had no recollection of either the plaintiff or his mother. He said he would attach no significance to the description of the baby as pale or to its temperature or to the fact that he was placed in an incubator in the observation ward, which he said was not at all uncommon where a baby had been delivered by forceps and there had been some anxiety about its heart rate in the latter stages of labour. It facilitated the more detailed observation of a baby than one which was swaddled and put in a cot. He said that if there had been any problem with the plaintiff on delivery, he (Dr. O’Donoghue) would normally have been informed and the baby would then have been admitted to the neonatal unit. He gave details of the form of examination which he would normally carry out on all newly delivered babies which would include a neurological assessment of the baby. He said that if the
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plaintiff had suffered hypoxia of such a severity as to cause brain damage it would have been obvious to him by the presence of encephalopathy. This would normally require resuscitation or the use of some form of intervention by ventilation. As to hypoglycemia, he said that this would manifest itself by the baby either rejecting or vomiting its feed and that that would result in a dextro stick test. The hypoglycemia would manifest itself in a tremulous type of motion, which he called “jitteriness” and disturbance in respiration or apnoea, when the baby would stop breathing. One would also expect at the very least seizure and stupor.
Dr. O’Donoghue also said that he was surprised to learn that systematic records were not being kept by the nurses on duty in the observation unit at that time of such matters as the temperatures and feeding of the newly delivered babies. He was of the view that such records should have been kept. Similar evidence had been given by the medical experts called on behalf of the plaintiff.
Professor Matthews said that
“If the heart rate of 60 caused massive brain damage it is impossible, and I use that word advisedly, that this baby would have no obvious signs within a day or two of birth. He should
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have needed resuscitation, he should have had a low Apgar score.”
As to hypoglycemia, he said that this was very common and that there was no evidence that low blood sugar causes any long term problems. If there had been significant brain related hypoglycemia – which is called “neuroglycopenia” – the symptoms would be coma, convulsions and a cessation of breathing. As to the information in the records that the baby was feeding “well” or ‘fairly well”, he was asked whether that was compatible with a baby who had suffered brain damage from hypoglycemia after birth. He said
“It is totally incompatible. It has never been documented in a human that you can be transiently hypoglycaemic without major neurological signs…”
Dr. Tolan disagreed with Professor Gabriel’s reading of the earlier scan as indicating any abnormality. As to the 1999 scan, he said it showed “a somewhat subtle abnormality” in the form of a loss in volume of the brain. There was, however, no “signal abnormality “. Having emphasised – as did Dr. Pilling – that he could only give his conclusions as to imaging and that a diagnosis would depend on clinical findings by a neurologist, he said that, if he
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were discussing this with a clinical colleague, he would examine some other possibilities first. He concluded as follows:-
“… Finally, I would come up with the remote possibility, because I would have been aware from my review of the literature which I do on a regularly monthly basis, I receive x number of journals, was there any clinical evidence that this child might have sustained neonatal hypoglycemia; not necessarily severe, but a milder form of expression of this disease in the neonatal period. That is how I would couch my report. I would not be able to say to my clinical colleague that these changes are compatible with a singular diagnosis of neonatal hypoglycemia.”
Dr. Mary King said that she did not think it was possible that the plaintiff suffered hypoxic ischaemic insult prior to his birth leading to his present condition. She said there was no evidence of an acute neurological syndrome or acute brain injury to account for his severe brain disorder. She said that in the hours after birth there were no signs of the degree of brain injury, shock or encephalopathy that would one expect to explain his present neurological state. The record of his having progressed from feeding “fairly well” to “well” indicated that it was impossible that he could have had any form of brain injury in the hours before he was born. As to hypoglycemia, she also said that the
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symptoms of that, if not treated, would have been stupor, coma, seizures and ‘floppiness “.
Dr. King compared the 1993 scan with an MRI scan of a child who had suffered from severe neonatal hypoglycemia. She showed both scans in court, saying that in the case of the plaintiff’s scan, the changes were “very, very mild” and could be described as “subtle “. By contrast, the scan of the child who had suffered severe neonatal hypoglycemia showed very extensive changes. She said that the latter child in fact had a milder form of cerebral palsy and had not got severe mental handicap.
Dr. King, who had examined the plaintiff, said that she was of the view that his severe mental handicap was not the result of any physical motor incapacity: it was an intellectual problem. She said that the term “cerebral palsy” was sometimes used to denote such conditions as well as conditions resulting from physical motor incapacity. She referred to a video of the plaintiff which had been put in evidence at an earlier stage of the trial as confirming her view that the plaintiff had not got the form of spastic cerebral palsy or distonic cerebral palsy which the plaintiff’s experts had suggested he was suffering from. As to its cause, she said that it was a developmental problem, the cause of which, as commonly happened, it was not possible to identify. She said that
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in 30% of the cases which paediatric neurologists saw it was not possible to say what the explanation was for their mental handicap.
In his judgment, the trial judge said that the system for recording the presence or absence of clinical signs and symptoms relevant to the condition of the plaintiff and his mother prior to his birth was adequate and accorded with generally approved practice. The same applied to the notes made by the nursing staff prior to labour and to the record of Mrs. O’Mahony’s labour in detail. He was also satisfied that the system in use for recording the condition and treatment of neonates required to be formally admitted either to the neonatal unit or the intensive care unit of the hospital by reason of illness was satisfactory and in accordance with general and approved practice. (I think that the reference to the “intensive care unit” may be slightly misleading in that context: as already noted, in the case of neonates, the intensive care unit was part of the neonatal unit) He was also satisfied that the system for recording the condition of and treatment afforded to new-born babies who were admitted routinely to the postnatal unit was broadly acceptable and accorded with appropriate medical practice in 1987.
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Having said that the system in use in the hospital in 1987 for the recording of medication prescribed for and given to mothers and infants was “inadequate and insufficient “, he went on
“Of greater relevance I am satisfied that in 1987 the hospital system for recording the condition and treatment of neonates immediately after birth was wholly inadequate and did not accord with proper and appropriate medical practise in that respect. “The medical evidence adduced in this case has established that neonates require careful observation and monitoring during the hours immediately after birth. It established further that good medical practise required that such monitoring and observations should be recorded with particular reference to the infant’s heart and respiratory rates together with bowel movements, the passing of urine and meconium and exposure to and tolerance of feeding.”
Having referred to the system already mentioned of the use of jotters and loose leaf papers, he said that the hospital system for recording the condition and treatment of mothers and their new-born infants
“was inadequate and unsatisfactory in respect of the period whilst neonates were confined to the 24 hour nursery. Although that period, in respect of most healthy neonates extended for no more
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than a few hours, in (the plaintiff’s) case (for reasons already identified) it had extended for a period of 19 hours. Accordingly, by reason of this defect or gap within the hospital ‘s recording system (‘the plaintiff’s) condition during the first 19 hours of his life and the various features associated with it are and remain unrecorded.”
I do not think that the last sentence should be read literally. As already noted, there was a written record, which was clearly of considerable significance, as to the first few minutes of the plaintiffs life.
The trial judge dealt with the issue of the hospital’s liability under two headings. The first was as to whether the evidence established that the plaintiff’s present condition was caused by irreversible brain damage sustained as a consequence of hypoxia. His conclusion was as follows:-
“Having considered all of the evidence which has been adduced in relation to this issue I have concluded that (the plaintiff) has not discharged the onus of proof on the balance of probability that his present condition was caused by reason of irreversible brain damage sustained as a consequence of a hypoxic ischaemic insult during the thirty minutes or so immediately prior to his birth.”
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He identified the second issue as being as to whether the brain damage was a consequence of (1) hypoglycemia or (2) a combination of hypoglycemia and hypoxic ischaemic insult. He summed up his conclusions on this issue as follows:
“I am further satisfied that the evidence adduced at the trial of this action has not supported the proposition or established as a probability that (i) (the plaintiff) developed hypoglycemia in the hours immediately after birth which gave rise to his current profound disability but (ii) that he demonstrated none of the unsubtle symptoms associated with severe brain damage caused by hypoglycemia.
“It is of particular significance that no adequate explanation has been offered by any of the expert medical witnesses as to how (the plaintiff) could conceivably have developed hypoglycemia within the first six hours or thereabouts after birth of such severity and duration as to cause his present disability and thereafter have recovered from that condition spontaneously and entirely without medical intervention so that when returned to his mother (and the postnatal unit) shortly after midday on the day after his birth he was in apparent good health and was noted to be feeding initially ‘fairly well’ and subsequently ‘well’. The expert witnesses who
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testified on behalf of the hospital were unanimous and unequivocal in their view that such a recovery was ‘impossible’ whilst neither Professor Windling nor Dr. Evans nor Dr. Schutte could account for this apparent anomaly.
“Subtle evidence of volume or abnormality has been discovered in an area of (the plaintiff’s) brain (the posterior parietal region) which is associated with brain damage caused by hypoglycemia. It is argued that since all credible causes which could account for (the plaintiff’s) disability, other than brain damage caused by hypoglycemia, have been out ruled in evidence it must follow on the balance of probabilities that (the plaintiff’s) disability has been caused by hypoglycemia which in turn must of necessity been caused by reason of inadequate nursing care immediately after his birth.
“I cannot conscientiously accept that argument. Dr. King has adduced evidence buttressed by three separate epidemiological studies which provide authority for the proposition that between 33% and 40% of children with severe mental handicap cannot be diagnosed as to the probable cause of their condition. Professor Gabriel’s opinion to the contrary is unsupported by any medical literature or case studies.”
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He also said
“If (the plaintiff) developed hypoglycemia during the six hours or so immediately after his birth then he did so by reason of grossly inadequate care and monitoring on the part of one or other or both of the neonatal nurses to whom he was entrusted during that period and thereafter. I have already given reasons why I believe that it is unlikely that (the plaintiff) was treated (or rather neglected) in that way.
“Careful consideration of the conflicting evidence as to the cause of (the plaintiffs) present disability has not altered my view. It has not been established on (the plaintiff’s) behalf in this case on the evidence and on the balance of probabilities that his disability has been caused because he developed hypoglycemia by reason of inadequate nursing and monitoring within the ’24-hour nursery’ during the hours after his birth.”
He summed up his findings as follows:-
“In two respects namely (1) a delay in (the plaintiff’s) delivery by a period [of] between 7 and 12 minutes longer than was reasonably possible and (2) by reason of inadequate nursing
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records within the ’24-hour nursery’ the hospital’s systems and procedures have been found wanting. However the evidence adduced at the trial of this action has not established on the balance of probabilities that either of those two departures by the hospital from what would be a requisite standard of care (or a general and approved practice with another comparable hospital) has caused or contributed to (the plaintiff’s) present disability.”
While the notice of appeal served on behalf of the plaintiff challenged a number of the findings made by the trial judge, it was obviously the case that, if the conclusion reached by the trial judge that the two departures by the hospital from what he considered to be a requisite standard of care had not caused or contributed to the plaintiff’s present disability could not be set aside by this court in the exercise of its appellate function, the appeal against the dismissal of the plaintiffs claim against the hospital would inevitably fail. It was, moreover, properly and inevitably conceded by Mr. Hickey on behalf of the plaintiff that there was credible evidence to support those findings and that, if the principles laid down in a number of decisions as to the court’s function in reviewing findings of fact were applicable, that result would follow. The principles were explained as follows by O’Higgins C.J. in Northern Bank Finance .v. Charleton (1979) JR 149 as follows:-
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“A judge’s findings on fact can and will be reviewed on appeal. Such findings will be subjected to the normal tests as to whether they are supported by the evidence given at the trial. If such findings are firmly based on the sworn testimony of witnesses seen and heard and accepted by the judge, then the court of appeal, recognising this to be the area of credibility will not interfere. However,if the finding in question depends on the judge ‘s view of the evidence or on inferences he draws from such evidence, then the court of appeal, while respecting this view, will nevertheless disagree if another view or a different inference be the proper one.”
In the present case, the trial judge heard evidence from a number of expert witnesses for the defendants which, if accepted by him, would lead inevitably to the dismissal of the plaintiffs claim. It was entirely a matter for the trial judge, having seen and heard all the witnesses who gave evidence at this lengthy trial both for the plaintiff and for the defendants, to determine which evidence he found credible and which he did not. Those are findings which, generally speaking, an appellate court cannot set aside.
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So far as the evidence of Dr. Mary King was concerned, it was urged on behalf of the plaintiff that the trial judge was in error in allowing her to refer to the MRI scan of one of her patients, on the ground that it had not been put to the plaintiff’s witnesses, and to the video of the plaintiff. I am satisfied that there is no substance in either of these objections, which were not in fact raised at the trial. Dr. King, as an expert, was fully entitled to assist the court as she thought appropriate by producing a comparable MRI scan in order to indicate the different degrees of brain damage to which she was referring. As to the video, that was introduced into evidence by counsel on behalf of the plaintiff and thereafter any other witness was entitled to refer to it if it was relevant to the evidence he or she was giving. It was also urged that her view that the plaintiff’s current disability was developmental in origin had not been put to the plaintiffs experts. I am again satisfied that there is no substance in this contention: counsel for the defendants made it clear to the plaintiffs witnesses that that would be the evidence on behalf of the defendants and they had, in my view, a reasonable opportunity of responding to it.
Counsel for the plaintiff sought to rely on the apparently insurmountable difficulties presented by findings made by the trial judge which were based on credible evidence by invoking the maxim omnia praesumunter contra spoliatorem, literally translated as “everything is presumed against a
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wrongdoer”. Mr. Hickey submitted that the application of the principle in the present case meant that what he described as the destruction or suppression by the hospital of relevant records had as its necessary consequence an obligation on the trial judge to disregard in its entirety the evidence adduced on behalf of the second named defendants. When replying to the submissions on behalf of the defendants, he somewhat modified that startling proposition by saying that, at the least, the application of the maxim in the present case necessarily entailed a shift in the onus of proof and that, as the trial judge had clearly treated the onus of proof as remaining at all times on the plaintiff his order should be set aside and a retrial ordered. I am satisfied that in either form the submission is wholly unsustainable.
The maxim relied on is certainly of ancient origin and it is somewhat surprising that it has escaped the attention of the editors of two leading English text books, Phipson on Evidence and Cross on Evidence. It is stated in Halsbury’s Laws of England, 4th Edition, Vol. 17, para. 120, under the heading “Unexplained Circumstances and Suppression of Evidence” as follows:-
“As between an innocent and a guilty party, unexplained circumstances are presumed unfavourably to the wrongdoer. Thus a person who, having converted property, refuses to produce it so that its exact value may be known, is liable for the greatest value
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such an article could have; and an unfavourable inference will be drawn in the case of one who destroys or suppresses, or fails to produce, evidence, or who declines to give evidence in support of his case, even though he is in court.”
While the rule was referred to as long ago as 1680 in Lewis .v. Lewis Cas. Temp. Finch 471, Mr. Hickey relied on the statement of it in two more modern cases, Williamson .v. Rover Cycle Company (1901)2 IR 615, and The Ophelia (1916)2 AC 206.
In the first of these cases, the plaintiff had purchased a bicycle from an agent of the defendant company. A fracture having occurred at the top of the steering post, the plaintiff sued for damages relying on representations alleged to have been made by the agent, an implied warranty under the Sale of Goods Act, 1893 s. 14 and an express guarantee alleged to have been contained in the defendant’s catalogue. After the accident the plaintiff had the break examined by experts and then sent it to the company “for inspection”. The company replaced the broken parts and threw the broken pieces away. At the trial the evidence went to show that the break was a “clean” one and not the result of a flaw or defect in materials or workmanship. The jury, however, found everything in favour of the plaintiff. A motion for a new trial having come
(45)
before the Queen’s Bench Division, it was held by the majority (Madden and Kenny JJ.) inter alia that the loss and non-production of the broken pieces by the defendants did not, under the circumstances (as the plaintiff’s experts had seen the pieces) make the defendants spoliatores against whom omnia praesumenda or shift upon them the burden of proof and that a verdict should have been directed for the defendants. Palles CB, dissenting, held that the defendants were spoliatores, even assuming the broken pieces to have been lost inadvertently because the loss was, as against the plaintiff, wrongful, and because that which was lost might reasonably with the other evidence (the fact of the break) have been sufficient to support the plaintiff’s case.
The decision of the majority was unanimously affirmed by the Court of Appeal (Lord Ashboume C. and Fitzgibbon, Walker and Holmes JJ.)
Although the majority in the Queen’s Bench Division and all the judges in the Court of Appeal agreed with the Lord Chief Baron that the maxim could be applicable even where the destruction of evidence was bona fide, he was alone in his view that the destruction of the evidence was sufficient of itself to shift the burden of proof in the case to the defendants. Fitzgibbon L.J. in the course of his judgment said:-
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“I do not differ from the Chief Baron, either as to his statement of the law, or to its applicability, as stated, to the present case. But making every reasonable presumption against the defendants, and even assuming them to be ‘spoliatores’ – though I am not prepared to say that they were – I cannot find any affirmative evidence against them sufficient to maintain the verdict for the plaintff Agreeing with all the other judges – including the Chief Baron that the evidence, apart from the ‘spoliation ‘ of the broken pieces of the machine, was insufficient, I cannot add anything to that evidence merely because the fragments were not forthcoming at the trial, having regard to what was proved about them.”
The second of these authorities arose from the seizure as a prize of a German hospital ship encountered in the North Sea during the Great War by a British squadron. The issue was as to whether the sending by a hospital ship of a wireless message in secret code of itself subjected her to capture and condemnation. The evidence was that the captain had thrown a number of documents overboard, many of which, he said, contained absolutely innocent messages. The matter having come before the Privy Council by way of appeal from the judgment of the prize court condemning the ship as a lawful prize,
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Sir Arthur Channell, delivering the judgment of the Privy Council, said in reference to the maxim under discussion:-
“The substance of it, however, remains and is as forcible now as ever, and it is applicable, not merely in prize cases, but to almost all kinds of disputes. If anyone by a deliberate act destroys a document which, according to what its contents may have been, would have told strongly either for him or against him, the strongest possible presumption arises that if it had been produced it would have told against him; and even if the document is destroyed by his own act, but under circumstances in which the intention to destroy evidence may fairly be considered rebutted, still he has to suffer. He is in the position that he is without the corroboration which might have been expected in his case.”
In the present case, the maxim is said to apply to the non-availability of the paper which recorded the bpm in the last twenty-six minutes prior to delivery. There is nothing to indicate that a trace which had been taken was in fact destroyed by the defendants, but, altogether apart from that consideration, the maxim is clearly of no relevance. The trace, if it had been available, might have shown that the condition of bradycardia continued, and even intensified, up to the time of delivery. Alternatively, it might have shown that it settled
(48)
down. Since, however, the defendants’ case, supported, as it obviously was, by credible evidence, was that if the episode of bradycardia had led to hypoxia, the baby could not possibly have presented the normal and healthy appearance which it did, of which Dr. Corr gave evidence and which was also borne out by the nurse midwife’s record of the baby having cried on delivery, the missing trace would not have been in any way critical to the issue which had to be resolved. As to the destruction of whatever records were kept by the nurses in the 24-hour observation nursery, there is no evidence of any records of the baby’s feeds having been taken or of any abnormal symptoms which the baby was displaying. The criticism, indeed, of the hospital system of record-keeping, accepted by the trial judge, was that routine records were not kept by the nurses in the observation nursery and there was no evidence whatever of any written records recording anything in relation to the plaintiff ever having existed in the case of the observation nursery. I am satisfied, accordingly, that the maxim had no application whatever in the present case.
The maxim is intended to ensure that no party to litigation, be they plaintiff or defendant, is subjected to a disadvantage in the presentation of his or her case because his or her opponent had acted wrongly by destroying or suppressing evidence. Its application will, accordingly, as the two authorities cited demonstrate, depend entirely on the circumstances of the particular case
(49)
in which it is invoked. Not surprisingly, there is no authority for the proposition that it could be invoked so as to produce a clear injustice, i.e. an obligation on a court of trial to disregard the weight of the evidence which it has heard because some of the documents, although of no significance in the outcome of the case have been, for no sinister reason, mislaid or destroyed or because some documents never existed in the first place.
As to the appeal in the case of Dr. Corr, it is clear that this would have met the same fate, even if an allegation of a want of reasonable care had been established against him, since again no causative link was established between the alleged want of care on his part and the present condition of the plaintiff. However, apart from that consideration, I am satisfied that the finding by the trial judge that there had been no want of care on his part was fully borne out by the evidence. It was not in dispute that, at the time that he was informed that Mrs. O’Mahony had reached full dilatation, there was no emergency and that the episode of bradycardia began after Dr. Corr had received that information and had left for the hospital. It was also not in dispute that on arrival he ensured that the plaintiff was delivered as quickly and skilfully as possible. As to the claim that he participated in a system which, because it did not allow for the presence of senior obstetrical staff at the appropriate time was unsafe, there was credible evidence from both the plaintiff’s and the defendant’s experts that
(50)
the system in place was reasonable and that the delay in the present case was simply the malfunctioning of a system which normally operated satisfactorily. I am also satisfied that the refusal by the trial judge to allow the amendment of the pleadings as against Dr. Corr was a perfectly reasonable exercise by him of his discretion and that there is not the slightest ground to suppose that it resulted in any injustice in this case.
There is one other matter to which I wish to draw attention. The transcript of the proceedings in the High Court consisting of 46 volumes was lodged with the Books of Appeal in this case. These included the evidence of witnesses relating exclusively to the issue of damages which did not arise in any way on the appeal together with records of counsel’s submissions on various matters. At a conservative estimate, the amount of superfluous material with which the court was thus burdened constituted approximately 17% of the transcript. It should have taken a competent solicitor and/or junior counsel a matter of minutes to remove this entirely superfluous material from the transcript. I have also not the slightest doubt that, while it might have taken somewhat longer, it would have been perfectly possible for counsel and solicitors on both sides to have agreed on a heavily abridged version of even those parts of the transcript which related exclusively to liability, thereby additionally easing the burden on the court.
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This court will shortly begin an examination of proposals for the management of cases coming by way of appeal to the court so that they can be heard in the most expeditious, efficient and economical manner consistent with the achievement of justice. Clearly, the co-operation of the professions will be essential in that process. In the meantime, I would urge practitioners, in cases such as the present, to ensure that the task of the court in cases of this nature is not rendered unnecessarily difficult by the lodgement of wholly irrelevant material.
I would dismiss the appeal and would affirm the judgment and order of the High Court. I would make no order on the notice to vary.
Purdy v. Lenihan & Ors
[2003] IESC 7
THE SUPREME COURT
Keane C.J.
Denham J.
Murray J.
McGuinness J.
McCracken J.
75, 127 & 131/02
BETWEEN
DARREN PURDY (A PERSON OF UNSOUND MIND, NOT SO FOUND, SUING BY AND THROUGH HIS MOTHER AND NEXT FRIEND ELIZABETH PURDY)
PLAINTIFF/APPELLANT
AND
MICHAEL LENIHAN, KIERAN O’DRISCOLL, MARGARET SHERIDAN-PEREIRA, MOIRA SKELLY, JOHN STRONG AND JOHN RYAN AND VINCENT FENTON BY APPLICATION
DEFENDANTS/RESPONDENTS
JUDGMENT delivered the 5th day of February 2003, by Keane C.J. [Nem Diss]
This is an appeal from a judgment and order of the High Court (Johnson J) dismissing proceedings brought by the plaintiff against the first, second, third, fourth and seventh named defendants for negligence and breach of duty arising out of his birth in the National Maternity Hospital, Holles Street, Dublin, (hereafter “the hospital”) on the 28th February 1978. The action as against the fifth named defendant was by consent adjourned generally with liberty to re-enter and that as against the sixth named defendant was struck out by consent with no order as to costs.
A motion on behalf of the plaintiff seeking an order giving him liberty to adduce fresh evidence on the hearing of the appeal had been before the court on a previous occasion and was adjourned to the hearing of the appeal itself. Having heard submissions from counsel, the court rejected this application and indicated that reasons for its ruling would be given when judgment in the action itself was being delivered.
The plaintiff, now aged 24, suffers from cerebral palsy. The first named defendant is the nominated representative of the hospital and the second, third, fourth, fifth, sixth and seventh named defendants were at the relevant time obstetricians and/or doctors on the staff of the hospital. The second named defendant was at the relevant time the master of the hospital. The plaintiff claimed that the condition of cerebral palsy from which he suffers was the result of the negligence and breach of duty of the defendants in the care and management of his delivery.
Since the trial took place 23 years after the events with which it was concerned, the medical and nursing staff had obvious difficulty in recalling in any detail what had transpired. That difficulty was compounded by the fact that many of the relevant notes or records had been lost or destroyed in the interval. So far as the hearing of the appeal was concerned, however, there was little, if any, dispute as to the primary facts: the issue was rather as to the inferences which should properly be drawn from those facts.
At the time of the delivery of the plaintiff, his mother (hereafter “Mrs. Purdy”) was aged 36 and already had four young children. On the 9th November 1977 she attended at the hospital at a stage when she was 27 weeks and two days pregnant. This was because of a relatively insubstantial ante-partum haemorrhage. She was detained for observation, but there having been no further bleeding she was allowed home on the 19th January 1978. She attended again on the 3rd February 1978, as a result of which she was prescribed antibiotics for bronchitis.
On the 28th February at 10.00 a.m. Mrs. Purdy was again admitted to hospital, this time with a substantial but painless ante-partum haemorrhage. At this stage she was 33 weeks and 3 days pregnant. At the time of the admission, the third named defendant, Dr. Sheridan-Pereria, who admitted her was a recently appointed junior doctor. Her diagnosis that a condition known as placenta praevia was the cause of the bleeding was confirmed at 10.30 am by the seventh named defendant, Dr. Vincent Fenton. Dr. Fenton is a consultant obstetrician who at the time was an assistant master in the hospital. In the staff hierarchy at the hospital, this meant that he had the status of a registrar and not a consultant, although, as it happened, he reached consultant status shortly after the events with which this case is concerned.
Placenta praevia is a condition arising in a pregnancy resulting in the implantation of the placenta in the bottom part of the uterus adjacent to or over the cervix. This results in unavoidable bleeding during the latter weeks of the pregnancy, the situation being exacerbated where the placenta lies over the internal os, since this is likely to result in more significant haemorrhaging. Placental separation reduces the contact area between the mother and the foetus and reduces the potential for oxygen transfer.
Dr. Fenton considered that the diagnosis of placenta praevia should be confirmed by ultra sound. It is not in dispute that, at this stage, Dr. Fenton did not order the cross-matching of Mrs. Purdy’s blood.
The cross-matching of blood involves taking a blood sample, analysing the blood type, identifying units of stored blood of the same type and making this blood available in the event that a transfusion becomes necessary. In such a transfusion, the person giving and the person receiving the blood must belong to the same blood group or a dangerous reaction may take place. The significance of cross-matched blood being available in the present case was that it would be essential if a Caesarean section was to be performed. In the event, the plaintiff was delivered by Caesarean section at 6 pm.
No record of Mrs. Purdy’s condition between 10.30 a.m. and 16.20 p.m. was available at the hearing, all the relevant nursing notes and records having been lost. The notes available record her as having suffered a further substantial ante-partum haemorrhage, which was painless, at 16.20 p.m. Dr. Fenton at this stage ordered an IV drip and 4 units of blood to be cross-matched. He also ordered a Caesarean section to be performed, if the bleeding continued. At that time, the blood loss was estimated at 4.500 mls: it was again a painless bleed and had concluded at that time.
Dr. Fenton went off duty at approximately 16.30 p.m. and was replaced by the fourth named defendant, (hereafter “Dr. Skelly”), who was also an assistant master. At 16.50 p.m., Mrs. Purdy had a further bleed of approximately 300 mls: Dr. Skelly noted that she looked “pale” and needed blood and she directed that a lower segment Caesarean section should be performed as soon as blood became available.
At 6.00 p.m. the lower segment Caesarean section was performed and the baby was delivered with a forceps with some difficulty, because the placenta was in the left anterior lateral position. Following the delivery, the uterus and abdomen were closed in a routine manner. The blood loss at this stage was a further 300 mls. The plaintiff’s weight at birth was 2.77 kgs and his head circumference was 35.5cm. His condition at birth was poor and he was intubated. His Apgar score – a rating of 0 – 10, generally used for assessing the need for resuscitation after birth – was 1 at one minute and he was suffering from respiratory distress syndrome. Subsequently he was diagnosed as suffering from cerebral palsy.
This condition has resulted in the plaintiff being totally dependant on assistance in all bodily functions: he spends some of his time in respite centres. He is confined to a wheelchair when he is not in hospital and has very little speech and limited control only over his bodily movements.
The High Court Proceedings.
The case was at hearing for 22 days in the High Court. The plaintiff’s claim was grounded in part on allegations of negligence on the part of the hospital or the medical personnel by whom Mrs. Purdy was seen on her previous attendances at the hospital from the 16th – 19th January 1978 and on the 3rd February 1978. The learned High Court judge found that those allegations had not been established at the trial and there has been no appeal from that finding. There were also allegations of negligence based on what was said to have been a failure by the nurses and/or midwives then on duty at the hospital properly to attend to Mrs. Purdy between the hours of 10.30 a.m. and 16.20 p.m. on February 28th. The trial judge found that, because of the lapse of time – 20 years – between the events in question and the institution of proceedings and the loss of medical records and notes, the defendants were not in a position to defend themselves against the claim and that, applying the principles laid down in this court in Toal –v- Duignan and Others [1999] ILRM 135 and other cases, the interests of justice required the striking out of that part of the plaintiff’s claim. While there was an appeal from that finding, it was not pursued on the oral hearing of the appeal.
The remaining claims of negligence and breach of duty against the defendants were based on
(a) the alleged negligence of the hospital and/or Dr. Fenton in failing to have Mrs. Purdy’s blood cross- matched and the requisite supplies ordered at 10.30 a.m.;
(b) the failure of Dr. Fenton to carry out a Caesarean section at 16.20 p.m.;
(c) the failure of Dr. Skelly to carry out a Caesarean section at 16.30 p.m. or shortly thereafter.
It was also alleged that, in the case of Dr. Skelly, she had been negligent in carrying out a vaginal examination of Mrs. Purdy immediately prior to the performance of the Caesarean section, thereby, as it was said, wasting valuable time.
As to the first of these allegations, the trial judge found that Dr. Fenton believed, as a result of conversations with masters in the hospital, that the policy of the hospital was not to cross-match bloods unless the mother was actually bleeding or a diagnosis of placenta-previa had been confirmed by ultra sound scan. He also found that there was almost unanimous agreement among the medical experts that such a policy, if it existed, was mistaken. Since there was also evidence that the policy was working satisfactorily, he concluded that Dr. Fenton was not negligent in following the practice in question. He found, however, that,
“the hospital was negligent in failing
(a) to communicate what its correct practice was to Dr. Fenton or
(b) in failing to correct Dr. Fenton’s practice, which he said he had been carrying out for two years, if it was not hospital policy”
He dismissed the claims for negligence against Dr. Fenton and Dr. Skelly arising out of their alleged failure to carry out a Caesarean section at the appropriate time.
The trial judge’s finding that the hospital had been negligent was, of course, posited on the cerebral palsy from which the plaintiff was subsequently diagnosed to be suffering having been caused by the failures which he had identified on their part. It was accepted on behalf of all the parties that, assuming it was an appropriate procedure not to have embarked on a Caesarean section until the third bleed had occurred – at 16.50 p.m. – an issue arose as to whether the damage from which the plaintiff is now suffering had already been caused before the Caesarean section could have been completed or whether – as contended for on behalf of the plaintiff – the damage was more probably suffered during the final twenty minutes before the actual delivery by Caesarean section at 6.00 p.m. The trial judge pointed out, that on the 17th day of the trial, Dr. Mary King, a paediatric neurologist, gave evidence on behalf of the defendants that, in her opinion, the “insult” (to use the medical term) to the plaintiff did not occur in the last half hour or twenty minutes before birth but during the three bleeds which had occurred earlier in the day. This, he said, required the recalling of some of the plaintiff’s experts and the adduction of new evidence on his behalf in relation to an issue which he described as “fundamental to the whole case”.
In considering this issue, the trial judge referred to conflicts of view between the experts respectively for the plaintiff and the defendants on certain matters. The first of these was as to when the last bleed occurred, the significance of this being, he said, the agreement between the experts that, on the balance of probabilities the injury to the plaintiff occurred during a bleed prior to birth. He said that Dr. Hoskins and Dr. Pearse, for the plaintiff, were of the view that there was a hidden continuing bleed during the final twenty minutes before birth, whereas Dr. King was of the view that the damage occurred at the last recorded bleeding, namely, at 16.50 p.m. He also noted other areas of disagreement between the experts on this issue, including the condition of the plaintiff immediately after delivery and, in particular, whether he required intubation and intermittent positive ventilation for 10 minutes. He summed up his conclusions as follows:
“there is no doubt that under those circumstances I am faced with an absolutely black and white picture. However, for the plaintiff’s thesis and that of Dr. Pearse and Dr. Hoskins to be accepted, it was necessary to accept that he was intubated for 10 minutes which appears to be against the notes and the many entries therein and the fact that there was a hidden or secret bleed going on from 16.50 p.m. until 6.00 p.m., the time of the delivery. There is no evidence that such a bleed was continuing as was witnessed by the fact that from a vaginal examination conducted by Dr. Skelly, no such bleeding was recorded. Under those circumstances I have no option but to come to the conclusion that the plaintiff has failed to establish that the insult from which the plaintiff suffers occurred in the last half hour prior to his delivery and that being so the plaintiff has failed to establish [that] the condition from which he now suffers was caused by the negligence of the defendants or any of them.”
The plaintiff has appealed to this court from that finding by the trial judge and from his earlier finding that there was no negligence on the part of Dr. Fenton and/or Dr. Skelly in failing to carry out a Caesarean section at an earlier stage. A notice to vary was served on behalf of the hospital in respect of the finding that the hospital had been negligent in failing to communicate what its correct practice was to Dr. Fenton or in failing to correct his practice, if it was not hospital policy.
The Application to Adduce New Evidence
In his affidavit grounding this application, the solicitor for the plaintiff said that in advance of the trial date all the parties had exchanged medical experts’ reports in accordance with the requirements of the relevant statutory instrument. He said that the evidence given by Dr. King on the 17th day of the hearing, that the damage suffered by the plaintiff did not occur in the last twenty minutes prior to delivery, was an entirely new departure in the defence of which the plaintiff had been given no warning in the medical reports. He said that in support of her thesis, Dr. King had relied upon and quoted extensively from an article by Drs. Rowland and Hill of Vancouver and had said in her evidence that this article showed that, in order for the plaintiff to have suffered the type of injury alleged, he would also have to had suffered other organ damage. He said that after the trial had ended, he got in touch with Dr. Hill, the senior author of the article in question, and said that he ascertained from him that his article had been misinterpreted by Dr. King and that she had “misstated” what appeared in the article.
A report from Dr. Hill was exhibited with the affidavit. Much of this report, it should be pointed out, is taken up with the author’s view as to whether the injury to the plaintiff in this case was more probably caused in the final twenty minutes before delivery than at an earlier stage. On this issue, Dr. Hill was in disagreement with Dr. King. He does, however, also take issue with the conclusion she drew from his article that the later the insult occur, the greater the likelihood of damage to other organs.
On behalf of the plaintiff, it was submitted that there were “special grounds” within the meaning of Order 58, Rule 8 of the Rules of the Superior Courts which justified the admission of this evidence. It was submitted that it met the three criteria identified by Finlay C.J., speaking for this Court in Murphy –v- Minister for Defence [1991] 2 IR 161, i.e.:
(1) the evidence was in existence at the time of the trial but was such that it could not have been obtained with reasonable diligence for use at the trial;
(2) it was such that, if given, it would probably have had an important influence on the result of the case, even if it were not decisive;
(3) it was apparently credible, although not incontrovertible.
It seems at least doubtful whether this evidence could be said to have been in existence at the time of the trial, since, insofar as it was relevant, it took the form of Dr. Hill’s opinion that Dr. King had misstated the effect of his article, or, was mistaken in her reliance on it, an opinion which he could not have formed until the solicitor communicated with him after the trial. However, altogether apart from that consideration, the evidence clearly failed to meet the second of these requirements, i.e. that it would probably have had an important influence on the result of the case.
There is nothing in the evidence of Dr. King to suggest that she regarded her conclusions as to the time at which the plaintiff probably suffered the injury as dependent on the conclusions she believed Dr. Hill and his colleague to have arrived at in the article in question. On the contrary, Dr. King specifically rejected that suggestion during the following exchange in the course of her cross-examination by counsel for the plaintiff:
“Q. Now, is this the article on which you based your conclusions in this Court that this is not a late acute hypoxic intrusion because there was no renal damage; is this were you get the basis for that assertion?
A. Not at all, My Lord. I get it from my clinical experience and that is then supported by a small body of literature where these cases are well documented. All I have said is that it is the rule rather than the exception. So this article is one that I would have. I collect any literature that comes out in this subject. So most of the studies of this type of damage are in small numbers.” Transcript, (Vol.21, p.85)
The evidence in question thus did not establish any facts relevant to the issues of the trial which would have had an important influence on the case. It was no more than evidence as to the credibility of an admittedly important witness. That, however, called for the application of the stricter test identified in Meek –v- Fanning [1951] 2 QB 366 and adopted by this Court in Re Greendale Developments Limited (No. 2) [1998] 1 IR 8, i.e. that the new evidence was of such a nature that it must have led the trial judge to a different conclusion from that actually arrived at in the case. This additional evidence clearly did not fall into that category.
Submissions of the parties on the issues arising in the Appeal
On behalf of the plaintiff, Mr. James Connolly S.C. submitted that, so far as the issue of causation was concerned, the trial judge was in error in stating that the experts agreed that on the balance of probabilities the injury to the plaintiff occurred during a bleed before delivery. He said that the two obstetricians called on behalf of the plaintiff, Dr. Pearse and Dr. McKenna, had not given evidence to that effect and it was clear from their evidence that the damage could have occurred after the bleeding had stopped. The evidence of Professor Johnson was to the same effect. He further said that Dr. Pearse and Dr. Hoskins, the neonatologist and paediatric neurologist respectively, called on behalf of the plaintiff did not agree that the damage occurred specifically during a bleed and said that this was exclusively within the area of expertise of obstetricians. He submitted that Dr. King ought similarly to have deferred to the expertise of obstetricians in this area and that the trial judge had failed to take this into account.
Mr. Connolly submitted that this mistaken assumption on the part of the trial judge rendered his conclusion that the plaintiff had failed to establish that the want of care on the part of the hospital was the cause of the injury to the plaintiff unsustainable and that, at the least, there should be a re-trial. Alternatively, this Court should substitute its own finding of facts based on the inferences which the trial judge should have drawn from the evidence and resolve the issue of causation in favour of the plaintiff.
Mr. Connolly further submitted that the trial judge was in error in concluding that Dr. King’s opinion that the injury to the plaintiff did not occur in the final twenty minutes before delivery was borne out by the condition of the plaintiff immediately after his birth. He submitted that the trial judge had attached undue significance to the question as to whether the baby required intubation and intermittent positive pressure ventilation for ten minutes, since there was other evidence pointing to the baby’s poor condition at birth, i.e. the low Apgar score of one at one minute.
As to the negligence alleged against Dr. Fenton and Dr. Skelly in failing to carry out a Caesarean section on Mrs. Purdy at 16.20 p.m. or as soon as possible thereafter, Mr. Connolly submitted that the trial judge was in error in holding that there was a large body of medical opinion, possibly a majority opinion, which would considered it reasonable to defer a Caesarean section until the time it was actually performed by Dr. Skelly, with a view to prolonging the pregnancy until a vaginal delivery could be effected. He said that the evidence of Professor Johnson and Dr. Pearse was that an emergency Caesarean section should have been organised at 16.20 p.m. and that Dr. Skelly herself said she would have considered doing the operation at 16.20 p.m. if she had been present. Mr. Connolly further submitted that the trial judge was in error in failing to consider whether Dr. Skelly was negligent in carrying out a vaginal examination upon Mrs. Purdy immediately before proceeding to perform the Caesarean section, it having been urged on behalf of the plaintiff that this was not in accordance with proper practice and wasted valuable time during which the foetus could have been further compromised.
Mr. Connolly urged that the argument on behalf of Dr. Skelly that, in any event, a Caesarean section could not have been safely carried out until 6 p.m. because of the non-availability of cross matched blood, for which she was not responsible, could not be reconciled with the evidence of Dr. King, relied on by all the defendants, that the damage to the foetus more probably occurred during the bleeds observed at 16.20 p.m. and 16.50 p.m.
On behalf of the hospital, Mr. Charles Meenan S.C. submitted that, so far as the issue of causation was concerned, the trial judge had correctly identified that two aspects of the evidence were crucial, first, whether there was credible evidence that the plaintiff had been intubated for ten minutes and, secondly, whether there was a hidden or secret bleed going on from 16.50 p.m. until the actual delivery at 18.00 p.m. He submitted that, on both these matters, there was credible evidence to support the finding of the High Court judge which, accordingly, should not be set aside by this Court.
On the question of intubation, Mr. Meenan submitted that the contemporaneous medical records relied on by Dr. King indicated that the intubation was for one minute, which was not consistent with a baby being nearly dead at birth and was also inconsistent with the damage having happened in the last twenty minutes before delivery. He said that the trial judge was perfectly entitled to prefer that view to the view of Dr. Pearse on behalf of the plaintiff that the baby was intubated for ten minutes, which was based on a statement to that effect in a discharge letter of the 14th April 1978.
Mr. Meenan further submitted that there was credible evidence on which the trial judge was entitled to conclude that there was no hidden or secret bleed going on from 16.50 p.m. to 18.00 p.m. He was entitled to rely in this context on the fact that Dr. Skelly had carried out the vaginal examination at 16.50 p.m. and that at that time there was no record of any bleeding. He also submitted that the trial judge was entitled to have regard to the fact that Dr. Pearse himself acknowledged that the question of whether there was a secret bleed going on was essentially one for an obstetrician rather than a paediatrician such as himself.
On behalf of Dr. Skelly, Mr. Brian McGovern S.C, submitted that it had never been put to Dr. Skelly that she should have carried out a Caesarean section at 16.30 p.m. He further submitted that, on the question of whether or not she should have carried out the section at 16.50 p.m. despite the absence of cross matched blood at that stage; there was simply no evidence to suggest that she should have carried out a Caesarean section without waiting for cross matched blood to be available.
As to the carrying out of a vaginal examination, Mr. McGovern submitted that it was never put to Dr. Skelly at the trial that she should have not carried out a vaginal examination. He said that, in any event, the relevant text book in use at the time by midwives and medical staff made it clear that such an examination was appropriate where the patient was in the operating theatre “set up in readiness for a Caesarean section”.
On behalf of Dr. Fenton, Mr. Murray McGrath S.C. submitted that there was credible evidence, on which the trial judge was entitled to act, that there was a body of medical opinion which would have supported Dr. Fenton’s view at 16.20 p.m. that a Caesarean section should not be carried out unless there was further bleeding. He submitted that the trial judge was perfectly entitled to rely on the evidence that that was a legitimate point of view, having regard to the desirability of prolonging the pregnancy in the interests of the foetus and in the absence of any evidence that the foetus was suffering distress at that time.
Mr. Meenan made submissions in support of the notice to vary on behalf of the hospital to which Mr. McGrath and Mr. Connolly replied on behalf of Dr. Fenton and the plaintiff respectively. In view of the conclusions I have arrived at on the other issues arising on the appeal, I do not find it necessary to refer to them in detail.
Conclusions.
The central issue for resolution on this appeal is as to whether there was credible evidence which would support a finding by the trial judge that, on the balance of probabilities, the damage to the plaintiff was caused during the earlier bleeds and not during the final twenty minutes
prior to delivery at 6.00 p.m. or, alternatively, a finding by him that the plaintiff had not established as a matter of probability that it had occurred during the latter rather than the former period.
I am satisfied that there was such credible evidence. Ultimately, the trial judge was confronted with a conflict of view between the experts called on behalf of the plaintiff, Dr. Pearse and Dr. Hoskins, and on behalf of the defendants, Dr. King. All three were in agreement that, in determining whether the injury was sustained in the final twenty minutes prior to delivery, the condition of the baby in the period following the delivery was of critical importance. It was, of course, the fact that the only guidance to the condition of the baby at the relevant time, having regard to the 23 years which had elapsed, was what could be inferred from the contemporaneous notes. It is not in dispute that there are three individual references in those notes to the baby having been intubated for one minute after birth and that the only basis for a finding that ten minutes intubation was required was the reference in the discharge letter, which, it should be noted, did not make it clear whether the ten minute period related solely to intubation or to a combination of intubation and “intermittent positive ventilation”. The trial judge was perfectly entitled, in my opinion, to take the view that the records were more consistent with the view taken by Dr. King. He was also clearly entitled to prefer the view of Dr. King that the damage occurred during the course of a bleed before delivery and that, in the absence of any indication of any bleed subsequent to the ones observed at 16.20 p.m. and 16.50 p.m. the more likely conclusion was that the injury had occurred during that period rather than during the final twenty minutes prior to delivery.
I am also satisfied that the trial judge was entitled to conclude that there was no evidence to sustain a finding of negligence against either Dr. Skelly or Dr. Fenton. There was no ground for characterising the former’s decision not to proceed with a Caesarean section until cross matched blood was available as negligent: on the contrary, there was ample evidence that to attempt a Caesarean section in circumstances where cross matched blood was not available would have exposed Mrs. Purdy to an unjustifiable risk. As to the suggestion that she should not have carried out a vaginal examination, there was again evidence that she has acted in accordance with a recognised practice in conducting such an examination at a stage when the patient was in position in the operating theatre for the carrying out of a Caesarean section. As to Dr. Fenton, while it may be that some doctors might have taken the view that he was adopting a somewhat conservative approach in deferring a decision on a Caesarean section at 16.20 p.m., it certainly cannot be said that, in adopting a practice which a substantial body of medical opinion would have favoured at the time, he had been guilty of any breach of duty.
I would dismiss the appeal and affirm the order of the High Court. I would make no order on the notice to vary served on behalf of the hospital.
Conley v. Strain
[1988] IR 631
Lynch J. 631
H.C.
Lynch J.
5th August 1988
This action arises out of a road traffic accident between two motor cars that happened on the night of Whit Sunday the 10th June and Monday the 11th June, 1984, in Salthill, County Galway. The action between the plaintiff and the first defendant, the owner of one of the motor cars, was ready for trial and was listed for trial for the 20th May, 1987, when the first defendant sought to join as third parties the person and the corporate body who are now the second defendant and the third defendant in order to claim contribution against them on the basis of an allegation that the consequences of the road traffic accident had been seriously aggravated by negligence in the treatment of the plaintiff by the second defendant as the servant or agent of the third defendant in the third defendant’s hospital. The first defendant also sought and was given leave to amend his defence by pleading that the alleged negligence of the second defendant and the third defendant constituted a novus actus interveniens so far as any aggravation of the plaintiff’s injuries is concerned. As a result of this application on behalf of the first defendant the plaintiff was advised that, in order to protect his right to his full damages, he must join the second defendant and the third defendant as defendants and accordingly that was done and the trial of the action was delayed by a year.
The first defendant does not deny negligence but pleads contributory negligence related to the failure of the plaintiff to wear a seat-belt which was available to the plaintiff in the first defendant’s motor car. This plea makes it necessary to consider the whole circumstances of the road traffic accident in order to determine if the first defendant has discharged the onus of proving that the plaintiff was guilty of contributory negligence as alleged and, if so, in order to determine also the degrees of fault to be apportioned to the first defendant and the plaintiff respectively.
The facts of the road traffic accident and conclusions therefrom
The accident actually happened at 1.50 a.m. on Monday the 11th June, 1984. The scene of the accident was a crossroads comprised of a major road called Dr. Mannix Road intersecting two minor roads, namely, Dalysfort Road coming from the north to Dr. Mannix Road and D’Alton Drive coming from the south to Dr. Mannix Road opposite Dalysfort Road.
The plaintiff was a passenger in an Opel motor car owned by the first defendant and driven by the first defendant’s son. The first defendant does not deny that his son was negligent in driving his car on the occasion in question but he pleads that the plaintiff was also negligent in failing to wear a seat-belt which was available to him as a front seat passenger in his Opel car. The plaintiff has no recollection whatever of the accident and accordingly was unable to give any assistance in his evidence regarding the circumstances of the accident. The first defendant’s son, the driver of the Opel car, was not called as a witness and, consequently, I received no assistance from either of the occupants of the Opel car regarding the exact circumstances of the accident. The only occupant of the other motor car, which was a taxi, was its driver, a Mr. Martin Grealish, who has since emigrated to Australia and was therefore not available as a witness either. The evidence adduced before me as to the circumstances of the road traffic accident comprised the evidence of Garda Michael Conroy, who investigated the accident immediately after its occurrence, and who produced a sketch map of the scene of the accident; a public service vehicles inspector, Sergeant John McNulty; a pedestrian, Mrs. Geraldine Walker who was passed out on Dalysfort Road by the Opel motor car immediately before the accident and a motor assessor, Mr. Patrick Wallace.
From the evidence of the foregoing witnesses I conclude that the first defendant’s son drove the Opel motor car at approximately 50 miles per hour downhill along Dalysfort Road on his wrong side of the centre white line where Dalysfort Road emerges on to Dr. Mannix Road, through a stop sign and through a stop line without slowing down, much less stopping as he ought to have done. The Opel motor car was then driven out across Dr. Mannix Road where it collided with Mr. Grealish’s taxi. The first defendant’s Opel car then careered onwards completing its crossing of Dr. Mannix Road and it travelled into D’Alton Drive where it ended up on its roof.
In the course of these events the plaintiff was thrown through the windscreen of the Opel car and he ended up lying on D’Alton Drive partly under and being crushed by the bonnet of the Opel car. From the fact that the plaintiff was, as a matter of probability, thrown through the windscreen and from the fact that he ended up under the bonnet of the upturned Opel car I infer that prior to the accident the plaintiff had been a front seat passenger in that car. There is no evidence that there was any other occupant of that car apart from the first defendant’s son and the plaintiff. The Opel car was fitted with seat belts in good working order. I am driven to the conclusion therefore that the plaintiff was not wearing the seat belt which was available to him because, if he had been wearing it, I have no doubt but that he would not have been thrown out of the car and on to the road.
The plaintiff’s surgeon gave evidence that a person thrown out of a motor vehicle is thirty times more likely to suffer serious injuries in a road traffic accident than a person who remains in the crashed vehicle. This evidence together with the evidence that the plaintiff was lying under the Opel motor car when it finished its journey upside-down in D’Alton Drive leads me to the inevitable conclusion that the plaintiff’s failure to wear the seat belt which was available to him contributed to the gravity of his injuries. I find therefore that the first defendant has discharged the onus of proving that the plaintiff was guilty of contributory negligence within the meaning of that term as used in s. 34 of the Civil Liability Act, 1961, and I must therefore establish the degrees of fault of the first defendant’s son and the plaintiff respectively.
Usually a person is either negligent or not negligent and the addition of adjectives does not alter the legal position. When one comes to apportion fault under s. 34 of the Civil Liability Act, 1961, however, it seems to me that one must fall back on adjectives. The first defendant’s son’s driving as already described was so grossly negligent as to amount in my opinion to recklessness. Of course this very recklessness should have alerted the plaintiff to the importance of wearing the seat belt. Nevertheless the primary cause of the plaintiff’s injuries was the collision between the Opel car and the taxi and if the driver of the Opel motor car had not been reckless and had not been involved in that accident then the failure of the plaintiff to wear the seat belt would have had no adverse consequences for him. A front seat passenger in a motor car does not by his failure to wear a seat belt which is available to him forfeit his right to have the driver exercise all due care to avoid injuring him by negligent driving.
As against the reckless driving of the first defendant’s son, there is the negligence of the plaintiff in failing to wear the seat belt. There is no evidence as to how far the car had travelled from the time the plaintiff got into it until the accident. The further the journey the greater the opportunity for the plaintiff to use the seat belt: the shorter the journey the less the opportunity. There is no evidence whether the first defendant’s son drew the plaintiff’s attention to the presence of the seat belt or advised the plaintiff to avail of the seat belt. There is no evidence that the first defendant’s son was not available to be called as a witness. The plaintiff having no memory of the accident, the first defendant’s son is the only person who could clear up these points and the first defendant has chosen not to call his son as a witness and has therefore chosen to leave these matters unproven.
In all the circumstances of this case I think that the just and equitable apportionment of fault between the first defendant and the plaintiff pursuant to s. 34 of the Civil Liability Act, 1961, as construed by the Supreme Court in the cases cited to me, is 86% on the first defendant and 14% on the plaintiff which, expressed as fractions, means very slightly more than six sevenths on the first defendant and very slightly less than one seventh on the plaintiff.
The facts of the medical negligence issue and conclusions therefrom
No allegations of negligence were initially made by the plaintiff in relation to his medical and hospital treatment in his action as first constituted in which the first defendant was the sole defendant. The allegations of negligence against the second defendant and the third defendant as now made by the plaintiff were put forward by the first defendant almost three years after the road traffic accident described above. In order to determine whether these allegations of negligence against the second and third defendants are established or not it is necessary to examine the original injuries sustained by the plaintiff and the course of treatment of the plaintiff whilst in the third defendant’s hospital under the care of the second defendant.
In the road traffic accident on the 11th June, 1984, the plaintiff sustained a compound comminuted depressed fracture of the skull in the right parietal area, that is to say, above the right ear. The fracture was a large one measuring approximately two and a half inches by one inch and a segment of bone had been driven partly into the brain. An emergency operation was performed on the plaintiff by Mr. Timothy Ryan, senior surgical registrar at Galway Regional Hospital. Mr. Ryan found road gravel and dirt embedded in the tissues of the plaintiff’s wound. He removed all road gravel and dirt from the wound which he possibly could remove and as much tissue as appeared to be contaminated and also pieces of loose bone.
When the plaintiff had been admitted to Galway Regional Hospital he was deeply unconscious with virtually no vital signs and he remained so after the operation performed by Mr. Ryan. The first vital signs reappeared about 9 a.m. on the 12th June, 1984, that is to say, over 24 hours after his admission to hospital but the plaintiff remained unconscious until the 15th June, 1984. Thereafter the plaintiff appeared to make steady progress but exhibited some left-sided facial palsy and left-sided weakness first observed on the 16th of June after the plaintiff had regained consciousness and when examined by a doctor. (See the consultant’s notes p. 4 and the intensive care unit notes p. 31). The plaintiff remained in the intensive care unit of the Regional Hospital until the 19th June, that is to say, some eight days after his first admission in the early hours of the 11th June. On the 19th June, 1984, the plaintiff was transferred to a hospital ward, where he continued to improve, became more fully conscious, and was able eventually to get out of bed and walk.
The plaintiff’s temperature remained in or about normal although it did rise above normal on a few occasions before his transfer from the intensive care unit. The wound in his head continued to ooze slightly also before his transfer to the ward but thereafter dried up. Following his transfer to the hospital ward the plaintiff continued to make progress. He was able to walk and attend physiotherapy and also to talk. Although he could do all these things the plaintiff, however, suffered bouts of confusion at times when he was in the ward and even if he had had no setback he would, I am satisfied, have had serious disabilities for the rest of his life although not comparable with his present disabilities.
At 1.30 a.m. on the 27th June, 1984, the plaintiff called for nursing attention saying that he felt his head was wet. It was found that he was suffering from a spontaneous arterial bleed from the fracture site in his head. The plaintiff became agitated and complained of headaches. By 1.50 a.m. the plaintiff was deeply unconscious with blood pressure of 150 systolic which became 200 at 2 a.m. The second defendant was called and informed of the emergency and came as soon as possible into the hospital from his residence and commenced an operation on the plaintiff at about 2.30 a.m. during the course of which the second defendant removed a clot from the right side of the plaintiff’s head in the area of the original fracture. The second defendant found difficulty in stopping bleeding within the skull. The bleeding took the form of a widespread ooze of blood from the dura covering the brain. The second defendant spent more than an hour seeking to stop this bleeding and eventually, in a final effort to stop the same, used the contents of three packs of surgi cell placed side by side on the dura. The second defendant then closed the wound as best he could having regard to the fact that the loss of tissues which had had to be cut away because of contamination by road gravel and road dirt made it difficult to achieve a full closure and he left a corrigated drain in the wound to carry off any further bleeding in case that that should occur and then bandaged the plaintiff’s head to protect the wound and keep the brain sterile and the drain and surgi cell in place.
Because of the plaintiff’s extremely high blood pressure, which tended to increase the difficulty of controlling bleeding and to give rise to a danger of yet further bleeding, the second defendant, in consultation with the anaesthetist, Doctor Gwendoline Murray, advised the administration of a hypotensive drug with a view to reducing the plaintiff’s systolic blood pressure to the region of 80 to 90 thus, hopefully, reducing the danger of further arterial bleeding under the skull. Accordingly a drug called Arfonad was given to the plaintiff intravenously. This succeeded in reducing the blood pressure over the next 24 hours so that the systolic pressure at 5 a.m. was 100, at 6.30 a.m. was 110, at 7 a.m. was 95, at 8 a.m. was 88 and thereafter ranged between 100 and 140 over the next few days.
Following the operation by the second defendant on the 27th June, 1984, the plaintiff was returned to the intensive care unit of Galway Regional Hospital where he remained in a critical condition, deeply unconscious and on a ventilator. At this stage the second defendant was anxious to transfer the plaintiff to the neuro-surgical unit in the Richmond Hospital, Dublin but judged, in consultation with other members of the hospital staff, that the plaintiff was not fit for such a transfer until the 4th July, 1984. On that date the plaintiff was transferred by ambulance to the Richmond Hospital where a C.T. scan was carried out which showed displacement of the brain to the left side. An operation was then carried out at about 1 p.m. on the 5th July, 1984, at which a clot was removed from the area of the original fracture and also the surgi cell which had been used by the second defendant in his efforts to stop the bleeding. The plaintiff remained deeply unconscious throughout his stay in the Richmond Hospital and also following his return to the Galway Regional Hospital on the 27th July, 1984. The plaintiff first recovered consciousness about the month of November, 1984.
In opening the case for the plaintiff, counsel put the plaintiff’s case in negligence against the second and third defendants under six headings and I am satisfied that in making this case counsel for the plaintiff was in effect adopting the allegations made by the first defendant against the second and third defendants. I set out hereunder the six headings but not quite in the same order as made to me by counsel.
Firstly, it was submitted that following the emergency operation carried out by Mr. Ryan on the 11th June, 1984, the doctors in the Regional Hospital, Galway and in particular the second defendant should have sought advice as to the plaintiff’s further treatment from a neuro-surgical centre either the Richmond Hospital, Dublin, St. Vincent’s Hospital, Dublin, or the Regional Hospital, Cork, and they did not do so.
Secondly, it was submitted that the plaintiff should have been transferred as soon as possible after the operation of the 11th June, 1984, to such a centre and was not.
Thirdly, it was submitted that the need to consult a neuro-surgical centre and to transfer the plaintiff to such became more pressing when the plaintiff began to show signs of non-recovery by oozing from the head wound, a varying temperature and a left-sided palsy or weakness.
Fourthly, it was submitted that the plaintiff should have been transferred as soon as possible to a neuro-surgical centre after the 27th June, 1984, and that this should have been done before the 4th July when the plaintiff was in fact transferred to the Richmond Hospital, Dublin, and that consultation with such a centre should have been had immediately after the 27th June, 1984.
Fifthly, it was submitted that when the operation of the 27th June, 1984, had been completed it was wrong, as the plaintiff and the first defendant alleged was done, to pack the plaintiff’s skull with surgi-cell and then to put a tight bandage around the same because it was submitted that the brain needed room to expand and should be allowed to do so.
Sixthly, it was submitted that following the operation of the 27th June, 1984, it was wrong for the second defendant to prescribe hypotensive drugs, which would have the effect of lowering the plaintiff’s blood pressure and it was submitted that in the case of a serious head injury one should not seek to lower the blood pressure at all.
Before dealing with the foregoing allegations of negligence by the plaintiff and the first defendant against the second and third defendants I want to make some preliminary observations.
With one exception, the medical witnesses called on behalf of the plaintiff and the first defendant were at the disadvantage of not having seen the plaintiff at any relevant time. Their evidence as to the adequacy or inadequacy of the care and treatment of the plaintiff is based wholly on a study of the medical records of the plaintiff and their interpretation of such records commenced some two and a half years after the emergency treatment of the plaintiff was all over. The exception is Surgeon Terence Doorley who carried out the operation on the plaintiff in the Richmond Hospital, Dublin, on the 5th July, 1984. Even in the case of Surgeon Doorley, however, it did not occur to him at that time to question or criticize the treatment given to the plaintiff in Galway Regional Hospital before his transfer to the Richmond Hospital on the 4th July, 1984. It was only a few days before the commencement of the trial of this action on the 10th May, 1988, that Surgeon Doorley was asked to study the Galway Regional Hospital and Richmond Hospital records which were delivered to him for such study partly on Sunday the 8th May, 1988, and mainly on Monday the 9th May, 1988. (See question 316 of the transcript of his evidence). The object of such study was to see whether there was anything in the plaintiff’s medical records which might be capable of being criticized and Surgeon Doorley was wholly dependent on his study of the records in forming the opinions which he expressed (See question 255 of the transcript of his evidence).
The status of the medical records should be clearly understood. They were disclosed on discovery of documents by the second and third defendants and copies were made available to all parties before the trial and to me at the trial. The fact that copies of the medical records were furnished to all parties enabled them to examine and cross-examine witnesses by reference to those records. The fact that copies of the records were furnished to me at the trial makes them evidence in the sense that I can study them and take them into account but it does not elevate them into the status of irrefutable evidence and where their accuracy or interpretation is challenged they are obviously capable of being outweighed by other evidence.
One of the most important challenges to the accuracy and interpretation of the medical records of the plaintiff relates to the consultant’s operation record dealing with the emergency operation carried out by the second defendant in the early hours of the 27th June, 1984. That note was not written by the second defendant but by a junior doctor who was present at the operation and it contains a paragraph reading:
“Numerous bleeding points from brain substance – not possible to control.”
All the medical witnesses before me agreed that the reference to bleeding points from the brain substance was wrong: that the bleeding was from the outer surface of the dura and that accordingly the note should read “Numerous bleeding points from the dura” instead of “from brain substance”.
As regards the second part of that paragraph “not possible to control”the second defendant said that that was also wrong and that he regretted that he had not written the operation notes himself. (See question 500 of the transcript of the second defendant’s evidence). The second defendant also gave positive sworn testimony that he did eventually succeed in controlling and stopping the bleeding albeit that it took him almost one and a half hours to do so.
The junior doctor who wrote that operation note was not called as a witness. If he had been called as a witness he would no doubt have explained what he meant by “brain substance” and would presumably have said that he meant the dura. He might well have gone on to explain that what he intended to convey about the bleeding was that it was not possible to control it for longer than he had ever previously experienced but that eventually after about one and a half hours the second defendant succeeded in stopping it. However, it is idle to speculate about what the junior doctor might have said if he was called as a witness when he was not called as a witness.
Reference was also made by the plaintiff and the first defendant to the referral letter dated the 4th July, 1984, sent with the plaintiff on his transfer on that date to the Richmond Hospital, Dublin. That letter contains the words”multiple bleeding points found – not possible to control”. That letter was not written by the second defendant either. It was written by a registrar to the second
defendant and the contents were clearly a synopsis of the plaintiff’s medical records and the words in question were clearly taken from the operation notes already referred to. The writer of that letter was not called as a witness either and the inclusion of those words in that letter adds nothing to the case being made by the plaintiff and the first defendant to the effect that the second defendant never achieved control of the bleeding and therefore closed up the plaintiff while he was still freely bleeding from the dura.
The second defendant gave positive sworn testimony that he finally achieved haemostasis with the aid of surgi cell before he closed up the plaintiff. (See transcript of the second defendant, questions 147, 177, 178, 380 to 383 and 501 to 503). This evidence was to a certain extent corroborated by the evidence of Surgeon Timothy Ryan that he heard later on the morning of the 27th June, 1984, about the plaintiff’s haemorrhage and consequent operation earlier that morning and that haemostasis was eventually achieved. (Question 115 to 118 of Surgeon Ryan’s evidence). I am not prepared to accept the unsworn, unverified and untested by cross-examination entry in the notes of the operation of the 27th June and in the referral letter of the 4th July in preference to the positive sworn evidence of the second defendant tested in cross-examination on this point and I therefore find as a fact that haemostasis was achieved before the operation of the 27th June, 1984, was terminated and the plaintiff closed up. I accept also the evidence of Surgeon Timothy F. Buckley on this point at questions 131 to 145 of his transcript and Mr. Johnson at questions 141 and 162.
This is an important finding of fact because some of the evidence given by the medical witnesses called on behalf of the plaintiff and the first defendant was given on the assumption that haemostasis was never achieved before the plaintiff was closed up on the 27th June, 1984. (For example, see questions 156, 173 and 174 of Surgeon Doorley’s evidence). It also means that the fact that the second defendant was unaware that hydrogenperoxide and hitch stitching can be used as a means of achieving haemostasis is irrelevant.
I come now to deal with the six allegations of negligence against the second and third defendants as summarised above.
As regards the first allegation, it is conceded on behalf of the plaintiff and the first defendant that the operation performed by Surgeon Ryan on the 11th June, 1984, was necessary as an emergency operation to be performed when it was and was properly carried out. It is however alleged that in the week following that operation and in particular between the 16th and the 19th June, 1984, there developed three warning signs of possible trouble, namely, an ooze from the head wound, a raised temperature and left-sided weakness. The allegation is made that in view of these alleged warning signs advice should have been sought from a neuro-surgical centre as to what should be done in relation thereto. These alleged warning signs or three red lights, as they were frequently called by counsel for the plaintiff and counsel for the first defendant, arise on the construction put on the notes by the medical witnesses called on behalf of those parties. The second defendant and Surgeon Ryan, who were seeing the patient daily, deny that the matters interpreted as warning signs or red lights were such at all and say that the plaintiff and the first defendant’s witnesses are misinterpreting the records. Surgeon Ryan and the second defendant say that the plaintiff was making steady progress following his operation on the 11th June until his transfer to the ward on the 19th June and thereafter until the sudden critical secondary haemorrhage in the early hours of the 27th June.
I prefer the evidence of the medical men who had the plaintiff under their care and who watched over him daily and who, with the help of the nursing staff, monitored all the plaintiff’s vital functions in a manner that has not really been criticized. (See for example the transcript of Surgeon Ryan’s evidence at questions 25 to 29, 78, 87, and 94 and 95 and the transcript of the second defendant’s evidence at questions 118 to 123). There was therefore no onset or development of anything in the plaintiff’s condition following his operation of the 11th June to call for advice from a neuro-surgical centre or to give rise to concern until the sudden critical secondary haemorrhage occurred in the early hours of the 27th June. Moreover, if a neuro-surgical centre had been contacted and had been told of the plaintiff’s operation and subsequent apparent satisfactory progress such centre would have advised that the plaintiff should be kept in Galway Regional Hospital and there monitored carefully as in fact was done. (See questions 154 and 155 of Surgeon Crockard’s evidence).
I am satisfied that there was no negligence on the part of the second defendant in not seeking advice from a neuro-surgical centre following the operation of the 11th June and before the 27th June, 1984, and I therefore reject the first allegation of negligence set out above.
The second allegation of negligence is that the plaintiff should have been transferred as soon as possible after the operation of the 11th June, 1984, to a neuro-surgical centre and was not. The matters which I have mentioned in dealing with the first allegation of negligence apply also in relation to this allegation and I therefore reject the second allegation of negligence against the second and third defendants.
The third allegation of negligence that the need to consult a neuro-surgical centre and transfer the plaintiff to such a centre became more urgent when the plaintiff began to show signs of non-recovery demonstrated by the so called three red lights is also covered by what I have said in dealing with the first allegation of negligence. I refer also to questions 21 and 22 of the transcript of Surgeon Buckley’s evidence. I therefore reject the third allegation of negligence against the second and third defendants.
The fourth allegation of negligence referred to above is that the plaintiff should have been transferred as soon as possible to a neuro-surgical centre after the 27th June, 1984, and that this should have been done before the 4th July when he was in fact transferred to the Richmond Hospital, Dublin, and that consultation with such a centre should have been had immediately after the 27th June, 1984.
I accept the evidence of the second defendant, of Surgeon Ryan and of Doctor Gwendoline Murray that the plaintiff was hanging by a thread between life and death in the week from the 27th June to the 3rd July, 1984, and that any attempt to transfer him in that period would most probably have been fatal. (See the transcript of Surgeon Ryan’s evidence at questions 36 to 41, of Doctor Murray’s evidence at question 80 and of the second defendant’s evidence at questions 211 to 220, 535, 536 and 607). So far as consulting a neuro-surgical centre for advice whether to transfer the plaintiff or not is concerned, the ultimate decision had to be that of the doctors on the spot (see question 59 of Surgeon Buckley’s evidence) and, in my opinion, the decision arrived at by those doctors not to transfer was a reasonable one and the fact that the decision was made by them on their own responsibility and without seeking the advice of persons who were over a hundred miles away was not negligence. I therefore reject the fourth allegation of negligence against the second and third defendants.
The fifth allegation of negligence is that when the operation of the 27th June, 1984, had been completed, it was wrong to pack the plaintiff’s skull with surgi cell and then to put a tight bandage around it, to which was added in the course of the trial an allegation that the second defendant should have sought advice from a neuro surgical centre during the operation when he had difficulty in controlling the bleeding from the dura.
I accept the evidence of the second defendant that the surgi cell was not packed into the plaintiff’s skull, but that three packs of it were used and placed side by side on the dura. (See questions 138 to 146 and 393 to 402). I was furnished with a sample packet of surgi cell similar to those used by the second defendant. Even folded so as to be five or six layers thick, it remains very tenuous, light and thin and the use of the word “pack” is misleading. The use of surgi cell is not criticized in itself, but it is alleged that too much was used. Undoubtedly more was used than would probably have been used by a neuro surgeon, but what was used was what the second defendant, dealing with an emergency, thought necessary to achieve haemostasis. The second defendant was the man on the spot charged with the obligation of doing all that he could do to save the plaintiff’s life and in using surgi cell in the quantities which he deemed to be necessary he was not negligent. (See Surgeon Crockard questions 200 to 203; second defendant question 398; Surgeon Buckley questions 32 and 196).
As the second defendant achieved haemostasis and dealt adequately with the problems which arose during the operation of the 27th June, it was not necessary for him to consult a neuro surgical centre.
In so far as the criticism of a tight or pressure bandage is concerned, it is significant that Surgeon Doorley did not even remember the bandage. (See questions 24 and 25). The reality is that there is no substance in the criticism of the bandage and the criticism more or less died away as the case progressed. The use of the bandage as in fact applied was reasonable and proper and I therefore reject the fifth allegation of negligence against the second and third defendants.
Finally, I come to the sixth allegation against the second and third defendants, namely, that it was wrong to prescribe hypotensive drugs to lower the plaintiff’s blood pressure in the case of a serious head injury such as the plaintiff had suffered both in the road traffic accident and by the secondary haemorrhage.
A great deal of evidence was adduced on this topic. I did not find the evidence that there was an established school of practice that favoured such treatment in serious head injury cases convincing. I have come to the conclusion on the probabilities that such a course of treatment in a serious head injury case is not an option. In these circumstances, I find that the second defendant was wrong in prescribing hypotensive drugs and that that error made though it was in the difficult emergency situation described by the second defendant at questions 190 to 199 was not justified or excusable.
That conclusion brings me to the question whether such erroneous treatment caused any damage to the plaintiff. Mr. Doorley could not say positively if the crisis on the 27th June caused the irretrievable brain damage there and then or whether it was a combination of the effects of that time and the administration of hypotensive drugs during the following week but he favoured the latter. (See questions 440 to 450 and 607). Mr. Crockard at times expressed the view that the hypotension was a major contributory factor in the plaintiff’s present condition and at other times said it was impossible to say whether the irretrievable brain damage was caused between 1.30 and 4.00 a.m. on the 27th June or partly then and partly during the following week. (See questions 53, 54, 230, and 272 to 276). Mr. Pidgeon was of opinion that the hypotension was probably a contributory cause of the plaintiff’s present condition and maintained that opinion in his further evidence given on the 27th July, 1988. Doctor Brian Ferris, the anaesthetist called on behalf of the plaintiff and the first defendant, was of the same opinion.
Doctor Gwendoline Murray, the anaesthetist who was present at the operation of the 27th June, 1984, and who arranged the administration of the hypotensive drugs, was of the view that that treatment was correct and certainly did not cause any damage to the plaintiff whose present condition in her opinion is solely due to the road traffic accident and the crisis of the 27th June; likewise, Doctor Declan Tyrrell an independent anaesthetist called on behalf of the second defendant.
Surgeon Buckley was very strongly of opinion that the hypotension had no adverse effect on the plaintiff and that the plaintiff’s present condition is due to the road traffic accident of the 11th June and the critical secondary bleeding of the 27th June, 1984. (See questions 205 to 215 and his further evidence of the 27th July, 1988 and also Surgeon Johnson at questions 47, 48, 80, 197 and 211 to 214).
Finally, there is the evidence of the two medical men who were monitoring the plaintiff daily, namely, the second defendant and Surgeon Timothy Ryan. The second defendant is positive that all the further damage to the plaintiff was caused on the 27th June, 1984, between 1.30 a.m. and the time when his operation commenced at about 2.30 a.m. (See questions 208, 535, 536, 542 and 543). Surgeon Ryan was of the same opinion. (See questions 36, 42 and 43).
In relation to the operation of the 27th June, 1984, and the condition of the plaintiff thereafter Surgeon Ryan is really an independent witness not having performed that operation and yet he has the advantage of actually having seen and monitored the plaintiff. In these circumstances I think that it is worth quoting the three questions and answers referred to above:
“Q. 36. Have you any recollection as to what condition Mr. Conley was in following the operation by Mr. Galvin during the 27th and the next day or two?
A. He was extremely ill. He was deeply unconscious. His pupils were still dilated. It seemed absolutely hopeless. In addition to this complete deterioration – doing worse say than what he had started at – he had evidence of sepsis and he had a temperature. I also think he had developed a chest infection at that stage. I can’t be sure. He did develop chest infection some time after the second operation.
Q. 42. Have you any view from your own experience in the Regional Hospital in Galway as to when the major damage to his brain was caused or is it possible to say?
A. Well it seems to me that there is very little doubt that the major brain damage occurred at the time of the second bleeding. The patient was up and talking and then he became agitated, he began to bleed and within a matter of minutes was deeply unconscious. I think the major damage to this patient occurred at the time of the second bleeding – the second bleed caused by the second haemorrhage which is a rare but recognised event in head wounds.
Q. 43. If you are correct in that, was it capable of being rectified or remedied by operation?
A. I think an attempt was made to rectify it. The damage is caused to the brain because of intercranial pressure developing because of the clot forming, and the attempt was made to relieve the blood pressure and that attempt was made very very rapidly within minutes really of the event happening. That is all that could be done. When the intercranial pressure gets very high, you can get coning of the brain – where the base of the brain is forced down to the base of the skull – and there is not a lot that can be done when coning occurs. But, one has to do what one can but you can’t bring it back once it has gone.”
I accept the foregoing evidence of Surgeon Ryan and of the second defendant and accordingly I have come to the conclusion that the administration of the hypotensive drugs had no adverse effect on the plaintiff and that the plaintiff’s present condition arises solely from the road traffic accident of the 11th June, 1984, and the secondary haemorrhage of the 27th June, 1984, which is of course a consequence of the road traffic accident.
In these circumstances the only element of erroneous treatment by the second defendant which I have found caused no damage to the plaintiff and the plaintiff’s action against the second and the third defendants must therefore be dismissed.
Damages
Before assessing damages it is desirable that I should give a pen picture of the plaintiff and his family and of the injuries suffered by the plaintiff and their effect on him and his family.
The plaintiff lives at Poreen, Inverin, Spiddal, County Galway with his parents. His father is 62 years old and is unemployed and his mother is 49 years old and since the plaintiff’s accident has obtained employment at about £100 per week in order to pay for medicines and extras for the plaintiff. The plaintiff is the second eldest of a family of seven children, the eldest being a sister, Ann, who is married with two young sons and lives about two miles away. Next after the plaintiff comes a sister, Teresa, aged 23 years who is a clerk; then a brother, Stephen, aged 22 years who is a carpenter and a brother, Tommy, aged 19 years who is a cabinet-maker. These last three mentioned all reside in Massachusetts in the United States of America. Finally there is a brother, Kevin, aged about 16 years and a sister, Christine, aged about 11 years, both of whom live with the plaintiff and his parents.
The plaintiff was born on the 30th April, 1963, and was therefore just 21 years old at the date of the accident on the 11th June, 1984, and is now 25 years old. The plaintiff was born in Norwood, Massachusetts, in the United States of America and has therefore dual United States and Irish citizenship and is the holder of a current United States passport. Consequently, the plaintiff would not require any working or other visa to live and work in the United States of America.
The plaintiff was reared in Massachusetts until the age of seven years. The family then moved to Ireland, where they remained for two years when they returned to Massachusetts for a further three years. The family then finally returned to Ireland, the plaintiff being then 12 years old and the plaintiff has lived in Ireland ever since.
The plaintiff passed his Intermediate Certificate and his Leaving Certificate examinations the latter when he was about 18 or 19 years old. In the summer or autumn of 1983 the plaintiff embarked on a cookery course for the catering industry with a view to becoming a chef. The course in question was a two year course, the examinations for which are set by the City and Guilds of London Institute in conjunction with the Hotel, Catering and Institutional Management Association and the Cookery and Food Association. The plaintiff had completed the first year of the course and had passed both the written and practical aspects of that year’s examinations with credit which means between 70% and 80% in both aspects. As soon as the plaintiff would have completed the second year of this course in the spring of 1985, it was his intention to emigrate to Massachusetts in order to obtain work in the catering industry there.
The injuries suffered by the plaintiff and his treatment for them have already been described in this judgment when dealing with the medical negligence issue. Nevertheless, I think it is desirable to summarize the injuries here.
Apart from lacerations of his right shoulder and right elbow, which are now of no consequence, the plaintiff suffered a compound depressed fracture of the right side of the skull above the right ear with part of the bone pushed into the dura covering the brain. He had two operations on his skull in Galway Regional Hospital on the 11th and 27th June, 1984, and a third operation in the Richmond Hospital, Dublin on the 5th July, 1984. Apart from an encouraging recovery of consciousness after the first operation, he relapsed into unconsciousness before the second operation and remained unconscious until the month of November, 1984. He then gradually recovered consciousness becoming more alert from the month of January, 1985. The plaintiff has however four limb spasticity which is much worse on the right side and his is also deprived of the power of speech.
The plaintiff’s left eye was stitched closed from the 7th September, 1984, to March, 1985, in an operation known as a tarsorrahaphy to protect it during the period of the plaintiff’s unconsciousness and semi-consciousness. The plaintiff is virtually blind in his right eye since childhood. He suffers from intermittent bouts of spots before his left eye (his good eye) and he needs to have the lashes of that eye trimmed or plucked because since the tarsorrahaphy the lashes tend to grow in towards the eyeball and irritate it. He also suffers from intermittent headaches apparently associated with the bouts of spots before his left eye. He can read for short periods and he finds that a machine which greatly magnifies the script is of great assistance to him.
During his periods of unconsciousness the plaintiff had an intra-tracheal tube and a nasal-gastric tube and he still had the nasal-gastric tube at a time when he was recovering consciousness because he has a memory of it. He developed a urinary infection from which fortunately he has recovered.
The plaintiff suffers from contractures in his shoulders, arms and legs. On the 1st November, 1985, he underwent an operation in Cappagh Hospital, Dublin, to lengthen the achilles tendon in both legs to combat the contractures and to try to bring his feet which were turned downwards to a more acceptable angle and this operation has fortunately been reasonably successful but may have to be repeated in the future.
The plaintiff suffers from involuntary drooling from the mouth. He has to have assistance for all the basic needs of life including bowel and bladder, eating and turning in bed and shifting position in a chair or wheelchair He is confined to a wheelchair and can just about stand (but not walk) with assistance. He has to have splints put every day on both elbows and on both hands to combat the contractures. He suffers from bouts of depression.
The plaintiff has some use of his left arm and hand and has learned to communicate with the help of a memo writer although, of course, such method of communication is very slow. The plaintiff could operate an electric wheelchair if the controls were on the left arm of the wheelchair.
The plaintiff’s condition has been very accurately and succinctly set out in a medical report based on an examination of the 18th April, 1988, by a neuro surgeon called on behalf of the plaintiff and the first defendant. This report was handed to me by consent of all parties and I quote from some concluding comments made by the neuro surgeon:
“This young, intelligent, communicative and amusing man is imprisoned in a body that responds to very few of his commands. His physical appearance and examination have all the hallmarks of a diffuse spastic injury of the type associated with cerebral palsy secondary to a birth injury. The playwright Christy Nolan is such an example. In this situation the intellect and the psyche may be preserved but the body does not respond to the individual’s wishes. He may give the appearance of being stupid or vegetative when, in fact, he is highly intelligent and alert.
In terms of care required, he has been magnificently cared for by his parents. He requires full-time attendance but this does not require to be specialized. He has not had the benefit of a regular nursing visit recently and it appears to have been unnecessary.”
I propose in the first instance finding the ascertainable loss, being the term used in Doherty v. Bowaters Irish Wallboard Mills Ltd. [1968] I.R. 277 to describe both special damages strictly so called and the items of probable future loss and expense which can be actuarially or otherwise quantified. There are a number of findings which I should make at the outset on the balance of probabilities and which will be applied by me throughout the calculations of the various items of damage where appropriate.
1. First the plaintiff’s life expectancy from the present time onwards is 25 years.
2. Regarding future loss of earnings, the plaintiff’s actuary, on the basis of a life expectancy of 25 years, indicated that the capital value of each pound per week of lost earnings would be £932. This figure does not however take into account the contingencies of redundancy, unemployment, sickness, accident and matters of an economic nature which might interrupt the continuity of the plaintiff’s employment. Taking these matters into account, the defendants’ actuary indicated a multiplier of £870 for each pound per week. Each of these figures is on the basis of applying the multiplier to the net take home pay. In so far as a discount from the multiplier for the dangers of redundancy unemployment is concerned, I accept the evidence that the employment market in the service sector of the United States of America, including the Boston area, is much better from the point of view of the job seeker than in Ireland and that such employment in the Boston area looks secure for the forseeable future. Furthermore by limiting the future loss to 25 years I am providing for the period when the plaintiff would be aged 25 years to 50 years, that is to say, in the prime of his life and when he would be most mobile and active in following employment opportunities. In the circumstances I think that the discount from the multiplier of £932 for the dangers of redundancy unemployment should be very moderate.
Regarding the risk of unemployment through sickness, it is not suggested that the plaintiff was not in first class health apart from virtual blindness in the right eye. As I have already said, I am dealing with a future period which would have constituted the prime of the plaintiff’s life and therefore the discount for the risk of lay-off from work through sickness must also be very moderate.
Furthermore, I am providing for future loss of employment from the age of 25 years, by which age most young men have passed the most vulnerable age for death or injury by accident. The fact that the plaintiff is and was blind in the right eye undoubtedly exposed him to an added risk of accidental injury but he had already learned to cope with that risk and had acquired a compensatory caution as a result of which he avoided contact sports and, I would infer, any other activity that might give rise to a risk of injury to his left eye. In other words, he was already more cautious to avoid accidental injury than other young men of his age despite the fact that he fell victim to the first defendant’s son’s recklessness. Finally, the risks of accidents at work as a cook or chef are not particularly high so that the discount for unemployment due to accidental injury must also be very moderate.
Future economic factors are quite impossible to predict. So again it seems to me that any (if any) reduction in the multiplier for this factor must be very moderate especially as such factors might work either way.
All in all, therefore, it seems to me that a discount of approximately 5% from the multiplier of 932 would be just and equitable. This would work out at 885.4, which I will round down to 885.
3. When one comes to the loss of earnings for the lost years, however, the position is different from the loss of earnings for the next 25 years. I am now providing for earnings from the age 50 to 65 years. The plaintiff’s actuary suggests a multiplier of £318 for each pound per week lost. Unfortunately the defendants’ actuary does not appear to have dealt with this figure. However, for the risks of unemployment due to redundancy, sickness or accident or economic factors I discount this figure by 12%, which gives a multiplier of 279.84, which I round up to 280.
4. For the purpose of calculating the future loss of earnings it is necessary also for me to make findings regarding the relative cost of living in the United States of America and in particular in the Boston area as compared with the cost of living in Ireland. The plaintiff’s economist gave evidence to the effect that the cost of living in Ireland would be slightly higher than the cost of living in Boston at the present time. This is based on an exchange rate of approximately one dollar fifty six cents to the Irish pound. The defendants’ economist on the other hand gave evidence completely contradictory to this evidence and to the effect that the cost of living in the Boston area would be much higher than the cost of living in Ireland.
The defendants’ economist produced an appendix to a Swiss bank publication showing the price level in 49 major cities throughout the world set out in two columns. Zurich was 100 in both columns in this appendix, the left-hand column excluding any account of the cost of renting accommodation whilst the right-hand column included such cost. The list of cities world-wide included four American
cities, the average cost of living in which, as shown by the right-hand column, was 163, whereas Dublin was 89. However, if one worked on the left-hand column the average cost of living for the four U.S. cities was 142, whereas Dublin was 94. The figures given in the appendix related to prices in 1985 and exchange rates in 1985. The level of the average of the U.S. cities in the right-hand column was 83% higher than the Dublin figure. However, the drop in the exchange rate of the dollar from approximately par with the Irish pound in 1985 to approximately one dollar fifty six cents in 1988 meant that the 83% differential had been reduced to about 26%.
If one works on the left-hand column of this appendix, however, the average of the four U.S. cities was only 48 points higher than the Dublin figure at 94 or, in other words, 51% higher than Dublin in 1985. Having regard to the improvement from a differential of 83% to 26% in the figures in the right-hand column, which is a reduction of 57%, when one works on the left-hand column this indicates that the cost of living in the two areas, namely, Boston on the one hand and Ireland on the other is approximately the same if one omits the very high rentals for accommodation which obtain in the Boston or New York area and takes an exchange rate of $1.56 to the Irish pound.
The evidence before me disclosed that the plaintiff has, in addition to his two brothers and one sister already mentioned, four uncles on his father’s side and two uncles on his mother’s side, all now resident in the Boston area of the United States of America. In these circumstances I am satisfied that the plaintiff would have been able to obtain accommodation in the Boston area initially at quite a reasonable price by sharing accommodation with an uncle or his brothers or sister and even afterwards, when he would acquire accommodation of his own, for example, on marriage, he would have been able to do so at reasonable costs having regard to the fact that by then he would be well aware of the accommodation market conditions. For these reasons it seems to me that the more comparable column to work on of the schedule produced by the defendants’ economist (if one works on that schedule) is the left-hand column which indicates parity in the cost of living between Ireland and the eastern seaboard of the United States. In the circumstances, I find on the probabilities that there need be no adjustment of the loss of earnings figures on the grounds of any difference in the cost of living between the two areas, if one assumes an exchange rate of $1.56 to the Irish pound.
5. For the purpose of converting U.S. dollars to Irish pounds, I take an exchange rate of 1.56 dollars to the Irish pound, even though the Irish pound has dropped over 10 cents in value since the evidence was given.
6. So far as care and attendance in the future is concerned, the plaintiff’s actuary suggested a multiplier of £1,955 for each £100 cost of care and attendance per annum. The defendants’ actuary, on the other hand, suggested a figure of £1,512 for each £100 per annum and said that the difference is accounted for by taking account of tax reliefs which should be available to the plaintiff in respect of certain items of his expenditure of a medical or surgical nature which may have been prescribed for him by qualified doctors. In addition, the defendants’ actuary drew attention to the provisions of the Finance Acts whereby the plaintiff should be entitled to an extra allowance for income tax purposes of £2,500 per year of interest income over and above the single person’s allowance of £2,050 per year.
Taking account of these factors and also of the fact that there may well arise disputes between the plaintiff’s advisers and the Revenue Commissioners as to whether certain allowances should be granted in respect of various items or not, it seems to me, on the probabilities, that justice and fairness will be achieved if I apply a multiplier of £1,750 for each £100 per year of expenditure of this nature or its equivalent for weekly sums of £910 for each pound per week.
Proceeding on the basis of the foregoing findings, the following items of ascertainable loss have been established.
Items proved by Mrs. Conley and not challenged
(a) Travel expenses £2,500.00
(b) Medicines £1,000.00
(c) Extra clothes and heating £3,000.00
(d) Memo writers £195.00
Total of the foregoing four items
£6,695.00
Loss of earnings
(a) Loss of earnings from the 11th June, 1984, to the 30th June, 1985
£2,100.00
(b) Three years and 5 weeks loss of earnings from the 1st July, 1985 to date at a gross average of 500 dollars per week or 26,000 dollars per year less taxes at 26%, i.e. 6,760 dollars, leaving net per year 19,240 dollars or £12,333.33
£38,185.00
(c) Future loss of earnings at present probable gross rate of 700 dollars per week or 36,400 dollars per year less taxes at 36.4%, i.e. 13,250 dollars leaving 23,150 dollars net per year or a net weekly sum of 445 dollars or £285.25 which I round down to £285. Multiplier 885
£252,225.00
(d) Loss of earnings from 25 years hence to age 65 years, after living expenses of 350 dollars per week, leaving a surplus of 95 dollars per week or £60.89, which I round down to £60 per week. Multiplier 280
£16,800.00
Total loss of earnings
£309,310.00
Care and attendance
(a) Start up extra costs in first three weeks of future professional attendance
£2,100.00
(b) Semi-qualified live-in attendant at £200 per week plus employer’s share of P.R.S.I. at £24.80 per week plus cost of board at £30 per week totalling £254.80 per week, say £255 per week. Multiplier 910
£232,050.00
(c) Semi-qaulified live-in substitute attendant for 2 days per week at £80 per week plus employer’s share of P.R.S.I. at £9.92 per week plus board at £10 per week totalling £99.92, say £100 per week from 15 years hence for 10 years thereafter. Multiplier 350
£35,000.00
(d) For the 15 years commencing now the plaintiff’s family will probably provide, over and above domestic help, paramedical attendance on the 2 days per week that the professional attendant is off duty. If provided on a professional basis that would cost £100 per week, as calculated in the immediately preceding paragraph, but I think that the plaintiff’s family would provide it for £50 per week. I apply a multiplier of 546 calculated by dividing 910 by 1.6 recurring because 25 years is equal to 15 years multiplied by 1.6 recurring and, as I have taken 910 as the appropriate multiplier for the next 25 years, so 546 should be appropriate for the next 15 years.
£27,300.00
(e) Professional domestic live-in help would now cost the plaintiff £125 per week plus a substitute for 2 days per week at £50 per week plus board at £30 per week plus employer’s share of P.R.S.I. at £21.70 per week making a total of £226.70 per week. The plaintiff’s family will probably provide such domestic help for £100 per week. However, the plaintiff would have had to provide himself with some domestic help in any event even if he had never been injured, so that it is only the extra cost of such domestic help that must be provided for and I measure the same at £50 per week. Multiplier 910
£45,500.00
(f) The plaintiff’s family have provided both full domestic help and full 7 day per week paramedical attendance during the following periods up to date:
3.12.’85 to 2.1.’86 4 weeks
27.3.’86 to 25.5.’86 9 weeks
6.10.’86 to 2.12.’86 8 weeks
20.12.’86 to 1.3.’87 10 weeks
15.4.’87 to 3.1.’88 47 weeks
1.2.’88 to 5.8.’88 27 weeks
Total weeks to date 105 weeks
I measure the cost of the foregoing past domestic help provided by the plaintiff’s family at an average of £40 per week over and above such help as the plaintiff would have had to pay for in any event even if he had not been injured. I measure the seven-day past paramedical attendance on the plaintiff by the plaintiff’s family at an average of £120 per week making a total of £160 per week for 105 weeks
£16,800.00
Total for care and attendance
£358,750.00
Continuing personal needs
(a) Medicines, disinfectants, special foods and miscellaneous items as described at pp. 39-40 of Mr. Hellier’s report, items 5.2.1 to 7 at £10 per week
£9,100.00
(b) Kylie sheets at £27.50 per year (p. 11, item 1.3.6 Mr. Hellier’s report)
£480.00
(c) Extra future home heating at £10 per week
£9,100.00
(d) Medical and hospital attendances at £150 per year
£2,625.00
Total for continuing personal needs
£21,305.00
Housing and special equipment therein
(a) Alterations to bungalow
£20,500.00
(b) Environmental control system costing £5,000 and having a life span of 10 to 15 year
£8,750.00
(c) Adjustable bed costing £1,500 and having a life span of 10 years
£3,795.00
(d) Replacement mattresses for adjustable bed at £50 every 5 years
£175.00
(e) Ceiling hoist for bed and bathroom area costing £1,232 and having a life span of 10 years
£3,100.00
(f) Replacement slings for ceiling hoist and maintenance of ceiling hoist at £1 per week
£910.00
(g) Home standing/walking aids costing £984 and having a life span of 10 years
£2,490.00
Total for housing and special equipment
£39,720.00
Communication aids
(a) Headstart work station
£5,795.00
(b) Headstart view control pack
£1,550.00
(c) Headstart communication pack
£950.00
(d) Depreciation over life-span of 6.5 years gives depreciation of £24.54 per week – say £21 for reducing prices with increasing technology
£19,110.00
(e) Maintenance, including special maintenance of modifications at £15 per week
£13,650.00
(f) Software, subscriptions, extra telephone charges and incidentals at £15 per week
£13,650.00
Total for communication aids
£54,705.00
Wheelchairs and equipment
(a) Cost of spare manual wheelchair
£408.00
(b) Depreciation of both manual wheelchairs over 5 year life-span at £3.14 per week
£2,857.00
(c) Maintenance of manual wheelchairs at £1 per week
£910.00
(d) Cost of electric wheelchair
£2,100.00
(e) Depreciation of electric wheelchair over 5 year period of £8 per week
£7,350.00
(f) Maintenance, replacement of batteries, battery charging and insurance at £4 per week
£3,640.00
(g) Roho wheelchair cushion
£290.00
(h) Replacements/depreciation of roho cushions at £2.75 per week
£2,500.00
(i) Compact car cushion
£70.00
(j) Replacement/depreciation of compact car cushion
£150.00
(k) Mobile hoist
£670.00
(l) Depreciation of mobile hoist over seven years at £1.84 per week
£1,675.00
Total for wheelchairs and equipment
£22,620.00
Transport and Travel
(a) In making calculations relating to the extra cost of a van type vehicle, I am satisfied on the probabilities that the V.A.T. element would not be refunded because I conclude that it would be very desirable for the plaintiff to have a seat fitted behind the from seats so that somebody would be with him to assist him in relation to any needs or companionship which he might require. Extra cost of van type vehicle adjusted to take wheelchair
£14,000.00
(b) Depreciation of vehicle over four and a half years at £60 per week
£54,600.00
(c) Continuing cost of AA or other rescue organization
£600.00
(d) Extra cost of three and a half weeks holidays per year at £550 per year, or £10.58 per week
£9,628.00
Total extra costs of transport and travel
£78,828.00
In arriving at the various figures under the foregoing headings I have assumed that the prices given by Mr. Hellier in his evidence and in his report are stated in Irish pounds. I am aware, however, that a number of items may be expressed in sterling in which event one should really add about 20p to the pound to arrive at the true cost of such an item. I have decided, however, to deal with these various items all on the basis of Irish pounds in the interests of moderation and having regard to the views expressed by the Supreme Court in Reddy v. Bates [1983] I.R. 141, Cooke v. Walsh [1984] I.L.R.M. 208, and Sinnott v. Quinnsworth [1984] I.L.R.M. 523 regarding the desirability of keeping awards within the limits of commonsense viewed from the point of view of Irish society and the Irish economy.
Summary of ascertainable losses
1. Items provided by Mrs. Conley and not challenged £6,695.00
2. Loss of earnings £309,310.00
3. Care and attendance £358,750.00
4. Continuing personal needs £21,305.00
5. Housing and special equipment therein £39,720.00
6. Communication aids £54,705.00
7. Wheelchairs and equipment £22,620.00
8. Transport and travel £78,828.00
Total for ascertainable losses
£891,933.00
General damages
The injuries sustained by the plaintiff and the treatment, care and attendance necessitated by such injuries have already been set out in this judgment and it is unnecessary to repeat them here. Suffice it to say that the plaintiff is a highly intelligent young man who has a full appreciation of the sad plight in which he finds himself and from which there is no hope of further recovery. The fulfilment of marriage prospects, social enjoyment and the pleasure of work well done will all be permanently lost to the plaintiff and in fixing the sums for the ascertainable losses I have endeavoured to provide for the plaintiff alternative forms of interest and enjoyment to compensate him as best money can do (which of course it cannot do) for the disastrous consequences of this accident of the 11th June, 1984.
For past pain and suffering which the plaintiff has undergone over the last four years and two months or so I have come to the conclusion that the appropriate and just measure of general damages is £60,000.
For the future, which is a future much shortened in its expectation of life from what would be the plaintiff’s expectation as a healthy young man of 25 years, I have come to the conclusion that the appropriate measure of general damages is £110,000.
Finally, for the shortened expectation of life itself, I fix as is usual a relatively nominal sum of £4,000.
The total of the general damages for pain and suffering, past and future and shortened expectation of life will therefore be £174,000. When added to the ascertainable losses of £891,933, this gives an overall total sum for damages of £1,065,933. Deducting 14% from this total in respect of the plaintiff’s contributory negligence leaves a nett sum of £916,702.38.
There will be judgment accordingly for the plaintiff for £916,702.38 against the first defendant and the action as against the second and third defendants will stand dismissed.
Quinn v. South Eastern Health Board
[2002] IEHC 43 (22 March 2002)
THE HIGH COURT
Judgment of Mr. Justice Aindrias Ó Caoimh delivered the 22nd March 2002.
1. The plaintiff is a young woman who was born on the 8th May, 1979.
2. On the 9th of November 1993 the plaintiff , then 14 years of age, was admitted to a hospital operated by the defendant at Cashel in the county of Tipperary under the case of Mr. Farrell, consultant surgeon, where she was diagnosed as suffering from appendicitis and advised that she should undergo an appendicectomy. It is alleged that it was warranted that the procedure would be carried out by Mr. Farrell. It appears that the procedure was carried out by some other person in the employment of the Defendant. Subsequent to this procedure the plaintiff developed constant debilitating pain in her right lower limb and had functional impairment. She presented to the hospital on the 18th of January 1994 and on an ongoing basis thereafter complaining of continuing pain and disability in her right lower limb.
3. Ultimately the plaintiff was referred to the Waterford Regional Hospital where she was diagnosed as having a very obvious area of decreased altered sensation on the lateral aspect of the thigh consistent with the distribution of the lateral cutaneous nerve of the thigh with, in addition, a localised area of hypersensitivity medial to the anterior superior spine with what is referred to as a Tinel sign at this point. It was concluded that the plaintiff was suffering from meralgia parasthetica which was believed to be due to irritation of the lateral cutaneous nerve of the thigh where it transverses the retro-peritoneal space behind the appendicectomy site.
4. Thereafter the plaintiff was treated with injections but these only afforded her temporary relief.
5. The plaintiff and her parents were advised that she should undergo a surgical procedure at the Waterford Regional Hospital. It is alleged that neither the plaintiff nor her parents were advised that there was a risk or hazard attending the carrying out of the procedure which was represented as one that would give relief to the plaintiff. On the 10th of August, 1994 the procedure was carried out at the hospital by servants or agents of the defendant which involved exploring the plaintiff’s retro- peritoneal space, exposing the lateral cutaneous nerve of the thigh, dividing the nerve and excising a length of it to prevent regeneration. The procedure provided temporary relief for the plaintiff but left her with an area of numbness on the lateral part of her thigh.
6. By January 1995 the plaintiff’s condition had regressed to a point where it is alleged it was substantially worse that that endured by the plaintiff prior to the surgical procedure including manifestations of burning sensations all along the lateral aspects of her thigh and on the buttock and down the leg with further extensive sensory loss extending from the lateral knee over most of the anterior lateral and posterior thigh and up towards the buttock and up on the groin and on the lower abdomen.
7. It is alleged that at this juncture for the first time the defendants sought a neurological opinion on the plaintiff’s condition but were unable to determine what particular nerve or nerves might be implicated in producing the condition with which the plaintiff was left in after the aftermath of the surgical procedure.
8. It is alleged that the surgical procedures were each performed without the full and informed or any consent on the part of the plaintiff or her guardians or either of them and that the defendants, their servants or agents thereby trespassed to person of the plaintiff.
9. The plaintiff alleges negligence against the defendants in:
(a) failing to provide sufficiently qualified and experienced medical and surgical staff to perform the appendicectomy;
(b) assuring the plaintiff and her parents that the appendicectomy would be performed by an experienced surgeon known to them (Mr. Farrell) and obtaining a consent to undergo the procedure in the Cashel hospital on that basis;
(c) performing the appendicectomy in an clumsy, inexperienced and unusual fashion which exposed the plaintiff to the risk of injury which in fact materialised.
(d) causing damage to the nerve tissue in the course of the appendicectomy which resulted in the injury sustained by the plaintiff.
(e) failing to exercise any or any reasonable or proper care in the conduct of the appendicectomy.
(f) failing to have any or any proper regard to the complaints of pain and disability made by the plaintiff;
(g) failing to refer the plaintiff for appropriate assessment following the damage caused by the appendicectomy;
(h) failing to ensure in the circumstances that the plaintiff was provided with all specialist services which would provide her with the optimum chance of recovery or at least minimising her pain and disability.
(i) failing to warn the plaintiff and her parents of the risk of further injury attending the surgical procedure to divide the lateral cutaneous nerve and excise a length of it;
(j) failing to obtain appropriate neurological and neuro-surgical opinion prior to carrying out the said procedure to divide the lateral cutaneous nerve and excise a length of it;
(k) failing to provide medical and surgical staff who where experienced and qualified to conduct the said lateral cutaneous nerve division and excision of part of same;
(l) performing the said division and excision in circumstances where its effect, if unsuccessful, would be to prevent or make more difficult, a subsequent neurological investigation of the plaintiff’s continuing symptoms.
(m) the plaintiff relies upon the principle of res ipsa loquitur;
10. It appears that following the appendicectomy the plaintiff had a stinging sensation and a tingling sensation in her right thigh and occasionally thought that her leg was going to go from under her. Her leg and thigh became progressively worse. She could not put her heel on the ground and had to walk on her toes with her right leg.
11. At the age of 14 when the plaintiff was in third year in school at Ardfinnan, County Tipperary, which was her junior certificate year, she was living a normal life without any health problems and participated in sports activities at school and was on the basketball team of the school as well as participating in swimming and cycling when on the 9th of November 1993 she was brought to Cashel Hospital with appendicitis as a result of which she was told by Mr. Farrell, a surgeon at the hospital, that she would have to have her appendix removed and he indicated that he would carry out the surgery.
12. After the plaintiff had her appendix removed she left the hospital she had soreness in her side and stinging in her right thigh. This stinging was present about four days after the appendix was removed. Initially the plaintiff was sore in the area of the scar from the operation. Sometime after this she started getting numbness in her leg in the front of her right thigh with the stinging sensation continuing in the right side. The numbness was noted about two or three weeks after the operation. This stinging sensation was in an area about 8 or 9 inches below her waist on her upper thigh and running down a distance of about 6 inches. As she started getting back to normal activities she started getting darting pains in her right leg with weakness in her leg. These darting pains were in the area from her knee to her groin. The plaintiff found that she had to walk on her right toe to relieve the darting pain from her knee to her groin. She complained about the pain to her parents at the time and when by the following January the pain had got worse with weakness in her leg she went back to Cashel Hospital where she came under the attention of Dr. Glynn. He carried out several tests and referred the plaintiff to Dublin for an MRI test. The plaintiffs problems continued for 4 months from the time of her operation. Mr. Glynn was unable to diagnose the problem and on the 13th April 1984 he referred the plaintiff to Waterford Regional Hospital from Cashel Hospital where she was a patient at the time. The referral note at the time from Dr. Glynn indicates that the plaintiff was complaining of severe pain in the right thigh region, the right hip region, unable to weight bear on the right heel and tended to walk on her toes. The referral note records that the situation had evolved somewhat over a period of months from a sense of severe pain in the region of the greater trochanter combined with a terrible sense of pressure in the thigh affecting the knee to an area of numbness in the lateral gluteal region with pain felt in the right groin.
13. At the hospital in Waterford the plaintiff came under the care of Mr. O’Beirne who gave the plaintiff a local anaesthetic on the 18th April, 1994 which resulted in taking away the pain but left the plaintiff weak in her knee such that she found it hard to balance her right knee and leg. Further tests were carried out on the plaintiff and a second injection of a local anaesthetic was administered on the 17th May, 1994. On the 20th May, 1994 the plaintiff was given an injection of Phenol . The result of these injections was that the plaintiff was able to walk and resume normal activities without pain or any adverse symptoms save for an area of numbness in her right thigh. This situation lasted for four weeks. During this period the plaintiff went back to school and resumed swimming, cycling and socialising with her friends. However, after four weeks the symptoms that the plaintiff had been experiencing started coming back – the stinging, darting pain and a banging sensation which was a feeling of pressure in the plaintiff’s leg on the right hand side of her right thigh which had been associated with the stinging sensation. However, the darting pain was limited to the area of her knee and her groin as opposed to being the whole way up her leg. The stinging sensation was also described as a burning sensation. The more the plaintiff did at this time the greater she suffered such that if she walked a lot or if she started back to social activities including swimming and cycling it would make things worse. After a period of seven weeks from the injections the plaintiff was back to the same condition as she was in before receiving the injections.
14. It appears that Mr. O’Beirne was unable at this time to explain the plaintiff’s problems and he said that the plaintiff would have to get an operation in her leg which involved cutting a nerve in her leg in the thigh region. It was represented to the plaintiff that this would take away the pain and that the plaintiff would be back to the same position as she was in following the third injection, with just an area of numbness in her right thigh. She was told that she had meralgia parasthetica. The hope was that surgery at this time would sort out the plaintiff’s problems leaving some numbness in her thigh area. This surgery was performed on the 10th August, 1994 under general anaesthetic. Initially the plaintiff was much improved after the surgery with some stinging in her right side but she was able to walk. She returned home and commenced to carry out normal activities and returned to school. However, she then started to get the pain back in her leg and the shooting or darting pain recurred. The banging sensation and stinging also returned. Thereafter the darting pain to the groin area returned. These all returned within a period of two weeks or less after returning home from hospital. The plaintiff never returned to her normal activities. She did return to school and was all right when sitting or standing but her problems arose when she had to do activities. When she had to do anything that involved moving her right leg the pain got a lot worse and was severe. She was not able to get back to cycling or swimming. She fell in January 1995 but this did not make matters worse. The plaintiff returned to Mr. O’Beirne who was not able to do anything for the plaintiff. The symptoms remained with the plaintiff to the present time. The plaintiff complains that her pain is worse now than it was before the operation in Waterford.
15. The plaintiff was referred to a Dr. Galvin, a neurologist in Cork who was unable to help the plaintiff but referred her to Dr. Gerry Browne, a pain consultant who was also unable to assist the plaintiff other than give her some Emla cream that gave some temporary relief but when it wore off the pain would be worse.
16. The plaintiff is best when she is lying down but she does suffer a darting pain like the prick of a needle in her groin which is constant. If the plaintiff turns her right leg in towards her body she gets some relief. There is, however, a darting pain from about two inches above her right knee and a cramp in her buttocks which is constant. On the other hand when the plaintiff is walking and trying to get about he avoids bending her knee or putting her heel on the ground as it would otherwise provoke the pain. The plaintiff continues to suffer the stinging and ‘banging’ . The plaintiff is unable to walk very far and certainly not for a distance of one mile and when she is required to walk it provokes the pain. If the plaintiff walks any distance she gets a weakness in her leg which can result in the leg going from under her.
17. The plaintiff had difficulty coping in school because she had to sit down and she could not do this the whole time nor could she stand up for a long period and as a result she had to both stand up and sit down during classes as required to ease the pain. The plaintiff was unable to resume her social activities and was reduced to watching television and could not go to a disco and as a result of all of this her friends became limited. She had a few friends who called to her as she could not go out to do activities. Two friends visited her and the plaintiff was lonely at the time.
18. While the plaintiff missed out a lot in school she performed well in her Leaving Certificate examination in the circumstances. She obtained one honours grade and passes in her other subjects. Her two friends did better than her even though the plaintiff had been of an equal grading to them. She believes that she would have done much better had she not the health problems.
19. The plaintiff sought employment after leaving school and had problems associated with her work. She worked in a drapery department of Dunne’s Stores and found it very hard. Thereafter she worked in a solicitor’s office doing secretarial work having done a secretarial course but as she was sitting down all the time she found it very difficult. She was unable to continue and thereafter worked in an office of a nursery garden centre. Again she was sitting down all day and was unable to stand when working. She now works with AIBP in Cahir where she works as a clerk doing some book-keeping and dispatch work. This work suits her as she can stand up and sit down and mobilise. She is in between two offices. She has her own department and gets on well there. She works a considerable amount of overtime as she finds that her social activities are very limited as she is unable to participate in same as when she engages in same the pain gets a lot worse. She can work up to 14 or 15 hours per day, four days per week. In addition she may work a normal day on a fifth day and a half day on the sixth day of a week which is on every second Saturday. As a result of all of this the plaintiff is isolate but there are 26 girls altogether and three of these in her office. The plaintiff gets relief from her pain by lying down. She does not take pain killers as they do not give relief.
20. The plaintiff is good at her job. She has the support of her parents and depends on them a lot. However, as she is now 22 years of age she feels that she needs more independence for herself. Her parents drive her to and from work and to and from her friends. The plaintiff tried to learn to drive without success as she could not manage the pedals. She finds it difficult to negotiate stairs. The plaintiff’s problems are in all probability going to be permanent. She is concerned that as a mother in the future she would have difficulty holding or carrying a child as she has weakness in her leg which could go from under her. While she can walk on her toe she does not have good balance when walking on her toe.
21. Evidence was given by Mr. Tom Russell, a consultant neurosurgeon at the Western General Hospital in Edinburgh. He has a bachelor degree in medicine and a further degree in surgery from the University of Glasgow. He has a Bsc in physiology and holds two fellowships in surgery from Glasgow and Edinburgh respectively. He has a speciality in spinal neurosurgery. He has been a consultant for 14 years and is senior lecturer in neurology and neurosurgery in the University of Edinburgh. In the course of his training he did a mandatory period of two years in general surgery. He performed an appendicectomy in this period. He described this as normally a very straight forward operation. After a few months of qualification a junior doctor would be permitted to perform such an operation.
22. With regard to meralgia parasthetica in the majority of cases no cause is found. When a cause is found it is usually compression of a nerve as it comes through or passes under the inguinal ligament. The nerve in question is the lateral femoral cutaneous nerve (LFCN). It arises from branches of the L3 and L4 nerve which meet. It then traverses the pelvis line with a muscle called the iliacus. It exits the pelvis either through or under the inguinal ligament. It then becomes superficial and supplies sensation to a variable part of the front and side of the thigh. It arises from a nerve in the lumbar plexus, travels through the pelvis and reaches a point at the anterior superior iliac spine. When it reaches this point it is leaving the pelvis and emerges out into the thigh. It branches with a significant variability. It is a difficult nerve to find and is not a large nerve. One tries to explore it as near the inguinal ligament as possible before the branching. Once it has branched it is almost impossible. It is a sensory nerve which supplies sensation to the skin. The nerve usually serves the front and side of the thigh (anterolateral part) but there is some variability. It may serve an area just below the knee and it may supply the inside of it. It may also serve an area on the inside of the lower thigh, just above the knee and it may supply some sensation around the buttock.
23. The normal explanation of meralgia parasthetica is that this nerve has become compressed, usually in the area of the inguinal ligament. Numbness is what normally follows. It is associated with a tingling, burning or dull aching pain (dysesthesia). This is a very abnormal sensation. It usually occurs when the skin is touched lightly and patients describe it in a variety of ways.
24. There may be secondary symptoms with meralgia parasthetica largely caused by the patient trying to reduce the pain. In this regard the patient may complain of cramp in the muscles of the leg because of using the muscles as the leg is being held awkwardly and constantly to avoid the pain. It is common to want to keep the hip slightly flexed. To get relief from the primary symptoms the patient will tend to walk on tip toe. The ability to get a comfortable position varies considerably from person to person. They usually want to more between sitting and standing. This depends on precisely where the nerve is being squeezed.
25. There are three forms of treatment for meralgia parasthetica. The first is to move anything that may be contributing, the common items are tight belts and tight clothing because the nerve can be compressed by these. The second treatment is one of conservative medical treatment. A variety of treatments come under this heading. The first may be injections, direct injections into the region of the nerve using local anaesthetic, steroid, Phenol, or a combination of these. The second would be to try simple non steroidal pain killers which are non steroidal anti-inflamatories. The third is to try some anti-convulsant , anti epileptic drugs.
26. The third form of treatment is surgery of some description of which there are three kinds. The first is neurolysis which is decompression of the nerve by finding the nerve and looking for anything constricting the nerve and then releasing these. The hope is that by removing the constriction on the nerve the problem will be settled. The second type of surgery is a variation on this in which neurolysis is performed and the nerve is moved (transposition). In this case when the neurolyisis is carried out the nerve is moved. The nerve may be moved a few centimetres. The third form of surgery is neurectomy in which the nerve is either cut through or portion of the nerve is cut out to leave a gap. This is transsection. When a neurectomy is performed the nerve will stop working for a variable period of time. In this case if a nerve is cut the distal part (being the part down the thigh) will die as it no longer receives nutrition from the nerve cell in the spinal cord. The section of the nerve that is taken out is to prevent the nerve re-growing and joining up again. Should it re-grow one would be back to square one at best. The proximal end gets involved in local inflammation in trying to heal itself by forming a neuroma, which is a bulbous swelling at the end of the nerve. It may get involved in the scar tissue that forms the site of the cut and get trapped in the scar tissue such that when the nerve gets back to working again the nerve begins to transmit again and may transmit strange signals which may result in strange sensations.
27. The witness never performed a neurectomy for a variety of reasons. Most people will settle for conservative treatment and a neurectomy is completely irreversible and once it has been done many of the drugs that would work when the nerve is intact will now no longer work. The success rate of a neurectomy is variable and it reputation is very poor.
28. The literature suggests that in the case of meralgia parasthetica conservative treatment should be tried exhaustively before even considering surgery. Only when conservative treatment has been exhausted should surgery be attempted.
29. The notes on the plaintiff show that when she was admitted to Waterford Regional Hospital she was given an injection of Xylocaine into the region of the lateral cutaneous nerve, the thigh, at the inguinal ligament, which gives some relief of pain. This is a diagnostic. This enabled a conclusion to be reached that the plaintiff was suffering from meralgia parasthetica. Mr. Russell expressed the opinion on the evidence of the plaintiff that she was suffering from this from the time of her appendicectomy. He was shown the appendicectomy scar on the plaintiff which he considered to be oddly placed by which the witness indicated that it was two or three inches lower than the standard scar and nowhere near the area of the standard incision site for an appendicectomy. He considered that it was several inches out of place. He observed that the actual incision is very close to the inguinal ligament which means that the plaintiff would be at the greatest risk of damage to the femoral nerves, the femoral vessels and also the lateral cutaneous nerve in the thigh. The classical site essentially overlies the appendix in most cases.
30. The witness expressed the opinion that the readmission of the plaintiff to Waterford Regional Hospital on 25 April, 1988 for the purpose of the release of the lateral cutaneous nerve of the right thigh was inappropriate as there had been no attempt to treat the plaintiff medically. However, this course was not followed at the time and the witness indicated that the treatment by injection in May 1994 was appropriate. He expressed the view that a number of options existed at this point, the easiest being to continue with the injections. The literature suggests that 75% of people will settle with repeated injections. On this basis he considered that there was a strong case for repeating the injections. Alternatively, the other medical options such as anticonvulsant drugs or even simple painkillers could have been used.
31. The witness considered that the Phenol injections of 17th and 20th May gave a good result but unfortunately relatively short lived but could be repeated. If repeated he would expect a similar result or a longer lasting result. If he did not get the right response from this he would have either switched to injecting steroid or a mixture of steroid and local anaesthetic or one could have switched to steroid on its own or to steroid plus a local anaesthetic. Alternatively, one could have switched to using drug therapy or there are painkillers or other anti-epileptic drugs. As the literature suggests that 90% of cases settle within two years on conservative treatment alone he would have allowed for nothing short of a year before recommending surgery. One may hold out for the full two years. At the end of 18 months, if it were not improving he would have given surgery some thought and the surgery in question would be neurolysis. He considered that had the plaintiff been treated conservatively she had a clear probability of being cured.
32. The witness indicated that the procedure carried out to have been inappropriate treatment because the full range of conservative treatment had not been tried, because the procedure was irreversible and once carried out many drugs that would have been of use and which would work when the nerve was intact will now no longer work and these treatments are no longer available. He considered that the decision to carry out the surgery was at the wrong time in the evolution of the disease.
33. The witness himself has carried out approximately 6 neurolysis procedures. The plaintiff’s symptoms were what he would expect from a neurectomy which did not work.
34. The witness considered that the advice given to the plaintiff concerning the neurectomy to have been wrong because a significant number of people have what is called anaesthesia dolorosa which is a dull aching pain on the site of the numbness which many patients find is actually worse that the original pain. Furthermore, the neurectomy may not take away the pain and it has a negative effect on the outcome of conservative treatment because many drugs that rely on an intact nerve to work will now no longer work. The advice given was short of what should have been given. The witness stated that the consent form did not indicate an intention to section the nerve.
35. The witness indicated that the incidence of meralgia parasthetica in children is very low.
36. The witness indicated that the plaintiff’s condition is permanent with no further treatment and she has not been offered any further treatment in Ireland. The witness indicated a number of drugs which should have been used but as the plaintiff’s condition has lasted for some time they may not be effective now. He expressed the view that it is likely that the plaintiff’s symptoms will continue indefinitely.
37. Under cross-examination the witness conceded that the meralgia parasthetica diagnosed in the plaintiff by Mr. O’Beirne was a severe case at the time.
38. With regard to the advice given to the plaintiff, the witness stated that anaesthesia dolorosa occurs in slightly less that 50% of cases.
39. The witness was not aware of any of his colleagues in neurosurgery who carry out neurectomy for meralgia parasthetica and no general surgeon that he knows of carries it out for this condition and no orthopaedic surgeon that he knows of carries it out for the condition. Nevertheless, the witness did not rule out surgery as being appropriate in the treatment of meralgia parasthetica and neurectomy in certain cases.
40. In the instant case the witness was critical of the fact that conservative treatment was used for only 4 to six weeks. Phenol is a dangerous drug and should be used only sparingly and it may cause problems and accordingly it has to be handled carefully. He considered that in the instant case Mr. O’Beirne should have considered one other Phenol injection and should have given one. The witness accepted that it is a clinical carefully balanced decision that a doctor has to take whether to give a second Phenol injection. He did not respect the decision to go the neurectomy route at the time as conservative treatments exist and should have been explored fully before surgery was considered. He opined that no one should have carried out the neurectomy in the circumstances of the plaintiff.
41. With regard to the pain experienced by the plaintiff, the witness compared it with the pain that arises after amputation of a limb where the limb has gone but the pain of the limb is still present as far as the patient is concerned.
42. At the conclusion of the plaintiff’s case it was indicated to the court that the defendant did not intend going into evidence and it was submitted by counsel on behalf of the plaintiff that I should dismiss the plaintiff’s claim on the basis that the Defendant had no case to answer.
43. By reference to the evidence it was submitted that Mr. Russell did not have the necessary expertise to criticise the defendant’s surgeons who had operated on the plaintiff. It is submitted that the witness in evidence admitted that he did not have the expertise to comment or say that there was a lack of care or a falling below of a standard in relation to any of the persons involved, namely the orthopaedic surgeon and the general surgeon. It is submitted that the witness only had the expertise in his own area of speciality in his own jurisdiction.
44. With regard to the issue as to whether the defendant’s consultant should have persisted with conservative treatment of the plaintiff after she was diagnosed as suffering with meralgia parasthetica and after she had been administered local anaesthetic injections as well as Phenol, it is submitted that Mr. Russell is not in a position of second guessing the decision of the orthopaedic surgeon when he came to make a decision to move from conservative treatment.
45. While the literature introduced in evidence suggested that conservative treatment should be continued for at least 12 months or 18 months, it is submitted that this view is not to be set up as having equal importance to the view of “a careful orthopaedic surgeon” Mr. O’Beirne, who treats the plaintiff face to face. It is submitted that there is nothing to say that Mr. O’Beirne was so wrong that no careful doctor in his position of being an orthopaedic surgeon could have made the decision at the moment he made it to change. It is submitted that everything in his view insofar as we know from the state of the papers at this moment had been done up to that stage and he made the decision to move to other treatment.
46. With regard to the site where the nerve was cut, it is submitted on behalf of the Defendant that the plaintiff’s case must fall on the evidence of Mr. Russell.
47. With regard to the issue of consent it is submitted that the case does not stand as the plaintiff and her parents were told of the intention to cut the nerve. The absence of consent related to the documentation which showed that the consent form was for an exploratory procedure.
48. On behalf of the plaintiff, it is submitted that on the evidence the plaintiff is worse off now than before the neurectomy and that she has lost the opportunity of being among the 91% of patients, which is one statistic in the literature, who would recover on conservative treatment.
49. The suggestion that Mr. Russell did not have the necessary qualification to give the evidence which he did in this case is categorised as a “red herring” by Dr, White on behalf of the plaintiff. It is submitted that the evidence demonstrated his expertise and that no evidence was given to contradict him in this regard.
50. With regard to the qualifications of Mr. O’Beirne the question is asked if he had the necessary qualifications why did he consider it necessary to telephone Mr. McKinnon in America for his advice. It is pointed out that the general surgeon in Waterford was Mr. O’Connor and why if he had the necessary qualification was it necessary for Mr. O’Beirne to ring America rather than to speak to Mr. O’Connor. On this basis it is submitted on the basis of the discovery made in this case that neither Mr. O’Beirne nor Mr. O’Connor had the necessary expertise in this case.
51. Essentially the plaintiff relies upon the evidence of Mr. Russell that there was a mandatory requirement of to exhaust conservative treatment before surgery is resorted to and that this requirement had not been met in this case. In this case the conservative treatment involved 3 injections over a five week period. (18th April 1994 to 20 May, 1994) which contrasts with the witness’s view that it should have been persisted with for between 12 and 18 months.
52. Reliance is placed upon the fact that Mr. O’Beirne did not try other conservative treatment at the end of the period of the conservative treatment in this case, before going the route of a neurectomy. This was the essential criticism of Mr. Russell in this case. His view was clearly that no one should go in to a neurectomy in the circumstances of the plaintiff at the particular time. The witness referred to the literature in stating this.
53. Further to this submissions are made on behalf of the plaintiff that there was negligence in not performing neurolysis at this stage. Again reliance was placed upon the evidence of Mr. Russell in this regard, especially in the case of children. In this regard reliance is placed upon the irreversible nature of a neurectomy.
54. Reliance is placed upon the discovered notes in this case to show that the plaintiff was readmitted on the 25th April, 1994 for the release of the lateral cutaneous nerve of the right thigh within less than two weeks of arriving in Waterford and this was for neurolysis rather than a neurectomy. In this regard it is submitted that this indicates that at that very early stage no attention at all was directed to conservative treatment.
55. With regard to the advice given to the plaintiff at the stage of the neurectomy, she was advised that she would have an area of numbness in her thigh but she would otherwise be perfect, counsel has referred this court to the evidence of Mr. Russell in regard to the failure to advise the plaintiff appropriately of the risk of anaesthesia dolorosa and the fact that the operation would have a negative effect on many drugs that rely on an intact nerve to work.
56. It is submitted that as a matter of probability had the plaintiff been treated with conservative treatment at the time rather than the neurectomy that she had a somewhat greater chance than 51% of recovering. On this basis it is submitted that the issue of the original appendicectomy in Cashel and whether it was negligently carried out is not entirely necessary in this case. It is submitted that the essential problem in this case is that the plaintiff was not properly treated.
57. It is submitted that if the plaintiff cannot establish negligence in regard to the appendicectomy that the essential difference is the period from November 1993 to April 1994.
58. With regard to the appendicectomy, the plaintiff’s case rests essentially on the doctrine of Res Ipsa Loquitur. It is submitted that the evidence goes to establish that the result was not a result which was to be anticipated in the normal course of events from an appendicectomy operation, and all the more so in the case of a child where the incidence is very low. It is submitted that notwithstanding a request to do so the defendants have failed to give an explanation how what should have been a benign procedure ended up causing the condition of meralgia parasthetica.
59. While Mr. Russell did comment on the location of the incision he was not prepared to criticise the procedure carried out. He indicated that the location of the incision was such as was likely to present a risk of damage to the particular nerve in question in this case. Counsel for the plaintiff relies upon the fact that the plaintiff was under the care of the Defendant at the time of the appendicectomy and that meralgia parasthetica is not something that results in the ordinary course of things if those who have the management exercise reasonable care. It is submitted that in these circumstances in the absence of an explanation that this affords reasonable evidence of negligence. It is submitted that as a matter of probability the plaintiff has established that the appendicectomy caused the meralgia parasthetica.
60. Reliance in this regard is placed upon ‘Neurology in Clinical Practice’ (1996) by Walter G. Bradley and others published by Butterworth-Heinemann where at page 1896 it is stated in regard to meralgia parasthetica, inter alia as follows:
“The site of the entrapment is usually at the level of the inguinal ligament. Rarely, the nerve can be affected in its proximal segment by retroperitoneal tumors or be injured during appendicectomy.”
It is submitted that at no time was there any warning that this was a risk associated with the appedicectomy, and it is submitted that this would be given if it were the expected event. On this basis it is submitted that the appendicectomy was the cause and that the plaintiff’s case comes within the doctrine of res ipsa loquitur.
61. Counsel relies upon the decision of Erle, C.J. in the case of Scott v. London & St. Katherine Docks Co., 3 H. & C. 595 at 601 where he stated as follows:
“There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary circumstances does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from the want of care.”
62. Counsel submits that this principle is applicable to the facts of this case and no explanation has been forthcoming from the plaintiff to explain how otherwise the plaintiff sustained the meralgia parasthetica.
Conclusions:
63. In the first place I accept the evidence of the plaintiff itself and in fact it has not been controverted in any respect. Furthermore, I accept the evidence of Mr. Tom Russell and the evidence in the form of the literature which has been placed before the court and the documents discovered in these proceedings which was opened in evidence before this court.
64. It is clear that the plaintiff sustained meralgia parasthetica in or about the time of her appendicectomy in November 1993. I am satisfied on the evidence before me that this resulted from the appendicectomy. The plaintiff began to suffer from the meralgia parasthetica almost immediately after leaving hospital. The evidence shows that the plaintiff complained within two or three weeks of leaving hospital. It appears that the plaintiff’s complaints developed until she was seen in the hospital in Cashel in January 1994 and worsened further until she was referred to the Waterford General Hospital in April, 1994.
65. I am satisfied that Mr. Russell has the necessary expertise to pronounce on what occurred at that hospital. It is clear that at a very early stage, that is within two weeks of the referral to the hospital in Waterford that surgery was being contemplated. However, it was not followed through at that time and it appears from the evidence that injections were administered to the plaintiff in the form of anaesthetics in the first instance to locate the area of the nerve damage to the plaintiff’s body and further with a view to seeking to address the plaintiff’s complaints in a conservative manner. In this regard the first injection was on the 18th of April and the final injection (Phenol) was on the 20th May, 1994. The final injection gave a complete relief to the plaintiff for a limited period. However, when it failed to address the plaintiff’s problems it is clear from the evidence that no other conservative treatment was provided and the only treatment provided was the neurectomy which was carried out in August, 1994.
66. I am satisfied on the evidence of Mr. Russell that proper care of the plaintiff at that time warranted conservative treatment being continued in one form or another for at least 12 months and more probably for a longer period. I am satisfied on the evidence of Mr. Russell, supported by the literature referred to in evidence before me, that had conservative treatment been followed for this period that in all probability it would have addressed the plaintiff’s problems and resulted in her overcoming the meralgia parasthetica. It is clear that the choice of surgery at the time in the form of neurectomy rather than neurolysis was such as to reduce the prospect of any drug therapy in the future as the evidence shows that many drugs depend on a live nerve. Accordingly, I have no hesitation in accepting the opinion of Mr. Russell that the neurectomy was the wrong treatment at the particular time when it was carried out and that this choice of treatment has left the plaintiff in a position where she is unlikely to overcome the meralgia parasthetica and in all probability will remain severely debilitated by it for the rest of her life.
67. With regard to the plaintiff’s consent to the neurectomy, I am satisfied that while there was a consent it cannot be considered to have been an informed consent as the plaintiff and her parents were not advised of the risks associated with a failed neurectomy and in particular the possibility that it might not prove successful and might reduce the possibility of other conservative treatment being followed, not to mention other possible side effects from the operation such as anaesthesia dolorosa. It must be emphasised that the plaintiff was not advised appropriately as to the consequences of the neurectomy being an irreversible procedure.
68. I am not prepared to hold that the site of the neurectomy was inappropriate as the evidence does not show that the problems of the plaintiff relate to the failure to properly locate the damaged nerve or otherwise.
69. With regard to the appendicectomy, I have already indicated that I believe that this resulted directly in the meralgia parasthetica. In reaching this conclusion I am mindful of the evidence of Mr. Russell as to the location of the incision and the fact that it was unusually low and in an area with greater risk of damage to the lateral femoral cutaneous nerve. I believe the fact that rarely can the nerve be affected during appendectomy and the fact that the evidence shows that it was in the instant case that it brings into play the doctrine of res ipsa loquitur and that the plaintiff is entitled to succeed against the defendant in respect of the appendectomy also as no explanation has been forthcoming from the defendant in whose care the plaintiff was at the relevant time.
70. In light of the findings of negligence against the defendant I now assess damages against the defendant. In this regard I have to take into account the pain and suffering suffered by the plaintiff to date and also the fact that the injury sustained by her has severely blighted her teenage years and deprived her of a normal lifestyle in those important informative years. It is clearly to the plaintiff’s credit and to her parents that she has sought to address her problems in a positive manner and has become a valued staff member of AIBP in Cahir. In light of the evidence given before me I assess damages in the sum of Euro 120,000 to date and Euro 180,000 to the future.
Lindsay v Mid-Western Health Board
Beatrice Lindsay (an Infant) suing by her aunt and next friend Nora Phelan v Mid-Western Health Board
1991 Nos. 214 and 233
Supreme Court
18 December 1992
[1993] I.L.R.M. 550
(Nem. Diss.) (Finlay CJ, O’Flaherty and Egan JJ)
O’FLAHERTY J
(Finlay CJ and Egan J concurring) delivered his judgment on 18 December 1992 saying: This is an appeal from the judgment and order of the High Court (Morris J) of 30 May 1991, holding in favour of the plaintiff in an action for damages for personal injuries brought on her behalf for the alleged negligence of the defendants, their servants or agents in regard to matters surrounding a surgical procedure carried out at Limerick Regional Hospital on or about 16 March 1982. The judge assessed damages in the sum of £319,392.93. The defendants appeal against the finding of negligence and while, originally, the plaintiff sought to vary the judgment in regard to damages, in the course of the hearing of the appeal, that aspect of the case was not proceeded with further.
Facts
The plaintiff, Beatrice Lindsay, then aged eight years was admitted to Limerick Regional Hospital on 15 March 1982 with stomach pains. She was diagnosed as having an acute appendicitis or, as an alternative, mesenteric adonitis. This latter condition is an inflammation of the lymph glands in the mesentery. The symptoms of this condition mimic the symptoms of an inflamed appendix and, indeed, that is what happened in this case because after the appendix was removed and was subsequently subjected to pathological examination it was found not to be the cause of the plaintiff’s original troubles. No point is made on this as it is accepted that it was reasonable to operate to remove the appendix in the circumstances of this case.
After the decision to operate was made Dr James McDermott, who was a consultant anaesthetist at the hospital since 1956, was sent for and he arrived from his home. In the interim, the nursing staff had prepared the patient for the operation. The anaesthetic was administered by Dr McDermott with Dr Pai, who was attached to the hospital as a senior officer in anaesthetics, also in attendance. The operation was carried out by Dr Michael O’Riordan, then a senior house officer at the hospital under the supervision of Mr Nur, a Fellow of the Royal College of Surgeons and surgical registrar at the hospital.
The evidence of the anaesthetists was to the effect that the relevant anaesthetic procedures were put in place and that nothing untoward happened in the course of the operation. The plaintiff was removed to the recovery room when she was described by Dr McDermott as being absolutely normal. Although she appeared to be commencing to regain consciousness she did not do so and then she developed seizures which proved extremely difficult to control. She eventually became comatose and unresponsive. This was at about 2 am on the morning of 16 March, the anaesthetic having been administered at about 12.35 am. Later, on neurological examination, a CT scan showed generalised brain oedema. EEG showed bilateral diffuse symmetrical slow activity, in keeping with a diffuse form of neuronal dysfunction. The plaintiff has irreversible brain damage, is in a coma and will not come out of it. At the date of the trial she had *552 a life expectancy of about 15 years.
The plaintiff’s case
No complaint is made about the actual surgical operation. The essential case made on behalf of the plaintiff is that she went to the hospital with a very common complaint, appearing to be an acute appendicitis, that she was then a normal, healthy girl; that she was put through a routine anaesthetic reducing her to a state of unconsciousness and that her situation is that she has never been brought back to a state of consciousness. It is, therefore, submitted that this prima facie shows that something irregular took place in the course of the administration of the anaesthetic and that it is, in those circumstances, for the defendants to disprove negligence: res ipsa loquitur.
The defence case
The defendants say that unless one can point to a negligent act, as opposed to an unusual occurrence, then res ipsa loquitur has no place. They say, in any event, that they proved that everything that could be done was done in this case; that nothing has been shown to have been done negligently but, on the contrary, that while this was regarded as a routine procedure the plaintiff was attended by two anaesthetists during the course of a significant but routine surgical procedure and that nothing untoward took place. That, in those circumstances, to repose liability on them would be to hold doctors responsible for pure accidents which can occur and for which no full explanation is forthcoming. That neither doctors nor hospitals can be guarantors of the success of every procedure that is undertaken and that provided they exercise reasonable care, carrying out procedures in accordance with what is established practice, that to repose liability on them in such circumstances would be to produce a very unjust result.
What is the correct approach?
In my judgment, the submission that res ipsa loquitur does not apply in the circumstances of this case should be rejected. It is true that a precise circumstance of negligence cannot be pointed to — such as in the classical cases of bags of sugar falling on a passing pedestrian (Scott v London & St Katherine Docks Co. (1865) 3 H & C 596) or a motor car driven onto a footpath (Murray v Gilmore, Supreme Court, 20 December 1973) but it seems to me that if a person goes in for a routine medical procedure, is subject to an anaesthetic without any special features, and there is a failure to return the patient to consciousness to say that that does not call for an explanation from defendants would be in defiance of reason and justice. Equally, however, it seems to me that in this case the most that the defendants should be required to do is to show that they exercised all reasonable care; that they were not negligent and that they should not be required to take the further step of proving, on a balance of probabilities, *553 what did cause the plaintiff’s brain damage. The distinction between a negligent act and causation requires to be emphasised.
Hypoxic insult?
I believe that in this case the plaintiff’s advisers would have been perfectly entitled to set out the broad facts of the case and, without more, require the defendants to adduce evidence as to what took place in the course of the operation. The plaintiff’s advisers approached the case in a different way, as of course they were entitled to do, because they were in a position to call an expert witness, Professor Padraig Keane, professor of anaesthetics at University College, Galway who gave evidence that the likely cause of the plaintiff’s condition was a hypoxic insult which she sustained in the course of the administration of the anaesthetic. Hypoxia is a withdrawal or reduction of oxygen to a dangerous degree. That such happened was refuted by the two anaesthetists on duty. It was not in controversy that if there was a hypoxic occurrence an anaesthetist should have seen it. It was put as follows at the start of the cross-examination of Dr McDermott (volume 6):
Q. 565: Doctor, you accept that it is the duty of the anaesthetist to look for any hypoxic occurrence?
A. Oh yes. Perfectly, yes.
Q. 566. If he is looking, he should see it.
A. Yes.
Q. 567. And if he fails to see it would it be a failure, a serious failure on the part of an anaesthetist?
A. Yes, I think it would, yes.
In addition, the defence expert witnesses said that the symptoms were not present that one would expect if there had been an hypoxic occurrence. The learned trial judge accepted the expert testimony proferred on behalf of the defendants. He said, in the course of his judgment:
That being so, the plaintiff has not established as a matter of probability, the cause for the brain damage as being an hypoxic occurrence. Rejecting, as I do, the proposition that the injuries suffered by [the plaintiff] arose as a result of hypoxia, it is necessary to consider the second heading upon which her claim is based, that is to say, her reliance on the principle of res ipsa loquitur.
The trial judge’s finding
The learned trial judge having held that the effect of the application of the maxim res ipsa loquitur was to throw the burden of proof onto the defendants to prove, on the balance of probabilities, what caused the plaintiff’s brain damage and they having failed to do so — having propounded possiblities only of what *554 caused her condition — that that would amount to the court adopting a theory based on pure speculation; that was not sufficient for the defendants to meet the case and, therefore, he held that negligence was to be inferred. On that basis, he found for the plaintiff.
For resolution
As I have set out, the trial judge rejected hypoxia as a cause of the plaintiff’s condition. Mr Sutton SC for the plaintiff has submitted, however, that the trial judge did so only in regard to the assertion made on behalf of the plaintiff that hypoxia was the cause of the plaintiff’s brain damage; that, however, it remains as something that could still be in the case and something that the defendants have not disproved as they are required to do once the maxim res ipsa loquitur comes into play. I would reject this submission as being at variance with the judge’s findings. He had before him the clear evidence of all the defence witnesses, especially the two anaesthetists, that no hypoxic occurrence took place in the course of the anaesthetic procedures and he also accepted the evidence of the expert defence witnesses in this regard. The only conclusion that can be drawn is that hypoxia is out of the case. While the plaintiff’s advisers did not have to assert any particular cause for the plaintiff’s condition, it is the case, I believe, that hypoxia as a possible cause would have had to be disproved in any event. So nothing turns on the fact that the plaintiff’s advisers propounded it as a cause in the first instance.
What is left?
With hypoxia out of the case, it follows inexorably that the anaesthetists must be acquitted of any blame because the only thing that could result was hypoxia if anything had been remiss with the way the anaesthetic was administered: nothing else.
The defence burden
I believe that the trial judge was, however, correct in regarding this as a res ipsa loquitur case. Disparity between the situation of the respective parties is crucial in this regard. As Ó Dálaigh CJ said in Dowd v Kerry County Council [1970] IR 27 at p. 41:
It should also be said that in an action with regard to a surgical operation the plaintiff rarely knows anything; what happened is known only to the defendants.
In the decision of the British Columbia Supreme Court, Girard v Royal Columbian Hospital (1976) 66 DLR 676 which was cited to the learned High Court judge as well as to us, Andrews J agreed with the description of res ipsa loquitur contained in Fleming, The Law of Torts (see now 7th ed. at p. 291):
*555
In some circumstances, the mere fact that an accident has occurred raises an inference of negligence against the defendant. A plaintiff is never obliged to prove his case by direct evidence. Circumstantial evidence is just as probative, if from proof of certain facts other facts may reasonably be inferred. Res ipsa loquitur is no more than a convenient label to describe situations where, notwithstanding the plaintiff’s inability to establish the exact cause of the accident, the fact of the accident by itself is sufficient in the absence of an explanation to justify the conclusion that most probably the defendant was negligent and that his negligence caused the injury. The maxim contains nothing new; it is based on common sense, since it is a matter of ordinary observation and experience in life that sometimes a thing tells its own story. Unfortunately, the use of a Latin phrase to describe this simple notion has become a source of confusion by giving the impression that it represents a special rule of substantive law instead of being only an aid in the evaluation of evidence, an application merely of ‘the general method of inferring one or more facts in issue from circumstances proved in evidence’. (Davis v Bunn (1936) 56 CLR 246 at 268).
I, too, would adopt this as an apt description of the scope of the maxim. Andrews J went on to say at p. 691:
The human body is not a container filled with a material whose performance can be predictably charted and analysed. It cannot be equated with a box of chewing tobacco or a soft drink [cf. Pillars v R.J. Reynolds Tobacco Co. (1918) 117 Miss 490 (SC) and Donoghue v Stevenson [1932] AC 562]. Thus, while permissible inferences may be drawn as to the normal behaviour of these types of commodities the same kind of reasoning does not necessarily apply to a human being. Because of this medical science has not yet reached the stage where the law ought to presume that a patient must come out of an operation as well or better than he went into it. From my interpretation of the medical evidence the kind of injury suffered by the plaintiff could have occurred without negligence on anyone’s part. Since I cannot infer there was negligence on the part of the defendant doctors the maxim of res ipsa loquitur does not apply..
I would adopt this reasoning to the circumstances of the present case.
Conclusion
I believe at the end of all the evidence in this case the situation was that the plaintiff had clearly established a prima facie case on two different bases. One was the evidence of Professor Keane that postulated the probability that there had been an hypoxic occurrence. This, as I have said, was rejected by the trial judge. Further, for the reasons I have suggested as regards how unique and unusual this occurrence was, and because of the respective positions of the litigants, clearly an answer was required from the defendants. That answer could be provided in two ways. They could have proved, on the balance of *556 probabilities, that the plaintiff met her injuries in a particular manner that caused her condition but which was not connected with the administration of the anaesthetic. This they failed to do. The furthest the defendants got was to suggest as possibilities other means by which the plaintiff sustained her injuries. I believe this evidence is not, however, to be regarded as totally inadmissible. It was legitimate, I believe, for the defendants to adduce evidence of possibilities, remote though they might be, as an explanation; in contradistinction to saying that they could not offer any explanation of any description whatsoever. It went to provide some corroboration, as well, that there was no negligence on their part in the administration of the anaesthetic. The other course was for the defendants to establish that from beginning to end of this anaesthetic procedure there was no negligence on their part. This they did decisively and, in those circumstances, it appears to me that they rebutted the burden of proof that rested on them to displace the maxim res ipsa loquitur and so the case returned to the plaintiff’s bailiwick to prove negligence.
I believe that it is necessary to ensure that the rule embodied in the maxim does not put a burden on defendants which is so onerous as to produce an unjust result. Each case must, of course, be dealt with in accordance with its own particular facts but, as I have said, I believe that in the circumstances here the defendants have met the prima facie case made against them as fully as could be expected. It would be an unjustifiable extension of the law to say that in the absence of an explanation that could be proved, on the balance of probabilities, negligence on the part of the defendants must be inferred. It has often been said that medical science is not an exact one and it is safe to prophesy that medical science and its technology will advance past frontiers which are not within anyone’s contemplation at this time and so matters at present not amenable to explanation will be capable of resolution.
Accordingly, I would reverse the order of the High Court.
Griffin v. Patton & Anor
[2004] IESC 48 (27 July 2004)
THE SUPREME COURT
Murray C.J.
McGuinness J.
Hardiman J.
Geoghegan J.
Fennelly J.
143/03
JUDGMENT of Mr. Justice Geoghegan delivered the 27th day of July 2004 [Nem Diss]
This is an appeal on liability only from a judgment of the High Court (O’Donovan J.) awarding €100,000 damages and costs to the respondent against the appellant who is a consultant obstetrician and gynaecologist for negligence in the carrying out of a surgical procedure. This procedure was carried out in the Bon Secours Hospital in Cork and the second-named defendant was the nominated representative of that hospital which was also sued in negligence arising out of the same procedure. The action against the second-named defendant in the High Court was dismissed and there is no appeal against that order.
Although there were a large number of formal grounds of negligence in the statement of claim it can broadly be stated that essentially the allegations were twofold. The first was that in a situation where there were a number of possible ways of dealing with the respondent’s medical problem the appellant negligently chose the wrong option. The second was that having chosen that option which was a surgical procedure, she negligently failed properly to check that the procedure had been completed. As I will explain in due course this second heading of negligence had itself a twofold aspect.
The learned trial judge has explained in some detail in his judgment the relevant facts relating to the first of these allegations of negligence and having done so, he found in favour of the respondent. The learned trial judge then went on to find the appellant liable under the second heading of negligence to which I have referred and in both its aspects. The appellant has appealed that finding to this court. There is no cross-appeal against the finding in favour of the appellant on the other heading of negligence.
As considerable space will be necessarily taken up in dealing with the matters which are relevant to this appeal, I do not intend even for the purpose of putting the matter in context to detail the facts relevant to the first heading of negligence. If it is ever thought desirable to refer to them for the purposes of context they are to be found in the judgment of O’Donovan J.
It is sufficient for the purposes of this appeal to give the following outline of facts.
When the respondent was into her seventeenth week of pregnancy the unborn baby died. It is common case that this happened through no fault of anyone. When it was discovered that that had happened it was hoped that the dead foetus could be evacuated from the uterus as soon as possible. For this purpose the respondent was prescribed dosages of prostaglandins which have a propensity for inducing a termination of pregnancy. Unfortunately, in the respondent’s case they did not work. The appellant then decided on a surgical procedure involving the evacuation of the uterus through the vagina. There was difference of medical opinion at the trial as to whether this procedure should properly be called D and E (dilation and evacuation) or E.R.P.C. (evacuation of retained products of conception) but nothing turns on this terminology issue. What is however relevant is that unsurprisingly all the doctors who gave evidence agreed that it is incumbent on the doctor carrying out this surgical procedure to satisfy himself or herself that all parts of the foetus are removed. It is common case also among the medical experts who gave evidence that without negligence, small pieces of soft tissue can be accidentally left behind. That normally presents no problem because within days they are passed out of the body in the normal way. What was in issue between the medical experts however was whether a piece of bone 5.5 centimetres in length and probably a lower limb of the baby could be accidentally left behind in the uterus without there being negligence on the part of the surgeon. This is in fact what happened in this case and that being so, the question arose not only whether it could ever happen without negligence but also whether even if it could, the respondent was in fact guilty of negligence on this occasion.
I intend to review the relevant evidence in some detail but with a view to a proper understanding of its significance, I think it helpful to refer at this stage to some operative parts of the judgment of the learned High Court judge. Having referred to the evidence of Mr. Jarvis, one of the medical experts called on behalf of the appellant to the effect that it was possible “for someone exercising the criteria which Dr. Patton says that she observed” to miss an entire lower limb notwithstanding that he or she was doing the procedure competently and that this was because Dr. Patton was dealing with a “macerated foetus of at least three weeks standing”, the judge then goes on to say the following:
“In the light of the foregoing, it is clear that, once again, the court was confronted with a marked difference of opinion between expert witnesses. Despite the fact that it was established beyond any doubt that the E.R.P.C. procedure which Dr. Patton carried out on the plaintiff on the 23rd day of January, 1998 was unsuccessful in the sense that she failed to remove the entire foetus from the plaintiff’s uterus; leaving behind a piece of bone which I am satisfied by the evidence which I heard was 5.5 centimetres in length and in all probability comprised a lower limb and, despite the fact that, following that procedure, she failed to arrange for an ultra sound scan of the plaintiff’s uterus to confirm that the entire foetus had been removed therefrom, both Dr. Turner and Mr. Jarvis were of the view that she had not fallen below the standard which one would expect of a gynaecologist of her training and experience, exercising ordinary care, whereas Mr. Clements and Dr. Griffiths took the contrary view. In this regard, once again, I had no reason to doubt the honesty of any of those witnesses and, accordingly in the light of the decision of the Supreme Court in the case of Dunne (an infant) v. The National Maternity Hospital and Reginald Jackson to which I have already referred, it would seem that, legally speaking, I must conclude that Dr. Patton was not negligent in failing to remove all the bony structures from the plaintiff’s uterus and/or in failing to confirm such removal with an ultra sound scan.
In my view, however, it is not as simple as that. While I cannot disregard the views of Dr. Turner and Mr. Jarvis and, as I have indicated, I do not doubt that those views are honestly held, their conclusions appear to me to be dependent upon; firstly, a total acceptance of Dr. Patton’s evidence with regard to the conduct of the E.R.P.C. procedure which she carried out on the plaintiff at the material time, secondly, an assumption that the procedure was a routine one and, thirdly, an understanding that, at the material time, there was no reason why Dr. Patton’s judgment might have been suspect. In my view, an analysis of the reasons for those conclusions suggests that they are not soundly based. In this connection, it was common case that a doctor, who undertakes an E.R.P.C. procedure should make sure that he/she finishes it and, in that regard, finishing the procedure means evacuating the uterus of major bony structures. Even Dr. Patton’s most ardent critics accepted that to leave some soft tissue behind following the performance of an E.R.P.C. procedure is excusable. In this regard in the course of her evidence, Dr. Patton said that she had satisfied herself that she had removed the complete foetus from the uterus and that she had done so using three criteria to assist her in coming to that conclusion, namely; a consideration of the volume of the foetus which she had removed, a consideration of what the uterus felt like when she curetted it after, as she asserted, she had emptied it, and a consideration of what the uterus felt like on a bimanual examination following curetting. As it transpired, that judgment was wrong because the fact of the matter is that Dr. Patton had failed to remove a piece of bone some 5.5 centimetres in length from the uterus. It was implicit in Dr. Patton’s evidence with regard to her consideration of the volume of foetus which she had removed and how she satisfied herself that it had been removed in its entirety that she had had regard for the presence among the removed pieces of all major bony structures and, as I interpret their evidence, Dr. Turner and Mr. Jarvis were of the view that Dr. Patton had done just that; i.e. that she had had regard for the presence of all major bony structures among the pieces of the foetus which she had removed when satisfying herself that she had removed it all. In fact, when cross-examined with regard to her visual assessment of what she had removed, she made no mention whatsoever of major bony structures. On the contrary, as I have already indicated, she said “you have bits of tissue, you have bits of body, you have bits of bone, you have bits of everything. It is a jingle jangle of bits when you look at it. You look at the volume, you assess it.” Given that evidence and given that Dr. Patton conceded the operation was a complicated one and that, at the stage that she had carried it out, (seventeen week gestation) there was a greater risk that she might leave something behind than if the foetus was smaller, I am not persuaded that, in fact, Dr. Patton carried out a visual check of the pieces of foetus which she had removed which was sufficient to identify the major bony structures of the foetus; much less to satisfy herself that the entire foetus had been removed. To that extent, therefore, I think that she fell below an acceptable standard of care and, in so far as Dr. Turner and Mr. Jarvis expressed a different view, I think that their views were based on the erroneous belief that Dr. Patton had carried out a visual check of the pieces of foetus which she had removed which was sufficient to entitle her to be satisfied that she had removed it all.”
At first sight there might appear to be an inconsistency between stating on the one hand that “legally speaking, I must conclude that Dr. Patton was not negligent in failing to remove all the bony structures from the plaintiff’s uterus” and on the other hand by stating that “I am not persuaded that, in fact, Dr. Patton carried out a visual check of the pieces of foetus which she had removed which was sufficient to identify the major bony structures of the foetus; much less to satisfy herself that the entire foetus had been removed. To that extent, therefore, I think that she fell below an acceptable standard of care.” However, I am satisfied that there was none. The learned trial judge found, as he was entitled to do, that the evidence of Dr. Turner and Mr. Jarvis to the effect that the respondent did not fall below an acceptable standard of care was based on what was proved before him to be a factually incorrect assumption, that is to say, that the appellant when carrying out the removal procedure had proper regard for the presence among the removed pieces of all major bony structures. Put shortly, the learned trial judge found as a fact that she did not have such regard and was on that account negligent.
I would comment, however, that this apparent inconsistency in the judgment need never have arisen. It is quite clear that the judge interpreted the Dunne case as holding that where medical experts honestly disagreed as to whether a doctor had fallen below an acceptable standard of care, the judge was not entitled to prefer one view rather than the other and make a finding of negligence. In my view, the Dunne case is not authority for such a proposition. The principle of the “honest difference of opinion between doctors” only arises in relation to diagnosis and ways of treating a patient. There is nothing in Dunne to support the view that if two medical experts express an honestly held opinion on the negligence issue to opposite effect, the judge is precluded from making a finding of negligence in relation to the way a particular treatment is carried out. The learned trial judge was perfectly entitled if the evidence supported it, to form a view that the respondent did not carry out the evacuation process properly there being no disagreement between the experts as to how such process should be done. I will be returning to the question of whether there was evidence to support the finding of negligence in that particular respect.
At this stage however, it is important that I refer to the next stage of the judgment and the second finding of negligence. Here the judge is dealing with an issue which was heavily canvassed at the trial not least by his own interjections namely, whether the appellant having purported to carry out the procedure including the evacuation of the uterus ought to have checked out that everything relevant had been removed by carrying out an ultrasound scan which on the evidence would not have been difficult. The relevant passage at p. 27 of the judgment reads as follows:
“While all the expert witnesses agreed that one would not routinely do an ultra sound scan after carrying out an E.R.P.C. procedure, and I accept that that is so and while Dr. Turner and Mr. Jarvis were of the view, that in the circumstance that Dr. Patton had expressed confidence that she had removed everything from the plaintiff’s uterus, it was not incumbent upon her to carry out an ultra sound scan, I am not persuaded by the evidence which I heard that the E.R.P.C. procedure carried out by Dr. Patton was a routine procedure, or anything like it and, accordingly, I am not persuaded that it should have been followed by a routine practice. Dr. Patton, herself, conceded that it was an unusual and difficult procedure, as did most of the medical witnesses. Dr. Turner said that, in the circumstances that the procedure carried out by Dr. Patton was a destructive one, it was difficult to visually confirm that you have removed every single part of the baby and Dr. Jarvis said that, as Dr. Patton was dealing with a macerated foetus, the tissue is less easy to recognise because it comes out piece meal rather than in an intact limb. In those circumstances, it seems to me to defy logic that it was not incumbent upon Dr. Patton to carry out an ultra sound scan because, whether or not she believed that she had removed the entire foetus, and even though it was not routine to conduct an ultra sound scan following an E.R.P.C. procedure if, as appears to be the case, it is difficult to visually confirm that every single part of the foetus has been removed, common sense would dictate that recourse should be had to an ultra sound scan so as to ensure that the foetus had been fully evacuated. Accordingly, I think that the view of Dr. Turner and Mr. Jarvis that Dr. Patton’s failure to conduct an ultra sound scan following the E.R.P.C. procedure which she carried out on the plaintiff was within an acceptable standard of practice was misconceived because that view reflected a routine practice and, as I have indicated, I am persuaded by the evidence which I heard that the E.R.P.C. procedure carried out by Dr. Patton was anything but routine. Accordingly, it seems to me that the reality is, as Mr. Clements asserted, that the failure, in the particular circumstances, to carry out an ultra sound scan amounted to substandard care on the part of Dr. Patton.”
I think it appropriate to dispose of this particular finding of negligence at an early stage of the judgment because I am satisfied that it cannot be sustained. There is no finding by the High Court nor was it seriously suggested that the appellant was not herself satisfied that she had removed all the relevant parts of the foetus. The respondent’s own medical expert witnesses accepted that it was not routine practice to carry out an ultra sound scan if the doctor carrying out the procedure is satisfied that a full evacuation has taken place. Indeed, the learned High Court judge accepts that. But he has taken the view that this was not a routine operation because of the macerated state of the foetus and that what might be routine practice would not in those circumstances apply. He then uses principles of logic and common sense to argue that an ultra sound scan ought to have been taken. However, there seems to me to be a number of problems about that finding. First of all, as is clearly indicated in a letter that was written shortly after the surgical procedure by the appellant, the non-routine aspect of the operation related essentially to the difficulties of removing the head. Secondly, I do not think that there is anything in the evidence to suggest that it would be medical practice to carry out an ultra sound scan unless either the doctor had himself or herself doubts as to whether everything had been removed because of some objective evidence or if the particular doctor was somewhat squeamish about “ticking off” the major parts such as limbs, spine etc. (I am deliberately avoiding the word “reconstructing” for reasons to which I will return) and resorts to an ultra sound scan instead which would be perfectly effective as a checking device. But quite apart from those evidential points, Mr. Hanratty S.C., one of the counsel for the appellant objected at one stage during the hearing to having to meet a case that an ultra sound scan although not required as a matter of routine practice might be required in special instances other than in the two examples I have already mentioned. He did not think that that case had been made on the pleadings and he did not think that it was a case that he should have to meet. I think that that submission was well-founded. That case could only be made, in my view, within the parameters of the third principle enunciated by Finlay C.J. in the Dunne case at p. 109 of the report which reads as follows:
“3. If a medical practitioner charged with negligence defends his conduct by establishing that he followed a practice which was general, and which was approved of by his colleagues of similar specialisation and skill, he cannot escape liability if in reply the plaintiff establishes that such a practice has inherent defects which ought to be obvious to any person giving the matter due consideration.”
This would seem to me to be not altogether unlike the famous principle in Bradley v. C.I.E. established in a non-medical context. It is a particular case however which would have had to be made from the start and argued as such. I do not think it was. For all these reasons (which can be taken disjunctively) I believe that the finding by the learned High Court judge that the appellant was negligent in not carrying out an ultra sound scan cannot be supported.
Having formed that view, I intend to concentrate now on the finding that the appellant was negligent in the manner in which she checked whether she had removed all relevant parts.
For that purpose, I propose first to set out the relevant evidence in relation to this finding of negligence as given by the appellant herself and then as given by the two medical experts called on behalf of the respondent i.e. Mr. Clements and Mr. Griffith and the two medical experts called on behalf of the appellant, Dr. Turner and Mr. Jarvis.
The appellant’s evidence
After explaining why she decided to carry out the particular surgical procedure of evacuation via the vagina and after pointing out that the structure of a foetus, dead for some three weeks of the seventeen week period is substantially different from the texture of a live foetus and that as a consequence, the foetus has reduced in size due to removal of fluid and general maceration of the soft tissue and that although the bones would not have reduced in size their texture would have changed in that they would have become softer, she proceeded to explain how she carried out the operation. In particular she explained that the baby is taken out in pieces because bone is broken and crushed. She said that you look at the volume of what you have removed. To use her own words she said:
“You look at the structure and the sensation of the uterine cavity when you have completed the procedure and you make a decision at the end of your procedure that it is complete and that you shouldn’t go any further. If you go any further, you are dealing with possible problems of perforation of the uterus and (inaudible) syndrome. So there comes a stage in any evacuation of retained products where you have to make a decision that this is complete and, as we saw in the evidence, 10 per cent of that is not correct and we have to live with that.”
I think it important to mention at this point that the reference to 10 per cent is somewhat misleading in that everybody agreed that soft tissue can be left behind without fault, but there was no statistical evidence as to how often a bone of the length of 5.5 centimetres was left behind and the overall impression gained from the evidence was that if it happened at all it was a rare event. The appellant in explaining the procedure which she adopted for checking whether she had removed all the relevant parts referred at one stage to a textbook which had been referred to by Mr. Clements. I intend to confine myself to what she said she actually did as far as she could recall. I used that last phrase because the clear impression gained from her evidence was that her memory was somewhat hazy about what actually happened. I will, however, refer to some answers of a general nature which she gave. She was asked in direct examination whether the purpose of looking at what she removed was to determine or get an impression of volume or whether it was to build up a picture of a foetus in terms of head, thorax, arms, legs or what. She answered that it was probably a combination of both. She said that you don’t sift through each little bit to see that everything is out. She referred to the possibility of “a bit of a hand or a foot” being left behind but that “really wasn’t of any consequence because that would be passed anyway”. That evidence in turn was of doubtful value because I do not think that anywhere in the transcript is it suggested that a limb of 5.5 centimetres would “pass” through the body in the ordinary way.
The following questioning then occurred.
“169 Q. On this occasion where you yourself satisfied that you had got the complete foetus out of the uterus?
A. Yes, I was. I would not have finished the operation had I not thought so.
170 Q. Did you, in fact, look at the products you had removed to assist you in your judgment on that point?
A. Yes, in that sort of circumstances I would put what I took away into a kidney dish, so that I would see what was there and make a judgment on that.
171 Q. Yes.
A. I felt at the end of the procedure that I had completely removed this foetus, I handed it over to our pastoral care team to prepare it for burial, as was Mrs. Griffin’s request, and I was quite convinced that I had finished the procedure.”
At Q. 178 of the same day i.e. day 5 of the hearing, she was asked and she answered the following:
“178 Q. Yes. Now going back to the 23rd January, the criticism that is made of you in respect of which it is suggested that you fell below acceptable standards of practice was that you didn’t in fact achieve a complete evacuation, that there was in fact a piece of bone left and that you should have picked up. I am not just talking about the ultra sound, we will come to that as a separate issue, but that you should have in your evacuation satisfied yourself by some means that you had in fact achieved a complete evacuation. I just want you to explain to His Lordship your perspective on that suggestion and on that criticism?
A. As I said this morning there are numbers of criteria which we use to help us to decide that the operation is complete and I had gone through those in my head rather than any other way, really, that this was a complete foetus. I thought that from the volume of the foetus, what I had taken out, what the uterus felt like when I curetted it subsequently and the feel of it on bimanual examination that I had completed the evacuation.
179 Q. In terms of trying to judge whether or not you have, is there any difference between looking at the body of material that you had beside you, which is obviously the products of a three week dead foetus, and after looking at what you would have after you had removed the foetus who had recently deceased in terms of trying to satisfy yourself as to the completeness by reference to the products removed?
A. That, I think would be fairly difficult in that if you remove a complete foetus, it comes through the vagina and comes as a baby. You see it as a baby, albeit a macerated baby. You can see the head and the body and the limbs and whatever. When you are taking out a macerated foetus with a forceps, you are taking out chunks of tissue, pieces of tissue over a period of about twenty to twenty-five minutes and you build up a volume of tissue that you look at and say ‘well, that is the head’ because I had great difficulty in getting the head out. And you look in general at the rest of the material that you have and you make a value judgment on that, that that was complete.”
That last answer would seem to indicate that the appellant only specifically looked for one aspect of the skeleton i.e. the skull and that in relation to other materials removed whether bony or soft tissue it was essentially volume that she assessed.
On the question of how good her recollection of the operation was the appellant said that she remembered the case fairly well but that there were specific details of it that she did not. She went on to say that it was one of the most difficult cases she had to deal with in her career. As I have already indicated the difficulty to which the appellant is referring seems to have been largely the problem of evacuating the head as indicated in the letter which she wrote. Indeed in Q. 121 on day 6 she makes it crystal clear that the most difficult part of removing the baby was the skull. Under further cross-examination, the appellant said that what she removed “appeared to be a complete baby” and she said that she made that judgment by her examination of the uterus at the end of the procedure by putting in a curette and curetting around the whole structure of the uterus and by feeling it and finding that it had come down to a normal size. The questioning at that point continued as follows:
“161 Q. How did you miss a lump of bone 5.5 cm long if you did that?
A. That is the dilemma.
162 Q. It certainly is the dilemma.
A. Yes.”
It is impossible to know what was in the mind of the learned High Court judge, but that kind of an answer could hardly have given him confidence that it might be reasonable to have overlook a bone of that size. It emerged from the evidence that the appellant had not considered that the piece of bone which she ultimately removed was anything like 5.5 cm even though it had to be accepted on all sides that that was the correct measurement. She explained this to some extent by suggesting that the appellant pass some of the bone out in bits and that what she would have ultimately removed was the residue. Counsel in cross-examination put to her that it followed as night followed day that her visual assessment of what she had taken out was wrong. Her answer took the following form.
“Yes, I was looking at a baby that had come out in pieces. This is not very pleasant to look at. You have bits of tissue, you have bits of body, you have bits of bone, you have bits of everything. It is a jingle-jangle of bits and you look at it, you look at the volume you assess it. You assess it in conjunction with your findings at the end of your operation and you make a judgment that this is complete and that is what I did.”
The next bit of dialogue on cross-examination on day 6 would have been relevant, in my opinion, to the view which the learned High Court judge took from the transcript, it reads as follows:
“167 Q. My two experts have said that this judgment can be made mentally. You can chalk off the thorax and the four limbs as you proceed with the operation. Clearly you didn’t do that, or didn’t do it properly?
A. I thought I had done that, My Lord.
168 Q. Well, will you now agree that you clearly had not?
A. I obviously missed a piece of bone, yes.
169 Q. So you clearly had not completed a proper visual check?
A. I had felt that I had looked at what I took out. I had made a judgment that this was the baby and on my examination of the uterus following that, I made a judgment that the uterus was empty and I finished the operation.
170 Q. And the judgment was erroneous, isn’t that so?
A. And I left a piece of bone behind.
171 Q. The judgment was erroneous, isn’t that the fact?
A. I had a complication of my procedure and I left a bit of bone behind.”
Although in general, the appellant did not agree with the relevant evidence given by Mr. Clements, after which I will be referring, she had indicated in her evidence full agreement with a book which he had written. In her direct evidence, she had cited passages from it but it was put to her in cross-examination by Mr. Hickey, counsel for the respondent that she had stopped short of reading what he considered to be an important passage which was as follows:
“Complete removal of the foetus is easier to determine during second trimester abortions by dilation and evacuation. The foetal parts are large and easy to recognise, but there may still be some uncertainty whether the entire placenta has been obtained.”
The appellant was asked whether she had accidentally or deliberately omitted reading that passage. Had Mr. Hickey put to her that would she not have wanted to make the point that complete removal of the foetus was easier to determine during second trimester abortions which was of course the case here. Her answer to that was “Yes, easier, but not always possible”. After Mr. Hickey had emphasized again that the book had referred to foetal parts being large and easy to recognise during a second trimester abortion, the respondent pointed to another sentence “it is never possible to be completely certain that abortion is complete”. But Mr. Hickey went on to point out that her reference to that sentence was misleading in that that was referring to abortion by vacuum aspiration. In the operative part of his judgment, the learned trial judge uses the expression “I am not persuaded”. It would be fair comment to make that answering of that kind would hardly contribute to such persuasion. At the end of the cross-examination of the appellant, the following dialogue took place.
“370 Q. Dr. Patton, may I conclude by suggesting to you that the operation you carried out was a failure, the operation on 23rd January was a failure, that you should not have left a piece of bone of the size that you did leave behind and that you failed to check having carried out the operation, either properly visually and not at all by ultra sound that the uterus was clear and had you carried out a proper check, we wouldn’t be here?
A. All I can say in response to that is that I carried out an evacuation on the 23rd January. At the end of the procedure I felt that I had emptied the uterus. I looked after the patient for a number of days afterwards, there was no extra blood loss to indicate that there was anything left behind. Had there been, she would have had a scan at that stage, that was not indicated. I do accept that there was a piece of bone left behind. This is a complication of this operation and when it was pointed out to me I dealt with it.
371 Q. Mr. Justice O’Donovan: Do you accept Mrs. Griffin’s evidence that there were also pieces of flesh left behind?
A. I did not see that.
372 Q. Mr. Justice O’Donovan: I know you didn’t see it, but she says that she passed flesh and bone, do you accept that?
A. I can’t deny that.”
There are also, of course, references in the transcript of the appellant’s evidence to her being in tears and being allegedly emotional following on the operation and as is clear from the passage cited earlier in this judgment this was a matter referred to by the learned High Court judge. I will return to the appellant’s evidence on this matter at a much later stage in the judgment. I turn now to the evidence of the medical expert witnesses.
Mr. Clements’ evidence
Early on in the direct examination of Mr. Clements who was called on behalf of the respondent there were the following questions and answers:
“Q. Putting yourself in Dr. Patton’s position, having completed the operation as best she could, what should she have done at that stage?
A. It is, My Lord, incumbent on any surgeon who begins an operation to make sure they finish it. There are two ways in which she could have made sure that she had completed the operation that she set out to perform. The first was to identify the major bony structures in the foetus. It is not necessary to recreate the body of the foetus in order to do this. The experienced operator knows what bits are likely to be left behind. The skull, the thorax, the spine and the limbs. Nothing else matters because everything else is small enough to come through the cervix which is now slightly open. It does not take more than a moment or two to look through the bits that you have removed, identify the skull, the thorax and spine and count four limbs. If you do that you can be reasonably sure that you have finished the operation or at least done enough to ensure the patient’s safety. If you are not prepared to do that then the only alternative way is to take a picture to do an ultra sound and you can do that either in the operating theatre with a portable machine or you can wake the patient up and do it the next day. It seems to me that if you are undertaking an operation as difficult as this you have an obligation to make sure that you have completed it.
Q. Is there anything in the notes or records, Mr. Clements, to indicate that Dr. Patton carried out a visual check of what she had removed?
A. Not in her operation note, no, we know that she or somebody gave parts of the foetus to Mrs. Griffin for burial but we have no description of what was given to Mrs. Griffin.”
It was suggested in cross-examination by Mr. Hanratty that the respondent did in fact achieve “an almost complete evacuation of the contents of the uterus.” Mr. Clements strongly disagreed with that proposition and said the following at Q. 184, day 2.
“The retention of the foetal spine cannot possibly be described as an almost complete procedure. An almost complete procedure would be leaving a few fragments of placenta or membrane left behind. That would be an almost complete procedure. That is the common complication of all pregnancy interventions, that you leave a little bit of membrane or placenta behind because they are jolly difficult to find.”
Nothing turns on the reference in that answer to “spine”, there was some difference of expert opinion as to whether the piece of bone left behind was “spine” or a lower limb. The learned trial judge found that as a matter of probability it was a lower limb but as I read the transcript and, indeed, this was the view also of the trial judge it makes no relevant difference. It emerged from the evidence that the appellant had thought that the piece of bone which she removed was much smaller than 5.6 cms. She had thought that it was something in the order of 1½ to 2 cms. and in that context Mr. Clements was asked whether he would regard the evacuation as almost complete if a bone of that smaller size had been left behind. He emphatically answered that he did not think leaving bone was ever excusable “because it is so easy to check that you have got all the bone structure”. Throughout her evidence the appellant had suggested in different ways that although the foetus was seventeen weeks gestation it had become reduced after it had died to a size the equivalent of thirteen weeks gestation. Mr. Clements dealt with this proposition in different parts of his evidence but one answer to Q. 206 on day 2 makes clear his position.
“It hadn’t reduced in size to thirteen weeks. I thought I made that perfectly clear yesterday. That is a delusion and I explained how the delusion comes about. It comes about partly because the head bones, the two parietal bones overlap to reduce the ultra sound measurement, this is the bi-parietal diameter. The second part of the elusion is that the liquor is absorbed and so when you feel the uterus it feels smaller than seventeen weeks because all the liquor is gone. You are left with this impression of a thirteen week size, in fact the same dead body is there that was there two weeks, three weeks before. It has still got the bones of the same size, it has just got less fluid.”
On the same day at Q. 251 the learned trial judge addressed Mr. Clements as follows:
251 Q. Mr. Justice O’Donovan: Before you go for your lunch, Mr. Clements, whether or not Dr. Patton was entitled to undertake the evacuation of the foetus in the manner in which she did so and whether or not she did that competently and apparently there is going to be a dispute between you and the experts on the other side, could there be any doubt in your view about her neglect when after the operation she did not visually check that all the important parts of the foetus had been removed and to confirm that visual checking by a scan?
A. The short answer is No, My Lord, that is a separate and completely different area of competence.”
Shortly after the lunch on the same day, Mr. Hanratty put it to Mr. Clements that there would be evidence from Mr. Jarvis and Dr. Turner that it was not uncommon for somebody carrying out this sort of procedure to find that despite their best efforts and their greatest care they have in fact inadvertently left some material behind. Mr. Clements agreed. It was then put to him that those experts would say that in carrying out the procedure, you were trying to strike a balance between on the one hand not damaging the uterus or rupturing it by over vigorous curettage and on the other hand ensuring complete evacuation. With some qualification which is not particularly relevant, Mr. Clements agreed with that also. But he then elaborated on his view when it was suggested to him that if you got the balance marginally wrong you could find yourself in a situation where you had “left something”. Mr. Clements again reiterated that there was undoubtedly a small instance of leaving some soft tissue placenta membranes behind and that there could be an excuse for that but that there was never any excuse for leaving bone because as he put it “you can readily check that all of the large structures are present, that you have taken them out. You look at them as you remove them and you say ‘right, we have that, we have that, what else do we need to get’? That is where this case is different from the statistical instance of retained products which are not substances that you can check are out, because they are not recognisable in the same way that bony structures are.” It further emerged that Mr. Clements was not insisting on the surgeon actually reconstructing the body but what he was insisting on was that there be some kind of checking process mental or otherwise to ensure that the main bones had been taken out.
It was then put to Mr. Clements that Dr. Patton would say that she did check the foetal parts and that she did believe, on the basis of what she saw and did, that she had, in fact, effected a complete evacuation. Mr. Clements replied that if she did believe that, her belief was ill-founded because there was a significant bony part left behind and she was wrong. There was, in fact, no evidence that the appellant checked individually the foetal parts. Mr. Clements went on to say that it was not “at all difficult to tell when you are missing a piece of bone in excess of 5 cms. in a foetus of this size because it is such a significant part of the foetus’s body that you can’t possibly miss it if you do the job properly.”
Mr. Clements was then referred to a report by Dr. Turner which had indicated that foetal bone might be left behind in about two to three per cent of patients. Mr. Clements strongly expressed the view that if that is what Dr. Turner literally meant as distinct from soft tissue etc. being left behind it simply was not correct. At that point, Mr. Clements reiterated that leaving a small piece of membrane or decidua or placenta behind was within the spectrum of normal competence but that leaving pieces of foetal bone behind was not. On this particular relevant issue the cross-examination began to go round in circles in that it was put to Mr. Clements that it was surely reasonable for a gynaecologist who believed that she had in fact, succeeded in evacuating the retained products but who would be aware of the possibility that she might not be correct that she would know if there were any problems if the patient would come back. Mr. Clements said that that course was quite unacceptable because if the doctor was aware that there were retained products she had a clear duty to investigate that and that she could not say to the patient “go home and tell me if bits of the baby keep coming out”. The question was then repeated in another form and Mr. Clements gave a reply completely consistent with the rest of his evidence. He said: “Well, this brings us to the central point in the case. I don’t believe that a competent gynaecologist can leave significant bits of bone in the uterus having taken proper care and that is, of course, the central issue in the case.” I do not want to fill up this judgment with repetitive evidence of Mr. Clements. It is sufficient to say that in answers to questions from three different sets of counsel, he consistently expressed the view that it was unacceptable that the gynaecologist performing such a procedure should permit bone and certainly bone of 5.5 cms. long to be retained in the uterus and he explained why. His evidence was that irrespective of whether the foetus was macerated or not it was a relatively easy matter to check out that the major bony parts had been removed. A point that he constantly emphasised in his evidence was that the bones do not reduce in size.
Dr. Griffiths’ evidence
The evidence of Dr. Griffiths also called on behalf of the respondent was in substance to the same effect as the evidence of Mr. Clements. Dr. Griffiths was asked what should the doctor do having completed the procedure, if acting properly and carefully, and in accordance with proper standard. His reply was as follows:
“You obviously want to make sure that you have removed as far as possible all of the foetal parts and you would have an eye on what was being removed as the process was being carried out. In my practice I would just count down the limbs, make sure that I have the trunk, which may come away in one or more pieces but the ribs are usually recognisable, and the skull is usually very characteristic, partly because when the skull is breached, the brain contents tend to drain and also because the bones of the skull are very characteristic, they are almost flat thin membrane bones with a sort of serrated edge to them so they are very characteristic.”
Dr. Griffiths was then asked whether it was obvious or possible to discern the limbs or to count them out and he answered that you could usually identify what was left and right and that these would be arms and legs. He was later asked what he had to say about the procedure carried out which leaves bone of 5.5 cms. long behind. His answer to that question was as follows:
“Then it mustn’t have been adequately performed because it fails to remove at least one of the major bony structures that should have been accounted for. I am not entirely sure that the ultra sound scan solely shows a single bony structure in any case. There are a number of complex echoes there which would allow for other parts.”
He went on to say that the failure to account for limbs reflected substandard care.
Although I have already expressed the view that the appellant should not have been held liable in this action for a failure to do an ultra sound scan, nevertheless some of the answers given by Dr. Griffiths, when questioned on the ultra sound scan issue, are relevant to the heading of negligence which I am dealing with. After agreeing under cross-examination that he would not routinely do an ultra sound scan after an evacuation procedure, Dr. Griffiths in his answer to question 225 on day 4 expanded on his reason as follows:
“My reason for not doing an ultra sound scan is that I am confident that I am able to mentally reconstruct the foetal parts to establish that I have the whole foetus and I have done a very large number of these procedures without any complications of retaining products of conception at all. So I would avoid the ultra sound scan because I was confident of my ability to ensure that the uterus was emptied.”
Dr. Griffiths then went on to reiterate that a routine ultra sound scan would not be normal practice but in this connection he was referring in the main to evacuations done before about twelve/thirteen weeks. At seventeen weeks, Dr. Griffiths went on to say that your have to either be able to satisfy yourself that you have emptied the uterus by mental reconstruction or by an ultra sound scan and to do neither means that you don’t know what you have got out and what you have left behind. While he agreed with counsel for the appellant that blood clots and little bits of tissue which are of no consequence can show up on the scan and make it confusing, he stated that it would not confuse the picture regarding bony parts. He went on to repeat his view that confidence that all the foetal parts had been removed was misplaced if no mental reconstruction of the foetal parts had been done. Dr. Griffiths was asked in cross-examination to confirm that the doctor carrying out the procedure would have a perception of what she was removing and the increasing volume of what she had removed, but he observed nevertheless that to try to assess completeness by a subjective assessment of volume of material was prone to error to an unacceptable degree. To a suggestion put to Dr. Griffiths that it was a counsel of absolute perfection to suggest that a gynaecologist who conscientiously carried out the procedure, who conscientiously removed as much material as she could reach, reached a conclusion that she had, in fact, succeeded in removing everything that if it emerges that she was incorrect then that ipso facto she had fallen below acceptable standards. Dr. Griffiths made it clear that he took the contrary view saying that “if you haven’t determined in an objective manner that you reliably removed all of those parts that you sought to remove then you have fallen below an acceptable standard.”
Dr. Turner’s evidence
Dr. Michael Turner was the first medical expert called on behalf of the appellant. He was the only Irish independent gynaecological expert witness who gave evidence. Dr. Turner is a Fellow of the Royal College of Physicians in Ireland and a Fellow of the Royal College of Obstetricians and Gynaecologists as well as being a former Master of the Coombe Maternity Hospital. Early on in the direct examination, the evidence of the appellant as to how she carried out the procedure was put to him and in particular that she had reached a conclusion that she had succeeded in evacuating the retained products of conception but that it emerged in fact that a piece of bone had been left. Dr. Turner was then asked whether that indicated to him that the appellant had fallen below an acceptable standard of practice. His reply which is somewhat lengthy can be summarised as follows. He first of all said that the retention of the piece of bone did not indicate a fall below an acceptable standard of practice. He went on to express his fascination throughout his long years of experience with the childbirth process. He pointed out that nature had designed things so that normally foreign matter would be expelled naturally from the body. In the second trimester (which was the case here) Dr. Turner said that there may be retained products even after a successful delivery of a healthy mother or when doctors empty the uterus but then he explained what he meant by “retained products”. He admitted that it was a bit of a catch-all phrase and he went on to say that in 99 per cent of cases the problem of retention is with “the placental tissue because that is stuck to the uterine wall”. He said that in terms of retaining part of the baby or a piece of bone it was more likely to occur in the middle third of pregnancy especially if a destructive operation had been performed. Counsel then put to him that the appellant had described that in the operation she had to break down the foetus before removal and remove it in pieces and that she had said that the judgment that she made as to the completeness of the procedure was a combination of visualisation of what had been removed and the question of volume but also the progressive reduction in size of the uterus as the procedure progressed and, ultimately, the feel of the uterus through her instrument and that you then reach a point where you believe that you have succeeded. Counsel then asked Dr. Turner that having regard to the fact that there was, in fact, retained bone did that mean that the appellant had done something wrong so far as the benchmark of professional practice was concerned. Dr. Turner replied in the negative and went on to give another lengthy answer in which he explained that the normal clue you would get that there were retained products would be heavy bleeding. However, it emerged from the later part of his answer that while you might have solely placental tissue or a mixture of placental tissue and foetal parts or you could have solely a bone. As I understand his answer and as I suspect the learned High Court judge understood his answer an isolated bone would not give rise to any bleeding or haemorrhage. That seems clear from his answer. But Dr. Turner would then appear to have given a somewhat inconsistent answer to the next question which was put to him by the learned trial judge. The question and answer read as follows:
“Mr. Justice O’Donovan: Mr. Clements said ‘I don’t think leaving bone is ever excusable, because it is so easy to check that you have got it all out, that you have got all bone structures out”?
A. I disagree with him, it is not easy to detect, particularly in circumstance where there are no clinical signs such as haemorrhage or a uterus that has not involuted.”
In that answer, Dr. Turner seems to be bringing back in other forms of tissue that might be retained that were not bony because the retention of bone as such would not have given rise to haemorrhage or, if I understand the evidence correctly, a uterus that had not involuted. The following dialogue then took place at Q. 63ff on day 7:
“Q. Mr. Justice O’Donovan: Forget about the clinical science, you have got what you have taken out?
A. Okay. Then we are moving to a separate issue. We are talking about first of all visualising what you have removed. Again, it is difficult in circumstances where the baby has died four weeks previously …
Q. Mr. Hanratty: Three weeks.
A. Three weeks previously and where the body has started to shrink and where you have done a destructive procedure. It is difficult in those circumstances visually to confirm that you have removed every single part of the baby.”
I am deliberately omitting the next few questions and answers because they contain what in the event, as I would read the evidence, proves to be an irrelevant semantic argument. I, nevertheless, should briefly explain it. In his original report as distinct from his evidence, Mr. Clements had to some extent at least given the impression that counting the bony body parts involved “reconstructing the baby on the trolley”. It subsequently became clear in the evidence of Mr. Clements and Dr. Griffiths that nobody would have meant that literally but the unfortunate expression “mental reconstruction” was used. Dr. Turner scathingly said that he had never read or heard anybody doing “mental reconstructions” and that he did not know what was meant by that. Another of the experts, Mr. Jarvis, did speak of a “grizzly jigsaw”. But none of this appears to be relevant. All the medical experts were agreed that there is a duty to remove all the parts and especially the bony parts. A more sensible expression “ticking off the main parts of the body” was ultimately adopted by Mr. Jarvis and that really is the exercise. Returning to the same part of the questioning on day 7, I would quote the following bit of transcript:
“67 Q. If I might just frame the question in this way. Would a gynaecologist of similar qualifications and experience to Dr. Patton, using ordinary care in the evacuation of the retained products of uterus be guaranteed that they have got everything out?
A. No, there are no guarantees in such a situation. It is well described that whether you have to do an evacuation of retained products of conception following pregnancy loss or in a situation that you are doing a legal termination that approximately 0.5 per cent to 1 per cent of women require a second procedure. This is well accepted. It does not, in any way imply that the first procedure was not done properly. In fact what it implies and again, as a surgeon, you are in a very difficult dilemma, because you have to walk a fine path. On the one hand, you want to get all of the contents of the uterus and the afterbirth out but on the other hand, if you are too gung-ho about it, if you are too aggressive about it, you may damage the uterus. Bear in mind that the pregnant uterus is a lot softer than the non-pregnant uterus and if the surgeon is too vigorous in her attempts to evacuate the uterus, she runs the risk of perforating the uterus, which is a far more serious complication than simply just repeating the E.R.P.C. subsequently. Life is not black and white, okay. As a doctor, you sometimes have to make judgment calls as best you can, taking the overall interest of the patient into account.”
It seems to me, as I expect it may have done to the learned trial judge, that that answer contains the same infirmity as a number of the answers of Dr. Turner. The case of negligence only related to the retention of a lengthy bony piece. In so far as there were any other products retained there is no liability suggested for that but it seems clear from the answer which I have just quoted the percentage statistic relates to retention of products generally. The appellant in describing the procedure made it clear that if you went too far with evacuation there would be possible problems of perforation of the uterus. There was no evidence however that the appellant when carrying out the procedure in this case was consciously concerned that she might damage the uterus if she went further and that that was why the limb was missed out.
In relation to the ultra sound scan issue which I will not go into for the reasons indicated, Dr. Turner gave one answer which is relevant also to the allegation of negligence which I am considering. In his answer to a question from the learned trial judge number 85 on day 7, he refers to the fact that “a piece of retained bone isolated is such a rare event after an E.R.P.C. you wouldn’t routinely do an ultra sound examination in the absence of symptoms”. In my opinion, the trial judge would have been entitled to regard that answer as corroborative of the strong evidence of Mr. Clements in particular but also Dr. Griffiths that it is not acceptable that a piece of bone should be retained. At a later stage of his evidence, Dr. Turner seemed to challenge the measurement of 5.5 cms. That challenge was not ultimately endorsed by the appellant’s own counsel but the fact that it was made at all by Dr. Turner might, it seems to me, have weakened the effect of his evidence before a trial judge. Mr. Sean Ryan, S.C. in cross-examination on behalf of the appellant put to Dr. Turner that assuming the evidence of the measurement was accepted by the court a bone of that measurement should not have been left. Again, Dr. Turner’s answer was one which it would have been open for a trial judge to regard as somewhat weak. His answer was as follows:
“I wouldn’t necessarily agree. These things happen. They happen in this country and they happen all over the world.”
Mr. Ryan went on to suggest that they should not happen, at which point a further unsatisfactory answer was given. Dr. Turner said “You will have to blame Mother Nature for that, as I explained this morning, because childbirth, as I highlight it, is not perfect.” But Dr. Turner’s wider views and philosophising in relation to childbirth and Mother Nature etc. went way beyond a piece of bone being left in the uterus. He was dealing with retained products generally such as placenta etc. Mr. Ryan came to the point in the next question. The question and answer read as follows:
“Q. How could you leave a limb behind and not know it. There is only four of them.
A. First of all, you have assumed that it is a limb.”
It seems to me that that answer was either irrelevant or a quibble. Mr. Ryan went on to say that he was assuming it was a limb but that his own expert had thought that it was a spinal bone but that that did not matter. Dr. Turner said that it was possible to retain such bone, but his answer took a curious form. It read as follows:
“It is possible to do so. This happens in this country after an evacuation of the retained products of conception. It is also a very common event when women have a surgical termination of pregnancy outside this country in the second trimester. It happens.”
The answer was particularly curious in the light of something which I have not up to now thought relevant to mention. There was undoubtedly an undercurrent running through the evidence of the respondent’s English medical experts that Irish doctors would not be experienced in this kind of surgical procedure because they did not carry out abortions. On being pressed as to why such a piece of bone would have been left all the same, Dr. Turner said that it might have been just the bone that was there may have eluded or evaded the forceps that Dr. Patton had introduced into the uterine cavity. He said that that does happen. He said it happens to such an extent that in the case of some women who have had an attempted termination of pregnancy, there has been subsequently an ongoing normal pregnancy. He concluded that it was possible for somebody to attempt to do a procedure which was not a hundred per cent successful and that that was the reality of everyday life. Again, it would seem to me that Dr. Turner, in the latter part of that answer, was straying beyond the narrow issue of the retention of a piece of bone. Following a further attempt by Mr. Ryan to pin Dr. Turner down on the narrow issue, Dr. Turner did say that the forceps might have missed the piece of bone if it was adherent to the uterine wall which was a possibility especially as the baby had started to decompose. Dr. Turner was then asked whether that was something which should be directing the doctor’s mind in advance given that he was suggesting it was a known risk. Once again from an evidential point of view, he gave an unsatisfactory answer which was “not necessarily. It is a known risk in every E.R.P.C.”
Mr. Ryan further followed the matter up, successfully obtaining confirmation from Dr. Turner that one way or another the obstetrician had to satisfy herself that she had all the foetus out. It was then suggested to Dr. Turner that if the court accepted that there was a piece of bone 5.5 cms. long retained, then it followed that the appellant did not satisfy herself that all the foetus was out. At this point the cross-examination went round in circles because Dr. Turner simply said “not necessarily”. He went on to say “she may have completed the procedure to her satisfaction at the time.” That was accepted by Mr. Ryan but he went on to press the point that she should not have been satisfied. He again put to Dr. Turner that the appellant had left a long piece of bone in the context of a foetal skeleton and that that was the fact. The doctor simply answered “in retrospect” but then expanded on that by saying that he did not “necessarily” accept she was wrong. This clearly puzzled Mr. Ryan but Dr. Turner’s response was simply “doctors make assessments every day of the week. We don’t always get it 100 per cent right. So I think we have to accept that, that sometimes it is not a precise science.” One can only assume that Dr. Turner was interpreting the word “wrong” as a synonym of “negligent”. There was then further unsatisfactory generalised dialogue between Mr. Ryan and Dr. Turner in which the doctor reiterated that what happened can happen and does happen and that everybody makes mistakes and that we all join the human race etc. He, finally, conceded that the appellant had made a clinical judgment which in retrospect was incorrect. He balked at using the word “mistake”. Dr. Turner then conceded that the appellant had “made an error in clinical judgment.” When he was questioned as to how such an error could arise given that there were only four limbs, if the appellant was acting with a proper standard of care, the cross-examination came full circle because Dr. Turner once again queried that it was a limb of 5.5 cms. At last, a bit of relevant dialogue then ensued and it is worth quoting, it starts at Q. 371 on day 7:
“Q. Yes, okay. So that is alright. This piece of bone, I am not sure where we are in dispute because I don’t think we are in dispute, I am just trying to get on to your view. If this is a lower limb, how can it be missed given that there are only four limbs and that had to be accounted for, as the doctor who was doing the procedure, assuming the doctor is acting with ordinary care? Now that is the question, Dr. Turner?
A. It can be difficult to determine, particularly in circumstances where a destructive procedure has been done on a baby where there was a foetal demise three or four weeks before hand, it can be difficult. Particularly when you are removing the contents of the uterus piecemeal.
372 Q. Mr. Justice O’Donovan: But the surgeon carrying out that operation will recognise that difficulty.
A. Correct.
373 Q. Mr. Justice O’Donovan: And if you have any doubt you
resort to the ultra sound scan?
A. If you have doubt, yes.
374 Q. Mr. Justice O’Donovan: But are you entitled not to have a doubt if you recognise that difficulty?
A. If you are confident that you have removed everything, well then.”
Mr. Ryan tried to pin Dr. Turner down then to agreeing that his so called “error of clinical judgment” could only be described as a blameworthy “big blunder”. Dr. Turner said he did not believe it was something that the doctor should be blamed for but on being pressed he did not give any particular reason except to say that “it does happen when doctors behave or conduct themselves with the highest standard of care”.
There then followed cross-examination on the ultra sound scan issue which I will skip over except to quote the following question and answer:
“Q. Do I not have an obligation to use a proper judgment when I am satisfying myself that everything is removed?
A. Well, I assume that Dr. Patton exercised her clinical judgment in deciding that she had fully evacuated the contents of the uterus and if she was not satisfied to that extent, yes, I would expect her to go back and clinically reassess the woman in the first place, go back and take a history. If necessary, examine the woman and if she deemed it necessary do an ultra sound examination.”
I quote that answer because it brings out the assumption on which the whole of Dr. Turner’s evidence is based namely, that the appellant properly exercised her clinical judgment. But that in turn depends on what she did with a view to ascertaining what she had taken out. When Dr. Turner was asked whether it should be basic standard practice to make sure that all parts are removed, he gave an interesting answer. He said the following:
“One of the reasons why it is probably not is that it is very rare for a piece of bone to be retained in the way that it was in this case. I think if bone was retained more frequently after an E.R.P.C., then you might have to go back and look at your practice, but it is such a rare event.”
This answer would seem to me to be two-edged from the point of view of the appellant. The trial judge would have been entitled to regard the rarity of the event as corroborative of the evidence of Mr. Clements and Dr. Griffiths.
Mr. Jarvis’s evidence
Mr. Jarvis is an English consultant obstetrician and gynaecologist who was called as an expert on behalf of the appellant. I will move straight away to Q. 72 on day 8 because that question and answer encapsulates the essence of Mr. Jarvis’s evidence in relation to the aspect of the case which I am discussing. The quote is as follows:
“72 Q. Mr. Clements also criticises Dr. Patton in that having done this operation, which she should not have done, according to him, she did not sufficiently check to satisfy herself that she had completely evacuated the uterus. Now he started in his report by saying that she should have put it all together again, but in his evidence, in effect he says that she should, have mentally, as it were, put it together again. Again, I am paraphrasing. But that she should essentially have reconstructed the shape mentally to satisfy herself. Can I just ask you first of all if you were doing this procedure or when you were doing a procedure similar to this procedure, what is your practice?
A. I preface my answer with stating the obvious, which is that the surgeon must make an attempt to assess that the procedure is complete. I do that by, I believe, a combination of three different things. Number one is observation of the tissue which I remove. I stick with Mr. Clements in his evidence of intellectual reconstruction. I don’t want to paraphrase but I think he was ticking off in his mind as pieces came out and I would agree with that view. And I have heard Dr. Patton’s evidence on that point. Secondly, I have a feel inside the uterus not with my finger but with a curette and I go down the walls of the uterus. They are not totally regular but if one felt sort of catching a piece of tissue or a bump, that might make one feel that there was tissue left inside. Thirdly, I would want to ensure that the uterus had contracted down and that there was modest, at the lowest, blood loss at the end of the procedure.
So I use a combination of three things; observation, feel and condition at the end to form an overall clinical judgment. If I believe in my judgment from those three things that the evacuation is not complete I would not perform a scan. If I was uncertain, I would perform a scan….”.
In the direct examination it was put to Mr. Jarvis that Dr. Clements had said that the very fact that the appellant left a piece of bone illustrated the fact that it was doomed to failure and that she did not take sufficient care to ensure that her evacuation was complete. Mr. Jarvis said that he did not think that that was a logical conclusion but he then went on to expand on that answer by explaining that it frequently happened that “tissue” is left inside the uterus. He did not think it reasonable to say that the fact that tissue had been left behind necessarily meant that the doctor fell below the standard to be expected. He thought that that factor alone would be a “harsh call”.
The problem with this answer, however, was that it referred in general to “tissue” and there was abundant evidence already that placental and other material might be left behind without negligence. The issue that had to be considered was whether the leaving behind of a bone of the size which was left must necessarily be blameworthy. Even if, as indeed, was explained by one of the doctors the word “tissue” could be taken to include bony items as well as soft items, the answer still does not seem to be confined to bone. Mr. Jarvis went on to say that while he did not have the appellant’s evidence in front of him he had read it and found that in the examination in chief six different descriptions had been given as to how the call of completeness was made but that having read those, he believed that Dr. Patton fulfilled his three criteria for judging completeness. Mr. Jarvis also said that it was possible for somebody exercising his triad of criteria to miss an entire lower limb if they are doing it competently. When asked how that was possible, he answered as follows:
“Again I am sensitive of Mrs. Griffin’s sensitivities and I hope she will forgive me. This is not the evacuation of a recently live foetus undergoing a termination of pregnancy. This is a macerated foetus of at least three weeks standing. The tissue is less easy to recognise. It comes out piecemeal rather than in an intact limb. The description which is put forward as to making, for want of a better word, a sort of intellectual reconstruction as pieces are pulled out is a subjective judgment and no matter how careful any individual is, there will be occasions when one’s subjective judgment is wrong. It is for that reason why I also use the curette to try and identify a bump or a catch within the uterus and despite that, all gynaecologists are aware that from time to time they leave tissue inside the uterus. I believe it is compatible to display an appropriate level of care in making the judgment that evacuation is complete, yet that judgment be erroneous for reasons that are inherent with the technique rather than in the competence of the operator.”
He expands a bit further on this explaining the effect of maceration. In that connection, he gave another relevant answer which is worth quoting:
“I think there may be a view that the four limbs come out as four pieces and you count one to four. That is not the situation with a macerated foetus. The limbs may come out, they may well come out as one, but they may also come out in two or three different pieces. The pieces do not necessarily come out in the same order as your mental check list. You have to make your mental check list, you have to observe that which is removed, but at the end of the day it is a subjective judgment, not an objective one.”
In relation to Mr. Clements’s evidence that he had never left a piece of bone behind at evacuation of the uterus Mr. Jarvis commented that he thought not many gynaecologists would be able to give the same evidence, but he did not clarify to what extent it could happen without negligence.
Dr. Patton’s emotions
As is clear from the passage cited at the beginning of this judgment, the learned trial judge, towards the end of his judgment, stated that he was “was persuaded” that Dr. Patton’s emotions clouded her judgment to the extent that, when treating Mrs. Griffin on that occasion, she fell below the standards which one would expect a gynaecologist of her training and experience exercising ordinary care. Counsel for the appellant are critical of the judge for making that statement especially in so far as it suggested that Dr. Patton’s emotional state contributed to her being negligent. It is important, however, to put this statement of the learned trial judge into perspective. He had already rejected what he considered were incorrect assumptions made by Dr. Turner and Mr. Jarvis that the appellant had had regard for the presence among the removed pieces of all major bony structures. The judge correctly pointed out that the appellant had made no mention whatsoever of major bony structures. Still less, of course, did she have any notes indicating that she had had regard to them. The judge went on to point out that she had referred to “bits of tissue”, “bits of body”, “bits of bone”, “bits of everything” and to “a jingle-jangle of bits” and she had said that “you look at the volume, you assess it.” The learned trial judge said that he was not persuaded that the appellant had carried out a visual check of the pieces of foetus which she had removed which was sufficient to identify the major bony structures of the foetus much less to satisfy herself that the entire foetus had been removed. He found that in that respect she had fallen below an acceptable standard of care. In so far as he added at a later part of the judgment a further point that he was persuaded that the appellant’s emotions clouded her judgment, this was I think what he perceived as an explanation as to why she did not do the job in accordance with the correct standards. Before I comment on whether the learned trial judge was entitled to bring into the judgment that element at all, I think it necessary to outline the evidence on which it was based.
On day 1 the respondent described waking up after the operation and seeing the appellant and the night sister. She described how the appellant was on the phone but that she could see her very clearly. When asked what was the condition of the appellant the respondent replied that she was “weepy-eyed” and she said that the nurse was also distressed in that she was silently crying. The appellant said that down by her feet on the right-hand side there was green towelling or green material and there was a lot of bloody stuff on it. When the appellant was asked about this in direct examination she said that she had no recollection of it but that she did tend to get a bit weepy occasionally and she thought that giving a patient news that it was all over and that the baby and the pregnancy were no longer was a situation which could have caused tears in her eyes. She said that she had no problem admitting to that at all, that she was normal, human and a woman. On day 6 under cross-examination in answer to Q. 175 the appellant said the following:
“I would weep and certainly produce tears when I have to tell somebody something that is sad, yes, unfortunately, I am one of those women who do that. I would do that in lots of circumstances, not just in a circumstance like this. If I have to tell a patient that she has cancer, a young mother that she has cancer, a young mother whose baby is dead, yes, I would weep.”
It was then put to her that if she had been shedding tears in the way she described that would be a pretty strong indicator of distress. She answered that she shed tears very easily and added “that is one of my problems”. It was then suggested to her that somebody shedding tears who had just performed an operation might not be in the best position to make a judgment as to how one should check that the operation had been carried out correctly. She disputed that she would be any less competent because of being upset.
Before the abolition of civil juries, I am satisfied that a trial judge correctly charging the jury and reviewing the evidence for them would have been perfectly in order in telling them that if they believed the evidence that the doctor was in tears and emotionally upset, it would be a matter entirely for them to consider the relevance (if any) of this fact in arriving at a determination as to whether the doctor was negligent or not. If such a direction was given in the charge, I believe that no requisition could have been legitimately made to the trial judge to rescind that direction. Still less could a new trial have been ordered on the basis that the judge ought not to have given such a direction and that the jury might have been wrongly influenced by it. Quite obviously, it would not have been open to the trial judge to have decided this case against the plaintiff on inferences drawn from that evidence alone but he was entitled, in my view, to have put it into the melting pot when considering all the facts of the case as he seems to have done.
The law
On foot of the ordinary principles that might apply to any negligence action whether medical or otherwise, I find myself in no doubt that there was ample evidence to support the finding of the learned High Court judge that the appellant was as a matter of probability negligent in causing or permitting a piece of bone (found by the trial judge as probably a limb) of 5.5 cms. long to be left behind in the uterus after the evacuation procedure. It was clear even from the evidence of the appellant’s own medical experts that the retention of a piece of bone was a very rare occurrence. Dr. Turner said that in 99 per cent of cases the problem of retention was with placental tissue because that stuck to the uterine wall. As I have already indicated in this judgment, Dr. Turner at a later stage in his evidence said that “a piece of retained bone isolated is such a rare event after an E.R.P.C. you wouldn’t routinely do an ultra sound examination in the absence of symptoms.” It is clear from the evidence of Mr. Jarvis also called on behalf of the appellant that while there may be some difficulty in identifying the bones where the foetus is macerated, extra care is required in that instance in doing so and he still speaks of ticking off the important pieces. The appellant herself, as the learned trial judge pointed out in his judgment, “made no mention whatsoever of major bony structures”. Rather she referred to “bits of tissue … bits of body … bits of bone … bits of everything… a jingle-jangle of bits”. She said that you look at those bits and the volume involved and assess it. The trial judge, accordingly, was not persuaded that the appellant had carried out a visual check of the pieces of foetus which she had removed which was sufficient to identify the major bony structures of the foetus much less to satisfy herself that the entire foetus had been removed. Finally, the judge, obviously, considered that as a matter of probability her judgment became somewhat clouded because of the emotional state she was in. In these circumstances, the judge’s finding appears entirely logical. The only question is whether there is anything in the decided cases and jurisprudence of this court which would lead to a contrary view.
The leading case is the well known case of Dunne v. The National Maternity Hospital [1989] I.R. 91. The principles established from the unchallenged case law at that time i.e. Daniels v. Heskin [1954] I.R. 73; O’Donovan v. Cork Council [1967] I.R. 173; and Reeves v. Carthy and O’Kelly [1984] I.R. 348 were set out by Finlay C.J. in his judgment with which the other members of the court agreed and set out at p. 109 of the report.
“1. The true test for establishing negligence in diagnosis or treatment on the part of a medical practitioner is whether he has been proved to be guilty of such failure as no medical practitioner of equal specialist or general status and skill would be guilty of if acting with ordinary care.
2. If the allegation of negligence against a medical practitioner is based on proof that he deviated from a general and approved practice, that will not establish negligence unless it is also proved that the course he did take was one which no medical practitioner of like specialisation and skill would have followed had he been taking the ordinary care required from a person of his qualifications.
3. If a medical practitioner charged with negligence defends his conduct by establishing that he followed a practice which was general, and which was approved of by his colleagues of similar specialisation and skill, he cannot escape liability if in reply the plaintiff establishes that such practice has inherent defects which ought to be obvious to any person giving the matter due consideration.
4. An honest difference of opinion between doctors as to which is the better of two ways of treating a patient does not provide any ground for leaving a question to the jury as to whether a person who has followed one course rather than the other has been negligent.
5. It is not for a jury (or for a judge) to decide which of two alternative courses of treatment is in their (or his) opinion preferable, but their (or is) function is merely to decide whether the course of treatment followed, on the evidence, complied with the careful conduct of a medical practitioner of like specialisation and skill to that professed by the defendant.
6. If there is an issue of fact, the determination of which is necessary for the decision as to whether a particular medical practice is or is not general and approved within the meaning of these principles, that issue must in a trial held with a jury be left to the determination of the jury.”
The issue which O’Donovan J. had to consider in this case and which led to his finding of negligence was essentially a factual issue to which he had to apply the same principles as he would have done in any kind of negligence action whether professional negligence or otherwise. It was not complicated, in my view, by the special principles set out by Finlay C.J. Where two professional expert witnesses have an honest difference of opinion of what ought to be done in, say, diagnosing or treating then the judge is not entitled to prefer one view to the other and if the defendant complied with one of those courses of action, he could not be found to be negligent. But that does not seem to me to be of the essence of the matter in this case. Here, it was common case among all the medical experts that a gynaecologist carrying out the procedure which the appellant did carry out had to take all the correct steps to ensure as far as possible that the uterus was properly evacuated and especially of the major bony structures. It was for O’Donovan J. to decide on the issue of fact as to whether the appellant did that or not. He found that she did not, as he was entitled to do, in my opinion, for the reasons which I have indicated. The fact that one doctor may say in the witness-box that in his opinion, the appellant was not to blame does not in any way oust the normal function of the trial judge on the issues of fact even if the judge takes the view that the doctor giving evidence was giving an honest opinion.
I mentioned as one factor which would have been legitimate to take into account the fact that in 99 per cent of cases of retained tissue it would not be isolated bone. I would like to expand on that point having regard to dicta of Lavery J. in Daniels v. Heskin cited above. In that case, it was held (inter alia) by the Supreme Court that there was no evidence to support a finding by the High Court that the breaking of a needle in the course of an operation was caused by negligence. Lavery J. who delivered the main judgment had this to say:
“It is certainly not open to a jury, in my opinion, in that state of facts to hold that the breaking was caused by imperfection of technique on the ground that say in 60 per cent of cases of broken needles it is so caused, and the same is true of any other statistical record of such happenings until the point is reached where the preponderance is such as to make it a case of res ipsa loquitur shifting the burden of proof to the defendant to give an explanation and to establish that the mishap was not due to his negligence.”
Using the same percentage sample, I would entirely accept, of course, that if the evidence before the learned High Court judge had established that in 60 per cent of all instances where a limb of a foetus is mistakenly left behind in the uterus there would have been fault on the part of the operating surgeon whereas in 40 per cent of the cases there would not, there could not on that evidence alone be a finding that as a matter of probability there was negligence. Indeed, percentages of that kind would probably have to be disregarded altogether. But this does not mean that in a case where the evidence established that it would be rare in the extreme for a piece of isolated bone to be left behind, that fact would not be relevant combined with all the other evidence in the case in a judge arriving at a finding of negligence.
It is clear that the trial judge paid particular attention as he was bound to do to the appellant’s own evidence and he then found as a fact that as a matter of probability, she did not carry out the assessment of what had been taken out correctly. I cannot see any argument based on the medical negligence jurisprudence of this or any other court which disentitled the learned High Court judge from adopting that course.
I would, therefore, dismiss the appeal.
Wolfe v. St. James’s Hospital
[2002] IESC 10 (20th February, 2002)
Murray J.
Geoghegan J.
Fennelly J.
332 & 346/00
[Judgments delivered by Geoghegan J. and Fennelly J.; Murray J. agreed with the judgment of Fennelly J.]
JUDGMENT of Mr. Justice Geoghegan delivered the 20th day of February 2002
1. This is an appeal arising out of a judgment and order of the High Court (Barr J.) in a fatal injury medical negligence action. The action against the third-named defendant Dr. Donald Weir was withdrawn in the High Court on consent and although he remained an important witness in the case his liability is not in issue.
2. The case related to a most unusual medical condition known as a ” phaeochromocdoma” and referred to by way of shorthand in medical circles and hereinafter in this judgment as a ” phaeo”. Broadly speaking a phaeo is a tumour which if left undetected has the effect of releasing an excess of adrenaline resulting invariably in death. If once considered as a serious possibility there are tests which render it relatively simple to discover whether it exists or not. If it is proved to exist it is a relatively simple surgical procedure to remove it and the patient is then cured.
3. The plaintiff’s husband died in November, 1991 in the first-named defendant’s hospital. As a result of a post mortem it was discovered that a phaeo was the cause of his death. The plaintiff claimed in the High Court that having regard to a particular combination of symptoms which her deceased husband had had, the condition ought to have been diagnosed. It is only fair to say that that was the main plank of the plaintiff’s case. A secondary allegation of negligence however was that one of the several symptoms was so called ” panic attacks” which in all the circumstances of the case and above all having regard to one particular circumstance which I will be explaining, ought to have been investigated but were not (it being suggested that had such an investigation taken place the phaeo would have been discovered as a matter of probability. The plaintiff failed against both defendants on the first allegation but succeeded as against the first-named defendant St. James’s Hospital only in relation to the second. The first-named defendant has appealed against the finding of negligence against it and the consequential judgment for damages. The plaintiff has cross-appealed both against the finding by the learned High Court judge against her in respect of her first and main allegation of negligence and also against the dismissal of the action as against the second-named defendant Dr. Buckley, it being asserted that under both headings of negligence he should be liable.
4. Before summarising the facts of the case there is one other introductory matter which should be referred to. Although the failure to investigate the panic attacks was regularly raised and probed by counsel for the plaintiff/respondent in cross-examination at the trial it is fair to say that at the end of the evidence the plaintiff primarily relied on a failure to diagnose. Between reserving his judgment and the delivery of that judgment the learned trial judge put the case in for mention again and prepared a detailed memorandum in which he expressed concern that what I have ultimately described as the second heading of negligence was very much open. At that stage counsel for the plaintiff readily and, indeed, understandably agreed with the trial judge and sought permission to call a psychiatrist, the only psychiatric evidence having been called on behalf of the defendants, albeit in the special context that the psychiatrist called was also an endocrinologist. The learned trial judge rejected that application but permitted both sides to draw his attention in a written memorandum to the parts of the transcript that dealt with the point which was concerning him. It was not seriously disputed nor could it be that counsel for the plaintiff/respondent had throughout the trial raised the issue of the failure to investigate separately the panic attacks. The only purpose of cross-examination along those lines could conceivably have been that had such investigations occurred it would have been discovered that the so-called panic attacks were not in fact panic attacks and that the possibility of a phaeo would, as a matter of probability, have been considered and that once considered it would have been discovered.
5. One of the grounds of appeal of the first-named defendant is that the learned High Court judge permitted ” extensive submissions” after the termination of the trial by and on behalf of the plaintiff/respondent. I would reject that ground. The judge was acting within his discretion.
6. The relevant facts are fully set out in the judgment of the learned High Court judge. The summary which I will give at this stage of the judgment will essentially relate to the actual heading of negligence so found and, therefore, the matter of appeal by the first-named defendant. On the 11th of February, 1989 Mr. Joseph Wolfe, the plaintiff’s late husband, presented himself in the accident and emergency department of St. Vincent’s Hospital, Dublin, having had a particularly bad attack of headache for the whole day and being unable to bear it. He was brought there in an ambulance. Before arriving he had suffered from shaking and sweating but although the sweats and shakes only lasted about half an hour the headaches had lasted all day. The deceased told the hospital that he had suffered from ” panic attacks” from time to time over the years which he had ascribed to upset at losing his full-time job with the Dublin Port and Docks Board in 1985. The evidence of the plaintiff however which the trial judge clearly accepted was that these attacks were not of great significance until in or about the later part of 1988. According to the plaintiff, her husband for several months prior to attending at St. Vincent’s Hospital had been getting headaches and starting to get shakes but they would come and go. On the 11th of February, 1989 Mr. Wolfe was detained in St. Vincent’s Hospital for about three hours as an outpatient. His blood pressure was checked and was normal a fact which is of considerable importance in this case as I will be explaining. Other details of his symptoms were given to St. Vincent’s Hospital but it is not necessary to go into them in any detail as that hospital is not concerned in this action. Believing he was suffering from some kind of migraine, St. Vincent’s Hospital advised that he should be sent to a neurologist if any further episode occurred. On that basis he was discharged home but told to take Ponstan. It turned out however that Mr. Wolfe’s headaches continued on during the following days and he decided to attend the accident and emergency department of the first-named defendant’s St. James’s Hospital at 10.00 p.m. on the 15th of February, 1989. His complaints were recorded in the hospital notes as being ” a severe headache, one last Saturday, vomiting, previous medical history, Vincent’s last Saturday, same complaint.” Again, his blood pressure was taken and this was normal. He complained of headache which had been severe for several days with intermittent bouts and he had also vomited on that day and was in pain. On foot of a provisional diagnosis of a viral illness he was admitted as an in-patient on the 16th of February. In a document headed ” Record of Nursing Care and Patient’s Progress” it was stated that he had complained of sudden onset of frontal headache the previous evening while watching TV and that this was associated with severe nausea and shaking. He had experienced a similar headache on the day he had attended St. Vincent’s Hospital. Mr. Wolfe told the hospital that he had shaking attacks for three years and he evidently suggested that this might be because being rendered unemployed in 1985. His blood pressure remained normal.
7. On the next day he still had the headache though less severe and a lumbar puncture was performed which was normal and he was then recorded as having no complaint of headaches. At this point in his summary of the facts the learned High Court judge specifically points out that the severity of the shaking attacks was not investigated and he opines that in the light of the plaintiff’s evidence it is probable that they did not become of great significance until the latter part of 1988 i.e. within a few months of his arrival at St. James’s Hospital for the first time. The partial significance of this finding of fact by the learned High Court judge is that if it were to be believed that the so called ” panic attacks” arose from the plaintiff losing his job with the Port and Docks Board it would mean that these were insignificant attacks for the first three years after losing the job and suddenly in 1988 they became severe. There was undoubtedly some evidence from the psychiatrist called on behalf of the defendants that panic attacks arising out of particular events such as loss of a job can in some instances go on forever. But the learned High Court judge appears to have drawn and correctly drawn a sharp distinction between that situation which presumably is rare in itself and the situation where ” panic attacks” only became of any significance three years after the alleged event that might have sparked them off.
8. Returning to the general narrative, Mr. Wolfe was put under the care of Dr. Keeling, Director of Gastro Enterology in the hospital and a major witness in this case. He investigated the possibility of meningitis and ruled it out. He was then inclined to the view that the deceased’s symptoms were caused by a viral type illness but as they had resolved Mr. Wolfe was discharged home. Dr. Keeling had found a raised white cell count which could be indicative of a viral infection. A phaeo was never suspected and I will return to the reasons put forward later. The learned High Court judge refers to the fact that Dr. Keeling and his team never checked out the ” panic attacks” the symptoms of which had been going on for three years and which allegedly had become more severe. The judge further adverted to the fact that it was not in dispute that the transient viral infection which was thought to have been found in 1989 could not explain the symptoms which the deceased stated he had had for the previous three years.
9. Mr. Wolfe returned home on the 20th of February, 1989 and he was symptom free for about two weeks. The usual symptoms of headaches, pains, sweats and shakes returned after that. These might all be symptoms of a phaeo but as all the doctors called on behalf of the defendant emphasised they were symptoms of a large number of other conditions also. Indeed, it is only fair to say that there is nothing on any of the records in St. James’s Hospital which indicate that Mr. Wolfe ever told them about the sweating. However, his wife gave clear evidence of the sweating which was not disputed and was clearly accepted by the learned trial judge. The judge clearly took the view that if there ever had been a proper investigation of the panic attacks the sweating aspect would have been discovered.
10. The evidence established that Mr. Wolfe did occasionally visit the Outpatients’ Department of St. James’s Hospital when he would have intermittent symptoms but he did not return there with serious symptoms until the 5th of April, 1991. Barr J. sets out in his judgment the relevant section of the plaintiff’s evidence at this point. It reads as follows:-
“It was grand, they were gone for a while and then they started coming back more often and he started getting worried again and that is when he went back. The shaking started and pains in the stomach and headaches. He was also complaining of the stomach with the shakes since before he went to St. James’s in 1989. The shaking, the stomach pains, the sweats and the headaches were back and getting worse, he was worried about the shaking and the stomach pains and he went back to the hospital.”
11. On this occasion Mr. Wolfe came under the care of the second-named defendant Dr. Buckley, a senior consultant physician in the hospital. On the 23rd of April, 1991 Dr. Buckley wrote a letter to Dr. Carthy, the deceased’s general practitioner. From the plaintiff’s point of view this letter, in my opinion, is the most important document in the case and like the learned trial judge does in his judgment I intend to cite it in full. It reads as follows:
“Dear Dr. Carthy
Unfortunately I was unable to read your referral letter and Mr. Wolfe proved himself to be a rather poor historian. Initially he admitted to intermittent abdominal pain of uncertain character for two years, accompanied at times by nausea and vomiting. He gave a past history of chest surgery at the age of nineteen when serving in the Army. There was no localising features on examination other than the fact that he is somewhat overweight.
I think the safest thing here is to get an upper GIT endoscopy x-ray as well as routine haematology and biochemistry. My feeling at the moment is that these tests will be normal. At the end of the interview Mr. Wolfe reported recurring panic attacks and that his abdominal discomfort was associated with these rather than occurring in isolation.
He stated that he had come seeking treatment for these attacks and not for abdominal pains . Nevertheless, I feel we should proceed with the screening tests and review the situation thereafter when the results come to hand.”
12. The emphasis on certain words in that letter is mine because I think it important to highlight that here is a somewhat unusual case where the patient complaining of a number of symptoms specifically earmarks what he considers he requires treatment for. It is, of course, common case that the attacks were never investigated and still less treated. I will return to the significance of this later on in the judgment.
13. What then happened was an unfortunate series of events. It is quite obvious that Dr. Buckley never thought that anything would come of the screen tests which he was directing but Mr. Wolfe was returned to the care of the Dr. Keeling for this purpose. It then emerged that Mr. Wolfe was in fact suffering from a substantial wall peptic ulcer. His stomach pains but certainly not the other symptoms and particularly not the so called ” panic attacks” could be explained by that finding. The ulcer was cured after the deceased agreed to take part in drug trials for some weeks and Mr. Wolfe was returned to the care of Dr. Buckley’s team. At that stage however Mr. Wolfe was not examined by Dr. Buckley personally but rather by his Senior House Officer, Dr. Aidan Quinn. This fact in itself was not in any way unusual and could not give rise to any heading of negligence. But unfortunately Dr. Quinn took the view that Mr. Wolfe’s problems had been solved and discharged him back to the care of his ordinary general practitioner. He did this without any reference to Dr. Buckley. It is clear, however, from the evidence of Dr. Quinn that he would have had before him and would have read the important letter of the 23rd of April, 1991 written by Dr. Buckley to Dr. Carthy. It appears from that letter that Dr. Buckley was intending to consider what should be done about the panic attacks after the screening test had been completed. If I am right in interpretation of the letter then Dr. Quinn was negligent in discharging the deceased without either himself organising steps to investigate the panic attacks or referring him back to Dr. Buckley. Alternatively, even if I were wrong in my view that the letter was reasonably clear in this regard there was some negligence because in that event Dr. Buckley should have made that clear in notes which would be available to any senior house officer dealing with the patient. But in my view it was clear from the letter. And this is obviously the view taken by the learned High Court judge. The discharging letter from Dr. Quinn to Dr. Carthy is also cited in the High Court judgment and reads as follows:-
“I reviewed this patient in the Outpatients. As you know, this man has an interior wall duodenal ulcer which is helicopractor positive. He is now attending Dr. Keeling’s team on an ulcer drug trial. We can now safely discharge him to your and their care.”
14. There is no doubt that the finding of the peptic ulcer provides at least an understandable reason why he was discharged home without further investigation. But although it was understandable one must ask was it excusable? Clearly, the learned High Court judge did not think so and in my opinion it was open to him to take that view. I would slightly differ from the learned High Court judge however in his treatment of the question as to whether the ” panic attacks” ought to have been investigated. He clearly took the view that this should have been done by Dr. Keeling in 1989 and/or by Dr. Buckley in 1991. I would take the view that Dr. Keeling cannot be faulted for not separately investigating the panic attacks in 1989. At p. 102 of Book 4 of the transcript the learned trial judge himself asked Dr. Keeling the following question:-
“What did you conclude about these panic attacks as to why they were happening?
Dr. Keeling replied as follows:
“At that moment in time the weight on the panic attack did not defer us from the investigation of the severe headache associated with the nausea so we didn’t put very much weight on it at that point in time. In other words, what I am saying is that if we felt the symptoms were primarily driven by a panic episode we wouldn’t have progressed with the series of investigations for the headache, such as the lumbar puncture.”
15. At p. 114 Q. 436 in the same transcript Dr. Keeling was asked why he did not refer the patient to a psychiatrist in respect of the panic attacks and his answer reads as follows:-
“Because his symptoms as he presented to us were not driven by the panic attacks. The symptoms as we saw it was related to what we considered to be a viral illness with meningeus and headaches and nausea.”
16. De. Keeling goes on to develop the theme and emphasises that as far as he and his team were concerned Mr. Wolfe was a patient presenting himself to the hospital with severe headache and that the panic attack was a side issue. If it had been a serious issue he would have been referred to a psychiatrist.
17. In short it is quite clear from Dr. Keeling’s evidence that he considered he was treating abdominal pain and that the so-called panic attacks were not a serious symptom that required some independent investigation. It certainly would never have occurred to him that such investigation would be desirable because of the possibility of a phaeo. This was because at all material times Mr. Wolfe’s blood pressure was normal, that is to say he was in medical terms ” normotensive”. I will explain in more detail the importance of this when I deal with the cross-appeal but it is important even at this stage that I very briefly explain the context in which this factor had significance.
18. A phaeo is an extremely rare condition. In at least 90 per cent of all ” attacks” associated with a phaeo the patient is hypertensive. But approximately 40 per cent of the attacks are paroxysmal which means that the blood pressure is raised only at the time of the attack though there was some evidence to suggest that it would continue somewhat raised for a period thereafter. It was very much part of the plaintiff’s case that although the deceased may have presented himself following on the attacks as normotensive that is to say with normal blood pressure, the attacks were nevertheless paroxysmal but the blood pressure had gone down at the time he presented himself to the hospital. It was obviously to the plaintiff’s great advantage if she could establish this as 40 per cent of all cases come within that category whereas if her late husband was completely normotensive during the attacks there are not more than 10 per cent in that particular category and obviously a failure to diagnose is much more understandable. As I will be pointing out when I am dealing with the cross-appeal it is clear that although there was conflicting expert evidence in this matter the learned trial judge accepted the view of Professor Wass, an English expert that because of continuing headaches at the time of presentation, the attacks were still in being and that therefore if they were paroxysmal rather than normotensive there would still have been raised blood pressure. It was the view of all the doctors called on behalf of the defendants that if Mr. Wolfe was of the normotensive category no physician could reasonably have been expected to have thought of a phaeo on foot of the other symptoms.
19. It is in that context therefore that Dr. Keeling was of the view that it would have been absurd for him to have thought of a phaeo and, therefore, on that account to have pursued further investigations of the panic attacks in 1989. The views of Dr. Weir were even stronger in this regard. Given that Mr. Wolfe was himself attributing the panic attacks to loss of employment I do not think it reasonable to find negligence on the part of Dr. Keeling for not separately investigating the panic attacks in 1989.
20. With regard to his position in 1991 it appears to be unclear on the evidence as to whether Dr. Keeling ever had sight of Dr. Buckley’s famous letter to Dr. Carthy, but even if he had Mr. Wolfe, at that stage, was for general purposes under Dr. Buckley and not under Dr. Keeling. Dr. Keeling was only brought in to carry out the tests which in the event showed that he had a peptic ulcer. In my view there is no prima facie case of negligence against Dr. Keeling. There is a finding by the learned High Court judge that in his view no clinician of comparable status and skill if acting with ordinary care would have failed to investigate ” panic attacks” having such severe associated symptoms. But it does not seem to me that the evidence supports that finding. Nor in my view can such a finding be justified against Dr. Keeling in 1991. At that stage he was only dealing with the peptic ulcer. Effectively, Mr. Wolfe was Dr. Buckley’s patient. It had been intended by Dr. Buckley that following on the investigations by Dr. Keeling, Dr. Buckley would review the position relating to the panic attacks. It was to Dr. Buckley that Mr. Wolfe made clear that his real complaint was the panic attacks. I entirely accept, of course, the view of the learned High Court judge that in a busy hospital such as St. James’s, medical consultants are obliged to rely on their senior house officers to assist them with their workload and to take many routine decisions on their behalf. But in this case the liability of Dr. Buckley cannot be absolved on that account. If the plan was that Mr. Wolfe was to be reviewed in relation to his complaint of panic attacks after the investigation by Dr. Keeling then that should have been made absolutely clear on notes which would have been before Dr. Quinn. I have already found that Dr. Quinn should have understood this from the letter to Dr. Carthy, but I do not think that the inclusion of that letter in the file was sufficient. It should have been made crystal clear by Dr. Buckley in a note on the file that the patient was to be referred back to him for consideration of the panic attacks. The reason I take that view is the express instructions which were given by the patient to Dr. Buckley. Dr. Buckley, in his evidence, seems to lay great emphasis on the fact that he was only told by Mr. Wolfe that the panic attacks were his main complaint at the end of an interview. Dr. Buckley mentions this several times in his evidence but I cannot understand the relevance of it. Whether it was at the beginning, the middle or the end of the interview, it was a clear statement coming from the patient. A peptic ulcer could not possibly explain the panic attacks over a long period of time and in my view it was open to the learned High Court judge to find as he did that there was negligence in discharging Mr. Wolfe without the panic attacks being investigated. That negligence must be attributed to the hospital itself, to Dr. Buckley and to Dr. Quinn. I do not think that it can be attributed to Dr. Keeling.
21. One cannot but have great sympathy with Dr. Buckley. He gave his evidence in an admirable fashion without engaging in too much advocacy or special pleading. Secondly, he frankly admits that the unfortunate event from his point of view was the finding of the peptic ulcer.
22. In this connection it is important to review some of the evidence of Dr. Buckley. At p. 46 of Book 7 of the transcript there was the following question and answer in the course of Ms. Irvine’s cross-examination on behalf of the plaintiff:-
“Q. I will come to the blood tests in a moment. But you did not investigate the panic attacks at all with him; is that correct?
A. I arranged for him to come back to my clinic, whenever it was, two weeks later. I did not address it. This was the end of the interview on that day.”
23. The following dialogue then ensued between the learned trial judge an Dr. Buckley:-
“Q. Did you form any opinion about what he was telling you about the panic attacks which he was apparently very clearly associating with the abdominal pain? The idea he was trying to get across to you and did apparently get across to you, Dr. Buckley, was that he felt, rightly or wrongly, that if he could have the panic attacks sorted out that he would have no more problems with the pain because the pain in the stomach was associated, was related to the panic attacks, but the prime mover was the panic attack and the other was ancillary symptom that came with it. So he felt that If he could get rid of the prime mover he would not have any more stomach trouble. That seems to be what he was thinking rightly or wrongly?
A. I would agree, My Lord, yes.
Q. That is what he was trying to say to you. What was your reaction to that?
A. My reaction to that, My Lord, at the end of a difficult interview and subject to time constraints, would be to review it on another day.
Q. Did you in fact review it at a subsequent date?
A. I gave Mr. Wolfe an appointment to re-attend my clinic after he had been investigated. The problem then was positive findings came to light as a result of these investigations and it would have been better if the investigations had been negative.
Q. What I would like you to comment on is this, your thinking of time was, when you say Mr. Wolfe at this interview, was that the stomach pains did not have a physical origin, that they had, for want of a better word, a mental origin. That was your thinking at the time. He then at the end of the interview gave you this information about panic attacks which of course could well have a mental origin, and associated with it he said abdominal pains; did that confirm your thinking that the problem was not physical, probably not physical, but was mental in origin, or did you take it into account at all one way or another?
A. I would have to say, My Lord, that at the end of the interview and after this statement had been made by Mr. Wolfe, I was still not concerned about his health or safety to the extent that I should have done something else on that day other than what I did do. But I did erect a safety net to a certain extent by getting them back.
Q. In the meanwhile although you did not think that in fact any symptoms would emerge, any discovery would be emerged, you thought nonetheless it would be wise to have this stomach examination carried out by Dr. Keeling’s team. It was carried out, as we know, and contrary to your expectation a peptic ulcer was discovered. Is it the position then that that, so to speak, took over now as the source of the problem as being identified, it is the peptic ulcer and the peptic ulcer was duly treated, as we know, and ultimately Mr. Wolfe was discharged as an outpatient from St. James’s Hospital?
A. That is exactly the position, My Lord.”
24. The learned trial judge at that point checked out that Dr. Buckley had not in fact seen Mr. Wolfe again and he was duly reminded of the evidence that Mr. Wolfe was seen by Dr. Quinn instead. At that point Barr J. put it to Dr. Buckley that he would be responsible for Dr. Quinn even though it did not follow that he had to personally see him and that proposition was assented to by Dr. Buckley. What seems to clearly emerge from this and subsequent questioning of Dr. Buckley was that he does not seriously dispute that Mr. Wolfe’s specific assertion that it was for the panic attacks rather than the stomach pains that he was seeking treatment should have been pursued, but time and again he makes two points which would give a reason why the investigations were not carried out but which would clearly not absolve him from the duty to carry them out if such a duty of care existed. In other words Dr. Buckley’s dilemma was understandable but if such duty did exist it was not in the end legally excusable. The two points were that the specific emphasis on the panic attacks by Mr. Wolfe came at the end of an interview in circumstances where some kind of time limit was operating understandably enough for interviews with each patient in the Outpatient’s Department. The second point was that everything was effectively derailed by the finding of the peptic ulcer.
25. At p. 52 of the same transcript the cross-examination by Ms. Irvine continued as follows:-
“Q. Now you are at five years with the paroxysmal symptoms and you didn’t get them investigated?
A. I did not get them investigated, they are common presentations and I did not dismiss the patient, I arranged for him to return. This is the point I am trying to make.
Q. I know he returned, Dr. Buckley but he only returned in relation to the abdominal pain. The plaintiff’s presenting complaint was that he wanted the panic attacks dealt with, they had not been dealt with in 1989 and he is back asking for treatment for his panic attacks. I know you dealt with the abdominal pain, but I am suggesting you never dealt with the panic attacks, which you thought, or you certainly thought his problem was psychological. What you did was you cast out the physical net rather than the psychological net, which is the one you should have cast out?
A. I cast out a safety net and asked him to return in two weeks. The tragedy was the positive findings of the investigation. It would have been much better if I had arranged no physical investigations at all.”
26. At pp. 54 and 55 there was further cross-examination which ended in a
rather curious answer. It reads as follows:-
“Q. He was never reviewed again from the panic attacks symptoms aspect; isn’t that correct?
A. Yes, it is correct. The explanation for that was a cause was found for his symptoms.
Q. No, a cause was found for his abdominal symptoms but not for the persistent shaking panic attacks that he was having for three weeks before 1989; isn’t that correct?
A. Yes, it is correct. My response to that would be that it would have been better if we had not done an endoscopy and we had failed to diagnose an ulcer, then we cold have possibly pursued the anxiety. Then he might have died from gastric haemorrhage due to an unrecognised ulcer.”
27. Since the persistent panic attacks over many years could not have been caused by the peptic ulcer it would seem quite clear that if there was a duty of care to investigate those attacks when Mr. Wolfe returned to Dr. Buckley after tests proved negative there must necessarily have been the same duty if as happened, in the event the tests proved positive but in a way that could not explain the panic attacks. It is clear in my view that there was a duty and that Dr. Buckley was in breach of it having regard to the evidence of Dr. Quinn.
28. None of this, however, is relevant unless the learned trial judge was entitled to draw the inference which he did that had the panic attacks been investigated it would have been discovered as a matter of probability that Mr. Wolfe was suffering from a phaeo. In my view, the trial judge was entitled to draw this inference. First of all the only explanation for the so called panic attacks which had ever been put forward was one which to a lay man at least would seem inherently unlikely, that is to say that they arose because of Mr. Wolfe losing his job with the Port and Docks Board as far back as 1985 notwithstanding that the serious panic attacks did not really commence until 1988 and notwithstanding that they persisted until 1991. There was no evidence that any doctor or expert of any kind had ever determined that he loss of job was the reason for the panic attacks. The suggestion came from Mr. Wolfe himself, though it is clear from the transcript that the trial judge was of the view that this was suggested to him by somebody and probably by his general practitioner. The neat theory put in cross-examination that had he been sent to a psychiatrist, a psychiatrist would have ruled out this explanation or any other psychiatric explanation and would have considered the possibility of the phaeo was rubbished (perhaps correctly) by Dr. Keeling and Dr. Buckley. But this appeared to be partly on the basis that in general psychiatrists were not know for disclaiming reasons connected with their own speciality and attributing physical reasons for symptoms that might otherwise be regarded as psychiatric. It would seem to me that the real question which had to be addressed by the trial judge was whether if a psychiatrist, as seems likely, ruled out or even expressed scepticism as to the loss of job explanation and could come up with no other explanation a consultant physician to whom Mr. Wolfe would have been returned would have then considered the question of a phaeo having regard to the combination of symptoms and notwithstanding the normotensive presentation. Barr J. at p. 26 of his reserved judgment says the following:
“There is no evidence or expert testimony to connect the time lag between the onset and continuance of severe symptoms in 1988 and the loss of employment in 1985, in my view no clinician of comparable status and skill if acting with ordinary care would have failed to investigate ‘panic attacks’ having such severe associated symptoms. Having done so, he/she would have contemplated at least a possibility that the attacks from late 1988 were unrelated to the plaintiff’s loss of employment in 1985 and that in fact they may have been caused by an as yet unidentified abdominal ailment. Once that possibility presented itself prudence would indicate that appropriate abdominal tests should be carried out. If that had been done in the instant case Mr. Wolfe’s phaeo tumour would have been discovered and surgically treated with probable success.”
29. I think that the learned trial judge was clearly entitled to draw those inferences. I would, therefore, dismiss the appeal.
30. Turning now to the cross-appeal it must logically follow from the views which I have expressed that I would allow that part of the cross-appeal which relates to the dismissal of the action against Dr. Buckley in that the heading of negligence under which the plaintiff/respondent was successful in the High Court necessarily involves a liability in him.
31. Altogether different considerations apply to the rest of the cross-appeal. It is not necessary to go into them in any detail. The position can be summarised as follows. It was at all times the plaintiff/respondent’s case that having regard to the particular combination of symptoms which Mr. Wolfe had a phaeo ought to have been diagnosed notwithstanding the absence of one of the most usual symptoms in that connection namely hypertension. It was never in dispute that the symptoms complained about by the late Mr. Wolfe were undoubtedly symptoms commonly associated with a phaeo, but a phaeo is an extremely rare condition and those same symptoms were associated with numerous other medical ailments. Furthermore, one important symptom which would generally be a feature of a phaeo namely, sweating was not complained about in the hospitals by Mr. Wolfe. Indeed at one stage when he was asked was there night sweating he answered in the negative. However, his wife’s evidence was that sweating was a regular feature and it is part of the plaintiff’s case that had there been any proper consideration of the other symptoms when taken in combination the existence of the sweating would have been discovered. As I have already indicated earlier on in the judgment it was an important part of the plaintiff’s case that although her deceased’s husband’s blood pressure was normal upon presentation as a matter of probability that was because the attacks had then come to an end and that he was in the 40 per cent category who have paroxysmal attacks, that is to say have raised blood pressure during the attacks but not afterwards. It is true that the plaintiff/respondent as a fall back case also claimed negligence in failure to diagnose the phaeo even if the court found that the deceased was at all times normotensive and, therefore, within the category of 10 per cent or in the view of some less.
32. On this issue the learned trial judge was faced with the difficulty that he had entirely conflicting evidence from well known Dublin consultant physicians who gave evidence on both sides. Dr. Buckley, Dr. Keeling and Dr. Weir in particular were strongly of the view that it would have been wholly unreasonable and wholly impracticable to expect any physician to have thought of, never mind, diagnose a phaeo in the absence of hypertension though they did acknowledge the textbook cases of phaeos without hypertension even at the stage of attack, that is to say completely normotensive. Dr. Barniville and Professor Seán Blake however who were called on behalf of the plaintiff/respondent gave very strong evidence to the opposite effect. All of this was somewhat unusual in that there inevitably tends to be a pattern in medical negligence actions of plaintiffs relying on specialists brought in from outside the jurisdiction, some of them in retirement or semi-retirement and regularly giving expert evidence in court. But in this case there was a clash of opinion between leading practising or retired practising physicians in the well known Dublin hospitals. It is not very easy for a layman to understand how this can happen and it certainly makes it very difficult for a trial judge. But in addition to the Irish consultants the defendants relied heavily on a Professor Wass from the Radcliffe Infirmary in Oxford who was an acknowledged expert on this branch of medicine and was not only a professor but was a practising physician also. He was very strongly of the view that it would have been unreasonable to have expected diagnosis and furthermore he was strongly of the view that on the occasions when the deceased presented himself with the symptoms his attacks were not over particularly having regard to the headaches and that therefore he came within the 10 per cent category of completely normotensive patients with phaeos.
33. With this range of views it was open to the learned trial judge to come down on either side. This is what Barr J. in fact said at p. 34 of his judgment:-
“I accept the evidence of Professor Wass which was supported by other defence experts that in all probability Mr. Wolfe was one of those very rare phaeo sufferers who remained normotensive during attacks. The opinion has been expressed that he was suffering the tail end of such attacks when his blood pressure was checked in hospital and found to be normal on both occasions after his arrival there with severe headache which had not yet subsided. In the absence of the primary phaeo symptom of hypertension on those occasions the possibility that such a tumour may have been the cause of Mr. Wolfe’s condition was too remote to be checked out by a competent clinician. I accept that opinion. Having regard to the probable normotensive nature of Mr. Wolfe’s tumour I am not convinced by the opinions expressed by Dr. Barnable and Professor Blake that the cluster of symptoms which were known to or which ought to have been ascertained by the treating doctors at St. James’s Hospital, including severe sweating during attacks, should have put them on notice that there was a real possibility that the cause of the deceased’s symptoms was a phaeo tumour. As I have already stated, I am satisfied that the evidence of hypertension when his blood pressure was checked at anytime in hospital while the severe attacks were continuing would rule out in the mind of a competent clinician a phaeo tumour as a realistic possibility which ought to have been investigated.”
34. It was perfectly open to the learned trial judge to make that finding on foot of the evidence before him and it cannot be interfered with by this court. Except to the limited extent to which I have already indicated in relation to Dr. Buckley I would hold that the cross-appeal should fail. But it should be allowed to the limited extent of substituting a finding of negligence against Dr. Buckley for the failure to investigate the panic attacks.
35. It may seem surprising that so far I have not referred to the legal principles laid down by this court in relation to medical negligence and particularly the principles enunciated by Finlay C.J. in Dunne (an infant) v. The National Maternity Hospital [1989] I.R. 91 as referred to by the learned trial judge. I will now put that omission in context. The former Chief Justice in that judgment set out a number of principles but the relevant one for the purpose of this case as pointed out by the learned trial judge is the following:-
“The true test for establishing negligence in diagnosis or treatment on the part of a medical practitioner is whether he is bring proved to be guilty of such failure as no medical practitioner of equal specialist or general status and skill would be guilty of if acting with ordinary care.”
36. The formulation of this test has been carefully thought out with a view to achieving a proper balance between two legitimate concerns. This is illustrated by the further passage from the judgment cited by Barr J. and which I think it useful to cite again in this judgment:-
“In order fully to understand these principles and their application to any particular set of facts it is, I believe it helpful to set out certain broad parameters which would appear to underline their establishment. The development of medical science and the supreme importance of that development to humanity makes it particularly undesirable and inconsistent with the common good that doctors should be obliged to carry out their professional duties under frequent threat of unsustainable legal claims.
The complete dependence of patients of the skill and care of their medical attendants and the gravity from their point of view of a failure in such care makes it undesirable and unjustifiable to accept as a matter of law a lax or permissive standard of care for the purpose of assessing what is and is not medical negligence. In developing the legal principles outlined and in applying them to the facts of each individual case the courts must constantly seek to give equal regard to both of these considerations.”
37. The learned trial judge took the view that there was actionable negligence by reason of the failure to investigate the panic attacks in 1989 and 1991. In relation to 1989 the above cited test of ” no medical practitioner of equal specialists or general status and skill” would be the appropriate test. I applied that test on foot of the evidence contained in the transcript and for the reasons which I have indicated came to the conclusion that the learned trial judge was not entitled to make a finding of negligence in 1989. On the other hand, I believe that he was fully justified in making a finding of negligence in relation to the failure to investigate the panic attacks in 1991. But in my view in making that determination the ” medical practitioner of equal specialist or general status and skill” is of very little relevance. In relation to 1991 it is not a question of the deceased’s medical advisors being obliged to use their professional skills and thinking up some test which ought to be carried out. At that stage the patient himself, Mr. Wolfe, was telling Dr. Buckley that he was seeking treatment not for the abdominal pains but for the panic attacks. He may well have mentioned this at the end of an interview but the panic attacks had featured in earlier complaints and the medical records show that he had had them for some years. If this was his major concern in 1991 and that concern was expressed to his doctors I see no reason why one has to apply some artificial test as to what the doctor’s duty was. Expert evidence is never necessary to prove the obvious. The learned trial judge was entitled to take the view that there was a clear duty on Dr. Buckley to see to it that the panic attacks would be investigated as required by the patient. As I have already indicated it is perfectly understandable (though not excusable) why in the end this did not happen and Dr. Buckley in his evidence very fairly admits that the finding of the peptic ulcer effectively caused the distraction. The duty remained and the defendants were in breach of it. I have also indicated that in my view it was fully open to the learned trial judge to draw the inference that had the panic attacks been investigated the phaeo, as a matter of probability, would have been discovered. The Dunne v. The National Maternity Hospital test was correctly applied by the learned trial judge in relation to the first heading of negligence that is to say the failure to diagnose. But that test would seem to me to be of only marginal relevance to the question of whether the panic attacks should have been investigated in 1991 for the reasons which I have given.
38. In short therefore, I would propose the following orders:-
1. That the appeal be dismissed.
That the cross-appeal be allowed to the limited extent that there be substituted a finding of negligence on the part of the second-named defendant and that therefore the judgment in favour of the plaintiff would be against both the first and second-named defendants.
THE SUPREME COURT
No. 332 & 346/00
Murray J.
Geoghegan J.
Fennelly J.
BETWEEN
CAROL WOLFE
Plaintiff/Respondent
and
ST JAMES’S HOSPITAL MICHAEL BUCKLEY AND DONALD WEIR
Defendants/Appellants
JUDGMENT delivered the 20th day of February, 2002 by FENNELLY J.
39. Mr Joseph Wolfe died in November 1991 at St James’s Hospital at the tragically early age of 33. The cause of death was an extremely rare condition. He had a tumour called a phaeochromocytoma. It became the practice to call it a “phaeo”. It was not diagnosed in the hospital when the deceased attended there either in 1989 or 1991. It was only discovered on post-mortem. If it had been diagnosed, it could have been treated. Not having been diagnosed, it was fatal. When he returned to the hospital in November 1991, it was too late.
40. The plaintiff brought a fatal injuries action against St James’s Hospital, (“the hospital”), Doctor Michael Buckley, a senior consultant physician at the hospital , (“Dr Buckley”) and Doctor Donald Weir, also a consultant. The claim against Dr Weir was withdrawn at the outset.
41. The action was at hearing for ten days before Barr J in the High Court. Barr J found that the hospital was negligent but that Dr Murphy was not. The principal if not the sole basis of the claim was that the hospital and/or its consultants had been negligent in failing to diagnose that the deceased was suffering from a phaeo and consequently failed to treat him appropriately. The plaintiff relied on the evidence of two eminent consultants, Dr Harry Barniville, M.D., F.R.C.P.I., a former consultant physician attached to the Mater Hospital in Dublin and other hospitals and Professor Sean Blake, M.Sc., F.R.C.P., professor of clinical cardiology at University College Dublin and also a former consultant to the Mater Hospital, in his case as a specialist cardiologist. It is not unfair to say that the opinions of these two eminent physicians were predominantly, if not entirely, based on the failure to consider the possibility of a phaeo, with consequent fatal results. The learned trial judge rejected this allegation of negligence. He preferred the evidence of Professor James Wass, Professor of Endocrinology at Oxford and consultant physician at the Radcliffe Infirmary in Oxford, who was called as a witness by the defendants.
42. In spite of this, however, he found that there had been negligence on the part of the hospital, though not of Dr Buckley, the second-named defendant, in failing to investigate panic attacks of which the deceased had complained, specifically failing to conduct appropriate abdominal tests, which would have led to the discovery of the phaeo. He made an award of £112,429 to the plaintiff.
43. I should explain briefly the procedure by which the learned trial judge came to arrive at this conclusion. Having concluded the hearing and reserved judgment, he thought that the plaintiff’s case could be made out without relying exclusively on the phaeo issue. At a resumed hearing, he provided the parties with a memorandum which he had prepared. In essence, this document stated the following. Firstly, the root question to which the parties had addressed their attention at the hearing was whether the medical experts treating the deceased should have directed their attention to the possibility of a phaeo. However, the essence of the liability issue might, he suggested, be different, namely whether a consultant physician of comparable status and experience to the consultants who treated the deceased would have investigated the panic attacks of which the deceased had been complaining for some years on the basis that they might be indicative of a physical abdominal problem as yet undiagnosed. The learned trial judge heard argument on the issue thus defined but did not permit the plaintiff to call further evidence. Having done so, he gave judgment for the plaintiff.
44. There is an appeal by the hospital against this finding and a cross-appeal by the plaintiff, against the failure to find negligence generally on the phaeo issue and, in any event, failing to find that Dr Buckley was negligent.
45. Geoghegan J, in his judgment, gives reasons why the cross-appeal should not be allowed. He rightly says that it was perfectly open to the learned trial judge to make the finding he did on the evidence before him. He was confronted not only by a conflict of evidence between the plaintiff’s two experts on the one hand and Professor Wass on the other, but also between them and Dr Buckley, Dr Keeling and Dr Weir. Although the last-named experts could be said to have had an interest in the outcome of the case (even if the case against Dr Weir had been withdrawn), as Geoghegan J says, they were strongly of the view that it would have been wholly unreasonable and impracticable to expect a physician to diagnose a phaeo in the absence of any evidence of raised blood pressure. Their evidence, though not technically independent, was that of experts. I agree with Geoghegan J that the cross-appeal should not be allowed in this respect. I do not, however, for reasons which will become apparent, agree that the appeal plaintiff’s cross-appeal should be allowed in the case of Dr Buckley. Geoghegan J. is, of course, correct insofar as, having determined that there was negligence on the part of the hospital, because of a failure by Dr Buckley, there should also have been a finding against him. My disagreement is with the determination in respect of the hospital.
46. The balance of this judgment concerns the appeal by the first-named defendant, the hospital.
THE PHAECHROMOCYTOMA
47. The phaeo is a rare condition of abdominal tumour occurring in between 1 and 4 per million of the population. The phaeo found in the deceased on post-mortem examination was of significant size. It was situated behind the liver. The phaeo excretes catecholamines (adrenaline and noradrenaline), usually paroxysmally, which ultimately affect the heart and cause cardiac arrest. The typical range of symptoms consists of attacks of severe abdominal pain and headaches as well as vomiting, sweating, and shaking. The shaking is caused by the excretions. Two aspects of the symptoms are highly material to this case. The deceased, in 1991, spoke of himself as suffering from “panic attacks” associated with the abdominal pain. The failure to investigate this complaint was central to the finding of Barr J. In the great majority of cases, the patient is hypertensive (has high blood pressure). Some of these, about 40% of the total, have high blood pressure only during attacks. A small minority, less than 10%, do not even manifest this symptom during attacks. This appears to have been the case with the deceased, which made him, as was said in the evidence, and accepted by the learned trial judge, “ a rarity within a rarity.” A normal blood pressure reading makes the diagnosis of a phaeo much less likely.
48. It was accepted by all the experts that the condition is very difficult to diagnose, and it is especially so when the patient is normotensive. It was also common case that the range of its symptoms are, to a large extent, referable to many other more common medical conditions. It was said that it is “a great mimic.” For all these reasons, it is very often either discovered on post-mortem or serendipitously on investigation of some other matter. As against all of these problems in its diagnosis, it can be readily detected by means of ultrasound scanning, which will be carried out only if the physician suspects it is present.
THE HISTORY
49. The deceased served in the army from 1977 to 1982. He married in 1979 and had three children. He was employed by Dublin Port and Docks Board after leaving the army, but lost this full-time job in 1985. The extent to which he suffered distress as a result of this unfortunate event was debated for its materiality to the panic attacks, which will need to be considered.
50. From some time prior to 1989, the deceased commenced to suffer from intermittent attacks of headaches accompanied by shaking and sweating. The headaches were so severe that he would, according to the evidence of the plaintiff, his wife, sit in a room holding spectacles to his head to see if he could stop the headaches. This had gone on for several months before he admitted himself to St Vincent’s Hospital Accident and Emergency unit on 11 th February 1989. The notes of that hospital indicate that the deceased was complaining of bursting occipital and then frontal headache, vomiting and “involuntary shaking of his head hands etc. x 3 yrs,” meaning that this had been going on for three years. His blood pressure was normal. He spent three hours at the hospital. He was seen by a Senior House Man whose impression was that he had a “probable migrainous event.” Simple analgesics were prescribed and he was to be reviewed by his GP. The final note records: “Says pain is much better now, almost gone.”
51. However, the headaches continued in the following days and he presented himself at the Accident and Emergency department of St James’s Hospital at 10pm on 15 th February 1989. St James’s was nearer his home. The hospital notes record him complaining of severe headaches for the previous four to seven days as well as vomiting. On examination he was distressed with pain but, in respect of his abdomen the notes say: “nothing abnormal detected.” He was admitted as an in-patient. The nursing notes in respect of his time as an in-patient record his complaints of recurrent headaches over the previous days and that these were associated with nausea and shaking. The medical notes also refer to his shaking attacks over the past three years put down to anxiety in the following note: “Onset since lost job x 3 yrs.” As already noted, he had lost his job in 1985. Again his blood pressure was normal. The headaches eased.
52. The deceased came under the care of Doctor Keeling, director of gastro-enterology at the hospital. Investigation disclosed a raised white blood cell count. He had a lumbar puncture and other tests including a brain scan. The results were normal. Dr Keeling was of the opinion that these findings confirmed his own provisional diagnosis of a viral type illness. The shaking attacks were not specifically investigated. Dr Keeling said, in evidence, that he had no reason to suspect a phaeo.
53. The deceased was discharged from hospital to out -patient care. I will come to deal later with the learned trial judge’s finding that Dr Keeling was at fault in failing to cause an investigation of the shaking attacks recorded at this time. Barr J uses the expression, “panic attacks,” though that was not the expression used at that time. In his judgment he also describes these attacks as having become more severe in the latter part of 1988. This latter aspect does not appear from the hospital notes made in February 1989. Both the medical and nursing notes record his complaints of shaking attacks as dating from three years back and as being connected with his loss of job at that time. I must digress to refer to this issue in a little detail, as it became highly material to the decision of the learned trial judge. An excerpt from the medical records reads as follows:
“Has been having shaking attacks x 3 yrs
Associated nausea and palpitations
Put it down to anxiety
Onset since lost job. 3 yrs ago..”
54. As explained in evidence, these notes represent what was taken down as the patient’s account of his complaints. Barr J appears to have based his very important qualification of the commencement of the attacks to 1988 on the evidence given by the plaintiff at the trial in the High Court. Firstly, in reference to the headaches, she said she could not really remember how long they had been going on and then said: “months I would say.” She then agreed that the shakes and sweats had been going on “for a number of months.” The following exchange took place in cross-examination:
55. Q. Your husband had informed the doctors that these panic attacks or shaking, or whatever you want to call it, that these symptoms he had started around the time he became unemployed?
56. A. They started in 1988 I think.
57. Q. Well, is it not the fact that they started around that time?
58. A. Probably did, yeah.
59. Although the plaintiff also said the shaking attacks had started either months or a year before February 1989, there does not appear to be any evidence of the shaking attacks becoming more severe in the latter part of 1988. The plaintiff was asked about their commencement. She appears to have agreed in the passage quoted above that they probably commenced about the time the deceased lost his job. In any event, what is important is whether the defendants were on notice or should have been on notice of any radical change in 1988. The patient, the deceased, appears to have given an account of his shaking attacks as dating from three years before his first attendance at hospital in 1989 which is consistent with their being related to the loss of his job. The defendants were not informed of any change in the severity of the attacks in the latter part of 1988. Most strikingly, the entire of the evidence of the plaintiff’s experts was given on the basis that the attacks had been going on for several years.
60. Following his discharge from St James’s in March 1989, the deceased got better for about a year, but gradually the symptoms came back. They got progressively worse. The plaintiff gave evidence that her husband had suffered from shakes associated with severe stomach pains, though, it will be noted, he had not himself complained of stomach pains in 1989.
61. The deceased went back to St James’s on 5 th April 1991. He then came under the care of Dr Buckley for the first time. He complained of having suffered stomach pains for two years. His complaints, at that time, are recounted in a letter written by Dr Murphy on 23 rd April 1991 though possibly dictated earlier, to the deceased’s GP. This letter was crucial to the decision of the learned trial judge. I will quote it in full:
“Dear Dr Carthy
Unfortunately, I was unable to read your referral letter and Mr Wolfe proved himself to be a rather poor historian. Initially, he admitted to intermittent abdominal pain of uncertain character for two years, accompanied at times by nausea and vomiting. He gave a past history of chest surgery at the age of nineteen when serving in the army. There were no localising features on examination other than the fact that he is somewhat overweight.
I think the safest thing here is to get an upper GIT endoscopy, chest x-ray as well as the routine haematology and biochemistry. My feeling at the moment is that these tests will be normal. At the end of the interview, Mr Wolfe reported recurring panic attacks and that his abdominal discomfort was associated with these rather than occurring in isolation. He stated he had come seeking treatment for these attacks and not for abdominal pain. Nevertheless, I feel we should proceed with the screening tests and review the situation thereafter when the results come to hand.”
62. The illegible referring letter from the GP was dated 15 th April 1991 appears merely to have said that the deceased was “complaining of abdominal pain and was currently being treated with [.. illegible].
63. Dr Murphy referred the deceased to Dr Keeling, a consultant gastro-enterologist, who performed an upper genito-urinary endoscopy. This, contrary to the expectations expressed by Dr Buckley in his letter, revealed an active duodenal ulcer and helicobacter (bacterial) infestation. This discovery may, in retrospect have had the unfortunate effect of distracting attention from investigation of the associated symptoms. It certainly provided an explanation for the stomach pain. A drug trial regime was prescribed and it appears clear that the duodenal ulcer was successfully treated. His ulcer healed. The deceased was discharged from the hospital. On 9 th May 1991, Dr Aidan Quinn, Senior House Officer to Dr Buckley wrote to the GP referring to the finding of the duodenal ulcer and to the fact that the deceased was attending an ulcer drug trial. The letter concluded: “We can now safely discharge him to your and their care.”
64. Tragically, the true cause of the deceased’s complaints, the phaeo, had not been diagnosed when he was discharged. On 9 th November 1991, he was taken ill and brought to St James’s Hospital. It is common case that it was then too late to save him. He died on 11 th November 1991.
THE HIGH COURT DECISION
65. The finding of negligence, made by the learned trial judge against the hospital, turns essentially on the discharge home of the deceased without investigating the complaint of “panic attacks,” mentioned in Dr Buckley’s letter. Firstly, it is important to recall that the primary case made by the plaintiff is that the defendants were negligent in failing to diagnose and, having diagnosed, to treat the phaeo. The learned trial judge found against the plaintiff on that point. However, he found the hospital, but not Dr Buckley, negligent in failing to investigate the panic attacks. The relevant parts of the judgment read as follows.
66. He referred to the test laid down by the decision of this Court in Dunne (an infant) v National Maternity Hospital [1989] IR 91 ( “ Dunne” ). He then formulated the question which he had to decide in the instant case (at page 14):
“Was Doctor Keeling and/or Doctor Buckley at fault in failing to discover by diagnosis, or in consequence of investigation of Mr Wolfe’s symptoms, that he was suffering from the phaeo tumour from which he died? If so was such a failure of duty that no medical practitioner of equal status and skill would be guilty of if acting with ordinary care?” (Note: clearly a word such as “a fault” has been inadvertently omitted from the last sentence.)
67. The learned trial judge then drew attention to two important problems on the facts of the case:
“Two facts of major importance which have been established in evidence created particular difficulty regarding the diagnoses of Mr. Wolfe’s phaeo tumour. The first was present at all material times. I accept the evidence of Professor Wass that in all probability Mr. Wolfe’s tumour was a rarity within a rarity in that he remained at all times normotensive. It has emerged that he did not have an actual attack in hospital such as those described by his wife as having occurred at home. However, he was still having severe headaches in hospital which probably indicated the tail-end of attacks and he ought to have been found to be hypertensive on those occasions unless he was one of the minute number of phaeo sufferers who are normotensive. It is common case that hypertension, either continuous or during attacks, is normally the primary symptom of a phaeo tumour.”
68. The learned trial judge then summarised the facts as he saw them. I will return to this summary when I come to state my own conclusions. Firstly, he dealt with the issue of the phaeo (at page 25) and said:
“I accept the evidence of Professor Wass, which was supported by other defence experts, that in all probability Mr. Wolfe was one of those very rare phaeo sufferers who remained normotensive during attacks. The opinion has been expressed that he was suffering the tail-end of such attacks when his blood pressure was checked in hospital and found to be normal on both occasions after his arrival there with a severe headache which had not yet subsided. In the absence of the primary phaeo symptom of hypertension on those occasions, the possibility that such a tumour may have been the cause of Mr. Wolfe’s condition was too remote to be checked out by a competent clinician. I accept that opinion. Having regard to the probable normotensive nature of Mr. Wolfe’s tumour, I am not convinced by the opinions expressed by Doctor Barniville and Professor Blake that the cluster of symptoms which were known to or which ought to have been ascertained by the treating doctors at St. James’s hospital, including severe sweating during attacks, should have put them on notice that there was a real possibility that the cause of the deceased’s symptoms was a phaeo tumour. As I have already stated, I am satisfied that the absence of hypertension when his blood pressure was checked at any time in hospital while the severe headaches were continuing would rule out in the mind of a competent clinician a phaeo tumour as a realistic possibility which ought to have been investigated.”
69. I break the quotation at that point, as it is the end of the phaeo issue. The deceased’s condition was “a rarity within a rarity” and the possibility of a phaeo was “too remote to be checked out.” The learned trial judge continued immediately:
“However, in my view that is not an end to the matter, I accept the opinion that a clinician of equal specialist status to Dr. Keeling if acting with ordinary care would have investigated in February, 1989 or subsequently in April/June, 1991 the so called “panic attacks”. The symptoms which were known to Dr. Keeling and his team in 1989 and 1991 and to Dr. Buckley and his team in 1991 are serious and, as previously stated, included nausea, vomiting, abdominal pain, headaches, shaking and loss of normal pallor. If they had been investigated it would have been discovered (a) that the attacks also included severe sweating; (b) that they had been happening in severe form regularly since late 1988 and, crucially, (c) that they had become acute three years after Mr. Wolfe lost his permanent job in 1985. There is no evidence or expert testimony to connect the time lag between the onset and continuance of severe symptoms in 1988 and the loss of employment in 1985. In my view no clinician of comparable status and skill if acting with ordinary care would have failed to investigate “panic attacks” having such severe associated symptoms. Having done so, he/she would have contemplated at least a possibility that the attacks from late 1988 were unrelated to the plaintiff’s loss of employment in 1985 and that in fact they may have been caused by an as yet unidentified abdominal ailment. Once that possibility presented itself prudence would indicate that appropriate abdominal tests should be carried out. If that had been done in the instant case Mr. Wolfe’s phaeo tumour would have been discovered and surgically treated with probable success.
In 1989 Dr. Keeling’s tentative diagnosis of a viral infection did not explain the known symptoms of the attack which the patient had suffered – far less the full nature of such attacks if investigated. In my view he or his team should have investigated the attacks and, if so, would have discovered that they were unlikely to have any connection with the patient’s loss of employment in 1985 and may have had a purely physical cause associated with the abdomen. It was negligent as defined in Dunne’s case not to carry out that investigation, or to have it carried out by some other appropriate expert. Likewise, when Mr. Wolfe returned to Dr. Keeling’s care in 1991 the “panic attacks” from which he was suffering ought to have been investigated – all the more so as they were similar to those with which he had presented in 1989. If that had happened it would have been found that the peptic ulcer which was then discovered, though explaining abdominal pain at that time, did not explain the onset of severe intermittent attacks from 1988. The nature and severity of such attacks suffered by Mr. Wolfe since their onset in that year ought to have been investigated by Dr. Keeling and/or his team in 1991 as in 1989. That obligation is unrelated to the possibility that the patient might have been suffering from a phaeo tumour. If the so called panic attacks had been investigated by Dr. Keeling or anyone else at St. James’s hospital their actual history as it has emerged in evidence at the trial probably would have been ascertained and an abdominal problem would have been suspected as a likely or at least a possible source thereof – thus giving rise to an abdominal investigation and the discovery of a previously unsuspected phaeo tumour. (That discovery would have been similar to two of the three phaeo tumours being treated by Prof. Wass at the time he gave evidence). It seems to me that no clinician of equal professional status and skill as Dr. Keeling if acting with ordinary care would have failed to investigate the purported severe “panic attacks” suffered by Mr. Wolfe – even on the basis of the information which was actually known to the medical staff at the hospital. Furthermore, it seems to me in all the circumstances that no clinician of equal specialist status if acting with ordinary care would have discharged Mr. Wolfe in July, 1991 without any follow-up arrangement and without carrying out any investigation of the so called “panic attacks”. If Mr. Wolfe’s subsequent history after discharge had been monitored it would have been discovered that his symptoms deteriorated still further in the ensuing months leading ultimately to the fatal attack from which he died in the following November. I cannot envisage any possible justification for leaving major so called “panic attacks” as a loose end without any investigation. In short, I find that Dr. Keeling was negligent in his treatment of Mr. Wolfe in 1989 and again in 1991.
THE APPEAL
Finlay C.J., in his judgment in Dunne expounded the approach to be adopted by the courts in dealing with allegations of medical negligence under a number of headings. The parties to this appeal made no submissions as to the inappropriateness of these tests. In the event, only the first proposition of Finlay C.J. was mentioned. It was accepted therefore that “the true test for establishing negligence in diagnosis or treatment on the part of a medical practitioner is whether he has been proved to be guilty of such failure as no medical practitioner of equal specialist or general status and skill would be guilty of if acting with ordinary care.”
70. The submissions of the defendants on the appeal can be summarised as follows:
a) the finding of negligence in failing to investigate is a “non-sequitur” in view of the rejection by the learned trial judge of a like contention regarding the failure to diagnose the phaeo; the finding that the absence of hypertension rendered the possibility of a phaeo to remote to be checked out by a competent clinician should have been the end of the matter;
b) the central conclusion on this point is based on mere supposition and speculation, is not supported by evidence and would impose a standard of care going well beyond that laid down in Dunne, amounting in effect to strict liability;
c) the learned trial judge relied on the evidence of Dr Barniville, the plaintiff’s expert, in this crucial respect, but he had said that the matter should have been referred to a psychiatrist as “a person who sees a lot of panic attacks;” the only psychiatrist called was the defendants’ expert, Professor Ted Dinan, an expert in the field of neuro-endocrinology; the latter, in evidence did not agree that further stomach investigation would have been indicated and thought that a phaeo would have been “very, very low in any differential diagnosis”;
d) the learned trial judge criticised Dr Buckley’s SHO for not referring the deceased back to the specialist when discharging him, though no criticism was made of this doctor in the pleadings or at the trial.
71. The plaintiff fully supports the conclusions of the learned trial judge, says they were supported by the evidence.
CONCLUSIONS
72. It seems to me that, once the learned trial judge reached the conclusion that the defendants or any of them were not negligent in failing to diagnose a phaeo, it is very difficult to defend his alternative conclusion. This conclusion is heavily, one could say, exclusively founded on the presence of symptoms of “attacks of shaking” as they appear to have been called up to 1989 or “panic attacks” as they were described in 1991 and by the learned trial judge in his judgment. Dr Barniville was of the opinion that the hospital and/or its consultants should have considered a phaeo as a possibility from 1989. He repeatedly emphasised that the symptomology was strongly indicative of the possibility of a phaeo. It is quite clear that his evidence regarding the duty to investigate the panic attacks flowed from his view that there was a need to investigate for the presence of a phaeo. He acknowledged, of course, that the fact that the deceased was normotensive rendered the phaeo much less likely, but he held firmly to his view that it was this condition that the medical experts should have foreseen. In the result, of course, the learned trial judge, as we have seen, preferred the evidence of Professor Wass, the defendants’ expert. He accepted Professor Wass’ view that the absence of a finding of hypertension rendered the possibility of a phaeo “too remote to be checked out by a competent clinician.” Expressing himself in other words, he thought the same fact “would rule out in the mind of a competent clinician a phaeo tumour as a realistic possibility.”
73. He explains his later finding of negligence by saying that the obligation to check out the panic attacks was “unrelated to the possibility that the patient might have been suffering from a phaeo tumour.” At this point of the analysis, the presence or absence of hypertension has become irrelevant. So, at the risk of stating the obvious, has the possibility of a phaeo. The patient is suffering from two relevant symptoms, namely stomach pain and panic attacks.
74. Taking the stomach pain firstly, the learned trial judge acknowledged that the discovery by Dr Keeling and his team of the peptic or duodenal ulcer “would have appeared to explain some of his symptoms at that time-notably abdominal pain.” This coincides with the evidence of Dr Barniville who agreed that the finding of the ulcer explained the stomach pain. (Day 2 Q 121). Dr Keeling explained the matter in more technical terms. The deceased had a large active duodenal ulcer. The associated helicobacter infestation (bacterial infection) sufficiently explained the ulcer, without the need to look for another, more unlikely, cause, such as a phaeo, which might have been there.
75. The more difficult issue concerns the failure to investigate the panic attacks so clearly recorded in Dr Buckley’s letter of 23 rd April 1991. It will be noted that the plaintiff associated these with the stomach pain and said that it was these that he wanted to have treated. At this point, I recall the history of this complaint, which I have mentioned in some detail in my eariler account of the facts. From his first attendance at St James’s Hospital in 1989, the deceased had recounted that his shaking attacks, which have been assumed to be the same as panic attacks, had been going on for three years and he seems clearly to have associated them with his loss of a job in or about 1985. Yet, the learned trial judge (page 26 of his judgment) recounts that these “had been happening in severe form regularly since late 1988″ and that “they had become acute three years after Mr Wolfe lost his permanent job in 1985.” This account appears central to the following conclusion of the learned trial judge, who says:
“In my view no clinician of comparable status and skill if acting with ordinary care would have failed to investigate “panic attacks” having such severe associated symptoms. Having done so, he/she would have contemplated at least the possibility that the attacks from late 1988 were unrelated to the plaintiff’s loss of employment in 1985 and that they may have been caused by an as yet unidentified abdominal ailment.”
76. This version of the evidence does not appear ever to have been canvassed in the evidence or argument at the trial. It is true that the learned trial judge invited Dr Keeling to speculate that the deceased might have been advised at some time in the past that a panic a attack he had then suffered had been caused by his loss of his job and that he had later attached this explanation in his own mind to the later attacks. But, at no point was it established as a fact, or considered as such by the experts called on behalf of the plaintiff, that the panic attacks had become more severe three years later. Even in his memorandum, the learned trial judge records the attacks as dating from “the loss of his employment …. in 1987 …” and that they had become more severe in 1990, i.e., between the first and second attendance at the hospital, not in late 1988.
77. The information which was before the medical staff of the hospital, either in 1989 or 1991, was not as described by the learned trial judge. The account from the deceased was that the attacks started three years before and he associated it with the loss of his job. Whether that could be a sufficient explanation or not does not arise at this point. What is clear is that the finding of negligence in this respect depends on a deterioration sometime in late 1988 in the condition of the deceased. This is, at best, dubiously supported by the evidence of the plaintiff given at the trial. More materially, it was not the account given by the deceased when he gave his history of symptoms nor the version of the facts upon which the plaintiff’s two experts at all times based their opinions.
78. That is not the only difficulty about the conclusion of learned trial judge. He goes on to postulate that “appropriate abdominal tests should [have been] carried out.” He does not say what those “appropriate” tests would have been. We know, however, that Dr Buckley referred the deceased to Dr Keeling and that the latter did in fact carry out an upper GI endoscopy, which led to the diagnosis of a peptic ulcer. Quite obviously, therefore, Dr Keeling carried out abdominal tests, which were appropriate to the condition of the deceased. What the learned trial judge suggested was that, in order to investigate the panic attacks, these further “appropriate abdominal tests” should have been carried out. He does not, however, refer to any expert evidence to suggest that, independent of the now irrelevant issue of the phaeo, panic attacks should be investigated by means of any other abdominal tests. In essence, the only expert evidence available to him on this issue was that of Dr Barniville and Professor Blake, both of whom were certainly of the opinion that ultrasound examination should have been ordered, but they expressed this opinion only on the basis that the possibility of a phaeo would have called for such investigation and not on the alternative basis adopted by the trial judge. In the specific context of the letter of 23 rd April, Dr Barniville said: “… he should have investigated for phaeochromocytoma.” (Day 2 Q 68). Inevitably, given the strong view of Dr Barniville and Professor Blake about the possibility of a phaeo, there was no independent expert evidence that the deceased should have undergone abdominal examination on any other basis. In these circumstances, I have to agree with the submission on behalf of the defendant that the learned trial judge had engaged in speculation and that his conclusion was not founded on evidence.
79. One is left with the position that the deceased presented with severe stomach pain associated with panic attacks. Not only was the severe stomach pain investigated, but a perfectly good explanation was found for it and it was treated with every indication of success.
80. In these circumstances, I do not think that the learned trial judge had any basis, in the evidence, for concluding that Dr Keeling and the hospital were negligent in failing to carry out abdominal tests in order to investigate the panic attacks. I agree with submissions of the defendants that the approach he adopted goes well beyond the standard laid down in Dunne. As I have explained, I base this conclusion primarily on the absence of any expert evidence to support the view of the learned trial judge. I would add that, in order to determine whether failure to conduct an ultrasound examination, as distinct from the upper GI endoscopy which was performed, amounted to such “failure as no medical practitioner of equal specialist or general status and skill would be guilty of if acting with ordinary care,” (the Dunne test) one would have to have evidence that, apart from the risk of a phaeo, such a specialist should, as a matter of practice, order an ultrasound in any case where severe abdominal pain was accompanied by panic attacks. There was no such evidence and, leaving aside the evidence of Dr Keeling that it would be completely uneconomical for hospitals to conduct expensive investigations on the basis of the cluster of symptoms exhibited by the deceased, the court would have to consider the practicality and proportionality of ordering such tests in every case.
81. It remains necessary to consider whether psychiatric investigations should have been carried out which would have led to the discovery of the phaeo. Indeed, when one refers to the evidence of Dr Barniville on this subject, (day 1 page 137), one finds him questioning, certainly, the loss of a job as an adequate explanation for panic attacks going on for some years, but continuing:
“I think if you are trying to pin down panic attacks I would think there are two ways to approach it; one has to get confirmation that there are in fact panic attacks, preferably from someone who sees a lot of panic attacks, like a psychiatrist…… If you are still not happy …. then you have to resort to a diagnosis of exclusion and rule out the other causes of very similar symptoms. And the one that you dare not miss is phaeochromocytoma …….” Professor Blake was of opinion that “recurring panic attacks would be reason enough for checking for the possibility of phaeochromocytoma, regardless of anything else.” (Day 2 Q 423).
82. Here, it has to be said that there are certain difficulties in coming to any conclusion on the state of the evidence. The plaintiff did not call any psychiatric evidence, but relies on a remark made by Dr Keeling, not a psychiatrist, in the course of his evidence to the effect that the deceased did not “get the psychological interview that you would expect somebody who is having difficult panic attacks.” (day 5 Q 98). The apparently available evidence was that the deceased had himself attributed his panic attacks to his loss of employment three years before he first attended the hospital in 1989. The plaintiffs experts, also not psychiatrists, were sceptical about this explanation and Dr Barniville, as I have said, suggested that a referral to a psychiatrist would have been appropriate. This, of course, was not done, but the defendant called, as an expert witness, Professor Ted Dinan, Ph.D., M.D., Professor of Psychiatry at the Royal College of Surgeons in Dublin and consultant at Beaumont Hospital. His main field of specialist interest is neuro-endocrinology. In respect of his evidence the learned trial judge said:
“I accept the evidence of Professor Dinan … that major adverse events in a persons life, such as loss of a good permanent job in times of poor employment prospects, might cause intermittent significant panic attacks with physical manifestations which could persist indefinitely- even for life. However, there is no psychiatric or other medical evidence that three years or more after the perceived triggering event such panic attacks may develop new or other greatly increased physical manifestations including severe abdominal pain, vomiting, headaches and profuse sweating and shaking. Should the onset of these symptoms in severe form in late 1988 have indicated a likelihood or at least a possibility that they were not related to panic attacks connected with the loss of Mr Wolfe’s job in 1985 but pointed to the possibility of an as yet undetected abdominal disorder? ………” (emphasis added)
83. Professor Dinan gave evidence that the majority of patients that he saw in his clinical practice who present with panic attacks did so in a setting of life events such as the loss of a job. He disagreed with the evidence of the plaintiff’s experts, where they had cast doubt on the possibility of such symptoms persisting and said that people can retain such symptoms over a number of years. Furthermore, he said that he would put the possibility of a phaeo very very low down on the list of any differential diagnosis. He disagreed with the proposition of the plaintiff ‘s experts that, even following the discovery of the duodenal ulcer, further tests should have been carried out. Furthermore, he made it clear that, among patients with a duodenal ulcer, about twenty per cent have psychiatric problems including panic attacks. He thought the diagnoses by Dr Buckley and Dr Keeling were appropriate, having regard to the information at their disposal.
84. The learned trial judge based his conclusion on the absence of any psychiatric evidence dealing with a situation where there was a sharp deterioration in the condition of the patient three years after the “triggering event.” I do not think this conclusion is soundly based. I have already explained why I think that this is an incorrect version of the facts. I have also pointed out that it was not the version of the facts upon which the plaintiff’s experts based their evidence. In the present context, the important point is that Professor Dinan was not asked to express an opinion based on that hypothesis. He was cross-examined most thoroughly, but always on the basis that the panic attacks had been going on for three years as of 1989 and five years as of 1991. It does not appear ever to have formed part of the case that the panic attacks worsened at the time and in the manner assumed by the learned trial judge. If the defendant had intended to make that case, it would have been put to Professor Dinan, the only psychiatric expert called in the case. The learned trial judge appears to have accepted the evidence given by Professor Dinan based on the actual complaints of the deceased. On that basis, there was perfectly good reason to accept that the panic attacks could have been associated with the loss of a job in 1985. Accordingly, there was no evidential basis for the conclusion of the learned trial judge either.
85. For the reasons I have given, I would allow the appeal of the defendants. It follows logically, that there is no basis for allowing the cross-appeal against Dr Buckley and I have already said that I would dismiss the cross-appeal on the phaeo issue.
I am satisfied that the total amount of the damages awarded is not so inconsistent with the agreed or uncontradicted evidence before the jury as to require intervention by this Court. I would dismiss the appeal on damages.
Walsh J.
I agree with the judgment of the Chief Justice in respect of that portion of it which deals with the ground of appeal that the trial judge should have withdrawn the case from the jury on the basis that there had been no evidence of negligence to go to the jury. I agree with the reasons given by the Chief Justice and the conclusion reached by him on this point.
I also agree with the Chief Justice’s judgment on the ground of appeal which complained of the trial judge’s direction to the jury on the issue of negligence in respect of which the defendants claimed that the judge’s charge to the jury on the general standard of proof was deficient by reason of the use of his expression “a real possibility that harm would come to [the plaintiff] if he was allowed to go into this room, the toilet, on his own.” Like the Chief Justice, I am of opinion that this did not amount to a misdirection. The duty the defendants owed to the plaintiff was to take reasonable care to avoid permitting him to be exposed to injury which a reasonable person ought to foresee. In this case the reasonable person concerned and the standard involved was the reasonable hospital administration and nursing service. In my view, it would not be correct to tell the jury that they must be satisfied that what has to be foreseen is a probability of injury. To maintain that position would amount to saying to the jury that even if they were satisfied that the nursing staff foresaw not merely that there was a possibility which was more than a vague or a very remote possibility, but even a substantial possibility, that because it did not reach the height of being a probability, that they could safely take no precautions. In my view, once there is a foreseeable possibility then the persons involved are on notice. Undoubtedly the standard of care which might reasonably be expected may be sufficient if it is commensurate with the degree of possibility, but that is different from saying that no standard of care is expected until the possibility reaches such a high degree as to be classified as a probability.
What was in issue in this case was not a question of medical negligence in the strict sense as arose in O’Donovan v. Cork County Council [1967] I.R. 173. What was in issue was the adequacy of the system of care for the plaintiff by the hospital authorities while he was in their hospital. There is no question of any allegation of negligence against the consultant who treated the plaintiff while he was in hospital. It is also clear from the evidence given by the consultant that he, in effect, was distancing himself from any responsibility for the way the nurses in question and the rest of the nursing staff carried out their duties, and, as he pointed out in his evidence, in effect, that it was up to them to know their patient and to give him the care appropriate to his condition and his case history and, above all, appropriate to the reason why he was in the ward in question.
The medical history of the plaintiff has been so fully set out in the judgment of the Chief Justice that there is no necessity for me to repeat any of it. What is however of crucial importance in the present case is the fact that the plaintiff’s condition was accompanied by some evidence of automatism and other psychotic abnormal behaviour. On his admission to the hospital the plaintiff was taken off all medication and, in effect, the purpose of his period in hospital was to await the expected further attack which, it was expected, he would suffer at a time when he was off all medication and therefore would afford to his consultant and other persons treating him a better opportunity to discover exactly the cause of the particular nature of his complaints. That being the case it was not simply merely foreseeable, but it was actually expected that the plaintiff would suffer a further attack and those nursing him were fully aware from his charts, or ought to have been aware, of his previous history and of the particular complications which had been manifested in his epileptic attacks.
I regret that I do not find myself in agreement with the opinion of the Chief Justice in respect of the effect of the trial judge’s failure to repeat to the jury what Professor Malone had said in evidence. The judge should have done so, but his failure to do so, in my opinion, does not really affect the outcome of this case. Apart from the fact that Professor Malone’s evidence must have been reasonably fresh in the jury’s mind, as he was the last witness in the case before the judge addressed the jury, one must look at the content of his evidence. Professor Malone was not giving evidence as to what was the standard practice or the ordinary practice of a consultant in such a case for the simple reason that the activities of the consultant in the case were not an issue. In effect, Professor Malone was giving evidence as to what he thought might or might not be a reasonable precaution on the part of the nursing staff and he expressed the view that, in the absence of some abnormal behaviour by the plaintiff, the failure of the nursing staff to attend the plaintiff when he went to the toilet did not amount to the absence of a reasonable precaution. He furthermore indicated that in the hospitals in which he attended that “ordinary standards of nursing care” would be applied to patients with conditions similar to that of the plaintiff.
In my view, Professor Malone’s evidence begs the whole question. What is in issue in this case is what reasonably ordinary standards of nursing care would be in the particular facts of the plaintiff’s condition and case. The whole point of having the plaintiff in the ward in which he was was to await the onset of the expected abnormal behaviour. Nobody knew precisely when that was going to occur, so quite clearly he required to be under constant observation. In view of the peculiarities of the plaintiff’s form of epilepsy and particularly with the aspect of automatism, it is quite clear that he must not be allowed to be out of sight, particularly when absent from his bed. If any jury were to find that it was not negligence in this particular case not to keep him in sight at all times particularly when he was absent from his bed, it would, in my view, be a perverse verdict because having regard to the particular nature of the plaintiff’s illness and the particular reason for his presence in the ward, awaiting the onset of another attack, it could only be folly not to keep him in sight in any place where he could come to ijuury. In the present case he was permitted to go into a toilet area where there was a window which could quite easily have been kept under observation. The toilet cubicle itself contained no windows, so that danger was not present in the toilet cubicle. That there was negligence in this case because of the failure to keep him under observation is in my view beyond all question. It has not been suggested that there was any difficulty whatever in keeping him under observation, but simply a failure to do so at a time when it could quite easily have been done.
The evidence in the case indicated that on the night in question the nursing staff involved consisted of two student nurses and one staff nurse to cover two wards, namely, ward no. 7 and ward no. 8. One of the student nurses was in her first year, the other student nurse was in her second year. Between the three persons involved there were twenty seven patients to attend to in the two different wards. The student nurse who gave evidence appeared never to have been informed of the peculiarities of the plaintiff’s condition. The staff nurse was aware of his condition, but on the night in question she appears to have been busily occupied in the sense that with the two student nurses in question she had twenty seven patients under her control, but she also had another twenty seven with another two student nurses also to care for. However, the staff nurse in her evidence said that she did observe the plaintiff leaving the ward and going to the toilet area. With the knowledge she had of the patient’s condition she offered the view that she did not see any particular reason why he should have been accompanied going to the toilet. In fact, in her evidence she expressed the view that it would be a matter for the consultant involved to direct such type of”special care” and that in fact she was not given any instructions to pay special attention to this patient because of the fact that his medicine had been withdrawn. The effect of the consultant’s evidence was that it was a matter for the nurses to decide what was the appropriate standard of care to be taken. The effect of Professor Malone’s evidence was that, in the hospitals he was acquainted with, apparently no such special observation was considered necessary in a similar case. That, of course, does not determine the matter one way or the other and for the reasons I have given earlier I am of opinion that the absence of continued observation of the patient after he left his bed was in his special circumstances an omission of a type which was unquestionably negligent in law. The fact, if it be the fact, that a similar practice occurs in other hospitals does not alter the situation. In my view, the failure to draw the jury’s attention to the evidence which Professor Malone had given on this point was not capable of leading to an injustice in the particular facts of this case. I, therefore, would dismiss the defendants’ appeal on all grounds so far as liability is concerned.
So far as the question of damages is concerned I would not order a retrial. There are inconsistencies in the damages awarded under the various headings so far as the general damages are concerned, but I think these inconsistencies or apparent inconsistencies are within the range of the jury’s competence in this matter. So far as the future is concerned the plaintiff was already suffering a severe disability before he ever had any accident, and the jury was entitled to take the view that on the whole his future life was not greatly worsened by the happening of the accident as distinct from the pain and suffering he had suffered in the immediate aftermath of the accident. I would dismiss the appeals by both sides on the question of damages.
Henchy J.
The plaintiff, aged 38 and unmarried, works as a steel fabricator. In 1974 he complained of drowsiness and loss of memory and his general practitioner referred him to Dr. Staunton, a consultant neurologist in St. Laurence’s Hospital, Dublin. He was diagnosed as suffering from epilepsy and was put on medication. While taking the prescribed tablets he managed to keep on working regularly as a steel fabricator. However, the epileptic attacks continued at the rate of about forty a year. The medication was varied from time to time and at one stage he was put on injections. The epileptic attacks varied in length and intensity and were sometimes accompanied by types of automatism or irrational behaviour. Because of suspected schizophrenia, he was at one stage referred to the Killester Clinic and St. Ita’s Hospital, Portrane. Despite the recurrent epileptic attacks and the episodic irrational behaviour, he was able to continue working, at the rate of 40 hours a week plus overtime, using drills, hammers and oxy-acetelene equipment. There is no evidence that he ever did any mischief to himself or to others.
In June, 1981, because the plaintiff then had certain psychotic outbursts, his general practitioner referred him to Dr. Staunton in St. Laurence’s Hospital. He entered the hospital as an in-patient on the afternoon of Sunday the 12th July, 1981. All medication was then stopped in the expectation that he would have an attack while in hospital, thus allowing his medical advisers to diagnose more accurately the source of his medical condition.
The plaintiff was put in a first-floor ward for epileptics and nothing untoward happened until the early hours of the following Thursday morning. At about 4 a.m. on Thursday morning the plaintiff walked out of the ward into the adjoining corridor and passed two nurses who saw him go into the room where the ladies’ toilet was. It was not unknown for male patients in that ward to go to the ladies’ toilet, for it was the nearer one. The two nurses saw nothing unusual in the plaintiff’s appearance or conduct. Apparently when he was in the room containing the toilet, and out of the view of the nurses, he removed bottles from the window sill in that room, moved a portable commode over to the window, opened the window and jumped out. He fell onto the roof of a car parked beneath the window and sustained serious injuries.
The plaintiff sued the defendants as the board of governors of the hospital for damages for negligence. The case was tried in the High Court by a judge sitting with a jury. The jury found against the defendants on the issue of negligence and assessed damages at £90,000. The liability of the defendants was determined by the affirmative answer given by the jury to the question “Were the defendants, their servants or agents negligent in not requiring that the plaintiff be attended when going to the toilet?”
The case now comes before us on appeal by the defendants against the finding on liability and against the amount of the damages. The two main grounds of appeal argued on the issue of liability were: (1) that the judge misdirected the jury as to the test to be applied in deciding if the defendants were negligent; and (2) that the judge misdirected the jury in failing, and refusing on being requested to do so, to put the defendants’ case adequately to the jury.
The test which the judge told the jury to apply was this:
“. . . if you think . . . there was a real possibility of injury to Mr. Kelly, a real possibility that he should [suffer injury] if he went to the toilet unaccompanied, you would be entitled to find the hospital guilty of negligence in that event . . .”
In my opinion, that direction was incorrect.
There have been a number of judicial formulations of the test for liability in an action for negligence. In Bolton v. Stone [1951] A.C. 850 the plaintiff was a lady who was walking on the highway when she was struck by a cricket ball driven from a cricket ground. Her claim in negligence against the occupiers of the cricket grounds was eventually rejected by the House of Lords. Whilst accepting that there was what might be called a “real possibility” that such an accident might occur, it was held that such a risk did not carry with it the probability or likelihood that it would happen. Lord Oaksey stated the test as follows (at p. 863):
“The standard of care in the law of negligence is the standard of an ordinarily careful man, but in my opinion an ordinarily careful man does not take precautions against every foreseeable risk. He can, of course, foresee the possibility of many risks, but life would be almost impossible if he were to attempt to take precautions against every risk which he can foresee. He takes precautions against risks which are reasonably likely to happen.”
Similar statements are to be found in the speeches of the other Law Lords. The test based on probability as stated in Bolton v. Stone was accepted by the then Supreme Court in Healy v. Bray Urban District Council [1962/1963] Ir. Jur. Rep. 9 and has been applied in subsequent cases. Giving the unanimous decision of the Court in Healy v. Bray Urban District Council , Kingsmill Moore J. said (at p. 17):
“I accept that, in judging whether an act or omission is negligent or not, the test is not whether it is foreseeable that some injury may possibly occur as a result of the act or omission but whether in all the circumstances there is an appreciable probability that such injury may occur.”
I am of the opinion, and I understand it to be also the opinion of the other members of the Court in this case, that a test for liability in a case of alleged negligence, based on mere foreseeability or on some degree of possibility or probability, is not correct. I therefore concur in the conclusion that Healy v. Bray Urban District Council [1962/1963] Ir. Jur. Rep. 9 should be overruled as to the test there propounded. In my view the essential question is whether the risk of injury or damage complained of was such that a reasonably careful person in the position of the defendant would have taken the precaution suggested by the plaintiff.
In my opinion the test given to the jury to apply was defective for three main reasons. Firstly, even if probability were the true test, it incorrectly or incompletely stated the quantum of foreseeability required for liability. Secondly, in the absence of qualification or explanation it was apt to lead the group of non-lawyers who formed the jury to think that good proof of a real possibility that the accidentmight happen lay in the mere fact that the accident did happen. Thirdly, the risk of the jury being misled was aggravated by the judge’s failure to tell the jury that foreseeability was to be judged by the objective standards of a reasonably careful hospital authority acting in the circumstances of the case and without the benefit of hindsight.
For these reasons I consider that there has been a mistrial.
The second ground of appeal argued on the issue of liability concerns the judge’s failure and refusal to make any reference in his charge to the defendants’ witness, Dr. Malone. The case made by counsel for the plaintiff was that it was the duty of the defendants, acting by Dr. Staunton, who was in charge of the ward, to see that the plaintiff was not unaccompanied when going to the toilet. Dr. Staunton’s evidence, as might be expected, was that such a degree of surveillance was not called for in the light of the plaintiff’s medical history and, more particularly, because in the four days he was in the hospital he had not exhibited any tendencies which would lead one to suspect that he was prone to opening a window and jumping out.
It seems to have been agreed by the medical witness that there is no generally recognized practice in a case such as this. It depends on the requirements of the particular case. The crucial witnesses on this aspect of the case were Dr. O’Connor for the plaintiff and Dr. Malone for the defendants. They were the only independent witnesses to give evidence on this aspect of the case. Dr. O’Connor is a consultant psychiatrist and neurologist practising in Harley Street. Having considered the plaintiff’s medical history and the hospital records, he was of opinion that the plaintiff should not have been allowed to go to the toilet unattended, particularly at night when people were not likely to be in the corridors. He said that prudence dictated that when the plaintiff wished to go to the toilet he should have been required to get permission to do so, and that a nurse should have accompanied him and stood outside the door of the toilet. Dr. Malone was of the opposite opinion. He is a consultant psychiatrist and neurologist in the Mater Hospital, Dublin, and in other Dublin hospitals and is a Professor of Psychiatry in University College, Dublin. Having read the medical records in this case and having heard the evidence, he considered that Dr. Staunton was correct in not subjecting the plaintiff to the close surveillance suggested. In his experience over the years in dealing with epileptics in a number of Dublin hospitals, he never provided for such close surveillance unless there was a specific reason for it. He said that only when a patient, having been observed carefully, showed a tendency to act in an untoward way, would it be necessary to get a nurse to accompany him to the toilet. That not being the case here, he would have taken no more precautions than Dr. Staunton took. It is clear, therefore, that Dr. O’Connor and Dr. Malone were the two crucial witnesses in the case.
Consider how the judge dealt with those witnesses in his charge to the jury. Having given the jury a general direction to consider all the evidence that had been given, he proceeded to set out carefully the essence of Dr. O’Connor’s evidence. But he made no reference to Dr. Malone’s evidence. He did not even mention Dr. Malone, who was the main witness for the defendants. This omission might be accounted a lapse on the part of the judge were it not for the fact that, even when counsel for the defendants directed his attention to the importance of Dr. Malone’s evidence and requested him to recall the jury for the purpose of referring them to that evidence, he refused to accede to counsel’s request.
I am not aware of any general requirement that a trial judge should direct the jury’s attention to any particular witness or to any particular piece of evidence. While a judge has considerable discretion as to which witness or items of evidence he will refer the jury to, and while he is free to express or indicate his personal preference in regard to the evidence, provided he informs the jury that it is ultimately for them to decide all questions of fact, he is required to conduct the trial in a way that will not be inconsistent with the fundamental requirements of justice. Such an inconsistency would arise if, for example, a judge’s general conduct of the trial or his charge to the jury were so biased or unbalanced that a reasonable person present would be left with the impression that justice was not seen to be done. This may be the position if one party’s case is put to the jury to the virtual exclusion of the other party’s case. The overall requirement is that the trial must essentially be, and appear to be, a fair one.
The outcome of this trial largely depended on whether the jury accepted Dr. O’Connor’s evidence for the plaintiff or Dr. Malone’s evidence for the defendants. When the judge highlighted for the jury Dr. O’Connor’s evidence and refused to make any reference to Dr. Malone’s evidence, there was, in my opinion, a misdirection and a mistrial. In the eyes of the jury the judge had disregarded by omission Dr. Malone’s evidence. The omission in those circumstances of any reference to the evidence of the defendants’ principal witness, coupled with the incorrect test given as to the test for a finding of negligence, leads me to the conclusion that there was a mistrial.
It is true that the Rules of the Superior Courts, 1986, (O. 58, r. 7(2)) provide that a new trial shall not be granted on the ground of misdirection “unless in the opinion of the Supreme Court some substantial wrong or miscarriage has been thereby occasioned in the trial.” It should be noted, however, that the requirement is a substantial wrong or miscarriage “in the trial”, not “in the result of the trial”. A new trial, therefore, may be ordered when there has been a substantial wrong or miscarriage, be it substantive or procedural, in the trial. I consider that the requirements for a retrial are to be found in this case, for the relevant substantive law was misstated to the jury and there was a grave procedural error in the failure of the judge, having epitomised Dr. O’Connor’s evidence for the jury, to refer the jury to Dr. Malone’s evidence. I find it impossible to say that there may not have been a different result if the judge had directed the jury’s attention to Dr. Malone’s evidence.
I would allow the appeal and direct a new trial. Because of the majority decision of the Court, I do not find it necessary to express an opinion on the question of damages.
Hederman J.
I agree with the judgment of Walsh J. and have nothing to add.
McCarthy J.
In my view, this was not what is commonly called a medical malpractice case; it was a case concerning the standard of care and attention which the administration of a hospital might reasonably be expected to provide for a patient who had been admitted to the hospital and taken off all drug therapy; in particular, who had been admitted to the hospital for observation when not taking these drugs. Whilst the trial judge did refer to O’Donovan v. Cork County Council [1967] I.R. 173, he made clear his own view as to the real issue in the case being that of the standard of care as I have sought to indicate. It is in that context that I approach a consideration of the several grounds of appeal advanced at the trial and detailed in the judgment of the Chief Justice, whose view that there was evidence of negligence to go to the jury I entirely share.
In my view the trial judge did not fail to put adequately the case to the jury, nor was his distinction between “probability” and “real possibility” such as to mislead. I adopt the observations of Walsh J., in this regard, as I do the statement by the Chief Justice of the duty that the defendants owed to the plaintiff as a patient in their hospital, that is, in general to take reasonable care of him to avoid permitting him being exposed to risk of injury which a reasonably prudent person ought to foresee.
The matter that causes the greater problem was the failure to advert to the evidence of Professor Malone, in particular when this was made the subject of requisition. One must, however, look at the entire course of trial; Professor Malone was the last witness called; his evidence must have been fresh in the minds of the jury who were, as I emphasize, considering a case not of medical negligence in any ordinary sense but of alleged custodial negligence where the standard of care is much more the standard of the ordinary individual than such as might be dictated by medical practice. Essentially, the issue was whether or not an in-patient, admitted for observation when being taken off all drug therapy, might, without fault attaching to those responsible for his care, be permitted to go alone to an area of concealment from which he might readily escape and in doing so injure himself. In the light of that being the essential issue, whilst I deprecate the refusal of the trial judge to make express reference to the evidence of Professor Malone, I cannot subscribe to the view that it was a matter to which the jury did not advert if they considered it relevant at all. In these circumstances I am far from satisfied that any substantial wrong or miscarriage had been occasioned at the trial. For my part I would dismiss the appeal on liability.
Although there is inconsistency between the amounts assessed by the jury for loss of earnings and the relatively small figures calculated as general damages, this may well be accounted for by the pre-accident condition of the plaintiff; I would not interfere with the total amount of damages awarded; I would dismiss the appeal and cross-appeal.
Corrigan v HSE
[2011] IEHC 305JUDGMENT of Ms. Justice Irvine delivered on the 22nd day of July, 2011
1. In the within proceedings, the plaintiff claims damages for negligence against the defendant arising from a fall that she sustained whilst a voluntary inpatient at the psychiatric unit of Roscommon County Hospital on 3rd December, 2005.
Background
2. The plaintiff was born in 1947. She is a married lady and the mother of four children who resides at Ballaghaderreen, County Roscommon. The plaintiff has a long history of psychiatric problems which appear to have commenced in and about the year 2000. She suffers from chronic depression and bipolar affective disorder. At times she suffers from paranoia, delusions, and hallucinations and may present in a manic and/or agitated state. She has been frequently hospitalised and has for all such periods has been under the care of Dr. Charles Byrne, Consultant Psychiatrist. To date, the plaintiff has had nineteen admissions in total. No admission has been for less than a couple of weeks and occasionally she has been admitted for periods in excess of three months. Regrettably, whilst the pattern of the plaintiff’s illness has remained reasonably consistent, her admissions to hospital have increased over the years.
2005 Admission
3. The plaintiff was admitted as a voluntary patient to the psychiatric unit of Roscommon County Hospital on 15th November, 2005. She was in a manic state, was overactive and impulsive. By the end of November, 2005 her symptoms had somewhat dis-improved and at times she demonstrated symptoms of paranoia, aggression and delusion.
4. It is accepted by both parties that at approximately 11.00pm on 2nd November, 2005, the plaintiff advised the nursing staff that she had fallen in her room. She complained of soreness of the right shoulder. She was examined and was found to have no obvious signs of injury. She was restless and agitated and the doctor on call was notified. At the time of his arrival, the plaintiff was sleeping. He advised an X-ray of the shoulder.
5. At 7.00am on 3rd December, 2005, the plaintiff was found on the floor in her bedroom with no apparent injury. She got up by herself. She was agitated. She was reviewed by Dr. George who noted her to be “suspicious of people”. He checked her blood pressure and vital signs. He directed urinalysis, an ECG and an increase in the plaintiff’s fluid intake and advised that she should remain on her current medication. The plaintiff again complained of stumbling and falling on her way back from the smoking area in the early afternoon. She did not injure herself and had walked back to her bedroom unaided. She was again reviewed by Dr. George.
6. As to the fall the subject matter of the present claim which occurred on the 3rd December, 2005, the following appear to be the uncontested facts. Mr. Corrigan arrived to visit his wife and found her to be anxious and complaining of nausea and dizziness. Some minutes prior to the plaintiff’s fall, they had walked down the hospital corridor together. They then sat down in room 2, the female observation ward, in which the plaintiff was staying. Mr. Corrigan described the plaintiff’s mood as being about five out of ten, with ten being her at her worst. The plaintiff was sitting in a chair at the foot of her bed and Mr. Corrigan was sitting beside her at an angle about two feet away. After some minutes she told him she was going to go to the toilet. He was not alarmed by her announcement. She then got up suddenly and headed for the door. She had gone three to four steps, or some a very short distance, when she suddenly fell forwards without any warning striking her head on a gas cylinder which was on a trolley. She then landed heavily on her left shoulder. He was not able to prevent her fall.
7. The plaintiff was subsequently diagnosed with a severe fracture dislocation to the left shoulder. This required surgical intervention by Mr. Kenneth Kaar, Consultant Orthopaedic Surgeon, on 8th December, in Merlin Park Hospital in Galway. A hemi-arthroplasty was carried out following which the plaintiff was returned to Roscommon County Hospital on 12th December, 2005. Notwithstanding substantial physiotherapy, the plaintiff has not regained full function of her shoulder. She has very limited rotation, has reduced elevation. She experiences pain on activity and has a six inch scar at the operation site. It is common case that the Plaintiff finds it difficult to provide for her own personal care. She has problems dressing and carrying out a whole range of domestic activities which she formally managed without difficulty. These include hoovering, bed making, cooking and gardening. She finds lifting difficult. Her medical situation has been further complicated by a subsequent injury to her knee in May, 2009 when she fell off a treadmill in the course of a cardiac investigation.
The Legal Basis for the Claim
8. Whilst widespread allegations of negligence and breach of duty were made in the personal injuries summons, the expert evidence on behalf of the plaintiff focused upon the failure on the part of the defendant to provide the plaintiff with what is referred to in the medical and nursing professions as one-to-one nursing care on a continuous basis from 1st December, 2005. She had, from time to time, been provided with one-to-one nursing care with the last such episode prior to her fall taking place on 1st December, 2005. On the plaintiff’s behalf, it was maintained that the defendant’s failure to continue that level of care and supervision over the ensuing days was to fall short of an acceptable standard of care having regard to the plaintiff’s symptoms and history.
9. The plaintiff’s relevant history was stated to include her history of a previous fall in 2003, when she fractured her right shoulder, reported unsteadiness and dizziness in the course of her 2005 admission and the fact that her condition in terms of agitation, paranoia and delusions had not improved and had actually dis-improved by the end of November, 2005 thus rendering her a risk to her own safety and the safety of others. In particular, counsel for the plaintiff relied upon the fact that the plaintiff had fallen on a number of occasions between 1st December 2005 and the fall the subject matter of the present claim, had become verbally aggressive with members of the nursing staff, had threatened to break a window and a flower vase and had thrown off her wedding ring. In such circumstances, the plaintiff contended that one-to-one nursing care was mandated and that had it been put in place with effect from 1st December, 2005, the plaintiff would not have sustained the fall the subject matter of this claim. In the alternative, it was maintained that if by reason of her condition and response to one-to-one nursing care that type of intervention was not possible, then it was mandatory for the defendant to introduce two-to-one nursing care. If the plaintiff did not adequately respond to that type of nursing, she should have had what was described as open door nursing that being a scenario in which the patient is confined to their own room, the door is left open and a nurse remains outside the open door to safeguard their welfare.
10. In updated pleadings belatedly delivered, the plaintiff, in the further alternative, maintained that if it was not possible to manage the plaintiff using continuous nursing observation of the nature mentioned in the last preceeing paragraph, consideration should have been given to managing the plaintiff in seclusion as a last resort. This latter allegation was ultimately not supported by Dr. Mohan, the plaintiff’s consultant psychiatrist, on the basis that if the purpose of additional nursing care was to prevent a patient from injuring themselves, to lock them in a room on their own, having of course first sought a change in their Voluntary patient status, would not ameliorate such a risk.
11. The defendant maintained that at no stage was it neglectful of the plaintiff’s care. It submitted that an appropriate care plan had been put in place on the plaintiff’s admission, taking all relevant factors into account. That plan was revisited on a daily basis by the medical and nursing staff and was reviewed once a week at a meeting of the appropriate multidisciplinary team. The care plan permitted nursing staff to introduce one-to-one nursing care if and when required and discontinue it when they considered it appropriate. The defendants contended that one-to-one care on a continuous basis was not required from 1st December, 2005, and that one-to-one care would actually have had an adverse effect on the plaintiff who was known to become excessively agitated and more manic if closely supervised. One-to-one nursing, on the defendant’s evidence, would have increased the likelihood of the plaintiff lashing out and injuring herself and would have made her a greater risk to other patients and to the members of the nursing staff. The defendant maintained that a substantially increased level of observation was what was appropriate to best protect those interests and that this is what was implemented.
12. Finally, as to causation, the defendant contended that on the specific facts of this case that even if one-to-one nursing, or indeed any other form of continuous nursing care, had been provided, having regard to how that would have been deployed, the plaintiff would have fallen in any event.
The Plaintiff’s Evidence
13. I do not intend to set out in any great detail the evidence of the parties. However, I will briefly refer to some aspects of the evidence introduced by both parties which are material to the findings of fact which I have made.
14. Mr. Corrigan gave evidence that his wife had fallen on several occasions in the course of an admission to the defendant’s hospital in 2003. He stated that he believed she had had dizzy spells and falls throughout the period of her hospitalisation commencing 15th November, 2005 and that he had communicated his concerns about these to the nursing staff and to Dr. Byrne. He agreed that if medical or nursing staff interfaced too much with the plaintiff, that she would respond badly; that it was like walking on eggshells when she was at her most difficult and that she tended to lash out verbally and act aggressively in such circumstances. Mr. Corrigan agreed that the nursing staff had increased its level of observation of his wife because of her symptoms and that she was closely monitored in room 2. However, as far as he was concerned, this increased level of observation was insufficient and she should have had the benefit of one-to-one nursing care.
15. Mr. Corrigan stated that his wife was anxious and distressed when he arrived on 3rd December, to see her. She had tried to poke him but did not strike him. He gave an account of the plaintiff’s fall which is in accordance with that set out earlier in this judgment and stated that at the time of her fall that the nurses were in the nurse’s station. They came in immediately on hearing his wife call out. He believed that the fall in question occurred at about 8pm as it was his habit to visit his wife in the evening time rather than the afternoon.
16. The plaintiff’s daughter, Lorraine Corrigan, told the court that she visited her mother frequently. She described her mother as being like a “feather in the wind”. She had no coordination, was dribbling from the mouth and had Parkinsonian symptoms. She said that her mother had had lots of falls and that she complained to her regularly about being dizzy. She stated that she had expressed her concerns regarding her mother’s falls and her dizziness to the nursing staff and she too believed that she should have had one-to-one nursing care in November and December, 2005.
17. Dr. Mohan, Consultant Psychiatrist and Lecturer in Psychiatry in Trinity College, told the court that the one-to-one nursing care which was introduced for a period on 1st December, 2005, should have been continued and that it was negligent on the part of the defendant to discontinue it. He stated that one-to-one nursing care had three objectives, namely, observation, supervision and support. It had a particular therapeutic value and was proactive insofar as it allowed for interaction with the patient. This was different to general nursing and to any increased level of observation that may have been carried out by members of the nursing staff from the nurses station or, indeed, from some little distance away. It was possible to make one-to-one nursing un-intrusive if the presence of a nurse made the patient agitated. In those circumstances, the relevant nurse might remain at arm’s length, or perhaps somewhat distant from the patient, thus minimising any aggravating stimulus to the patient whilst allowing for ongoing proactive intervention.
18. Whilst one-to-one nursing could not, Dr. Mohan, explained, eliminate all risk it permitted the nurse concerned to identify risks and to manage the patient within the resources available. The risks in the present case arose from the unsteadiness of the plaintiff’s gait, her unsettled and disturbed demeanour and the fact that she might pose a danger to herself and to others. Dr. Mohan was of the opinion that as of 1st December, the plaintiff was acutely disturbed. Her behaviour had not responded to medication, she was a danger to herself and to others and the one-to-one nursing which was introduced briefly on that date should only have been removed if there had been a sustained response to the change in her medication. Dr. Mohan stated that if one-to-one nursing did not work, the next step was to try two-to-one nursing, and if that was unsuccessful the patient should have been nursed in their her own room with the nursing staff remaining outside the open door.
19. As to how one-to-one nursing would have impacted upon the events immediately surrounding the plaintiff’s fall, Dr. Mohan agreed that the special nurse would have sat some distance away from Mr. and Mrs. Corrigan to allow them privacy in the course of that visit. He stated that the nurse might have advised Mrs. Corrigan not to get up too quickly, being aware that she previously had difficulties with blood pressure variation. Dr. Mohan agreed that one-to-one nursing could never eliminate the risk of a patient falling but it certainly lowered the probability of such an occurrence.
The Defendant’s Evidence
20. Dr. Byrne, Consultant Psychiatrist, told the court that he had been in charge of the plaintiff’s care since May, 2000. In 2003, in the course of her third admission, she had fallen and had fractured her right shoulder due to an adverse response to a particular drug. The Plaintiff had no problems with unsteadiness once that drug was withdrawn and she did not fall again until 2nd December, 2005. She was very sensitive to antipsychotic medication. It had to be introduced very slowly to avoid the onset of Parkinsonian symptoms. However, he said that even in the presence of Parkinsonian symptoms, the plaintiff was not prone to falling.
21. Dr. Byrne advised that the patient had unstable blood pressure during the first three days of her stay commencing 15th November, 2005. This accounted for her initial dizziness. The plaintiff’s blood pressure was brought fully under control over that period and she had no further episodes of dizziness. Neither did she fall prior to 11.00pm on 2nd December, 2005. Until that time she was going around the hospital freely and was fully mobile. These facts he said were borne out by the nursing records.
22. Dr. Byrne stated that it was a guiding principle of psychiatric care that patients should be cared for in the least restrictive environment possible. Care of a patient as sick as the plaintiff was a challenge for all concerned and a patient, such as the plaintiff, when manic should be permitted to move around their environment freely, if at all possible, as they cannot bear to be confined. At the time of her fall the plaintiff needed the least intrusive level of care which was consistent with her safety and the safety of others. This approach had worked with the plaintiff in the past. In general, Dr. Byrne stated that the plaintiff responded well to the nursing staff, but when manic and paranoid, she became hostile and demonstrated antipathy to the nursing staff At times, she would become both verbally and physically abusive to them and he referred to approximately five entries in the nursing notes demonstrating the plaintiff’s hostility to staff when in that condition. One such example he stated occurred in the aftermath of the plaintiff’s fall on the night of 3rd December, 2005, when two nurses were with the plaintiff in her room. He referred to the nursing note at 22.00hours which stated “Monica was being assisted into bed, became hostile towards nursing staff and resentful of help, attempted to push staff nurse Jenny Keogh and slipped to the floor in the process”. It was Dr. Byrne’s opinion that to have provided the patient with continuous one-to-one nursing from 1st December, 2005, would have been counterproductive and would have made her worse. Manic patients hated intervention and she also had delusional feelings regarding the staff. He advised the court that the relevant Guidelines indicate that intrusion worsens mania and makes the patient more agitated and distressed.
23. Having regard to the plaintiff’s condition from 1st to 3rd December, 2005, Dr. Byrne believed that the appropriate level of care had been afforded to the plaintiff. She was closely observed in a bed that was underneath the window of the nurses’ station which was always staffed. Throughout the unit, the nursing staff maintained an increased level of observation of the plaintiff because of her presenting symptoms but only introduced one-to-one nursing care if they felt it was essential.
24. Dr. Byrne told the court that he reviewed all in-patients twice a week and that one day each week the multidisciplinary team would formulate the care plan for the patient, consider their ongoing treatment, drugs, nursing issues and progress. The team decided that because of the plaintiff’s symptoms and her varied presentation, that her care would be nurse led rather than doctor driven. If the patient became manic, nurses could institute one-to-one nursing which could remain in place until the episode passed. Mostly, this was required to stop the plaintiff annoying other patients. The staff had found that restriction or even the physical presence of a nurse beside the plaintiff when in such a condition made her worse and was prone to cause her to hit out.
25. Even if the plaintiff had been under one-to-one nursing supervision on 3rd December, 2005, the nurse concerned would not, in Dr. Byrne’s opinion, have been able to prevent her fall. The nurse would not have been immediately beside the patient as she got up. Even if she had been beside the patient, the plaintiff was sixteen stone and it would not have been possible for a nurse to prevent such a fall. He pointed to the fact that the plaintiff had fallen twice on the same evening after the fall the subject matter of these proceedings. On both occasions, she had fallen when in the presence of two members of the nursing staff and they had not been in a position to save her.
26. On cross-examination, Dr. Byrne accepted that the patient was very disturbed on 1st December, 2005. He refuted the assertion that nothing had been done for the patient. He asserted that the plaintiff was assessed on an ongoing basis by himself and Dr. George. Following her first fall at 11pm on 2nd September, 2005, the plaintiff was seen by Dr. George. He checked her blood pressure, ordered a number of tests and directed that she be given additional fluids. The management plan was that the plaintiff’s medication would be increased slowly because of her sensitivity to anti-psychotic medication and whilst waiting for that to take effect the nursing staff would monitor the patient very closely. The plaintiff was not to be placed on continuous one-to-one nursing as it was felt this would have been counterproductive. The plan included, however, the right of the nursing and medical staff to introduce short term therapeutic intervention if it was considered to be in the patient’s best interests or if the interests of others.
27. Nurse Jenny Keogh told the court that she started working with the plaintiff in 2003. The patient was nursed in special observation room 2. The nurse’s desk was about 4ft from the plaintiff’s bed, albeit in the next room. That desk was manned 99% of the time. The nursing staff sometimes introduced one-to-one nursing to prevent the plaintiff upsetting other patients. If manic, nurses had to stay at a distance as she would often hit out and push them away. When going to the bathroom in that state she would not always accept help and could only be monitored at a distance. Following the plaintiff’s fall on the 3rd December 2005, she provided her with a period of one-to-one care in the course of which she gave her tea and toast, took her to the bathroom and tried to help her with her sling. The plaintiff was however resentful of her assistance and hit out at her. In doing so she fell onto the floor and it took three members of staff, to lift her up.
28. Nurse Keogh confirmed that if a patient who was receiving one-to-one nursing had a visit from their husband or wife the nurse would move a good distance away to afford them some privacy. It was her opinion that even if one-to-one nursing had been provided on 3rd December, that this would not have stopped the plaintiff falling. Unless two people were linking the plaintiff at the time she started to fall such a fall could not be been prevented and it was her opinion that the plaintiff would not have tolerated intervention of that nature in her manic state.
29. Mr. Larry Kelly, a nurse in the acute unit in Roscommon County Hospital, told the court that he had an excellent relationship with the plaintiff and her family. He came on duty on the morning of 3rd December. Shortly before her fall he had seen the plaintiff with her husband on the corridor and they seemed to be getting on okay. Then he heard a commotion and went into room 2 to find the plaintiff had fallen. She had a bump over her eye. Dr. George then arrived to carry out a medical review. Later, at about 5.50pm, he wanted to take the plaintiff’s vital signs. At that stage the plaintiff decided to get up and he and another nurse shadowed her out into the corridor. The plaintiff would not allow Irene, the other nurse, to link her and she suddenly plummeted to the ground. They were not able to react in time to stop the fall even though they were beside her. On cross-examination, Mr. Byrne stated that the plaintiff was being very closely monitored on and off for most of the day on 3rd December, 2003, even though this may not be noted in the records.
30. Dr. John Ryan, Consultant Psychiatrist, stated that the plaintiff’s condition during December, 2005 was manic and that she was also aggressive, hostile, uncooperative and overactive. She was disturbed, irritable, had delusionary ideation and was resistant to instruction. She was verbally and occasionally physically aggressive to staff. In his opinion, one-to-one nursing was not indicated. To have introduced one-to-one nursing on a continuous basis, as contended for by Dr. Mohan, would have provoked an escalation in her behaviour as a patient in her condition would be intimidated and irritated by the intrusion of any close physical presence. It was his professional opinion that the care provided by the defendant over the relevant period was in accordance with approved practice. Dr. Ryan was further of the view that even if one-to-one nursing had been introduced by the defendant over the relevant period that this would not have prevented the fall which the plaintiff sustained on 3rd December, 2005.
The Law
31. There have been many judgments in recent years in which the courts in this jurisdiction have reviewed the test to be applied in medical negligence litigation. I see no need to go further than to state that the law in this regard remains as first encapsulated by Finlay C.J. in his decision in Dunne v. The National Maternity Hospital [1989] I.R. 91 at 109 where he stated as follows:-
“1. The true test for establishing negligence in diagnosis or treatment on the part of a medical practitioner is whether he has been proved to be guilty of such failure as no medical practitioner of equal specialist or general status and skill would be guilty of if acting with ordinary care.
2. If the allegation of negligence against a medical practitioner is based on proof that he deviated from a general and approved practice, that will not establish negligence unless it is also proved that the course he did take was one which no medical practitioner of like specialisation and skill would have followed had he been taking the ordinary care required from a person of his qualifications.
3. If a medical practitioner charged with negligence defends his conduct by establishing that he followed a practice which was general, and which was approved of by his colleagues of similar specialisation and skill, he cannot escape liability if in reply the plaintiff establishes that such practice has inherent defects which ought to be obvious to any person giving the matter due consideration.
4. An honest difference of opinion between doctors as to which is the better of two ways of treating a patient does not provide any ground for leaving a question to the jury as to whether a person who has followed one course rather than the other has been negligent.
5. It is not for a jury (or for a judge) to decide which of two alternative courses of treatment is in their (or his) opinion preferable, but their (or his) function is merely to decide whether the course of treatment followed, on the evidence, complied with the careful conduct of a medical practitioner of like specialisation and skill to that professed by the defendant.
6. If there is an issue of fact, the determination of which is necessary for the decision as to whether a particular medical practice is or is not general and approved within the meaning of these principles, that issue must in a trial held with a jury be left to the determination of the jury.”
Findings of Fact
32. Having stated the legal position, I now propose to set out very briefly a number of findings of fact which are material to my ultimate conclusions in respect of both liability and causation.
(i) I accept that the plaintiff’s fall in 2003, which led to the fracture of her right shoulder, was, as stated by Dr. Byrne, due to a particular drug and that once it was removed from her drug regime that she had no further falls until the evening of 2nd December, 2005. His evidence is fully supported by the very thorough nursing records which make no mention of any falls over that period. Insofar as Mr. Corrigan and Ms. Corrigan gave evidence that the plaintiff fell on a regular basis, I believe that the falls to which they referred can only have been those that either predated her injury in 2003 or those which occurred on 2nd and 3rd December, 2005.
(ii) I find as a fact that the plaintiff was dizzy and unsteady on her feet on the first three days of her admission in November 2005. I accept Dr. Byrne’s evidence that this brief period of unsteadiness related to her fluctuating blood pressure. This was brought under control and the plaintiff did not have any further periods of unsteadiness prior to the evening of 2nd December, 2005. This appears to be validated by the nursing notes which record her as moving around the hospital freely without supervision. She was able to go to the dining room for meals, to attend to her own personal hygiene and to walk outside and enjoy the company of other patients who, unlike herself were smokers. Accordingly, I cannot accept Mr. Corrigan’s evidence or that of his daughter that the plaintiff was dizzy during all of the period of her hospitalisation in November and December, 2005 and that they complained of this fact to the nursing staff. I think it is highly likely that, because of the passage of time, their recollection may not be as reliable as the contemporaneous nursing records and that the events that they were recalling were confined to the periods where such symptoms are in fact noted in the records. In this regard, it is worth stating that Dr. Ryan was of the opinion that the nursing notes were as good as he had ever seen in his 40 year career in psychiatric medicine.
(iii)I am satisfied that the plaintiff’s fall, contrary to Mr Corrigan’s evidence, occurred shortly before 4pm on 3rd December. All of the nursing and medical records are consistent with this finding. Further, Dr. Byrne gave oral evidence that he was telephoned by Dr. George about the plaintiff’s fall at 4pm and this is again noted in the medical records. I also accept the evidence of Nurse Larry Kelly that the fall happened in the later afternoon and that the X-ray carried out after the fall had been reported upon by 7.15pm before he went off-duty.
(iv)I accept as a matter of fact that when agitated, manic and paranoid, the plaintiff’s condition was aggravated by nursing intervention and that her behaviour became more abusive and aggressive towards medical and nursing staff. Again, this appears to be corroborated by the nursing records. On 27th November, 2005, it was recorded that the plaintiff was “very abusive towards staff when they intervene”. On 28th November it was recorded “she is irritable and argumentative when corrected”. On 29th November the plaintiff was noted to be “irritable when corrected by staff to comply with treatment here” and on 1st December as being “paranoid about members of the staff”. On the same night she was noted as being “verbally abusive towards nursing staff”, that she had “hit out at female staff on one occasion and threw a cup of water at female staff also”. She is further recorded as having “attempted to push staff out of way”. On 2nd December she was recorded as believing that “one member of staff had a curse on her, when she hears his voice she feels dizzy and that’s why she falls”.
(v) I am satisfied that in the days prior to her fall on 3rd December, 2005, that the nursing staff increased its level of observation over the plaintiff and that the extent and nature of the nursing care she required was kept under constant review. I am also satisfied that each of the plaintiff’s falls, commencing on 2nd December at 11pm, were formally reported; that she was assessed by the medical staff after each such fall and that a multiplicity of interventions were directed by the medical staff with a view to improving her condition and establishing the cause of the falls.
(vi)As a matter of fact, I have concluded that one-to-one nursing care was effective principally when used as a method of curtailing the plaintiff’s interaction with other patients when she was at her most disruptive as is, for example, demonstrated by the nursing note made on 27th November, 2005. There it is stated that “she was nursed one on one principally to stop her disturbing other patients”.
(vii)I am further satisfied as a matter of fact that one-to-one nursing did not serve as a method of improving the plaintiff’s own safety. This is borne out by the two falls that the plaintiff had on the night of 3rd December, 2005, when on both occasions she was attended by two members of the nursing staff but yet managed to fall.
(viii)Finally, I have concluded that that the plaintiff’s condition when an inpatient in the defendant’s hospital in July, 2006 was not comparable to her condition at the time of her fall, the subject matter of these proceedings. In July, 2006 she was suffering from both cardiac instability and a respiratory infection. In addition, she then had the history of having fallen in December, 2005 and having broken her shoulder. According, the level and nature of the nursing care afforded to her in July, 2006 is not material to the liability issue in these proceedings.
Conclusions
33. The plaintiff is a lady who is obviously greatly loved and respected by her family. That is a respect shared by the medical and nursing staff at the defendant’s hospital where she has been treated intermittently, but regrettably for very substantial periods, since her first admission in 2000. It is clear from the evidence that the plaintiff is extremely engaging and charming when she is well but when unwell, she is, to put it kindly, very uncooperative and disruptive. Whilst of no relevance to the liability issue, it is perhaps appropriate to note that all of the defendant’s witnesses remarked upon the fact that in the aftermath of a period of agitation and/or paranoia that the plaintiff is always incredibly contrite and apologetic for any disturbance that she may have caused.
Liability
34. I know that the plaintiff and her family are genuine in their belief that she should have had the benefit of one-to-one nursing care in the run up to 3rd December, 2005 and that if it had been provided she would not have sustained her injury. However, I am not satisfied that the plaintiff has discharged the weighty burden of proof demanded of a plaintiff in proceedings of this nature. Dr. Mohan has not convinced me that the defendant’s failure to provide the plaintiff with continuous one-to-one nursing care from 1st December, 2005, or to consider as an alternative, two-to-one nursing care or nursing the plaintiff in her room with an open door, amounts to “such a failure as no medical practitioner of equal specialist or general status and skill would be guilty of if acting with ordinary care”. Having regard to the evidence of Dr. Ryan and Dr. Byrne, I am satisfied that there is a substantial body of medical opinion that would, having regard to the plaintiff’s history, support the defendant’s management of her care over the period, 1st – 3rd December, 2005, inclusive.
35. It was not disputed that it is now a fundamental and guiding principle that all persons with mental health problems should be managed in the least restrictive environment possible consistent with their safety and the safety of others. Neither was it contested that the relevant psychiatric guidelines indicate that intrusion worsens mania and makes a patient in such a state more agitated and distressed. Further, all three psychiatrists agreed that during the relevant period, the plaintiff appeared to feel threatened and was paranoid when engaged by members of the nursing staff; that she was irrational, hostile and responded aggressively to physical intervention or efforts to confine her, and that these features created what Dr. Mohan described as an extremely challenging situation for those charged with her care.
36. It is undoubtedly the case that as of 1st December, 2005, the plaintiff’s condition was such that those responsible for her care were mandated to consider the risk she posed to herself and to others and to consider her potential need for the introduction of some level of additional nursing care. However, that decision and indeed all subsequent decisions regarding the level and nature of the care which she required had to be made taking into account her likely response to any measures introduced to achieve this objective.
37. Having considered the evidence, I am satisfied that Dr. Mohan’s evidence on the liability issue is significantly undermined by the facts of the case. He maintained that continuous one-to-one nursing care, which he described as a type of therapeutic security, ought to have been provided principally to reduce the risk that the plaintiff might injure herself, another patient or a member of the staff. Firstly, there is no evidence from which I could conclude as a probability that the introduction of one-to-one nursing care, two-to-one nursing care or indeed open door nursing care, would have reduced the plaintiff’s risk of causing injury to herself. In this regard, she fell twice when in the presence of two members of the nursing staff on the evening of 3rd December, 2005. Further, the latter of those falls appears to have been directly stimulated by efforts on the part of Nurse Keogh to assist the Plaintiff whilst providing her with one-to-one nursing care. In addition, Dr. Mohan accepted that, because the plaintiff responded badly to the close physical presence of nursing staff, any nurse assigned to one-to-one duties, would have to stay a short distance from the patient. This would have hugely undermined the effectiveness of one-to-one nursing care as a method of reducing the plaintiff’s risk of sustaining an injury brought about by a sudden fall.
38. Secondly, as to Dr. Mohan’s evidence that one-to-one nursing care was necessary to reduce the risk of the plaintiff injuring members of staff, that opinion is in the teeth of the oral evidence and the medical and nursing records. As already alluded to in my findings of fact, the plaintiff was continually argumentative and abusive to staff throughout all of the relevant period. She struck out physically at nursing staff on a number of occasions when they came within reach. In addition, she was also paranoid and suspicious of not only the nursing staff but of the medical staff. By way of example, Dr Byrne recorded in the medical chart on the night of her fall that the plaintiff “remains very disturbed and manic. Paranoid towards staff. Believed I was going to break into the room when she was asleep”. I accept Dr Byrne’s evidence that whilst the plaintiff was in this condition the close proximity of nursing staff would have increased the risk of injury to members of the staff.
39. As to the likelihood of one-to-one nursing care reducing the risk to third parties, the evidence was that when the plaintiff was deemed to be a risk or a nuisance to other patients that one-to-one nursing care was deployed.
40. This is not a case in which the defendant simply ignored or failed to consider the risks emanating from the plaintiff’s condition in the course of her hospitalisation commencing 15th November, 2005. The defendant assessed the plaintiff and drew up a plan for her care. That plan was reviewed on an ongoing basis by the nursing staff, the medical staff and the multidisciplinary team. It allowed for the introduction of one-to-one nursing care when medical or nursing staff felt it necessary and this was implemented on many occasions. However because of the plaintiff’s adverse response to any therapeutic intervention which involved close interaction with the nursing staff, continuous one-to-one nursing care was not deemed an appropriate method of protecting the plaintiff from causing an injury to herself or to the nursing staff. Instead, the defendant responded to the Plaintiff’s ongoing symptomology by continuing to monitor and assess her condition from a medical and nursing perspective, by placing her under an increased level of observation and by introducing short periods of one to one therapeutic intervention when it was deemed necessary and appropriate.
41. Finally, on the liability issue, having considered the evidence of Dr. Ryan and Dr. Byrne, I reject Dr. Mohan’s evidence that if the plaintiff was not tolerating one-to-one or two-to-one nursing care, that open door nursing should have been considered. Firstly, his evidence did not go so far as to suggest that the failure of the defendant to introduce this type of care for the plaintiff was to fall short of the appropriate standard. Further, Dr. Mohan did not contest the Defendant’s evidence that when in a manic state any efforts to curtail the plaintiff’s movements tended to escalate her symptoms. Accordingly, the Plaintiff cannot establish liability on this basis. This type of care would probably have exacerbated the plaintiff’s symptoms and put her at an even greater risk of causing injury to herself. Also, in such a scenario the nursing staff would have remained at some distance from the Plaintiff outside her bedroom door. Accordingly, as a matter of fact it seems most unlikely that this type of care would, if introduced, have reduced the risk of the Plaintiff falling. Thus, any claim made on this ground must also fail.
Causation
42. Even if I were to accept Dr. Mohan’s evidence on the liability issue in my view the plaintiff’s case must in any event fail on causation. All three consultant psychiatrists were agreed that any patient who was having a visit from their spouse would be afforded a degree of privacy, even if they were receiving one-to-one nursing care. The relevant nurse would retreat some distance away to allow for a private exchange to occur between the couple. Thus, even if the plaintiff had been receiving one-to-one nursing care on the afternoon of 3rd December, that nursing care would not, on the balance of probabilities have prevented the fall that occurred.
43. Dr Mohan’s evidence that had a nurse been present she might have advised the Plaintiff to get up more slowly and that this advice might have prevented the fall is not a sufficient basis from which the court could make a causation finding in the plaintiff’s favour. Firstly, this scenario presupposes that the plaintiff would have announced her intention to get up in sufficient time to allow for the possibility that the relevant nurse would have intervened before she moved. It then presupposes that the nurse would actually have intervened and advised the patient to get up slowly. It also assumes that the plaintiff’s fall occurred because she got up too quickly in the presence of blood pressure irregularities. This was not established to be the reason why the plaintiff fell. His scenario also presumes that, having announced that she was intending to go to the toilet, the plaintiff would then have complied fully with the nurse’s advice to move slowly, notwithstanding the fact that the evidence clearly established that when manic and paranoid she was resistant to any such advice or intervention by the nursing staff. Lastly his scenario assumes the plaintiff would then not have fallen.
44. The facts as established are that plaintiff got up quickly and fell for no apparent reason. Her husband, who was only two to three feet away, did not predict a fall and he was not able to save her. She had been in moderately good form in the minutes prior to the fall and her husband was not alarmed by her announcement that she was heading to the toilet. It would be fanciful to conclude, having regard to the speed at which she fell, the location of the fall, her antipathy to the nursing staff, the likely position of any member of the nursing staff who might have been in attendance, her weight of over 16 stone and the fact that she fell twice later the same evening when accompanied by two nursing staff, that either one-to-one nursing care or two-to-one nursing care could have prevented the fall the subject matter of this claim.
45. For all of the aforementioned reasons, I accept the defendant’s evidence that the standard of care provided to the plaintiff over the relevant period and in particular over the period, 1st – 3rd December, 2005, was appropriate and did not fall below the appropriate standard. Even if I am wrong in coming to this conclusion the Plaintiff’s case, having regard to the evidence must in any event fail on the grounds of causation.
Winston v O’Leary
[2006] I.E.H.C. 440JUDGMENT of Mr. Justice John MacMenamin dated the 19th day of December, 2006.
On a number of occasions in recent years it has been pointed out that the task of determining what probably occurred after a long elapse of time poses particular challenges to a court. The process is rendered more difficult when important aspects of a case are reliant, entirely, on human memory. At the hearing the assessment of oral evidence is of course one aspect of a court’s function. In fact -finding a court will consider the recollection of each witness. Testimony may be affected by the passage of time itself. Perhaps there may be particular factors which may affect memory, or where witnesses to events may seek to rationalise their actions or decisions on the basis of what they believe happened, as opposed to what actually occurred. In the absence of memory, a witness may be entirely reliant on contemporaneous records. On occasion the importance or uniqueness of an event may lead to certain recollected words or deeds becoming fixed in the mind of one participant but not others. Here context and the totality of what occurred is essential. In the absence of clear corroborative evidence, a court may seek to identify whether there are ‘islands of fact’ which may assist in the process of testing accuracy of recollection. In the absence of strong cogent corroborative evidence one must look to all the surrounding known facts and records in order to ascertain which narrative, or version of events, is the more likely or probable, and ultimately whether respective parties have discharged a burden of proof. If there is a conflict of evidence, such conflict may only be resolved by weighing all the surrounding circumstances in order to identify which version of events is the more probable. One factor is whether, in the light of clear evidence established objectively, or ascertainable facts, the credibility of bare assertions made and denied may, in the absence of corroboration, be resolved on the basis of whether the general testimony of a witness otherwise bears scrutiny, having regard to their account of such other verifiable and objectively ascertainable facts. How a witness testifies on issues which can be otherwise established may be a helpful guide if it is the word of that witness against another person.
The judgment which follows seeks to summarise the testimony and submissions of this seven day hearing, consider the evidence, apply the principles of assessment outlined, and finally to analyse such evidence in the light of the legal principles which arise on this aspect of law. The primary question for determination is whether, on the evidence, the plaintiff has established negligence in the part of the defendant medical doctor. A secondary issue, that of causation, also arises.
Facts
In June of 1989 the plaintiff, a married man with seven children, was minded to undergo a vasectomy procedure. His wife had recently given birth to their youngest child. The couple managed a family run newsagency in Finglas. This business was a full-time undertaking. It required the whole attention of the plaintiff and his wife. The birth of the couple’s second last child had been difficult. On the birth in May of that year of their last child the Winstons considered their family was complete.
On the 26th June, 1989, the plaintiff went to his general practitioner Dr. O’Gorman. He said he wished to have a vasectomy. Dr. O’Gorman, who practised in Finglas, indicated that he was not expert in this area. He referred the plaintiff to Dr. Niall O’Leary, the defendant herein, who had a particular interest in this field and who had carried out a substantial number of such procedures. Dr. O’Gorman did not counsel the plaintiff beforehand except in general terms. He testified he was aware that the plaintiff would receive specific and detailed counselling before the procedure.
The Winstons married in 1981. Mrs. Winston was pregnant for a significant amount of time in the marriage. During the eight years period to 1989 as well as giving birth to the seven healthy children in the family she unfortunately also had a miscarriage.
After the birth of the second last child, the Winstons decided “to take a break” and during that two year period Mr. Winston used male contraception. After the interval Mrs. Winston again became pregnant. The question of a vasectomy arose when the Winstons were leaving the Rotunda Hospital after the birth of their last child in May 1989. They were then given a family planning brochure which included vasectomy as one of the contraception options available to those who might so choose.
The plaintiff is now in his late forties. He presented as being an extremely anxious and at times, over-wrought witness. He described the decision to avail of this procedure as having been a very quick one. He was referred to Dr. O’Leary having been told about his experience and that he had actually lectured on the subject. The Winstons were not well informed about vasectomy. The plaintiff understood it to be a very small operation.
As a preface to the evidence now summarised, it should be noted that Dr. O’Leary had no recollection of the plaintiff or his wife, the advice he gave, the procedure or any subsequent meeting. The last meeting between the plaintiff and the respondent was 1st August, 1989, seventeen years prior to the hearing of the case. No motion or point on the issue of prejudice was raised at, or prior to the hearing of the case. Despite the serious concerns felt afterwards by the plaintiff, there is no evidence that, any time after the post operative consultation of 1st August 1989, he ever returned to the defendant to discuss these concerns in detail. Nor is there any evidence that any of the doctors who then saw the plaintiff ever consulted the defendant. For his views this is unfortunate for a number of reasons discussed later.
On the evening of the 29th June, 1989, the couple went to the defendant’s surgery. The plaintiff said that he had decided on having a vasectomy. They outlined their family circumstances. The plaintiff says the defendant said that vasectomy was a very simple procedure and that there had been millions of them done around the world.
The plaintiff says he asked the defendant whether there were any potential problems with vasectomy and was told that “there were no problems whatsoever”. He testified at one point: “I was never told of any risk of pain”. Dr. O’Leary outlined the procedure. This firstly involved anaesthetic injections in the scrotal area. The plaintiff says he asked “will I feel any pain at all?” to which he said the defendant responded, “no you won’t feel anything”. When he enquired whether it would be sore he testifies that the defendant responded not generally, but that when the effect of the anaesthetic wore off, there would probably be some soreness and discomfort. Mrs. Winston (who testified) says that Dr. O’Leary did not indicate for how long such discomfort or soreness might last but that it might be alleviated with Panadol or other painkillers.
The Winstons say that in the course of the counselling interview the defendant put questions to them as to the choice of vasectomy in the context of various life-contingencies such as death of a child or loss of a spouse. The Winstons provided Dr. O’Leary with a great deal of personal detail, reflected in an aide memoire filled out by the doctor at the time.
The questions of the advice given and the plaintiff’s subsequent consent, is at the centre of this case. The additional issue of causation is dealt with later in the judgment. The plaintiff says he asked the defendant whether there were any potential long-term effects of a vasectomy. He says the defendant responded that the only possible adverse consequence after the operation might be postoperative infection which could be cleared up with a seven day course of antibiotics.
However, in evidence, Mr. Winston also said that he was not told that there would be any risk of pain and that long-term adverse consequences were not mentioned at all.
Mrs. Winston testified to the same effect.
The plaintiff now says if he had been informed then as to the potential of any long-term risk of ongoing pain it would have given him “food for thought”. It would have led him to consider for a longer period whether to undergo the procedure. This would have entailed discussions with his wife, particularly as to the effect of any long-term consequence upon his ability to work and help provide for his family. He says that he would have enquired as to how it would have interfered with his general ability to conduct his life and if he had been informed that there was a risk, or if his ability to carry on his life as normal might be compromised, he would have decided against vasectomy.
Mrs. Winston too says Dr. O’Leary informed them it was just a simple operation. She said specifically the defendant gave no warning at all as to a risk of long term pain. Had she been told about this she would have advised her husband not to proceed. She says that she and her husband proceeded on the basis that what was involved was a simple operation with no risk of long term pain or consequences. At another point she too said that Dr. O’Leary did not mention the risk of pain at all.
The Consent Form
The plaintiff says that on this basis he signed a consent form in the surgery on the 29th June, 1989.
This form states that, in consenting to a bilateral male vasectomy the signatory understands:
1. That it should make him incapable of fathering children;
2. That it may not be possible to reverse the operation;
3. That two consecutive semen tests must show that no sperms are present before stopping other methods of birth control;
4. That it will be done using a local anaesthetic and as a private patient;
5. That no assurance could be given that the operation will be 100% safe or successful.
On signing the form the plaintiff says he asked Dr. O’Leary as to its purpose. He was told that on some occasions the operation was unsuccessful. For a period after the procedure it would be necessary to use contraception. The form itself states that the nature, purpose, and intended effect of the procedure had been explained to the plaintiff. The form was countersigned also by Mrs. Winston and by the defendant. The plaintiff made an arrangement to meet Dr. O’Leary in his surgery two weeks later on the 15th July, 1989, to undergo the vasectomy.
Mr. Winston arrived on that day accompanied by his wife. A nurse lead them into the surgery. His wife went into a waiting area. In evidence the plaintiff gave a most graphic description of the procedure. After preparation, he described being placed on a table covered with a piece of green material. The doctor identified the area of the vas deferens. The plaintiff says he was injected with anaesthetic on both sides of the scrotum prior to any step in the operation. The defendant made an incision. Mr. Winston says that he felt immediate pain. He described the defendant placing a clamp on the vas deferens. He says he then felt sharp pain into his stomach. He was pushing down on the table. He commented on the pain. He says that when the defendant cut the vas deferens, he felt sharp pain again and told Dr. O’Leary that this had had hurt him. The plaintiff testified he was given more anaesthesia; again on both sides of the scrotum. He says that as the doctor had performed the procedure his back was “arching up”. Altogether he says he had four injections of anaesthetic. The plaintiff says the defendant then had problems with the cauterising machine. He felt pain and burning on the vas deferens as it was applied. He says that as the procedure was effected he was “pushing down all of the time”. He told Dr. O’Leary at one stage to take the clamp off because he felt the cauterising machine was not functioning.
Mr. Winston said this procedure was repeated on the other side of the scrotum, again with pain.
The notes made by Dr. O’Leary do not record anything untoward at all as having occurred in the course of the procedure or afterwards. They are dealt with below.
The plaintiff was extremely distressed, emotional and tearful in his evidence as to what occurred in the surgery. It is clear that what happened then, has been a source of regret and ongoing preoccupation. He says that he was weak after the procedure. He was unable to get up. He had to ask the nurse for water and for a cloth to wipe the sweat off himself. He had trouble getting his clothes on. He had difficulty tying up his laces. He says he asked Dr. O’Leary for painkillers and was told that there was a chemist shop not far off. After they left the surgery, Mrs. Winston, who had been waiting in another room, went to the chemist’s shop. The plaintiff remained holding onto the railings outside the defendant’s surgery. He was dizzy and weak. He was unable to proceed further until they got a taxi. The plaintiff said that the pain continued after the procedure when he went home to bed.
In the days following the plaintiff says that he continued to suffer pain. He remained in bed. The pain never left him. He went down to Dr. O’Gorman’s surgery on the 18th July, 1989. There he was treated by Dr. O’Gorman’s partner Dr. Barnes. The medical notes taken on that day record that the right side of the plaintiff’s scrotum was bruised but that there was no infection. The left side was described as “perfect”. The plaintiff was complaining of pain in the lower abdomen but his bowel movements were unremarkable. Dr. Barnes noted that on palpation there was nothing abnormal detected. There is no other comment on these notes on the vasectomy procedure or its effects. There is no remark on anything unusual having occurred on the day of the operation, or any complaints about Dr. O’Leary’s conduct. These are the most proximate objective evidential material to the operation accepted in evidence in that objection by both parties.
The plaintiff says he had a sense, after the operation that, as he put in his own words the “joints” might be leaking because of the trouble which he thought the defendant had encountered with the cauteriser. Dr. Barnes advised him to get back in touch with Dr. O’Leary. The plaintiff says the scrotal pain continued. Dr. Barnes advised him to go back to the defendant. He made an appointment with Dr. O’Leary for the 1st August, 1989. On that occasion the defendant’s notes reflect that he simply prescribed Progesic a mild to moderate painkiller. He did not record any sign of any infection or haematoma. Mr. Winston was advised to contact the defendant in the event of any difficulty arising.
This short and routine record must be contrasted with the very vivid account which the plaintiff gave in court of ongoing pain which he says he described to Dr. O’Leary. Mr. Winston testified he told the defendant that his testicular area was excruciatingly painful and sensitive. It was “on fire”. He was unable to let his children near him because of this sensitivity. He described the defendant using a pencil to move his testicles in examination. He was prescribed painkillers and assured that the pain would settle down.
None of the medical records kept by Dr. O’Leary record the allegations which Mr. Winston now makes as to the extent of the pain he was suffering and as described in evidence.
The sperm tests carried out later showed that the vasectomy was successful. The plaintiff was no longer fertile. The plaintiff did not attend his own doctor at all for months.
Eight month later, on the 19th April, 1990, the plaintiff attended Dr. O’Gorman, his general practitioner, complaining of a urinary tract infection with swelling and extreme pain in the left testicular area described and noted as being “similar” to that after the vasectomy. Four days later Mr. Winston went to Dr. O’Gorman again. The doctor found he was no better and referred him to the Mater Hospital. The plaintiff still thought that there could be “leaking” that is that the cauterisation process had not been complete. These concerned, unrecorded by Dr. O’Gorman, did not lead the plaintiff to return to Dr. O’Leary for advice.
The plaintiff in evidence described suffering pain, often very severe, through the interim period up to April 1990. On occasion the pain was so bad that he was on his hands and knees and deeply distressed.
I do not believe the plaintiff or his wife were untruthful in evidence. However, I find difficulty in accepting that if the pain was of such severity at that time, that he did not attend his own doctor or any other practitioner more frequently No medical records reflect the sequence of events as narrated in evidence. In fairness to the plaintiff it could be seen in evidence that he considered Dr. O’Leary to have been unsympathetic to him which might account for the fact the did not return to him, as opposed to other doctor.
The aide-memoire
At the first consultation, Dr. O’Leary had a form in heavy paper which he used at the time. This was headed “Family Planning Association” beneath which are the words “Vasectomy Discussion”. It was designed as an aide-memoire for vasectomy counselling. The background details described in this form bear out closely the family details described by the plaintiff and his wife. Under the heading “Consideration of Female Sterilisation” there are the words, in the defendant’s handwriting, “his turn”. This conveyed Dr. O’Leary’s understanding that Mrs. Winston had said she felt that it was now her husband’s turn to deal with the question of contraception as she had tried other forms previously. Dr. O’Leary recorded that the plaintiff had been considering vasectomy for two years. This view is disputed by the Winstons who state that the reference to this two year period reflected the time Mr. Winston had used a condom. The conflict of evidence on this issue is not of direct relevance. It is not disputed that the question of a two year time gap was discussed.
The form records the discussion as to various life contingencies. It records that both the plaintiff and his wife were satisfied to proceed. Beneath this is a heading “Details of Vasectomy to be given to couples if Vasectomy as seems appropriate.
1. Operation must be regarded as Irreversible. BUT WARN PATIENT OF:
(a) Risk of early recanalisation before sperm counts which may necessitate repeat operation.
(b) Risk of late recanalisation after two clear sperm counts.
(c) Risk of residual pain.” (emphasis added)
The form then deals with details of the operation and anaesthetic, its effect, the possibility of post operation fertility, recommendations for post- operative contraception and the collection of sperm specimens post operation for the purpose of testing fertility. At item 8 of the form there is the heading “Disadvantages of Vasectomy”, opposite which are the words:
– “Irreversibility”,
– many months before completion,
– occasional incidence of bleeding and infection,
– some discomfort usual but should be controlled by simple analgesics.
The check list is completed by reference to the consent form (which was signed by the plaintiff and his wife) and also a statement that the absolute reliability of vasectomy is unknown but that it is better than any other method.
Each item on the checklist was ticked off by Dr. O’Leary who testified this was his procedure.
Subsequent Events
In April 1990 Mr. Winston suffered pain. He attended the Mater Hospital. Ultimately he was informed by Professor Fitzpatrick there that he had a sperm granoloma – a collection of inflammatory cells and fibroid tissue which react to sperm.
On the 27th September, 1990, the plaintiff called to his general practitioner Dr. O’Gorman. He indicated then that he felt “let down” and that it should have been clear earlier what was wrong with him. Dr. O’Gorman pointed out that whatever occurred was not his responsibility. Mr. Winston was admitted to the Mater Hospital on the 28th September, 1990. It appears he stated to a doctor there that he had a leak from “the joint” post vasectomy but that he was told he did not know what he was talking about and that the granuloma had nothing to do with it. Dissatisfied, he discharged himself and arranged to go to London for medical treatment. Dr. O’Gorman’s note records that the plaintiff was by then contemplating taking legal action arising from what had occurred to him.
A surgeon, Mr. Ross Witherow carried out an operation for the sperm granuloma in London on the 3rd October, 1990. A little more than a fortnight later Mr. Winston returned for a follow-up. He was still complaining of pain and swelling on the right side of the scrotum. He had multiple tests. He also saw a Dr. Malcolm Carruthers, (who gave evidence) who was described as a Consultant Urologist in Harley Street in London. The pain did not cease.
Mr. Witherow did not testify in the proceedings. No records of his were produced. The court therefore had no evidence as to his diagnosis, treatment, on the outcome of the operation, or the history which the plaintiff gave pre operatively.
On the 29th January, 1991, the plaintiff saw Mr. Witherow again, still complaining of pain. He says then he was referred to a pain clinic with ongoing discomfort and swollen epididymi.
By this stage or later the plaintiff says he had begun to drink heavily, sometimes he said up to 10 pints of Guinness a day. He was neglecting the shop. His relationship with his wife was unsatisfactory. He gave no clear explanation as to why this alcohol abuse had commenced although there it was suggested there might be a connection between this and the vasectomy. No psychiatric evidence was called, although the plaintiff had consulted a psychiatrist Dr. Harry Kennedy. The court has no evidence as to the causation or extent of the plaintiff’s psychiatric symptoms other than the plaintiff’s own testimony.
On the 6th February, 1991, the plaintiff was seen by Mr. Denis Murphy of the Bon Secours Hospital in Dublin who apparently diagnosed conjunctive epididymitis on the left side. Dr. Murphy was not called. The plaintiff says he was prescribed antibiotic medication, and says he thought it advisable to gain such treatment abroad, perhaps in the Mayo Clinic. Ultimately, because he had relatives in Florida the plaintiff made an appointment at the Jackson Memorial Hospital in Miami and was seen there by a Dr. Bejany. An epidymectomy was carried out on the 7th May, 1992. The plaintiff then developed a post-operative infection on his return home and attended hospital in Blanchardstown. He continued on pain medication from June, 1992, to November, 1994. His left testicle shrunk considerably and he says he returned to Dr. Bejany on the 26th November, 1994. An orchidectomy was recommended and carried out on the 1st December, 1994, after which a prosthesis was inserted.
Unfortunately rejection of prosthesis began and worsened in January, 1995, as a result of which on the 17th February the prosthesis and the sac was removed. The plaintiff continued to suffer continuing pain on his right side.
Mr. Winston says he continued to have difficulties involving pain and stress as a result of which he says ultimately he made an attempt on his own life in April, 1998. In January, 1999, he entered rehabilitation for drink and drug dependency and thereafter ceased all medication.
In October, 2006, the plaintiffs attended hospital in Miami and apparently saw a Dr. Cava who apparently diagnosed the plaintiff as suffering from a sperm granuloma of the spermatic cord and recommended further surgery. It was suggested that a vasovasostomy (i.e. a reversal of vasectomy) might help to relive the pain on the right side.
None of the medical personnel named above (save Dr. Carruthers) gave evidence, nor have their medical records being produced or the history which Mr. Winston gave them. It is quite clear on the evidence that the plaintiff endured periods of prolonged pain, and frequent adverse outcomes from the many medical procedures on him during this time.
Other Evidence on Behalf of the Plaintiff
Mr. Michael O’Reilly was called on behalf of the plaintiff. He stated that he attended the defendant for the purposes of a vasectomy in February, 1990, having been referred by his general practitioner. Mr. O’Reilly was a friend and family acquaintance of the plaintiff. The court acceded to an application that he be called at late notice. The witness was uncertain as to the precise month and year of the events which he described. However said that Dr. O’Leary carried out a vasectomy successfully on him eight months after Mr. Winston’s procedure.
Mr. O’Reilly testified that when he attended for counselling with the defendant he was warned as to the possibility of pain over a period of 24 to 48 hours after the procedure but that no warning was given as to any risk of pain over a longer period.
Even assuming the evidence as material, I find it puzzling, in view of the fact that there was a social connection between the plaintiff and the defendant, that Mr. O’Reilly apparently went to Dr. O’Leary in the first place unaware of Mr .Winston’s concerns and in circumstances and at a time when the plaintiff says that he was suffering ongoing and extreme pain as a result of the procedure which the same practitioner, the defendant, had carried out on him in such unusual circumstances as described.
I do not consider Mr. O’Reilly was seeking to mislead the court in any way. However I find it difficult to accept evidence of what had happened in one brief part of a medical consultation sixteen years ago in the absence of other supporting objective material.
Dr. Carruthers’ Evidence
Dr. Malcolm Carruthers testified on behalf of the plaintiff. He is a Doctor of Medicine and a Fellow of the Royal College of Pathologists. He originally specialised as a chemical pathologist, but said that for the last 15 years he had been in consulting practice as a specialist in an area of mens health. He described his specialism as being an “Andrologist”, a field he described as relating to general health and to the symptoms and complications of testosterone deficiency.
While Dr. Carruthers indeed had held a number of hospital and academic posts in pathology it emerged in evidence that he has never in fact carried out a vasectomy at all, although some 40 years ago he witnessed a number of such procedures with his brother also an andrologist. He was not in a position therefore to testify as to the general practice adopted by doctors who engaged in this procedure in Ireland or elsewhere, or as to generally accepted procedures by such practitioners in 1989 of now or any time.
The witness accepted that he holds and has written about a range of reservations he feels about vasectomy both from the point of view of pain and testicular function. In fact when asked directly he indicated that he was generally hostile to the procedure. He had not attended any pre-vasectomy counselling sessions other than those of 40 years ago. The particular and special question of warnings generally given by experienced practitioners was outside his experience. He had no such expertise in an Irish or English context. Nonetheless he testified that the defendant should have given the plaintiff a specific warning as to the risk of long term pain and possibly given a percentage figure as to the incidence of long term pain as being between 2 and 5%.
It must be said that other earlier parts of Dr. Carruthers testimony were based on a number of assertions which, it transpired, were not supported by concrete objective or statistical evidence. Among the recognised risks he identified as arising from a vasectomy procedure were fainting, and vaso vegal reaction, that is a slowing of the heart. However he did not identify any expert articles or textbooks, statistics, or literature which set out the statistical basis or risk of such reactions. When asked, he was unable to state whether such risk was 1% or one hundredth of that figure, although he believed the risk of these reactions to be a risk factor of .01% of operations.
Dr. Carruthers evidence therefore should be seen as being helpful more in the context of having seen the plaintiff in 1991 although he did not produce any records from that time although he testified as to the plaintiff’s complaints.
The witness testified that in his own practice he had encountered 5 patients who he said had suffered long term adverse chronic effects of vasectomy. He referred to a number of reports in medical literature referring to the risk of long term chronic pain. The preponderance but not all of these articles were published after the year of Mr. Winston’s vasectomy. Two articles which he referred to specifically are referred to later in the judgment. He stated that a risk of long term chronic pain was “well recognised”. In so saying however Dr. Carruthers did not otherwise refer to any recognised guidelines medical textbooks or guidelines. His evidence did not refer to generally recognised literature or expert evidence as to risks perceived by experienced clinicians in this aspect of medicine in 1989 or later which might form a basis of departure from generally accepted norms.
The witness described seeing the plaintiff in 1991 following the plaintiff’s removal of the sperm granuloma in London. He made particular criticism of the usage of the word “residual” in the aide memoire used by Dr. O’Leary because it is not a term that he had heard used before and was unlikely to have had meaning for the plaintiff. The plaintiff was not in fact asked to how he understood the term “residual”. His own evidence as to warnings of risk of pains set out earlier.
Dr. Carruthers did not tender any evidence as to the precise type of warning which it might be expected a doctor of the general level of skill and knowledge engaged in this work either as a general practitioner with a specialism or as a consultant, should give prior to engaging in such procedure. While he indicated that a specific warning ought to have been given, he did not testify that such a specific procedure was customarily adopted by competent practitioners generally in this area at that time. He testified that as the risk of long term pain in vasectomy candidates fell in the range 2% and 5%, a warning should be given in very specific terms as to this risk. This range of risk was he testified reflected in two of the articles to which he made reference, although these were not dealt with in any detail in evidence.
Elapse of Time
The court did not hear they exactly why this case took seventeen years to come to hearing. A statement of claim was filed in 1997. There was a change of solicitor in 2000. There was correspondence with regard to the threatened motion to dismiss the proceeding for want of prosecution. However a court should not draw any adverse inference this delay itself. These observations should not be seen as implying any criticism of the solicitors retained as delay may arise from many causes including obtaining instructions.
The Defendant’s Evidence
Dr. Niall O’Leary studied medicine in Trinity College Dublin. He qualified in the year 1974. He has been in practice for 26 years. He is now the principal of a group general practice in Finglas.
He says had an early interest in family planning. He was trained by a surgeon Ms. Deborah Orr in the technique of vasectomy in 1982. Since then he has been carrying out these procedures on a continuous basis. By the time the plaintiff attended him in 1989, he had carried out approximately 2,500 vasectomies. By the date of hearing, November 2006 he had carried 9,000 such procedures.
The defendant described the general procedure which he adopted for counselling patients. He said he proceeded through the aide memoire with patient and spouse dealing with the health of the candidates and their medical background. The age of the plaintiff, at the time 30 years, is generally the starting point for consideration of the procedure. While he had no specific memory of the plaintiff his testimony was based on his customary procedure, his records, the aide memoire check list, and the consent form.
The defendant says he obtained information as to the couple’s contraceptive history, their consideration of the issue of female sterilisation, as well as their precise reasons for seeking sterilisation. Going through the aide memoire he ticked off with his pen each relevant heading in a box once it had been dealt with. The form outlined the possibility of four options for the patient, being either “accepted, deferred, refused, or withdrawn”. He had ticked “accepted” in the case of the plaintiff. He did not identify any contra-indication to a vasectomy. Each of the checklist headings in the form was he said dealt with sequentially and ticked off by him thereafter.
Dr. O’Leary defined the important phrase “risk of residual pain” (referred to in the aide memoire) as meaning a risk of persistent pain.
As to the risk of ongoing pain he said that he might occasionally use the expression that such risk constituted a “rare outside chance”. Thereafter he would indicate the possible need for using painkillers which might be obtained from a chemist over the counter.
After the procedure he warns that it would be necessary for a couple to use contraception for a considerable period after the procedure when at 16 and 18 weeks post procedure, specimens are sent in for testing.
His note of the procedure of 15th July, 1989 simply describes a bilateral vasectomy under local anaesthetic using a hyfrecator, a surgical “welder” used for carrying out cauterisation of small blood vessels and also for the purposes of heat sealing each end of the vas deferens. The operation notes also recorded that he had removed half an inch of the vas deferens on each side.
No reference is made in the notes to the plaintiff having complained of pain or of any difficulty with the hyfrecator. The notes do not contain any record of the plaintiff moving, arching his back, or that the operation was anything other than routine.
The Nature of the Vasectomy Procedure and its Outcome
The defendant described in detail the delicate operative procedure which he says he universally adopted.
This consists in first administering a local anaesthetic. This procedure is carried out on one side of the scrotum and thereafter the other. He never administered anaesthetic to both sides prior to operation.
The vas deferens runs posteriorly in the scrotum. It must be brought around anteriorly, and tethered between the clinician’s finger and thumb, at which time the local anaesthetic is injected. If the vas is let go, and if the clinician were to go to the other side of the scrotum, then on return it may not be possible to bring the vas deferens back to exactly the same point previously anesthetised. It might therefore be necessary recommence the procedure from the beginning.
Dr. O’Leary says that a vasectomy never involve anesthetising of both sides of the scrotum prior to embarking on the operative procedure. He says he would commence the procedure on the left side of the patient’s scrotum and thereafter proceed to the right side. The anaesthetic would have taken effect by the time he commenced the procedure with the scalpel. In the event of there being any feeling in the area, or insufficient anaesthetic, more would be administered by injection until the area is numb.
If a clinician one were to use scalpel of the hyfrecator in the absence of adequate anaesthetic the defendant commented the pain to the patient would be intolerable. The patient would move. It would be impossible to proceed or to complete the procedure which would necessarily then be unsuccessful and incomplete.
Here, the defendant pointed specifically to the fact the semen analysis carried out subsequent to the operation indicated that by logical process the anaesthesia must have worked satisfactorily. He had been able to carry out the entire procedure. If the plaintiff had reacted as described he would have been unable to complete the operation which generally takes approximately 15 minutes in total.
Generally speaking the numbing effect of the anaesthetic lasts approximately 2 to 3 hours after the operation.
In the case of a patient complaining of acute pain post-vasectomy the defendant said he would have particularly recorded it, taken further notes and discussed it with colleagues. Pain of the kind described by the plaintiff would have been twice particularly remarkable because the area in question had by then been bilaterally anesthetised on the plaintiff’s evidence. The notes of the procedure on 15th July, 1989 indicated to him that the procedure carried out had been essentially routine. His further notes of 1st August, 1989 record having prescribed Progesic a mild to moderate painkiller and his further finding that there was no infection of haematoma together with an indication that should he require further help Mr. Winston might contact the defendant. There was nothing in those notes to indicate to him that anything untoward had occurred on or after the procedure.
The defendant could conceive of no reason why, in this case, he would have departed from his normal procedure in describing to the patient a risk of three types of pain that is first immediately post operatively; second medium term i.e. for a period of some weeks or months; third long term: The defendant flatly rejected the suggestion that he would have proceeded with this vasectomy without having warned the plaintiff in any way as to a risk of pain whether short medium or long term. The defendant specifically rejected too the plaintiff’s description of a difficult operative procedure, and the plaintiff’s evidence of moving, arching his back or any question of expressions of pain. He specifically rejected also that post operatively he ? the plaintiff using a pencil or that on the 1st August, 1989 the plaintiff had given him any description of the graphic type outlined by the plaintiff of unceasing pain or extreme sensitivity.
Dr. Oliver Lynn
Dr. Oliver Lynn a General Practitioner qualified in 1976 and has been involved in family practice in the north east region since 1983. He has been a member of the Irish Family Planning Association since he qualified in 1976. He has been in general practice since 1983. He described undergoing training in Dublin under Dr. Deborah Orr. He is a colleague of the defendant and they have met at family planning symposia although they were not socially friendly.
He described having carried out approximately 3,500 vasectomies since 1986. He had never seen pain of the type described by the plaintiff.
Dr. Lynn was asked about but was not familiar with two articles which form part of the references cited by Dr. Carruthers: (Schmidt Spermatic Granuloma An Often Painful Lesion in Fertility and Sterility February 1979) and a further article, (Selikowitz and Anor Late Post ‘Vasectomy Syndrome J. Urol 1995 136).
Dr. Lynn’s testified that the form of warning given by the defendant was adequate assuming that it consisted of advice as to the risk of residual pain post operatively. He accepted that if he felt there was a 2% risk of an adverse result in any medical procedure this would be deserving of an explicit warning. However he was quite disinclined to accept that the actual risk involved in the procedure was in that range on the basis of his experience of the procedure in the cases he had encountered.
Professor Tanner
Professor Arthur Tanner is currently Director of Surgical Affairs at the Royal College of Surgeons in Ireland and Associate Professor of Surgery in Trinity College Dublin. Prior to recently taking up his current appointment he was Head of the Department of Clinical Surgery in the Adelaide and Meath Hospital. He holds a number of academic and professional distinctions and has published widely in learned journals. His evidence demonstrated his experience and expertise in this field of medicine and was therefore of particular assistance.
In the course of his own practice he himself had carried out between 9 to 10,000 vasectomies. He considered that the aide memoire form used on the date in question was both useful and extremely thorough. His view was that it would be hard to say that it missed out on any of the risks associated with the procedure. He made no criticism of the form of warning which the defendant described, that is as to risk of pain immediately post operatively, medium term and long term. He considered the term ‘residual’ an appropriate warning of the nature of the risk.
While short term pain was a consequence of the procedure, medium term pain was extremely prevalent, gradually diminishing over a period of four to six weeks. In the course of his own practice he had encountered just two patients who encountered long term pain. A number of others were referred to him. The total of such referred patients was in single figures. There was little but anecdotal evidence as to the incidence of long term pain. Professor Tanner knew of no prospective randomised studies carried out on vasectomy the purpose of assessing risk. Such retrospective studies as exist were in his view fraught with difficulty as they are not based on a representative sample of all patients.
He considered that it would be sufficient to warn a patient that there is a risk, albeit small of long term or residual pain. Such a warning would be adequate without going into percentages. In his own practice he would not have gone into the causes of long term chronic pain and simply warned patients that there was an outside risk that such pain might develop.
Professor Tanner’s expert evidence was of value on one further aspect of the case, in that he felt that the plaintiff had probably suffered from congestive epididymitis caused by a continued production of fluid from the testicle which found its way into the epididymus. This in turn created a high pressure tension within the epdidiymus causing pain by stretching. Such pain is chronic and continuous in the literature on the subject. The risk of congestive epididymitis ranges from in the region of 0.1% up to in the region of 3.4% although this should be seen in the context of his own new as to the value of such statistics.
On the basis of Professor Tanner’s evidence, Dr. O’Leary’s description of his management of the patient, counselling, the vasectomy itself, and the follow up appointment and the warnings regarding post operative pain was not negligent, assuming that was what had taken place.
Professor Tanner added that the first vasectomy carried out in this country was in 1979. Since then approximately 40,000 such procedures had been carried out. The knowledge of post operative complications and risks associated with the operation has improved with the passage of time as has knowledge as to how to deal with complications arising from the procedure.
However the witness went so far as to describe the statistical evidence as to the incidence of post vasectomy pain as to all intents and purposes useless. His reasons were that the surveys carried out are retrospective, and based on postal or telephone questionnaires. To his knowledge no such survey had reached the 50% return rate.
It might be observed that the defendant and the two witnesses who testified on his behalf have in total by now in 2006 carried out more than half the vasectomies completed in Ireland. Yet the concrete evidence as to pain syndrome appears to amount to 12 ceases known to these practitioners in their case experience of substantially more than 20,000 cases in the total of 40,000 procedures. While Professor Tanner suggests that this reporting figure may be low, it can hardly be seen on the present evidence as a very highly significant risk although well known. No evidence was adduced or referred to in these proceedings of other risks arising from the procedure or whether they are significant or had a bearing on the warnings which should be given.
Consideration of the Evidence
The evidence from the plaintiff and his wife is as to what is said to have happened in the defendant’s surgery some 17 years ago. This presents an immediate difficulty. How can such an issue now be established as a matter of probability? Our jurisprudence is now replete with cases wherein the issue of fading or alteration in memory over time has been considered. The plaintiff’s case, supported by his wife is that the plaintiff failed to give any warning at all as to the risk of pain (not to mention long term pain) arising from the procedure. The question which must therefore be asked is whether the evidence as to alleged absence of any or any sufficient warning as to the risk of long term pain is sufficient to discharge the burden of proof which rests first upon the plaintiff? The defendant says he has no specific recollection of the events. He relies upon the checklist contained in the form and the fact that each heading and subheading is ticked by himself including the risk of residual pain. No evidence was adduced with regard to the nurse who was said to be present. She was not referred to in the defendant’s evidence one way or the other.
In the absence of other close supporting evidence one way or the other one, must look to all surrounding circumstances in particular anything contemporaneous, particularly written records in order to ascertain which version tendered to the court is more likely. The event was of course was important for the plaintiff and his wife. For the defendant it was one of 9,000 such cases. The actual testimony of the plaintiff and his wife at one point was to the effect that there was no mention of pain at all by the defendant. The plaintiff’s case as a whole on the issue as to whether pain was mentioned at all seems somewhat inconsistent. On the one hand he suggested in his evidence that he himself raised the question of pain: “will I feel anything at all” to which the defendant responded “no you won’t feel anything”. But at another point the plaintiff and his wife say that there was no mention of pain at all, the subject did not arise in any way. Is it probable that the most obvious first question any patient would ask went unanswered? The first questions should surely be whether the procedure would be painful? Yet the effect of the plaintiff’s case is that Dr. O’Leary gave no answer or suggested that the procedure would be quite pain free. I do not consider this probable.
While not canvassed either in evidence or submissions there might be a third possibility that a warning of long term pain was given, albeit insufficiently clearly in the context. It is unnecessary to deal with this contingency therefore.
One turns to the aide memoire. It is noteworthy that it accurately describes and bears out almost all the information the plaintiff and his wife gave as to their personal background and all the considerations which were in their minds at the time the vasectomy was under discussion. Save for the dispute as to the meaning of the two year interval, there is a close correlation between the evidence of the plaintiff and his wife on the one hand and all the other contents of the form as recorded by Dr. O’Leary.
Why then, of all the issues recorded should the question of pain have been ignored? The plaintiff at one point testified specifically “I was never told of any risk of pain”. He added at another stage that he said that he was not told of the risk of anything residual. He said that there was no mention at all of long term pain. When Mrs. Winston was asked about whether pain was mentioned at all she responded:
“No John asked would there be any pain, and that was it, he said no, it was just a simple operation.”
When she was asked as to whether the question of medium or long term pain had been discussed she completely denied that those issues were mentioned at all.
In the light of all other of the contents of the form does this simple oral evidence alone after such an elapse of time establish matters as a probability unless there was contemporaneous surrounding evidence objective in nature or in the written form to that effect?
The evidence of the plaintiff and his wife does not tally fully with the evidence of Mr. O’Reilly, who said that the question of pain was in fact raised but that the defendant gave a minimal account of possible pain and it was only in the context of its being incidental to the administration of the anaesthetic.
One looks to the other evidence. First the description of the operation. On balance, I consider the plaintiff’s evidence regarding his operation less probable for the reasons given in evidence by Dr. O’Leary. The plaintiff said he suffered continuing pain immediately post operatively. Is it probable that after the administration of two (or four) anaesthetic injections he would or could have suffered ongoing pain even in the hours immediately after the operation? Or is his memory fallible on this issue? I think the latter is more likely.
The plaintiff says that during the operation he arched his back and felt pain through to his stomach. Had the plaintiff reacted in the manner in which he himself described, would the procedure have been possible to complete? What is indisputable is that the procedure involved extremely fine work with the scalpel, the identification of the vas, the excision of part thereof and finally the cauterising procedure.
Had the plaintiff reacted in the way in which he described so graphically in the course of the operation, could the procedure itself have been completed at all? I am not persuaded that it could. Had the plaintiff been suffering from the degree of pain as he described it subsequent to the operation and the 1st August, 1989 is it probable that this would have gone completely unrecorded in the defendant’s records out of concern or even if only for medico-legal purposes. Instead the later notes record only a simple prescription of moderate painkillers. The actual operation notes are entirely silent on any other issue. The absence of comment in Dr. Burns and Dr. O’Gorman notes have already been pointed out.
Rather than any further follow up treatment taking place there is a gap in any the medical records between 1st August, 1989 and 19th April, 1990 where Dr. O’Gorman records the plaintiff (as seen in the Mater Casualty Department) having pain in the left testis similar to that which the plaintiff had experienced post vasectomy.
The plaintiff had not visited his general practitioner or the defendant since August of 1989. Is this a medical record consistent with a description of extreme ongoing and continuous pain after the procedure? Or is it more consistent with the occurrence of pain in April 1990 similar to that experienced at the time of the vasectomy. I consider the second to be the more probable.
A court may then have regard to the nature of the case as it is pleaded. The statement of claim was filed herein on 31st January, 1997. It was subsequently amended (at the first day of the hearing) on 3rd November, 2006. The case, made first in 1997 was that the defendant had failed to exercise sufficient or reasonable care in the carrying out the vasectomy procedure. This complaint has now been abandoned completely. So also has an allegation that the defendant knew or ought to have known that a local anaesthetic injection was likely to cause the plaintiff pain and discomfort and that consequently a general anaesthetic should have been applied.
An allegation in the initiating letter of 15th April, 1991 from the plaintiff’s then solicitor (one and a half years post operation) related to the alleged negligent manner in which the operation had been carried out as well as failure to provide adequate warning. As stated, this former issue was not made at hearing at all.
Instead, the case now made is simply the allegation of inadequate counselling and consent. The stance of the defendant as to what occurred was outlined in a letter from the defendant’s solicitor Messrs Arthur Cox as long ago as 19th June, 1991.
I would add that there is other significant material. The evidence of the defendant that it was his universal practice to go through the consent form in detail with the patient and spouse. From time to time he would allow the patient to ask questions of him regarding the procedure and any other issue arising. He stated that he always discussed each and every bullet point outlined in the aide memoire consent form including the risk of residual pain and that he outlined three types of pain with each patient i.e. short term medium term and long term. Once each point had been discussed he testified that he would tick that point with his pen to indicate that it had been covered. These notes which were made contemporaneously bear out this evidence that the necessary information for the carrying out of the procedure was obtained from the plaintiff.
For the reasons outlined therefore. It is more probable then that the question of risk of pain was dealt with as described by the defendant.
I accept too the expert evidence of Professor Tanner and the evidence of Dr. Glynn as to the adequacy of the warning as to residual pain in the aide memoire. I do not consider Dr. Carruthers evidence helpful on this point. His evidence did not establish that if the warning was given as described by Dr. O’Leary it was inadequate. The evidence otherwise showed it fell within the parameters of what should be expected of an experienced medical practitioner in this area.
I do not consider that on this issue the plaintiff has satisfied the court his narrative is more probable as to what occurred, or that on the balance of probabilities the defendant did not follow his normal practice, that on this occasion he deviated from it, and that no or no adequate information regarding the risks of the vasectomy operation were provided, having regard to known identified material risks or what was appropriate in the circumstances. There are good reasons, having regard to what occurred afterwards to conclude that the plaintiff’s memory might not be totally reliable while not at all doubting his desire to tell the truth. Similar considerations apply to Mrs. Winston’s evidence.
Causation
The defendant’s notes indicate the reason given by the plaintiff for having the vasectomy and for not wanting any more children was recorded as “cannot afford more”. The plaintiff has not contested that he and his wife may have used these words but they might have been used in their context of possible time spent away from the business rather than in the context of purely financial considerations. Dr. O’Gorman wrote to Dr. O’Leary that the plaintiff was “anxious” for a vasectomy.
It is quite clear that the unfortunate plaintiff is now in a state of very considerable distress and bitterness over what has occurred. It is not denied that he has suffered long term pain. It is not denied that this was actually caused by the vasectomy procedure. Professor Tanner on behalf of the defendant has testified he considers that the cause of the plaintiff’s symptoms is congestive epididymitis.
This court cannot determine whether all the various surgical procedures which the plaintiff availed of from 1990 onwards were necessary. It cannot establish whether the procedures were helpful to him or not. No expert evidence or record is available as to any of these procedures. The plaintiff has regrettably undergone a number of painful operations including an orchidectomy. As described earlier the after effects of some or all of these operations can only have been very painful and distressing.
But there was no specific urgency with regard to the plaintiff undergoing the vasectomy procedure as of June or July 1989. It was an elective procedure. The plaintiff states that had he been given a warning as to the risk of long term pain it would have given him “food for thought”. It would have made him consider the option more or over a longer period. He says would have discussed matters with his wife, his family situation, their need to provide for their family and the fact that there was considerable economic and financial reliance upon him. He says now that if the risk had been known to him that he would have declined to the procedure. He would not have gone back to him after the first counselling meeting. He could not take the risk of undergoing the procedure. Mrs. Winston states that had she known about the risk of pain even for a six month period post operatively she would have advised him not to have the procedure. Had she known there was a risk of indefinite pain she would have insisted that he not have it done.
Had the plaintiff and his wife actually known as to the entirely unfortunate and regrettable sequalae which arose from this operation, clearly it would not have proceeded. But other considerations arise here. In elective surgery any risk which carries the possibility of grave consequences for the plaintiff should be disclosed. That duty is however confined to such consequences as may be foreseeable or predictable. Therefore even if the court has erred in making its earlier findings, and even accepting hypothetically that there was a culpable failure to warn the plaintiff, the next issue must necessarily be assuming such failure occurred what consequence flowed from any alleged failure to warn the plaintiff?
In Geoghegan v. Harris [2000] 3 I.R. 537 Kearns J. held that a medical defendant was obliged to give a warning to the plaintiff of any material risk which is a known or foreseeable complication of an operation. Despite the fact that the nature of a risk was extremely remote if it was a known complication a warning of the risk was required. The test to be adopted by a court as to what risks ought to be disclosed to a patient before an operation was the test of a reasonable patient. By adopting this test it is the patient thus informed, rather than the doctor who made the real choice as to whether the treatment was to be carried out.
Geoghegan decides that when deciding whether or not a warning would cause a patient to forego an operation a court should first adopt an objective test; that test should yield to a subjective test where there was clear evidence in existence from which a court could reliably infer what a particular patient would have decided.
The approach adopted by Kearns J. in Geoghegan has considerable relevance in the instant case.
Applying these tests, the first question therefore to be asked is whether residual pain was in 1989 a known complication of vasectomy? To this the only answer must be that on the evidence there was a known risk of residual pain. This much is clear too from the form itself. (See also Walsh v. Family Planning Services 1992 1 IR 496 in some ways similar factually to the instant case). It is clear that there was a duty to warn from the evidence of the defendant. He himself had not encountered this particular risk and had not, in the course of any of the operations which he had carried out encountered such sequalae. Applying the principles identified in Dunne v. National Maternity Hospital I.R. 91 there was a duty to warn the plaintiff regardless of the remoteness of such risk.
Assuming that the plaintiff had discharged the burden of proof on the first issue, what then would a reasonable person properly informed had done in the plaintiff’s position? This should be seen in the context of the plaintiff’s age, pre-existing health, family and financial circumstances, the nature of the surgery and any other factor that can be objectively assessed although personal to the plaintiff this (objective) criterion would the plaintiff would have proceeded with the operation?
An objective test must yield to subjective only when credible evidence (not necessarily that of the plaintiff) in a particular case so demands. As pointed out by Kearns J. in the judgment in Geoghegan while a court must accord due deference to the testimony both of the patient and the medical practitioner the many cases cited in that judgment highlight the difficulties each may have in providing an account in which the court can safely or absolutely rely. Wherever possible the court should look elsewhere for credible confirmation. No such other information has been provided which assists the plaintiff.
Applying a purely subjective test it may be said now that the plaintiff would not have proceeded with the operative procedure.
But even the application of a subjective test does not necessitate the acceptance of subjective evidence. It cannot necessitate the acceptance ipso facto of any of the plaintiff’s evidence when clearly quite different considerations now arise in hindsight as contrasted to the plaintiff’s state of mind in 1989. The very phraseology of the questions put with skill by his counsel Mr. McDonnell S.C. in direct examination to the plaintiff and his wife, unavoidably in conditional form, demonstrate the fallacy of applying an absolute subjective test where necessarily a plaintiff must find it difficult to avoid seeing matters through the prism of hindsight.
On balance the plaintiff’s conduct and behaviour in 1989 speak more eloquently than the oral testimony now. He considered that the procedure was a simple one. He was “anxious” to undergo it. His wife’s continued health was an issue quite properly in his mind. There is nothing in the material before this court to indicate that in 1989 he was unusually cautious or the kind of man who would have backed away at the mention of a remote risk. Even after two weeks reflection between counselling and operation he had no hesitation in proceeding. For these reasons, I do not consider that a hypothetical breach of duty of the type posited by the plaintiff, no matter how formulated, would have induced the plaintiff to proceed with this operation when he would not otherwise have gone ahead with it.
I do not consider the evidence given now, in hindsight, as to “food for thought” or other considerations to be persuasive sufficiently to supplant the objective evidence. I consider that the claim fails on the issue of causation also.
On the basis of these findings it is unnecessary to give consideration to the application of the persuasive authorities of Chester v. Afshar (2005) 1 AC 134 or Thompson v. Bradford (2005) EWCA or whether the principles decided therein should be followed or applied.
Conclusion
There is no doubt the unfortunate plaintiff has suffered pain and an extremely significant and detrimental effect to his life as a result of what occurred. Whether or not the procedure is now remediable does not arise as an issue although one can only hope for his sake that it can.
But the sympathy one must inevitably feel must not cloud assessment of the evidence. On the evidence the defendant is entitled to a finding that it has not been established there was negligence on his part. The court must therefore dismiss the claim.
Fitzpatrick v White [2007] I.E.S.C. 51JUDGMENT of Mr. Justice Kearns delivered the 15th day of November, 2007
This case raises interesting issues about the requirement on medical practitioners to warn patients of the risks and dangers associated with medical procedures. In the instant case the plaintiff contended at trial that he had never been warned in any way about a particular risk inherent in a proposed operation to his left eye in March, 1994 which said risk unfortunately later eventuated. Although the trial judge found against the plaintiff, holding that a proper warning had been given, the plaintiff nonetheless contends that the warning in this case, which was given to him on the day of his operation, was ineffective because it had been given ‘at the last minute’ when the plaintiff had committed himself to the operation and was soon to be brought to theatre. He further contended at trial that had he been properly warned he would have declined the operation in question.
Background
The plaintiff is a professional musician from Dublin who was born on 29th November, 1967. From birth he had a convergent squint in his left eye which was turned in. After unsuccessful treatment at Sir Patrick Dun’s hospital involving the use of patches, he had an operation in 1974 when he was seven years old in the Royal Victoria Eye & Ear Hospital to correct the squint. He was in hospital for three days after that operation. Thereafter he was left with what was described as a small squint which was not a disabling problem for him. However, in November, 1993 he decided for cosmetic reasons to explore the possibility of correcting the squint. With that in mind he attended the Eye & Ear Hospital in November 1993 where he met, firstly, a Ms. Nano Fitzsimons, an orthoptist whose specialty was squints, and who fully tested and evaluated the state of the plaintiff’s vision. She found some slight limitation of movement of adduction of the left eye. Her function at that time was to make an assessment as to whether or not an adjustment to reduce the squint by means of an operation was appropriate. Ms Fitzsimons arranged for the plaintiff to meet Mr Paul Moriarty, ophthalmic surgeon, in December, 1993 for a follow-up consultation. Her report was available to Mr Moriarty at this point. A third consultation took place on 9th February, 1994, following which Mr. Moriarty apparently decided the plaintiff was suitable for surgery. The plaintiff then got a letter telling him to come in for his operation on 10th March, 1994.
On the day he presented, the plaintiff, who was a public patient, learned that his operation would not be performed by Mr Moriarty but by Mr Martin Goggin, who was a registrar working with Mr Moriarty but who was amply qualified to carry out the proposed surgery. Mr Goggin had the notes of earlier examinations and also the orthoptic report of Ms. Fitzsimons. In the course of her report Ms Fitzsimons had raised various points for the surgeon’s consideration, including not only the possibility of surgery for the squint in the left eye, but also the possibility of a single right medial rectus recession in the ‘good’ eye. In highlighting different options, she was not of course telling the surgeon what should be done, and her evidence at trial was to the effect that any decision as to the course adopted together with the responsibility for warning the patient of any risks associated therewith, remained matters for the operating surgeon. The plaintiff met with Mr. Goggin approximately 30 minutes before he was due to undergo surgery. At that stage the plaintiff was in a gown and was sitting or lying on a bed in a ward of the hospital. He does not appear to have been sedated as part of his premed for the operation.
At trial, the plaintiff gave evidence that Mr. Goggin spent about ten minutes with him, that he had a clipboard and was taking some notes. According to the plaintiff, he enquired of Mr. Goggin if there was a good chance that the eye would be straight following the operation. According to the plaintiff, Mr. Goggin replied “it won’t be 100 percent straight. There is a good chance there will be a good cosmetic improvement. The only thing is that when you go into your 40’s the muscles might start to drop back a little bit and you might want to get it corrected again”. On the plaintiff’s account, Mr. Goggin did not mention any complications, side-effects or adverse consequences that might ensue. The plaintiff acknowledged that he signed what was then a standard consent form to undergo the operation. This consent form did not specify any risks associated with the proposed procedure. In cross-examination the plaintiff stated that had he been told by Mr Goggin about the risk of muscle loss or slippage resulting in double vision he would have remembered it and “walked straight out of the hospital”. In other words, he would have foregone the operation.
Mr. Goggin for his part gave evidence that on the date in question he conducted both a heart examination and various other examinations of the plaintiff to assess his fitness to go ahead with the procedure. He had available to him the orthoptic report prepared by Ms. Fitzsimons. He told the court that he could not specifically recall meeting the plaintiff on the date in question. However, he gave evidence of his general practice. He told the court that he would have advised the plaintiff of the details of the proposed procedure. In this case he would have told the plaintiff that he planned to move the muscle on the back of his left eye in order to reposition the eye. He proposed using the “adjustable suture technique” whereby the surgeon recesses the muscle but does not definitely tie off the sutures until the following day. On the day following the operation, a patient undergoes a further small procedure to readjust the position of the eye when he is awake. He identified the common complications that could arise as including an under-correction or over-correction anatomically, in other words, positioning the eye too far or too little beyond that which had been planned. An over-correction could lead to diplopia, i.e. double-vision, and it was his standard practice to warn patients of that complication. He told the court he would also have warned of rare complications, such as the loss or slippage of a muscle, in this case the medial rectus muscle – which could also lead to double vision – and the further remote possibility of a perforation of the eye during the procedure.
Mr. Goggin accepted that he was giving the warning in this particular case to a patient who had already committed himself to having the surgery and who up to that point had no prior knowledge of any of the risks associated with the procedure he was about to undergo. Mr Goggin accepted that the ten minute conversation took place only half an hour before the operation. However, he emphasised that this was the norm at that time for day case patients.
It is important to stress that the subsequent operation was carried out properly and there was no suggestion at trial of any negligence whatsoever on the part of Mr Goggin in connection therewith. On the day following the operation, Mr. Goggin performed an adjustment of the suture to maximise the improvement in the alignment of the left eye.
In the months that followed, there was – unfortunately – what is noted in the medical records of the hospital as a gradual slippage of the medial rectus muscle behind the left eye. In this regard, the hospital records are to some degree at variance with the plaintiff’s own recollection, because in evidence the plaintiff told the court that, when trying to do prescribed exercises in June, 1995 he felt something “snap” in his left eye which then turned totally outwards, effectively leaving him at that point in a worse position than he was before the operation.
It seems clear from the evidence at trial that the rare complication mentioned by Mr. Goggin, namely the loss or slippage of the medial rectus muscle, occurred in the case of this particular patient. Professor Peter Eustace, consultant ophthalmologist, told the trial court that muscle slippage, of the sort that occurred in the present case, was “extremely unusual”. He further gave evidence that “in clinical practice over a lifetime, he never saw such a case”. It was “unique”.
In similar vein, Mr. Michael O’ Keefe, consultant eye surgeon, told the court that muscle slippage was a “rare complication” and the risk of it happening “is less than 1 percent”.
The consequence for the plaintiff was that he had some ongoing double vision and headaches as well as a poor cosmetic result, given that his eye had slewed outwards. In January, 1995 he underwent a further operation which on this occasion was carried out by Mr Martin O’Connor. This operation cured the outward slant of the left eye and produced a good cosmetic outcome. Vision in both eyes was noted to be good when the plaintiff was reviewed in February, 1995. The plaintiff thereafter had some continuing double vision, though less than previously, and some headaches. In May, 1997 the plaintiff was offered further surgery to address his residual problems. This would have involved working on the muscles of the right eye to match the defects of movement present in the left eye. However the plaintiff declined to avail of this option.
With regard to his work and studies, the plaintiff, albeit with some difficulty, resumed his music studies in 1995. His efforts in this direction were somewhat hampered by the fact he also had ongoing sequelae from a road traffic accident in 1991 in respect of which he pursued separate legal proceedings. However he embarked upon a degree course in 1995. He completed three years of this course and then opted instead to pursue a two year diploma which he completed in 1999. In the year 2000 he obtained his MA qualification after re-sitting a particular examination. While he had hoped to play in a concert orchestra, he found that he was unable to read for periods longer than four hours. Nor could he do lecturing in Music Technology because, he said, it involved too much computer work. Instead, he took up teaching various musical instruments on a part-time basis.
Proceedings in the High Court
The hearing in the High Court was spread over eight days in November, 2003 and January, 2004. Judgment was later delivered in the High Court (White J.) on 3rd June, 2005.
In the course of his judgment, White J. held, for various reasons set out in the judgment, that the plaintiff was not a credible witness. He found him to be exaggerating the extent and effect of his double vision. He also noted that in legal proceedings arising out of the road traffic accident in November, 1991, the plaintiff attributed his poor exam performance to the 1991 accident. The trial judge also noted that in October, 1994, the plaintiff was also attributing occasional blurred vision with migraine type headaches to the 1991 accident. The learned trial judge found that the plaintiff was unreliable on a variety of fronts and had failed to satisfy him, on the balance of probabilities, that Mr. Goggin had failed to warn him either of a risk of double vision arising from the operation, or from the other consequences associated with a slippage of the muscle in the left eye.
The learned trial judge also addressed the issue of causation, which was to inquire, assuming the plaintiff had been given the kind of warning contended for by Mr. Goggin, whether he would nonetheless have proceeded with the operation. In this regard the trial judge stated:-
“The plaintiff gave evidence that, as a result of a comment passed on a social occasion, he began to feel self-conscious about his squint. This was the reason he sought to explore the possibility of elective surgery. On his evidence, his sole question to Dr. Goggin was directed towards cosmetic effect. The manner in which the plaintiff volunteered under cross-examination, that had he been warned of the risks of double-vision he would not have undertaken the operation, leads me to believe that perhaps the plaintiff was appraised, or appraised himself of the requisite proofs herein. Such appraisal, of itself ought not to be a determining factor on the issue, however, I consider that the plaintiff’s sole, or at least prime concern, was cosmetic effect, and that irrespective of whether or not a warning had been given, his attitude towards surgery would not have altered.”
THE APPEAL
The plaintiff does not now seek to challenge the findings of fact in relation to the actual ‘giving’ of a warning on the morning of his operation by the medical practitioner in this case. Michael O’ Donoghue, senior counsel for the plaintiff, informed the Court that he felt compelled, by reference to the principles enunciated by this Court in Hay v. O’ Grady [1992] 1IR 210, to leave undisturbed the findings of fact made by the trial judge in this respect.
Instead, Mr. O’ Donoghue argued, though without producing authorities in support, that the lateness of the warning was such as to render it nugatory and ineffective in law because it was given only at a time when the plaintiff had decided to have the surgery and was gowned up and about to go to theatre. Given that this was elective surgery, Mr. O’ Donoghue contended that ‘consenting’ a patient in such circumstances could not be seen as adequate or satisfactory. He cited in support evidence given in the case by Mr. John Lee, consultant ophthalmic surgeon and strabismus specialist, who had stated in relation to the timing of a warning:-
“I think the appropriate time to discuss the matter in detail is at a time when you have the relevant facts that allow you make up your mind and you have a discussion with the patient in an outpatient setting.”
Similar evidence had been given by Mr. Michael O’ Keefe, consultant eye surgeon in the Mater hospital, who told the court that, whatever the situation in 1994, he would nowadays expect that a patient in the position of the plaintiff would be fully informed of the risks and benefits well in advance of any operation and that all of this information would be documented in the notes. He stated that in elective surgery a letter would now normally go to patients telling them what the risks and benefits might be, and in many cases offering second opinions also.
Evidence was also given at trial by Mr. O’ Connor, who carried out the follow-up operation in January, 1995, who offered the view that it would “certainly not be appropriate” to have the first discussion of any kind in relation to possible adverse risks of surgery in the minutes before the surgery took place when the patient might well be in a state of heightened stress. He stated that when patients were referred to him, he normally took some time over an initial assessment and discussion, because it was at that stage that he was committing them to surgery. He would indicate to them what the expected outcome would be and the complications that they might find in the course of the procedure. He stated that this would take place in the clinic “weeks before” the procedure. He stressed that a layman, particularly with elective surgery, needed time to reflect on advice given. In his view it was “very inappropriate” to leave it to the last minute.
On this basis, Mr. O’ Donoghue invited the Court to regard the warning which had been given as being “in effect no warning” having regard to the fact that the warning was given so close to the operation, notably in circumstances where the procedure comprised elective surgery and where the plaintiff had been fully evaluated by an orthoptist who had reported on the different treatment options months ahead of the actual surgery. Mr O’Donoghue further pointed to what he described as a number of flaws in the reasoning of the trial judge in that portion of his judgment which related to causation. For example, without any evidence to support the proposition, the trial judge surmised that the plaintiff had “appraised himself” of the necessary proofs required in a court of law to establish causation. The trial judge also expressed the view that because the plaintiff’s sole or prime concern was cosmetic effect, his attitude to surgery would not have altered irrespective of whether a warning was given or not. However, he argued that commonsense would suggest the opposite: that patients are more likely to be put off by a warning from proceeding with an elective operation than would a patient for whom the operation is a necessary step. For these various reasons Mr O.Donoghue invited the Court to reverse the finding of the learned trial judge on the issue of causation if the Court was of the view that no valid warning had been given.
In reply, Eugene Gleeson, senior counsel for the defendants, referred to the evidence of Professor Eustace former professor of ophthalmology in UCD and consultant in the Mater Hospital, who told the court that with “day surgery” cases the whole system of consenting patients was different, or certainly was different in 1994. At that time it was the normal practice to attend to this matter on the day of the procedure. He told the court that this had some major advantages in that the practice was for the surgeon himself to consent the patient before the surgery. He continued: “That system works as well as any system because it has been shown repeatedly that patients’ memory of what they have been told can fade from their memory”. What Mr. Goggin had done in 1994 was entirely consistent with the practice of ophthalmologists at the time. The benefit was that the surgeon could with ease discuss the matter with the patient, albeit shortly before the procedure, but would then be better able to reconnect with the detail of the case when they came from theatre and thereafter. Virtually all ophthalmic surgery was day surgery. It was common practice to use the standard form for consenting patients at the time. Mr. O’ Keefe told the court that, by way of comparison, there had been a culture change by the year 2000 because of increased litigation and the perception of the importance of informed consent.
Mr. Gleeson submitted that in such circumstances the warning given was appropriate both in content and timing by the standards of 1994 and that the learned trial judge had not found otherwise. The plaintiff was now trying to make a completely different case on appeal, namely, that the warning given was of no effect because it was given so late, a case which was inconsistent with that made at trial to the effect that he was never warned of anything. No case had ever been made at trial that any warning given was given too late. The trial judge had not found the plaintiff to be a credible witness and it was not possible to divide up selectively the plaintiff’s evidence into credible and non-credible segments so as to reverse the finding of the trial judge in relation to the issue of causation.
Legal Principles
(a) The obligation to warn
This case provides the Court with the first opportunity in many years to revisit in any detail the issue of informed consent since the matter was last addressed in Walsh v. Family Planning Services Ltd. & Ors. [1992] 1IR 496. In that case all five judges of this Court were at one in holding that in elective surgery any risk which carries the possibility of grave consequences involving ongoing severe pain for the patient must be disclosed. Although different members of the court approached the issues by reference to different principles, they arrived at the same conclusion in relation to two critical questions, that is to say:-
(a) The requirement on a medical practitioner to give a warning of any material risk which is a “known complication” of an operative procedure properly carried out
(b) The test of materiality in elective surgery is to enquire only if there is any risk, however exceptional or remote, of grave consequences involving severe pain stretching for an appreciable time into the future
Part of the Court in Walsh took the view that the standard of care to be exercised by a medical practitioner in giving a warning of the consequences of proposed surgical procedures was not in principle any different from the standard of care to be exercised by medical practitioners in giving treatment or advice, as laid down in Dunne (an infant) v National Maternity Hospital [1989] IR 91. However, other members of the Court, notably O’Flaherty J, expressed a clear preference for the “reasonable patient” test as offering a better yardstick for assessing the scope of the duty to warn. The reasonable patient test is one whereby the patient has the right to know and the practitioner a duty to advise of all material risks associated with the proposed form of treatment. In the course of a judgment which I delivered in Geoghegan v. Harris [2000] 3 IR 536, a case in which a remote chance in thousands eventuated, I expressed my own preference for the views of O’Flaherty J in Walsh.
What might be described as the “doctor centred” approach, had been the law for many years in England and Wales, having been established in cases such as Bolam v. Friern Hospital Management Committee [1957] 2 All ER 118 and Sidaway v. Bethlem Royal Hospital Governors & Ors. [1985] 1 A.C. 871. Those cases established that a medical practitioner’s duty to warn was to be assessed in accordance with the practice accepted at the time as proper by a responsible body of medical opinion. While the decision as to what risks should be disclosed to the particular patient to enable him to make a rational choice whether to undergo the particular treatment was primarily a matter of clinical judgment, the disclosure of a particular risk of serious adverse consequences might, in a given case, be so obviously necessary for the patient to make an informed choice that no reasonably prudent doctor could fail to disclose the risk, and if there was such a failure, the medical practitioner could be found in breach of the duty to disclose. Only Lord Scarman, in his minority judgment in Sidaway opted for the “prudent patient” test at that stage.
However, more recent cases suggest that the courts in England have moved from the “Bolam” test to a version of the “reasonable patient” test as is evident from the following formulation of the duty expressed by Lord Woolf MR in Pearce v. United Bristol Healthcare NHS Trust [1999] 48 BMLR 118, in which he stated:-
“In a case where it is being alleged that a plaintiff is being deprived of the opportunity to make a proper decision as to what course he or she should take in relation to treatment, it seems to me to be the law, as indicated in the cases to which I have just referred, that if there is a significant risk which would affect the judgment of a reasonable patient, then in the normal course it is the responsibility of a doctor to inform the patient of that significant risk, if the information is needed so that the patient can determine for him or herself as to what course he or she should adopt….Obviously, the doctor, in determining what to tell a patient, has to take into account all of the relevant considerations, which include the ability of the patient to comprehend what he has to say to him and the state of the patient at the particular time, both from the physical point of view and an emotional point of view. There can often be situations where a course different from the normal has to be employed. However, where there is what can realistically be called “significant risk”, then, in the ordinary event, as I have already indicated, the patient is entitled to be informed of that risk.”
Thus, while ostensibly applying both Bolam and Sidaway, Lord Woolf construed the latter case as indicating that if there was a significant risk which would affect the judgement of a reasonable patient, then in the normal course it would be the responsibility of a doctor to inform the patient of that significant risk so that the patient could determine for himself or herself the course he or she should adopt.
The passage I have just cited from the judgment of Lord Woolf in Pearse v. United Bristol Healthcare NHS Trust was referred to approvingly by Lord Steyn who formed part of the majority in the House of Lords in Chester v. Afshar [2005] 1 AC 134. Lord Bingham, who with Lord Hoffman formed the minority, stated as follows in his dissenting speech (at par.5):-
“The existence of such a duty is not in doubt. Nor is its rationale: to enable adult patients of sound mind to make for themselves decisions intimately affecting their own lives and bodies.”
Lord Hope (at par. 86) affirmed the duty in these terms:-
“I start with the proposition that the law which imposed the duty to warn on the doctor has at its heart the right of the patient to make an informed choice as to whether, and if so when and by whom, to be operated on.”
It should perhaps also be said that the “patient centred” approach has been adopted in virtually every major common law jurisdiction, including Australia (Rogers v. Whitaker (1992)175 CLR 479), Canada (Reibl v. Hughes [1980] 2 S.C.R. 880) and the United States (Canterbury v. Spence (1972) 464 F. 2d 772).
In Rogers v Whitaker (1992) 175 CLR 479 at 490, the High Court of Australia set out the rule as being that :-
“The law should recognise that a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment; a risk is material if, in the circumstances of the particular case, a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it”.
The topic has received close scrutiny in Australia where the test or rule in Rogers was further endorsed by the same court ten years later in Rosenberg v. Percival [2001] HCA 18, a case in which Kirby J. recognised that the patient centred test, as adopted in Rogers, was undoubtedly a strict one. He recognised that various arguments had been mounted in response to Rogers and decisions like it, suggesting that the legal rule should be confined, as far as authority permits, by reference to practical considerations. Kirby J. (at para. 143) set out arguments for confining the rule under various headings from which I have extrapolated the following:-
a) That some patients would not wish to be unsettled by unnecessary disclosures by professional experts whom they trust, or about risks or concerns that, in any case, they would only understand imperfectly;
b) That it is impossible, within sensible time constraints, for a professional person to communicate the detail of every tiny complication that may accompany medical procedures;
c) That the efficacy of warnings against slight risks had not been objectively established;
d) That belief in the efficacy of warnings is a lawyer’s fancy which other lawyers then seek to circumvent by drafting substantial consent and waiver forms.
Having outlined those arguments for confining the rule, Kirby J. went on ( at para 145) to identify a number of reasons of principle and policy which appeared to him to underpin the validity of the patient centred approach favoured in Rogers v Whitaker, from which, again, I have extrapolated the following:-
a) The rule recognises individual autonomy which should be viewed in the wider context of an emerging appreciation of basic human rights and human dignity which requires informed agreement to invasive treatment, save for that which might be required in an emergency or otherwise out of necessity;
b) Reality demands a recognition of the fact that, sometimes, defects of communication will justify the imposition of minimum legal obligations so that even medical practitioners who are in a hurry, or who may have comparatively less skill or inclination for communication, are obliged to pause and provide warnings of the kind mandated by Rogers;
c) Such obligations redress, to some small degree, the risks of conflicts between interest and duty which a medical practitioner may sometimes face in favouring one healthcare procedure over another;
e) The legal obligation to provide warnings may sometimes help to redress the inherent inequality and power between a medical practitioner and a vulnerable patient;
f) That provision of detailed warnings will enable the ultimate choice to undertake or refuse an invasive procedure to not only rest, but also be seen to rest, on the patient rather than the healthcare provider thereby reducing the likelihood for recriminations and litigation following the disappointment that sometimes ensues in the aftermath of treatment.
The analysis undertaken by both Kirby J and the other members of the High Court of Australia in Rosenberg v Percival supports the argument that the giving of an adequate warning, far from being a source of nuisance for doctors, should be seen as an opportunity to ensure they are protected from subsequent litigation at the suit of disappointed patients. I am thus fortified to express in rather more vigorous terms than I did in Geoghegan v. Harris my view that the patient centred test is preferable, and ultimately more satisfactory from the point of view of both doctor and patient alike, than any “doctor centred” approach favoured by part of this Court in Walsh v. Family Planning Services.
(b) Content of the warning
Insofar as the nature of any warning is concerned, this Court is not free to depart from the views expressed by a court of five members in Walsh to the effect that a warning must in every case be given of a risk, however remote, of grave consequences involving severe pain continuing into the future and involving further operative intervention. However, Walsh addresses only a limited category of cases where ongoing severe pain involving further operations is the downside risk. No risk of ongoing severe pain was present in the instant case and I do feel free to distinguish this case – to any limited extent that may be necessary – from the views expressed in Walsh to offer a somewhat less extreme view of the scope of the duty in cases where ongoing severe pain involving further operations is not one of the known complications.
I would see as more reasonable for those cases the test outlined by Lord Woolf, namely, that if there is a significant risk which would affect the judgement of a reasonable patient, then in the normal course it is the responsibility of a doctor to inform the patient of that significant risk. This is still an onerous test and not dissimilar from the requirement enunciated in Rogers v Whitaker, and in this context I would regard the words “significant risk” and “material risk” as interchangeable. In Geoghegan v. Harris I suggested that any consideration of “materiality” would involve consideration of both (a) the severity of the consequences and (b) the statistical frequency of the risk. Putting it another way, a risk may be seen as material if, in the circumstances of the particular case, a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it. I am leaving to one side here considerations of those cases where the medical practitioner may be aware that the particular patient, if warned of the risk, would be likely to attach significance to it where another patient might not. As I stressed in Geoghegan v. Harris (at p. 549):-
“The reasonable man, entitled as he must be to full information of material risks, does not have impossible expectations nor does he seek to impose impossible standards. He does not invoke only the wisdom of hindsight if things go wrong. He must be taken as needing medical practitioners to deliver on their medical expertise without excessive restraint or gross limitation on their ability to do so.”
At the start of this appeal, Mr Michael O’Donoghue, senior counsel for the plaintiff informed the Court that there was no longer any challenge in respect of the finding by the trial judge that a warning of the sort contended for by Mr Goggin was in fact given to the plaintiff, nor was there any dispute as to its content. Nor was it in dispute that the warning found to have been given covered the significant or material risk. The complaint of the plaintiff is now solely confined to the validity of the warning having regard to the time at which it was given.
(c) Time of warning
Given that the plaintiff, for the purposes of this appeal at least, now accepts that a comprehensive warning was given, the only remaining issue in relation to the duty to warn is to consider whether a warning delivered very shortly before an operation is sufficient to discharge the duty of care on the medical practitioner. While no such case was advanced prior to or at trial, I am of the view that some latitude must be extended to the plaintiff to have this issue considered nothwithstanding the rejection of the plaintiff’s evidence by the learned trial judge because an invalid warning, that is to say one which the plaintiff could neither assimilate or act upon, would be equivalent to no warning
There are obvious reasons why, in the context of elective surgery, a warning given only shortly before an operation is undesirable. A patient may be stressed, medicated or in pain in this period and may be less likely for one or more of these reasons to make a calm and reasoned decision in such circumstances. In the instant case, the plaintiff had his eyesight fully tested and evaluated four months before his operation and the options for surgical intervention were plain from the orthoptist’s report from that time. The plaintiff was seen on three occasions prior to his operation. The risks associated with squint surgery could have easily been explained to the plaintiff at any of these meetings, or certainly well in advance of the time when they were explained – a mere 30 minutes before his operation. While I have noted the views of a number of the experts to the effect that this practice of warning day patients on the day of their operation had its advantages, it seems to me that the disadvantages were far greater, including the possibility of an embittered patient later asserting that he was too stressed or in too much pain to understand what was said or to make a free decision and that he was thus effectively deprived of any choice.
That said, the plaintiff in this case gave no evidence of being unduly stressed or anxious on the day of his operation, he was not in pain and had not been sedated prior to his operation. He was facing into what could fairly be described as a minor operation only. His evidence suggested he was in a clear and lucid mental state on the day of the operation and well capable of making a decision. He described how his conversation with Mr Goggin was both cordial and relaxed. While the plaintiff said he would have “walked straight out of the hospital” had he been warned on the day, he did not say he could not deal with a warning given at that point in time. In fact he said the opposite. In the absence of clear evidence that the plaintiff was actually disadvantaged in some material way by the lateness of the warning, I would not, on the facts of this case and without more, declare or find the warning given to be invalid because it was given at a late stage. There is nothing in the evidence to suggest the plaintiff could not assimilate or properly understand what he was being told. I would make the point strongly however that in other cases where a warning is given late in the day, particularly where the surgery is elective surgery, the outcome might well be different.
As I am satisfied as to the validity of the warning given in this case, it is unnecessary to consider the issue of causation in any detail. The requirement to do so would only arise where there had been a finding that no warning, or no adequate warning, had been given in the particular case.
For the sake of completeness however I think I should say that, even had I concluded that the warning given on the day of the operation in this case was void or ineffective, I would not consider the trial judge’s finding on causation to have been mistaken. If it were necessary to apply an objective test as to what a reasonable patient would have done if warned days or weeks in advance of his operation in an outpatient setting of the particular risk which later arose in this case, I am satisfied that such a patient, anxious to achieve a cosmetic improvement to his eyes, would, having placed the benefits of the proposed surgery in balance with the statistically remote risk of muscle slippage causing diplopia, have nonetheless opted to proceed with the surgery.
I would dismiss the appeal herein and affirm the order of the learned High Court judge.
Fitzpatrick v National Maternity Hospital [2008] I.E.H.C. 62,
JUDGMENT delivered by Mr. Justice Herbert on the 7th day of March, 2008
The plaintiff, Paul Fitzpatrick, (an infant) through his mother and next friend, Michelle Fitzpatrick, claims damages for personal injury, loss and damage caused by alleged negligence and breach of duty on the part of the defendant, its servants or agents. Particulars of this alleged negligence and breach of duty are set out in the Statement of Claim. However, the issue of negligence centred principally on the claim that the defendant its servants or agents failed to properly interpret the cardiotocograph record at and after 06.30 hours on the 26th December, 2001 and in particular at and after 07.10 hours and failed to act correctly in the light of that record especially by failing to call the duty Registrar, failing to discontinue the use of Oxytocin, failing to inform his parents that the plaintiff was in distress and needed to be delivered immediately and in delaying unduly in delivering the plaintiff. The plaintiff claims that his condition was caused or materially contributed to by this negligence on the part of the defendant, its servants or agents. The defendant pleaded a general denial and specifically pleaded that any undue delay in delivering the plaintiff was caused solely by the refusal of Mrs. Fitzpatrick to permit an episiotomy and her refusal to permit a forceps assisted vaginal delivery. Senior Counsel for the defendant abandoned at the outset the claim that Mrs. Fitzpatrick was guilty of negligence.
A quite extraordinary number of collateral issues fell to be decided during the course of the hearing of this case, almost all of which, in one way or another had important implications for the main issues. I do not think it an exaggeration to state that the matters upon which witnesses to fact, from the start of Ante-Natal classes to the delivery of the plaintiff, were able to agree, very few indeed. The Court had the assistance of number of experts in the disciplines of Obstetrics, Midwifery, Paediatrics, Paediatric-Neurology and Neonatology and was referred to a very considerable number of medical publications in relation to various pertinent aspects of the management of labour and in particular the interpretation of CTG Traces.
For logistical reasons, particularly because of unavoidable problems with the availability of expert witnesses from overseas, it was not possible during the hearing of this action to call the evidence always in correct sequence. It is therefore important, particularly to the proper understanding of some of the evidence and issues arising from it, that I start this judgment by setting out the actual order of appearance of the persons who gave evidence to the court: this was as follows:-
Mrs. Fitzpatrick, Professor Fleming, Mr. Clements, Professor Hill, Mr. Clements (resumes), Dr. McKenna, Midwife-Supervisor Dawn Johnston, Mr. Fitzpatrick, Ms. Johnston (resumes) Staff Midwife Murphy, Medical Midwife-Manager Fanagan, Senior Midwife O’Dwyer, Dr. Wiza, Professor Baker, Mr. Woolfson, Clinical Midwifery Manager Keenan, Professor Turner, Dr. Keane, Professor Turner (resumes), Dr. Keane (resumes).
Mrs. Michelle Fitzpatrick’s pregnancy was entirely normal. The plaintiff was full term, full grown and healthy. This was her first pregnancy. The expected delivery date was 22nd December, 2001. Her condition and that of the plaintiff was regularly monitored by her own general medical practitioner and at ante-natal clinics held at the National Maternity Hospital. On advice given at one of these clinics she also attended all of the ante-natal classes conducted by Medical Midwife Manager Margaret Fanagan, which were held at the National Maternity Hospital. There were six such classes held between 31st October, 2001 and 5th December, 2001. Her husband Paul Fitzpatrick, a telecommunications engineer, accompanied her to all of these classes save one which was a physiotherapy class for mothers only. Paul Fitzpatrick had been present at the birth of both his children in a former marriage.
Medical Midwife Manager Fanagan gave evidence that she had been conducting such classes on a full time basis since 1987. She gave evidence as to the topics discussed by her at the classes attended by Mrs. and Mr. Fitzpatrick. There was a considerable difference in recollection between Mrs. and Mr. Fitzpatrick and Medical Midwife Manager Fanagan in this regard. Not all of the topics in respect of which there was disagreement were relevant to the events which occurred during the course of Mrs. Fitzpatrick’s labour. Though I carefully considered all the evidence in reaching my conclusions, I consider it appropriate to deal only in this judgment with those matters in dispute which became relevant during the course of Mrs. Fitzpatrick’s labour.
I find that Medical Midwife Manager Fanagan explained the terminology and the use of a Partograph, employing for that purpose a wall-mounted enlargement of the first page of that document. She explained the circumstances in which continuous fetal heart rate monitoring is used and demonstrated the instruments employed for that purpose. She explained that the fetal heart rate is usually between 130bpm and 140bpm and that the accepted lower and upper limits of normal were 120bpm and 160bpm respectively. Medical Midwife Manager Fanagan said that she informed the attendees at her ante-natal classes that if the midwife was not happy with the fetal heart rate, a fetal blood sample was taken to check the well being of the baby. She told the court that she did not show the instruments used in carrying out this sample to the attendees in case it might cause anxiety to the mothers. She explained that labour usually commenced for primigravids when the cervix was 1cm or 2cm dilated and, that full dilatation was achieved when the cervix was 10cm dilated. The desired rate of progress in labour was 1cm dilatation per hour. A natural hormone was, if necessary, used to achieve or to maintain this progress in labour. It was called Oxytocin. The maximum permitted number or uterine contraction was seventeen in any fifteen minute period.
I find that Medical Midwife Manager Fanagan told the attendees at these ante-natal classes that they should write down their concerns and wishes in what is generally called a “birthplan” and, discuss it with a doctor or with a midwife before the onset of labour. She told them that the National Maternity Hospital would accommodate their wishes if it was safe and possible so to do. I accept the evidence of Midwife Manager Fanagan that she was not aware, in December 2001, of a template for a birthplan available on a Voluntary Health Insurance Company website. I also accept her evidence that she did not tell the attendees at the ante-natal classes, to search the Internet for assistance in drawing up a birthplan. I also accept the evidence of Medical Midwife Manager Fanagan that she told the attendees, that in the National Maternity Hospital, mothers were not permitted to take food during labour as it would make them sick and that enemas were not used and had not been used in that Hospital since 1987.
I find that Medical Midwife Manager Fanagan demonstrated at her ante-natal classes the descent of a baby’s head through its mother’s pelvis, employing for that purpose a doll and a plastic pelvis. She explained to attendees that an episiotomy became necessary if a mother’s perineum was not stretching sufficiently or, if the baby was stressed and if there was a need to have it delivered more quickly. She discussed assisted vaginal delivery by means of a ventouse and by means of forceps and demonstrated with her hands how these worked. She explained the normal deliver position – sitting up with legs flexed at the knees, heels off the bed and thighs pressed close to the chest and also explained the use of “paddles” in instrumental delivery. She discussed caesarean sections, general anaesthesia and spinal blocks. She explained that a caesarean section was mostly needed if a baby was becoming stressed by labour and the mother’s cervix was not fully dilated. She conducted a tour of the Labour Ward at the National Maternity Hospital, at which the attendees were shown the special delivery beds and the various other items of equipment used, including the cardiotocograph machine.
Medical Midwife Manager Fanagan told the court that she kept her notes for these ante-natal classes on her personal computer. She offered to and, did produce a printout of these notes during her evidence. She was not examined or cross examined on these notes. As I have already indicated she also brought into court and demonstrated during the course of her evidence all the various documents, instruments and other items which she used to illustrate her lectures – that is such of them as were capable of personal transportation. This witness was a very senior midwife with fourteen years experience of giving these ante-natal classes in December 2001. I am satisfied from her evidence that her lectures at these classes were comprehensively and carefully structured and prepared. I found this witness to be forthright and careful in her evidence: she did not seek to evade any questions and her answers were clear and devoid of equivocation and exaggeration. Her recollection was not, nor was her evidence shaken in any way by cross examination.
Mrs. and Mr. Fitzpatrick accepted that they took no notes during the ante-natal classes. There was no evidence that they had complained to anyone, in particular to the general medical practitioner, that these classes were uninstructive or lacking in detail or content. No evidence was led from other attendees at these ante-natal classes to support the recollection of Mrs. and Mr. Fitzpatrick. I find that a number of matters which Mrs. and Mr. Fitzpatrick said were not addressed at all by Medical Midwife Manager Fanagan at these classes were in fact addressed as otherwise these classes would be of no assistance at all to expectant mothers. If the classes were worthless it is more than probable that the ladies and their partners would very quickly complain or cease to attend them. Also, it seems to me, that even if for some inexplicable reason Medical Midwife Manager Fanagan did not deal with these topics during the classes, some one or more of the attendees would surely have raised them. On the balance of probabilities and, for these reasons, I am satisfied that the recollection of Medical Midwife Manager Fanagan as to these matters, is to be preferred to the recollection of Mrs. and Mr. Fitzpatrick. I am also satisfied that Mrs. and Mr. Fitzpatrick did not intend in any way to mislead the court: it is their recollection of these ante-natal classes and not their bona fides which is questionable.
The membranes ruptured naturally and Mrs. Fitzpatrick was admitted, with labour pains, to the National Maternity Hospital from home at 21.35 hours, on 25th December, 2001. She was subsequently admitted to the Labour Ward at 22.05 hours on that day. She was accompanied by her husband, Mr. Paul Fitzpatrick, who remained with her throughout both labour and delivery. A partograph was commenced at 22.05 hours by Midwife C. Roony. Midwife Roony also made the first entry in the Notes on Labour, which is a very important section of this partograph. This first entry recorded, that on a vaginal examination of Mrs. Fitzpatrick, she was found to be 2cm dilated. No cord or placenta was felt and, intact membranes were outruled. Clear liquor draining was noted. The lie of the fetus was longitudinal with a cephalic presentation. Following on this vaginal examination the fetal heart rate was noted at 105bpm, but it subsequently recovered to 134bpm. Mrs. Fitzpatrick was started on inhaled analgesia.
Staff Midwife Deirdre Murphy was appointed to care exclusively for Mrs. Fitzpatrick during labour on a one to one basis in accordance with National Maternity Hospital policy. Senior Midwife Clare O’Dwyer came on duty as Senior Midwife in overall charge of the entire Labour Ward and of all midwives on duty. Dr. Inusa Wiza was the Registrar Obstetrician on duty in the Hospital, with the status of Assistant Master. Dr. Declan Keane, Consultant Obstetrician and Gynaecologist and, then Master of the National Maternity Hospital, was the Consultant Obstetrician on call.
In December 2001 Staff Midwife Deirdre Murphy was 27 years of age. In December 2001 she held a Certificate of General Nursing and, a Higher Diploma in Midwifery, (having been awarded a silver medal for outstanding academic results). She had in excess of one years experience in Accident and Emergency Department Nursing and, six months experience in pre and post Operative Care, obtained both in this State and in Australia. In 1999 she became a student midwife in the National Maternity Hospital and on completion of her studies joined the defendant’s staff in 2001 as a Staff Midwife.
In December 2001 Senior Midwife Clare O’Dwyer was qualified as a Registered General Nurse, (St. Vincent’s Hospital Dublin, January 1985) and as a Registered Midwife (National Maternity Hospital, February 1988). Between 1981 and 1988 she had worked as a staff nurse in the following areas of medicine, Accident Emergency and Ambulance, Surgery, Paediatrics and Geriatrics. Between November 1988 and December 1990 she worked as a Staff Midwife at Queen Victoria Hospital, South Australia and at the Coombe Womens Hospital, Dublin, with particular emphasis on the delivery and care of sick and pre-term infants. She commenced working in the National Maternity Hospital in 1992 as a staff Midwife on the post-natal ward. From June 1993 to August 1995 she worked as a Staff Midwife in the delivery ward with an involvement in approximately 600 deliveries per annum. From August 1995 she has been Chief Midwife Manager, 2 in the Delivery Ward, with responsibility for approximately 1,600 deliveries per annum. In 1996 she obtained a Diploma in Management from the Royal College of Surgeons in Ireland. In 2000 she obtained a Higher Diploma in Health Care (Risk Management) from the Department of Legal Medicine at University College Dublin. In 2001 she became an occasional lecturer in Clinical Risk Management in relation to midwifery practice at University College Dublin (continuing).
From August 1995, Senior Midwife O’Dwyer has had responsibility for the following matters in the National Maternity Hospital:
Ensuring the highest quality of care for women in labour and their partners.
Anticipating, diagnosing and managing obstetric problems.
Teaching students of obstetrics, medical students and midwifery students.
Acting as preceptor-mentor to pre and post registration midwifery students.
Liaising with medical staff and with the Unit Nursing Officer.
Ensuring the effective and efficient utilisation of staff and resources.
Working as Team Leader and as a member of the Team.
Dr. Inusa Wiza is an Irish national born on 5th April 1960 in Nigeria. His wife is from Ireland and they have a family. In 1993 he obtained Membership of the Royal College of Obstetricians and Gynaecologists. From 1987 to 1992 he was Senior House Officer in Obstetrics and Gynaecology at Yola Specialist Teaching Hospital, Nigeria, at the National Maternity Hospital, Dublin and at Airmount Maternity Hospital, Waterford. From 1993 to 1995 he was Registrar in Obstetrics and Gynaecology at Mayo General Hospital and at the National Maternity Hospital Dublin. From 1996 to 2001 he was Specialist Registrar in Obstetrics and Gynaecology at Horton General Hospital, Oxford, at Waterford Regional Hospital and at the National Maternity Hospital Dublin. From 1st January, 2000 to 30th June, 2001 he was appointed as temporary Consultant Obstetrician and Gynaecologist during the illness of one of the two permanent Consultants at Waterford Regional Hospital. Dr. Wiza obtained his Certification as a Consultant in Obstetrics and Gynaecology some years after the events at issue in these proceedings.
Dr. Wiza told the court that in 1996 he had attended lectures in doctor-patient communication and in litigation relating to Obstetrics and Gynaecology at John Radcliffe Hospital, Oxford. He further told the court that he had taught obstetrics and gynaecology to medical students at the National Maternity Hospital, at the American College in Dublin and at Waterford Regional Maternity Unit.
I am satisfied that the evidence in this case established that at about 00.10 hours on 26th December, 2001, the midwives decided to effect a change from periodic to continuous electronic fetal monitoring. This was because the plaintiff’s heart rate had on a number of occasions fallen below 120bpm. I find, on the expert evidence given in this case that the cardiotocograph trace would have to be regarded not as abnormal but as “suspicious” from the outset. I find on the evidence that a classification system of “normal” “suspicious” and “pathological” was used in this State and in the United Kingdom in December 2001. I am also satisfied, from the evidence given by the expert witnesses in this case, that this classification of “suspicious” meant that the clinical team managing Mrs. Fitzpatrick’s labour and particularly the midwives, would be required to be particularly vigilant in their monitoring and assessment of the cardiotocograph trace and of the other clinical signs.
Initially this continuous electronic monitoring was carried out using an external monitoring transducer (ultra-sound) and by an external tocodynamometer (which measures maternal uterine contractions). Both these pieces of equipment were held in position on Mrs. Fitzpatrick’s body by abdominal belts. The two recordings are combined on a single CTG continuous paper printout. The upper section (cardiograph) provided a continuous recording of the fetal heart rate and the lower section (tocograph) gave a continuous recording of the maternal uterine contractions. The fetal heart rate is also shown digitally on a panel on the face of the CTG Machine which also produces an auditory warning signal. I am satisfied on the evidence that in this case the auditory signal was either turned off or was reduced to a very low volume so as not to cause annoyance to Mrs. Fitzpatrick.
A vaginal examination carried out at 00.10 hours, in accordance with the normal hospital routine of carrying out such examinations every 2 hours, showed Mrs. Fitzpatrick to be 7cm dilated. I find on the evidence that this represented very satisfactory progress in the labour, at least to this point.
It was common case between the parties that Mrs. Fitzpatrick and Staff Midwife Murphy, immediately after Mrs. Fitzpatrick was admitted to the Labour Ward, discussed the birthplan which Mrs. Fitzpatrick had prepared. I accept as reasonable the explanation given by Mrs. Fitzpatrick as to why she had not discussed this birthplan with Dr. Connolly, her General Medical Practitioner, despite the advice of Medical Midwife Manager Fanagan that she should. Her explanation was that she had reasoned that it related only to labour and delivery matters and Dr. Connolly would not be present or involved at these times. I also accept as reasonable, there being no evidence to the contrary, her explanation that at ante-natal clinics the medical staff were under such pressure of work that she did not feel that there was time to discuss the birthplan with them. I am satisfied on the evidence that when Mrs. Fitzpatrick discussed the birthplan with Staff Midwife Murphy, she was not in such pain or distress as not to be able to clearly and competently explain all aspects of the birthplan to Staff Midwife Murphy and hold a full and meaningful discussion with Staff Midwife Murphy in relation to them.
During the course of the evidence a considerable amount of time was devoted to the question of whether Staff Midwife Murphy and Senior Midwife O’Dwyer were or were not aware of the matters set out on the reverse side of the single sheet of paper on which this birthplan was printed. Mrs. Fitzpatrick told the court that she used her personal computer to write and to print the birthplan. Out of the six matters set out on the reverse side of the page, three are of great significance in this case. They declared that Mrs. Fitzpatrick did not wish to be given an epidural, that she did not wish to be given an enema or given Oxytocin or any other drug through intravenous infusion and, that she did not want an episiotomy at any stage.
There was no agreement between Staff Midwife Murphy and Mrs. and Mr. Fitzpatrick as to how the birthplan was held in place in the Hospital Chart. It was not punched and held in place by the same patent locking device as all the other documents and dividers in that Chart. I accept the evidence of Mrs. and Mr. Fitzpatrick that it was not stapled to the reverse side of the front cover of the Chart as it now is. There was no firm evidence from Staff Midwife Murphy or from Senior Midwife O’Dwyer to the contrary. Also, if it had been stapled in such a position it would cover and occlude the “Patient Label”. Mrs. and Mr. Fitzpatrick gave evidence that they both saw Staff Midwife Murphy reading the reverse side of the page. Mrs. Fitzpatrick also recalled that Staff Midwife Murphy had assured her that enemas were not used in the Hospital and the fact that she did not wish to be given an enema was stated only on the reverse side of the page.
I find on the evidence that on the balance of probabilities the midwives did not become aware, until some time later, of the matters set out on the reverse side of the page containing the birthplan. From the evidence I am unable to conclude as to when exactly this occurred, other than that it occurred some time before Dr. Wiza was summoned to carry out an assisted vaginal delivery. The time of this summons is itself a matter of great controversy and of enormous importance in this case but on the evidence it was uncontrovertibly not before 07.20 hours on 26th December, 2001.
The layout of the birthplan strongly suggests that it is entirely contained on the front of the page. The paper is opaque and there is a gap of almost 8cm between the final item on the front of the page and the bottom of the page. There is no indication whatsoever in the text that the birthplan continues on the reverse side of the page. Above the fourth item on the front of the page, where Mrs. Fitzpatrick indicated that she would like to be able to eat/drink if necessary during labour, Staff Midwife Murphy wrote “explained” followed by her signature. I am satisfied on the evidence that shortly after the admission of Mrs. Fitzpatrick to the labour ward, Staff Midwife Murphy wrote under the final item on the front of the page, “discussed in L[abour] W[ard] on 25th 12th 01 [with] Michelle” and, then signed her name. At the request of Staff Midwife Murphy, Mrs. Fitzpatrick then wrote her named immediately under this note.
Staff Midwife Murphy told the court that the purpose of the interpolation was to signify that she had discussed with Mrs. Fitzpatrick her request to be allowed to eat and/or drink during labour. She told the court that she had informed Mrs. Fitzpatrick that eating was not allowed by the hospital during labour as it resulted in patients becoming ill. No comments or notes were made against any of the items, even potentially controversial items, on the reverse side of the page nor was it signed by anyone. Staff Midwife Murphy told the court, and I accept her evidence on this, that she tells every mother that enemas are not used in the hospital, because, from experience, she has learned that almost all labour ward patients are worried about this. I accept her evidence that her remarks were not inspired by having seen the reverse side of the birthplan page. For the foregoing reasons, I find the recollection of the midwives, that they were not aware of the matters on the reverse side of the birthplan page shortly after the admission of Mrs. Fitzpatrick to the Labour Ward to be the more convincing.
However, I do not accept the evidence of the midwives that they were never aware of the matters on the reverse side of the birthplan page. During cross examination, Dr. Wiza stated that he knew that Mrs. Fitzpatrick did not want an episiotomy. He said that he knew this because he had been told by either Staff Midwife Murphy or Senior Midwife O’Dwyer that Mrs. Fitzpatrick had a birthplan which stated that she did not want an episiotomy. He recalled that he was told this as he was about to open the episiotomy set. He said that he then realized he would need a clear consent from Mrs. Fitzpatrick in order to proceed with the episiotomy.
Dr. Wiza then sought to resile from this evidence stating that it was incorrect and he had become stressed and mixed up in giving his evidence. He said he did not know about the birthplan at this time and must have learned about the birthplan somewhere along the way, perhaps at staff discussions after the event. Both Staff Midwife Murphy and Senior Midwife O’Dwyer had given evidence before Dr. Wiza. From my observation of Dr. Wiza giving evidence, I am totally satisfied that his initial evidence was correct. This evidence was clear and spontaneous and was unsolicited by any question from counsel for the plaintiff as to how he knew the Mrs. Fitzpatrick did not want an episiotomy, was part of a closely interconnected series of recollections and, was delivered calmly and convincingly without any evidence of or any occasion for stress or confusion on his part. Also, elsewhere in his evidence Dr. Wiza told the court that he was not aware of and was not invited to any hospital meetings concerning the events of 25th and 26th December, 2001. The midwives had also denied that they had attended any meetings or taken part in any discussions with Dr. Wiza about those events.
There was no evidence before the court that Mrs. Fitzpatrick other than by her birthplan had informed Staff Midwife Murphy, Senior Midwife O’Dwyer or Dr. Wiza, that she did not want an episiotomy, until this became an issue during the second stage of labour. I am satisfied on the evidence that the midwives were aware that Mrs. Fitzpatrick did not want an episiotomy before Dr. Wiza was called by Senior Midwife O’Dwyer to carry out an assisted vaginal delivery. Having regard to the evidence as to the course of events from 06.30 hours onwards on 26th December, 2001, I am satisfied on the balance of probabilities that it is altogether unlikely that after 06.30 hours the midwives had either the occasion or the time to locate and recheck Mrs. Fitzpatrick’s Hospital Chart or to reconsider her birthplan which I find was enclosed in that chart.
At approximately 01.30 hours the midwives noticed from the appearance of the CTG Trace that the external ultra sound transducer was transmitting an unsatisfactory and unreliable signal. This was explained to Mrs. Fitzpatrick who, on being assured that it would neither hurt nor harm the plaintiff, agreed to the clipping of an electrode directly into the plaintiff’s scalp. At 01.35 hours the CTG machine, automatically recorded this change in modality on the trace, (US 1 becomes DECG). Thereafter, the plaintiff’s heart rate was continuously monitored through this fetal scalp electrode until 07.38½ hours, when the CTG machine again automatically recorded a change of modality back to the ultra sound transducer.
A National Maternity Hospital document with the title “Care of Patient in Labour (Primigravida/Multigravida)”, hereinafter referred to as the “June 1996 Document” was produced in evidence. It is dated June 1996 and is signed by the then Matron and by the then Master of the National Maternity Hospital who was Dr. Peter Boylan. The correct status and the interpretation of this document was extensively debated and disputed between the parties during the course of the case. Under the subtitle “Primigravida” the document provides, inter alia as follows:-
“Two hours following the diagnosis of labour, the patient is re-examined to assess progress in labour. If progress is not to the satisfaction of the examiner i.e. (1cm per hour) Oxytocin infusion is commenced to accelerate labour (see note on Oxytocin).”
As the diagnosis of labour in Mrs. Fitzpatrick’s case was made at 22.05 hours, Senior Midwife O’Dwyer accepted that the re-examination at 02.45 hours was 40 minutes beyond the time indicated by this document. However, she insisted that this document was not binding on her as Senior Midwife. On behalf of the plaintiff it was submitted that this document was operative on 26th December, 2001 and was binding on all midwives including the Senior Midwife. It will be necessary to return later in the judgment to this topic of the status of the June 1996 document and the issue of whether or not it was binding on all midwives including a Senior Midwife. However, if find that this 40 minutes delay in carrying out the re-examination of Mrs. Fitzpatrick did not contribute either directly or indirectly to the injuries suffered by the plaintiff.
Even though Mrs. Fitzpatrick’s progress in labour over the entire period of 4 hours and 40 minutes from 22.05 hours to 02.45 hours was satisfactory, the fact the cervical dilatation had remained at 7cm for 2 hours and 35 minutes from 00.10 hours onwards caused Senior Midwife O’Dwyer to suggest to Mrs. and Mr. Fitzpatrick that the use of Oxytocin was necessary if labour was to be progressed. It was common case between the parties that Mrs. Fitzpatrick was very concerned about receiving Oxytocin because she had been informed by acquaintances that Oxytocin caused uterine contractions to become stronger and more frequent resulting in increased pain and in breathing difficulties. Senior Midwife O’Dwyer told the court that it was not at all unusual for mothers, particularly primigravids to have these concerns and to hesitate about permitting the administrating of Oxytocin. Form this evidence and from the evidence of the experts, I am satisfied that it was rational and reasonable for Mrs. Fitzpatrick to want of think about accepting Oxytocin at 02.45 hours. It was common case between the parties that Senior Midwife O’Dwyer suggested that Mrs. and Mr. Fitzpatrick should discuss the matter between themselves and that she would re-assess the matter in 1 hour.
At 03.50 hours Senior Midwife O’Dwyer ascertained, by a vaginal examination that Mrs. Fitzpatrick still remained only 7cm dilated. The partograph Note on Labour made at 03.50 hours by Senior Midwife O’Dwyer and signed by her, states that Oxytocin was discussed with Mrs. Fitzpatrick at length. The fact that this discussion took place was not disputed by the Fitzpatricks nor was the fact that at 04.30 hours Mrs. Fitzpatrick agreed to the administration of Oxytocin. There was however, deep disagreement between the recollections of the midwives and the recollections of the Fitzpatricks as to how this agreement came about.
Staff Midwife Murphy recalled that Senior Midwife O’Dwyer had referred to the risk of a caesarean section being increased by prolonged labour. Senior Midwife O’Dwyer said that she had told Mrs. Fitzpatrick that without Oxytocin her labour would continue without her making any progress and that meant a higher risk of a caesarean section. Mrs. and Mr. Fitzpatrick both recalled that Senior Midwife O’Dwyer had warned Mrs. Fitzpatrick that unless she agreed to the administration of Oxytocin her labour would go on and on, hour after hour, and she would be still be there on the following day. Mr. Fitzpatrick said that when they heard this, his wife asked him what he thought about the matter and he replied that it was up to her and that his wife had then agreed to the use of the Oxytocin. Senior Midwife O’Dwyer gave evidence that she had left the room to allow them privacy to discuss the matter. After a while, she said, Staff Midwife Murphy had come to her and told her that Mrs. Fitzpatrick had agreed to the use of Oxytocin but that Mrs. Fitzpatrick was still very nervous and she was also afraid of needles. Staff Midwife Murphy recorded in the partograph Notes on Labour at 04.30 hours that Mrs. Fitzpatrick had consented to the use of Oxytocin and recorded in the same notes at 04.45 hours that the administration of Oxytocin had commenced utilising a system set up for the purpose by the anaesthetist. Staff Midwife Murphy at 04.45 hours made the following note on the cardiograph, “30mls Oxytocin” and commenced to monitor uterine contractions by palpation.
It was suggested in evidence by Mr. Clements an expert witness called in the case for the plaintiff, that at the time she gave her consent to the use of Oxytocin, Mrs. Fitzpatrick’s mental acuity may have been impaired because of an intra muscular injunction of 50mg of Pethidine, – an opiate – which she had been given at 02.50 hours after she had asked for something to alleviate the labour pains. I accept from the evidence given in this case that in general the administration of opiates to mothers in labour is not an approved practice in the National Maternity Hospital. This is so because of the danger of dulling maternal reactions and of making the fetus sleepy at a time when both these conditions are contra-indicated. However, I also accept on the evidence, that the amount of Pethidine administered on the occasion to Ms. Fitzpatrick was barely sufficient dull the edge of her pain without eliminating it and, would not in any way have impaired her capacity to make a rational decision regarding the use of Oxytocin.
I find that Senior Midwife O’Dwyer did not improperly induce Mrs. Fitzpatrick to permit the administration of Oxytocin by stating that her labour would otherwise be prolonged hour after hour into the 27th December, 2001. I find on the evidence that at the National Maternity Hospital no labour was permitted to continue beyond 12 hours. The practice of active management of labour which had been a cornerstone of obstetric policy at that Hospital for decades prior to December 2001 seeks to remedy arrested labour by the use of Oxytocin and if that is unavailing to deliver by caesarean section all within a 12 hour period. There was therefore no advantage to be gained in telling Mrs. Fitzpatrick what would have been a conscious and deliberate untruth when on the balance of probabilities the risk of a caesarean section would have weighed much more heavily with Mrs. Fitzpatrick whose overriding concern was to have the most natural delivery possible. I therefore accept the recollection of the midwives on this aspect of the case. I am satisfied on the expert evidence that the decision of Senior Midwife O’Dwyer to use Oxytocin was appropriate in the circumstances, despite the fact that the CTG Trace in Mrs. Fitzpatrick’s case had to be regarded as “suspicious” from the commencement of labour.
In the 15 minute period after the commencement of the infusion of Oxytocin from 04.45 hours to 05.00 hours, Staff Midwife Murphy, by palpation, noted 8 uterine contractions. She entered this information in the appropriate section of the partograph. I am satisfied, on the evidence of Senior Midwife O’Dwyer, and on the expert evidence that the number of uterine contractions should not exceed 7 in any 15 minute period. At about 04.54 hours, Staff Midwife Murphy summoned Senior Midwife O’Dwyer to Mrs. Fitzpatrick’s room. I am satisfied that she did so not because of the excessive number of uterine contractions but because between 04.45 hours and 04.53 hours, the cardiograph trace showed 4 successive decelerations in which the plaintiff’s heart rate had dropped below 120bpm, to 100bpm, (twice) 90bpm and 70bpm respectively with a slow recovery back to the baseline. I find on the evidence of the expert witnesses including the evidence of Professor Turner who agreed that the Oxytocin might have been aggravating the situation, that the decision of Staff Midwife Murphy to summon Senior Midwife O’Dwyer was appropriate and correct in those circumstances. Senior Midwife O’Dwyer answered the call and reviewed the trace. I accept her evidence that she signed her name on the cardiograph at 04.54 hours to indicate that she was present and had examined the trace and for no other reason. Senior Midwife O’Dwyer decided to summon Dr. Wiza for a second opinion on the matter. I am satisfied from the expert evidence and I so find, that this response of Senior Midwife O’Dwyer was appropriate and correct. At 04.55 hours Staff Midwife Murphy wrote in the Notes on Labour in the partograph that the CTG was noted and that Dr. Wiza was to review the situation. She then signed this note.
At 05.00 hours Senior Midwife O’Dwyer made a note on the cardiograph that it was seen by Dr. Wiza. At 05.10 hours Dr. Wiza made and signed a note in the partograph Notes on Labour that he had reviewed the CTG Trace and had offered to do a fetal blood sample and, that the patient was thinking about the offer. I am satisfied on the expert evidence that this decision of Dr. Wiza to do a fetal blood sample at 05.10 hours was an appropriate optional response to the suspicious cardiograph. I am satisfied on the expert evidence, particularly the evidence of Mr. Julian Woolfson, Consultant Obstetrician and Gynaecologist, who gave evidence in the case for the defendant and also the evidence of Roger F. Clements, Consultant Obstetrician and Gynaecologist who gave evidence in the case for the plaintiff, that 3 of these decelerations, those which occurred between 04.46 hours and 04.50 hours were “early” decelerations. I accept the evidence of Mr. Clements that the deceleration at 04.52 hours is atypical of early decelerations and because of its amplitude might more correctly be described as a “Variable” deceleration.
Mr. Woolfson commenced practice as a consultant obstetrician and gynaecologist in 1984. He left the National Health Service in 2007, but remains in private practice at Blackheath Hospital. In 1980 he was a research fellow in perinatal medicine at John Radcliffe Hospital, Oxford. Of particular significance to the instant case is the fact that the nature of this research was to see if a more specific alternative could be found to the cardiotocograph: to try to discover when hypoxia in the fetus causes acidosis and to try to link the CTG Trace with the actual amount of oxygen in fetal blood. No workable alternative was found to the cardiotocograph. Mr. Woolfson was sometime trainer of Obstetricians and Midwives at Queen Mary’s Hospital, London. Since 2006 he has been principal examiner and lead hospital visitor for the Royal College of Obstetricians and Gynaecologists (which includes proficiency in CTG analysis). He was a member of the advisory board of the Association of Litigation and Risk Managers in 1997. He has 15 years experience in giving evidence in birth injury cases.
Mr. Clements was Consultant Obstetrician and Gynaecologist at the North Middlesex Hospital, London for 21 years from 1973. From 1988 to 1991 he was Clinical Director of Obstetrics and Gynaecology at that hospital. He retired from the National Health Service in 1994 and retired from private practice as an Obstetrician in 2001 and as a Gynaecologist in 2006. He is a lecturer, examiner, and a prolific author in his speciality. He has a major interest in Clinical Risk Management. He is the author of “Safe Practice in Obstetrics and Gynaecology” [1984] and “Risk Management in Obstetrics and Gynaecology” (2001) and many other learned works in this field.
I found both these witnesses to be clear, concise, knowledgeable and non partisan in giving evidence. I found Mr. Woolfson’s command of all aspects of the interpretation of the CTG Trace particularly impressive and illuminating.
I find on the evidence that early decelerations are usually associated with fetal head compression, particularly in the late stages of labour when descent of the head is occurring and, are rarely indicative of hypoxia or fetal acidosis. I find that it is significant that Dr. Wiza in these circumstances elected to carry out a fetal blood sample in order to measure Ph and blood gasses which is the only effective way of eliminating the possibility of fetal acidosis. The original Avlomni Measurement Report was proved in evidence. It states the date as 26th December, 2001 and time as 05.30 hours and gives a Ph reading of 7.389. On the expert evidence I find that this result was entirely normal and signified that the plaintiff was at this time non acidotic and was coping well with the stresses of labour. At 05.30 hours Dr. Wiza made and signed a Note on Labour in the partograph, that the fetal blood sample had been done and that the Ph was 7.38.
Staff Midwife Murphy and Dr. Wiza gave evidence that they were very surprised that Mrs. and Mr. Fitzpatrick were not prepared initially to accept the advice that a fetal blood sample should be carried out for the purpose of ensuring the well-being of the plaintiff, and had debated the matter at length between themselves. They said that they were further surprised that the Fitzpatricks had taken twenty minutes or more to give their consent, something which they had not experienced before. Mrs. and Mr. Fitzpatrick gave evidence that the first and only occasion on which Dr. Wiza had spoken to either of them was some time after the delivery of the plaintiff, – which both parties in this case were agreed had occurred at 08.03 hours, – and after he had sutured a tear in Mrs. Fitzpatrick’s perineum, at which time he advised her that the sutures might feel tight for some days. This was denied by Dr. Wiza and was also denied by the midwives. This raised a very serious issue between the parties with possibly profound ramifications for the entire outcome of this claim.
I am satisfied from the expert evidence that it was reasonable and, not at all unusual for mothers in labour and their partners to have concerns about permitting a fetal blood sample to be taken and to wish to think it over before giving consent. I find on the evidence that Mrs. and Mr. Fitzpatrick did not take much more than ten minutes to give their consent to the fetal blood sample.
It was agreed by all the obstetric experts who gave evidence during this case that the fetal blood sample procedure takes ten minutes to complete from start to receipt of the printout. Since the analysis machine automatically recorded the time of the printout as 05.30 hours and, this is corroborated by Dr. Wiz’s own signed note in the partograph Notes on Labour and, as no suggestion was made that the internal clock in the analysis machine was inaccurate, by necessary inference the procedure must have commenced at 05.20 hours. The note written by Senior Midwife O’Dwyer on the cardiograph, that it was seen by Dr. Wiza, is at 05.00 hours. However, Dr. Wiza’s own signed note in the partograph Notes on Labour in which he records that he reviewed the CTG and offered a fetal blood sample which the patient was thinking about, is timed 05.10 hours. There is no logical reason why Dr. Wiza would have delayed and no evidence that he did in fact delay, in making this note. I am satisfied from the expert evidence that these Notes on Labour and any notes written on the CTG Trace must be as contemporaneous as possible with the matters therein recorded and should be regarded as such in the absence of some express indication to the contrary. I find on the expert evidence that a failure in this regard would be substandard. For these reasons I am satisfied that there was no unreasonable delay on the part of Mrs. and Mr. Fitzpatrick in agreeing to permit the fetal blood sample to be carried out and they were not unreasonable in wishing to consider the matter before agreeing to the procedure.
Senior Midwife O’Dwyer told the court that she had explained to Mrs. Fitzpatrick that she was going to call the duty doctor because the plaintiff’s heart rate was dropping with the contractions and then picking up in between. She said that she told Mrs. Fitzpatrick that the doctor might decide to do a simple test called a fetal blood sample, which involved taking a tiny drop of blood from the baby’s head for analysis. She said that Mrs. Fitzpatrick asked would it hurt the baby and she had jocosely replied that she had never heard a baby to complain yet. In cross examination Senior Midwife O’Dwyer told the court that she was not in the room when Dr. Wiza came, or while the test was being done. He had come to her office and said that the Fitzpatricks wanted to think about the fetal blood sample.
Staff Midwife Murphy told the court that Dr. Wiza came a couple of minutes after he had been called. She heard him tell Mr. and Mrs. Fitzpatrick that he intended to do a fetal blood sample to check if the baby was ok. They replied that they would like to think about it and Dr. Wiza then left the room to let them talk. Staff Midwife Murphy told the court that she had said to the Fitzpatricks that she would not be doing her job if she did not encourage them to allow the fetal blood sample to be taken. She recalled that Mr. Paul Fitzpatrick, who was standing near the CTG machine, looked at it and said that he thought the baby’s heart rate was fine. She had answered that the fetal blood sample was a more accurate way of checking if the baby was ok. She said that the Fitzpatricks had then continued to talk about the matter between themselves without involving her further in the discussion. After a few minutes Dr. Wiza had come back into the room and they agreed to permit the fetal blood sample to be taken.
In cross examination Staff Midwife Murphy said that the Fitzpatricks had definitely discussed the fetal blood sample with Dr. Wiza and not with Senior Midwife O’Dwyer who had left the room to call Dr. Wiza and who did not return. Staff Midwife Murphy said that she had got the special trolley for the test from an adjoining room. She recalled that Dr. Wiza had put on surgical gloves and told Mrs. Fitzpatrick that he would just scratch the baby’s head and take a tiny drop of blood which would then be analysed in a machine. She could not recall if Dr. Wiza had spoken further to Mrs. Fitzpatrick during the procedure itself which, she accepted was a very invasive one. She said that she had put Mrs. Fitzpatrick in the correct position on her left side and had talked her through the procedure. I found Staff Midwife Murphy to be a genuine and responsible witness who tried to be as helpful to the Court as she could. However, her recall in relation to a number of vital issues was vague, as she readily accepted.
Dr. Wiza told the court that he was resting in his room and at about 05.00 hours he had received a telephone call from Senior Midwife O’Dwyer who had asked him to come and review a CTG Trace. He said he went at once as a call from the Labour Ward is always given priority. When he arrived Staff Midwife Murphy was in the room with two people who he now knew to be the Fitzpatricks. He said he had introduced himself. The Trace was showing signs of abnormality so he explained to Mrs. Fitzpatrick that it was possible that the baby was not getting enough oxygen and that the baby’s heart rate was low. He said that he needed to do a fetal blood sample in order to check matters. He said that he had explained to Mrs. Fitzpatrick that he would have to put her on her side, raise her leg and introduce a metal cone to give him access to the baby’s head. He would then make a tiny cut in the baby’s scalp and take a tiny drop of blood to be analysed in a machine. The Fitzpatricks said that they wanted some time to think about it, so he said that he would wait in Sister’s Office.
Dr. Wiza told the court that after about ten minutes he became worried and went back to the room. The Fitzpatricks asked him to wait another minute or so, so he went back to Sister’s Office. Shortly after that Staff Midwife Murphy came to the office and told him that the Fitzpatricks had agreed. He said that he had asked Mrs. Fitzpatrick to move to the edge of the bed and to lie on her left side. He asked her to raise her right leg and asked Staff Midwife Murphy to hold it in place. He then told Mrs. Fitzpatrick what he was going to do. Dr. Wiza told the court that the perineal area can be very very sensitive at this time and the procedure is very invasive and uncomfortable for a mother. He had said to Mrs. Fitzpatrick “tell me if it hurts”. He said that he gave the blood sample to Staff Midwife Murphy who took it to the adjoining room where the analysis machine was. He said that he had remained in Mrs. Fitzpatrick’s room without removing the surgical gloves in case the sample was not sufficient and he had to repeat the test. He said that Senior Midwife O’Dwyer came back with the printout and that he told Mrs. Fitzpatrick that the result was very good and that the baby was getting enough oxygen.
It was put to Dr. Wiza that the Fitzpatricks had told the Court that he had never spoken to them at all and that Mrs. Fitzpatrick did not know what he was doing at the end of the bed. Dr. Wiza denied this and said that he found it quite extraordinary. He said he could do nothing of this test without her full consent and cooperation. It would be impossible, quite impossible to carry out the test without her full cooperation and without speaking to her. He had to manoeuvre her from lying on her back to lying on her left side at the edge of the bed. He had to get her right leg at the correct angle and be sure that Staff Midwife Murphy held it there. He said he then draped the area under Mrs. Fitzpatrick’s buttocks with a sterile drape and introduced the surgical cone, which has a built in light, to keep the vaginal walls apart. He said that he had to talk Mrs. Fitzpatrick through all this as it was cold, invasive and uncomfortable. If he did not keep talking to her she might go into spasm and this would be a serious problem as he would then have to make use of an anaesthetic spray to redeem the situation. It was put to Dr. Wiza that it was Staff Midwife Murphy who had introduced him to the Fitzpatricks and who had explained to Mrs. Fitzpatrick what he was doing throughout the procedure. Dr. Wiza denied that this was so and said that he had introduced himself and had himself explained what he was doing. He said that Mrs. Fitzpatrick was mistaken; he could not have been at the bottom of the bed because he had to be at the side of the bed in order to obtain the sample. It was put to him that Mr. Fitzpatrick had stated that he had walked away after taking the sample. Dr. Wiza denied that this was so and explained that one blood sample in three is rejected by the analysis machine so he had to wait in the room with the surgical gloves on until the sample had been accepted and processed by the machine. He said that he recalled telling Staff Midwife Murphy that she could relax Mrs. Fitzpatrick’s leg to give her relief while they were waiting for the results. He said that after he had told Mrs. Fitzpatrick that the result was very good he had gone back to his room. He accepted that he had written the partograph Notes on Labour at 05.10 hours and at 05.30 hours.
In examination in Chief Mrs. Fitzpatrick said that she recalled the anaesthetist setting up the Oxytocin and her next recollection thereafter was of a doctor coming. She said that she did not know his name and she had no conversation whatever with him. She said the Senior Midwife O’Dwyer had told her that the doctor wanted to do fetal blood sample. She had asked why this was necessary and Senior Midwife O’Dwyer had replied that it was to make sure that the baby was ok. Senior Midwife O’Dwyer had explained that the doctor would take a small sample of blood from the baby’s head. She asked if it would hurt the baby and Senior Midwife O’Dwyer jocosely responded that she had never heard a baby complain about it yet. She therefore agreed to the blood sample. She said that she did not know how long the procedure took. She was lying on the bed and the doctor was at the end of the bed between her legs, but she said that she thought someone had told her husband the result. In cross examination Mrs. Fitzpatrick said that Dr. Wiza did not speak to her or to her husband at any stage. It was put to her that Dr. Wiza would say that he told her that the baby might be running short of oxygen and getting tired and he needed to do a fetal blood sample to find out. Mrs. Fitzpatrick denied this very emphatically. She said that she and her husband had spoken only to Senior Midwife O’Dwyer about the fetal blood sample. She said neither she nor her husband had discussed the fetal blood sample with Staff Midwife Murphy. The partograph Notes on Labour at 05.10 hours and 05.30 hours written and signed by Dr. Wiza were put to Mrs. Fitzpatrick but she insisted that Dr. Wiza had never spoken to her or to her husband and they considered this to be very strange indeed. She said that no one on this occasion or at any later time had told them that there was anything at all wrong with the plaintiff. She said that Staff Midwife Murphy did not say to her that she would not be doing her job if she did not encourage them to permit the fetal blood sample to be taken. She said that Mr. Fitzpatrick had not made any comments about the plaintiff’s heart rate being fine.
Mr. Fitzpatrick told the court that sometime after the Oxytocin drip had been set up a man in a white coat came into the labour room. No one said who he was. This man and Senior Midwife O’Dwyer examined the CTG Trace and discussed it for a while. Then Senior Midwife O’Dwyer told them that the doctor wanted to do a fetal blood sample. He said that he asked what that was and Senior Midwife O’Dwyer told him that a blood sample was taken from the baby’s head with a needle. He said that he and Mrs. Fitzpatrick were very shocked at this and probably looked it because Senior Midwife O’Dwyer said that she would give them a minute or so to think about and she and the doctor left the room. Mr. Fitzpatrick told the court that after a little while Senior Midwife O’Dwyer had come back into the room and he asked her what the fetal blood sample was for, and she replied that it was to make sure that the baby was ok. At this stage he said Mrs. Fitzpatrick had asked would it hurt the baby and Senior Midwife O’Dwyer replied in a joking tone that she had not heard a baby complain about it yet and she laughed. Mrs. Fitzpatrick then said to go ahead with the test. The doctor came back into the room and opened a package. Mrs. Fitzpatrick had been lying on her back on the bed and she turned onto her left side. He said he was not certain if somebody had told her to turn into this position. He said he saw the doctor lean down but he could not see what he was doing. The doctor then got up and left the room and Senior Midwife O’Dwyer had followed him. One or two minutes later she came back and said that the baby was fine that everything was ok. He said that he did not know what had become of the doctor. That the doctor seemed methodical and deliberate, even gentle, but he had said nothing at all to them.
In cross examination Mr. Fitzpatrick insisted that Dr. Wiza had said nothing at all to them, that Senior Midwife O’Dwyer had done all the explaining. It was put to Mr. Fitzpatrick that Senior Midwife O’Dwyer would give evidence that she had told them both that she was going to get the duty registrar to look at the trace. Mr. Fitzpatrick denied that that was said. It was put to Mr. Fitzpatrick that Dr. Wiza would say that he did speak to them that he told them that the baby might be running short of oxygen and was tired so that he needed to do a fetal blood sample. Mr. Fitzpatrick was emphatic that Dr. Wiza never spoke to them and they did not speak to him. He said that Staff Midwife Murphy did not discuss the fetal blood sample with them, only Senior Midwife O’Dwyer had done so. It was put to Mr. Fitzpatrick that Dr. Wiza would say that they took twenty minutes to agree to the fetal blood sample. Mr. Fitzpatrick strongly denied this. He said that they had discussed the matter with Senior Midwife O’Dwyer and Mrs. Fitzpatrick had agreed to it once she had been assured that it would not hurt the baby. Mr. Fitzpatrick said that he and his wife felt it very strange that the doctor did not speak to them at all. He recalled that in Brussels the doctors had spoken only to his former wife and not to him, though he was present during the labour and delivery, but unlike Dr. Wiza they had actually spoken.
For reasons given at the time, I refused an application on behalf of the plaintiff to lead evidence from another couple who it was alleged had a similar experience with Dr. Wiza during the carrying out a fetal blood sample approximately two months after the events at issue here.
Professor Michael Turner, Consultant Obstetrician and Gynaecologist, Professor of Obstetrics and Gynaecology at University College Dublin, Assistant Master at the National Maternity Hospital from August 1987 to July 1990 and Master of the Coombe Hospital from 1992 to 1998, gave evidence in the case for the defendant. He told the court in cross examination that it was simply not possible to do a fetal blood sample without speaking to the mother in labour. He said that the obstetrician did not have to say much and it would be possible for an experienced midwife to talk the patient through the procedure but it would be most unusual. Mr. Clements, told the court that on a number of occasions while he was Consultant Obstetrician and Gynaecologist at the North Middlesex Hospital, London, he was obliged to reprimand junior overseas doctors for failing to communicate properly with mothers in labour because they felt socially out of place. He said that to carry out a fetal blood sample the obstetrician or a midwife would have to place the mother on her left side with her knees drawn up. He said it was very important that she be given a step by step explanation of what was taking place as it was actually happening. It was put to Mr. Clements that Dr. Wiza would say that he told Mrs. Fitzpatrick that the plaintiff might be running short of oxygen and getting tired and he needed to do a fetal blood sample to check – to see if the plaintiff was getting sick from lack of oxygen. While recalling that Mrs. Fitzpatrick had told the court that Dr. Wiza had said nothing at all, Mr. Clements told the court that he considered this alleged statement to be very strange because he said the first part only suggested a possibility that there might be a problem and did not suggest any urgency while the latter part of the alleged statement was very different and changed everything suggesting a real urgency. Mrs. Fitzpatrick in her evidence was adamant that no one had said at any time that there was anything wrong with the baby and there was no mention whatever of the baby being tired until just before 08.03 hours.
The acceptance by Mrs. and Mr. Fitzpatrick that Senior Midwife O’Dwyer had made the remark that she had never heard a baby complain yet indicates that she had been previously asked if the fetal blood sample would hurt the plaintiff. This in turn indicates that she had already explained the procedure and, she would not have done this unless she had said that the doctor might think that a fetal blood sample was necessary. Logic and common sense both demand that she would have explained why this was so, though, I doubt very much that she employed for that purpose the rather daunting technical terminology of her evidence to the court.
I accept the evidence of Staff Midwife Murphy, Senior Midwife O’Dwyer and Dr. Wiza that he entered Mrs. Fitzpatrick’s room alone. As confirmed by Dr. Wiza in his evidence Senior Midwife O’Dwyer would have explained to him on the telephone why she wished him to come to the room. Staff Midwife Murphy was the “one to one” midwife caring for Mrs. Fitzpatrick exclusively so that she would have remained in the room. There was absolutely no necessity for Senior Midwife O’Dwyer to remain to discuss the CTG Trace with Dr. Wiza – it was entirely self explanatory to him as Specialist Registrar. I believe that it would be contrary to the norms of ordinary social convention for the court to find that Staff Midwife Murphy who was after all in charge of the room, did not introduce Dr. Wiza when he joined the group in the room and that, as he contends, he introduced himself. There were no medical, technical or other reasons shown why Senior Midwife O’Dwyer would be required to remain in the room while the procedure was being carried out. Mr. Fitzpatrick accepts that Dr. Wiza left the room and that a discussion then took place between him and his wife as to why the fetal blood sample was necessary and whether Mrs. Fitzpatrick should allow it. Apart from the dispute as to whether or not Senior Midwife O’Dwyer was present, this corroborates the recollection of Dr. Wiza, Senior Midwife O’Dwyer and Staff Midwife Murphy that Dr. Wiza left the room to enable the parents of the plaintiff to discuss whether or not to permit the carrying out of the fetal blood sample.
Staff Midwife Murphy said that the Fitzpatricks definitely discussed the fetal blood sample with Dr. Wiza and not with Senior Midwife O’Dwyer. She said the Dr. Wiza was a very articulate and nice person and was not diffident or shy. On the evidence, Dr. Wiza certainly does not fall within Mr. Clements category of a shy junior overseas doctor. I found Dr. Wiza to be a competent, well spoken professional, self assured, calm and composed, with clear, precise barely accented English. Dr. Wiza was then an experienced Specialist Registrar who in the course of his studies had attended a series of lectures at John Radcliff Hospital, Oxford on Doctor – Patient communication and who was very much a part of Irish society. In my judgment it is totally improbable that the Obstetrics Registrar and Assistant Master of the National Maternity Hospital, called by the Senior Midwife on duty to review the situation would, if he decided that he should carry out a fetal blood sample, immediately launch into the procedure without first explaining to the mother what he was about to do, (even if he surmised or had been told by Senior Midwife O’Dwyer that she had already explained the procedure to the mother), and obtaining her consent. When Mr. and Mrs. Fitzpatrick said that they wished to discuss the matter between themselves it would be natural that Dr. Wiza would leave the room to enable them to do so.
I do not accept that Dr. Wiza at this time said anything to the Fitzpatricks about the plaintiff running short of oxygen or getting sick for lack of oxygen or being tired. The CTG Trace at this time would not necessarily warrant such assumptions. I am satisfied on the balance of probabilities that the recollection of Staff Midwife Murphy is correct and that what Dr. Wiza told the Fitzpatricks was that he wished to do the fetal blood sample to check that the plaintiff was ok. In my judgement Dr. Wiza is confusing events which occurred at 05.10 hours with events which may have occurred sometime after 07.20 hours. I am however satisfied that Dr. Wiza did discuss the carrying out of the fetal blood sample with the Fitzpatricks, but that the Fitzpatricks have only remembered the earlier discussion with Senior Midwife O’Dwyer, probably because of her memorable quip about never having heard a baby complain yet, and have forgotten their subsequent discussion with Dr. Wiza. Having regard to the evidence of Professor Turner and because Staff Midwife Murphy as “one to one” midwife, had established a good rapport with Mrs. Fitzpatrick, I find on the balance of probabilities that Dr. Wiza probably said very little to the Fitzpatricks while carrying out the actual procedure, other than perhaps to encourage Mrs. Fitzpatrick to tell him if it hurt and otherwise had, allowed Staff Midwife Murphy to position Mrs. Fitzpatrick and to talk her through it. I find Dr. Wiza’s explanation as to why he did not leave the room after he had obtained the blood sample result wholly logical and convincing and I am quite satisfied that the recollection of Mr. Fitzpatrick to the contrary is mistaken. I find on the balance of probabilities that he did give the blood sample to Staff Midwife Murphy to take to the adjoining room where the analysis machine was and that the printout results was brought back to Mrs. Fitzpatrick’s room by Senior Midwife O’Dwyer. I find it improbable that it was Senior Midwife O’Dwyer and not Dr. Wiza who informed the Fitzpatricks that everything was fine and that the plaintiff was ok. In the circumstances I do not think that Senior Midwife O’Dwyer would ignore the Registrar and take it upon herself to interpret the printout, even though she may have been perfectly capable of so doing and, announce the result.
At 05.30 hours, Senior Midwife O’Dwyer increased the dosage of Oxytocin from 30mls/ph to 60mls/ph. A note recording this increase was made on the cardiograph by Staff Midwife Murphy. Mr. Fitzpatrick recalled that at this time there were a lot of contractions, which seemed to be coming quicker and stronger, but no one passed comment on this. Mr. Fitzpatrick recalled that once the Oxytocin was started his wife was unable to speak very much. I am satisfied on the evidence that the decision to use Oxytocin, to determine the level of the dosage between 30mls/ph minimum and, 180mls/ph maximum, to increase or reduce the dosage or to stop using Oxytocin altogether was primarily a matter for the decision of the Senior Midwife.
The sequential series of recorded palpated uterine contractions which commences at 04.45 hours is broken after 05.30 hours and resumes again at 05.35 hours. Between 05.30 hours and 05.50 hours, I find, on the evidence that the palpated uterine contractions recorded by Staff Midwife Murphy in the Partograph box are totally inaccurate. Staff Midwife Murphy accepted this in cross examination and Senior Midwife O’Dwyer accepted that she did not notice the error on the occasion, or at any time on 26th December 2001.
It was claimed on behalf of the plaintiff that the tacograph section of the cardiotacograph record shows eight contractions in the 15 minute period between 05.35 hours and 05.50 hours and this, it is said, is evidence of hyper-stimulation caused by the Oxytocin. Staff Midwife Murphy and Senior Midwife O’Dwyer considered that only seven uterine contractions are shown in this period. There was disagreement between the expert witnesses in this regard. Mr. Woolfson, Professor Baker and Clinical Midwifery Manager Aideen Keenan, all defence witnesses, were very certain that there were eight contractions, clearly indicating hyper-stimulation caused by the Oxytocin and which may have interfered with the fetal blood supply, Midwife Supervisor Dawn Johnston, a witness in the plaintiff’s case in cross examination said that there was no hyper-stimulation as of 06.30 hours. In cross examination, Mr. Clements agreed that apart from the first period of 15 minutes after Oxytocin was commenced at 04.45 hours, when there were eight contractions, there were never more than seven contractions in a 15 minute period during Mrs. Fitzpatrick’s labour. However I find that Mr. Clements was referring exclusively to what appears in the Partograph box chart maintained by Staff Midwife Murphy and was not purporting to interpret the tocograph record at all.
Professor Baker became a Consultant Obstetrician and Gynaecologist in 1990. In 1998 he was appointed to the Chair of Obstetrics and Gynaecology at Nottingham University Medical School. In 2001 he became Professor of Maternal and Fetal Health at Manchester University. He is presently Associate Dean of Research Faculty of Medical and Human Sciences, University of Manchester and Hon. Consultant Obstetrician of St. Mary’s Hospital of the University of Manchester, one of the largest teaching hospitals in Europe. He is visiting Professor of Obstetrics at Yale and Toronto Universities. Professor Baker has outstanding academic qualifications. He is a teacher and writer of great standing in his profession. He has written and edited more than 12 leading textbooks, including the two leading undergraduate textbooks in the United Kingdom, “Obstetrics by 10 Teachers” and “Midwifery by 10 Teachers”. The volume and scope of his peer publications is simply enormous. As a witness I found Professor Baker to be thoughtful and careful, almost too scrupulous at times. Every question put to him was answered thoughtfully, patiently and without any indication of bias or intransigence.
Ms. Dawn Johnston qualified as a nurse in 1982 and as a midwife in 1985. In 1995 she was appointed Supervisor of Midwives for the Counties of Kent, Surrey and Sussex. She lectures in Midwifery Practice and Management. She received training in the interpretation of Cardiotocograph Traces by lectures in Obstetrics and Midwifery and through “in ward” experience.
Ms. Aideen Keenan is a Registered Midwife (Dublin – Kent). She holds a B.Sc degree in Midwifery Management (U.C.D.), and a Diploma in Management Project, and a Diploma in Management Studies (University of London). Since 1996, she has been Clinical Midwifery Manager 3 at the Rotunda Hospital, which is the rank next below that of Assistant Director. From 1990 to 1993 she was, Senior Midwife in the Delivery Unit and is Chairperson of the Senior Midwives Committee of that Hospital. From January 2002 to January 2003 she was Midwife Representative on the Coombe and Rotunda Information Sharing Programme. In 1998 she attended Professor Arulkumarans’s Lectures on Fetal Monitoring including all aspects of CTG Trace interpretation. The Professor is an acknowledged leading expert in this field and is co-author of one of the leading texts on the subject. In 2005 she completed a “K2” training programme on CTG Interpretation using a “Real Time Simulator”.
Senior Counsel for the plaintiff pointed out that Mr. Clements had expressed this opinion before there had been any detailed examination of the CTG Trace, which detailed examination started during the evidence of Staff Midwife Murphy. This was undoubtedly the case, an unavoidable consequence of having to call expert witnesses, particularly those from overseas, out of proper sequence as and when they were available. However, Mr. Clements at all times had the CTG Trace available to him and, no explanation was forthcoming as to why he did not himself carry out a detailed analysis of the Tacograph trace. I find that the matter comes down to whether the tacograph trace between 05.30 hours and 05.38 hours is to be regarded as showing one or two contractions. However, I am satisfied on the evidence and, I so find, that Senior Midwife O’Dwyer and Staff Midwife Murphy could not be held to have acted in a substandard manner in considering that this part of the Trace should be read as indicating one and not two contractions. At 05.50 hours, the Oxytocin was increased by Senior Midwife O’Dwyer from 60mls/ph to 90mls/ph and, at 06.05 hours was further increased by her to 120mls/ph.
At 06.05 hours Mrs. Fitzpatrick had been eight hours in labour. The June 1996, document provides that:-
“If delivery is not imminent after eight hours in labour the patient is examined by the Assistant Master. Electronic fetal monitoring is commenced.”
Dr. Wiza, who was Assistant Master on the occasion, was not asked to examine Mrs. Fitzpatrick, nor was he informed that she had been eight hours in labour and delivery was not then imminent. The Partograph Note on Labour for 06.05 hours states as follows “In labour eight hours, only on Oxytocin for 1 hour 15 minutes, reassessment at 07.00 hours”. I accept the evidence of Staff Midwife Murphy and Senior Midwife O’Dwyer that Staff Midwife Murphy wrote this note and that they both signed it to indicate that they had assessed the situation and that Senior Midwife O’Dwyer had decided to depart from the terms of the June 1996 document for the reason given. It was contended on behalf of the plaintiff that Senior Midwife O’Dwyer exceeded her authority in so doing and, that the provisions of this guideline were mandatory and binding on all midwives at all levels. Senior Midwife O’Dwyer, while accepting that generally all midwives of whatever level should abide by the provisions of this June, 1996 document, stated that the Senior Midwife in Charge retained a discretion to depart from those provisions if she considered that this was necessary in the best interests of either the mother or the fetus.
I find that the above provision of the June 1996 document supplants, in the circumstances to which it relates, the immediately previous provision of this document which provides that, “it is at the discretion of the Sister on duty as to the time interval of the next examination once the patient is established on Oxytocin”. This provision in its turn clearly relates to a still earlier provision and addresses the question of whether the routine of two hourly vaginal examinations should be maintained regardless of the time at which the infusion of Oxytocin was commenced. I have already cited the terms of this still earlier provision when dealing with the events which occurred at 02.45 hours. On the evidence I find that the older historical title of “Sister” has been replaced by that of “Senior Midwife”.
In my judgment the proper construction of this June 1996 document is that the eight hour provision requires the immediate intervention of the medical team at this time entirely regardless of what had previously been done by the midwives. The wording of the provision is such that it could not reasonably be interpreted as meaning that this intervention was in any sense discretionary. In a system which requires that delivery take place within twelve hours of the diagnosis of labour this was an important check and safety precaution. In a Guideline of equal date entitled, “Monitoring of Fetus in Labour – indication for continuous fetal monitoring”, subparagraph 4 states that this should be done, “after eight hours in labour – regardless of cervical dilatation.” The then Master of the National Maternity Hospital, Dr. Peter Boylan and the then Matron, Maeve Dwyer, clearly attached great significance to the fact that a mother had been eight hours in labour.
However, though not so stated in the June 1996 document or in any other document discovered by the defendant, I find on the evidence that the established practice in the hospital was to reserve to the Senior Midwife on duty a discretion to postpone the carrying out of this examination by the Assistant Master in circumstances, where she considered that such postponement was reasonably necessary in the best interests of the mother or the fetus. Dr. Wiza gave evidence that this was by no means a routine occurrence and it was normal for the doctor to be called in accordance with the June 1996 document. I am not satisfied that the reason given in the 06.05 hours Note on Labour was a sufficient reason to postpone the examination of Mrs. Fitzpatrick by Dr. Wiza. While I accept that it was the general practice in the National Maternity Hospital in December 2001 to assess post Oxytocin progress at intervals of two hours and, while I accept that pelvic examinations are unpleasant for the mother and can cause fetal stress, nonetheless in my judgment there were not sufficiently grave reasons in this case for deferring the examination by the Assistant Master. This was particularly so because as of 06.05 hours Mrs. Fitzpatrick had been treated with Oxytocin for over one hour and, it was therefore a matter of considerable medical significance if the normal pattern of dilatation had not been resumed.
However, I am satisfied on the evidence that there is no causal link between the failure to have Mrs. Fitzpatrick examined by Dr. Wiza at 06.05 hours and the subsequent injury to the plaintiff. The measure of acidity in the fetal blood at 05.30 hours was normal, the tacograph (for reason I have already stated) and the cardiograph traces had been reviewed and were seen to be normal and the other clinical signs recorded on the Partograph were normal. I am satisfied on the evidence and I accept that the constant blood staining of the liquor was correctly recognised as being due to the rupturing of minor capillaries which is a common feature of cervical dilatation and therefore not a matter for any concern. I find on the evidence that it is and, was in December 2001, a generally though by no means a universally approved practice amongst obstetricians in the State and in the Untied Kingdom to regard a normal blood gas analysis, particularly the Ph, as providing reassurance for a period of up to one hour, unless the suspicious CTG Trace which led to the sample being taken, persisted or disimproved. Dr. Wiza gave evidence that if this occurred, even five minutes after the foetal blood sample, the doctor should be called back. Extrapolating backwards from 06.30 hours when Mrs. Fitzpatrick was found to be 9cm dilated, it is reasonable to infer that at 06.05 hours the normal patter of dilatation would have been seen to be restored. I am satisfied therefore that had Dr. Wiza examined Mrs. Fitzpatrick at 06.05 hours he would not, nor was there any reason why he should, have changed the management of her labour in any way.
Between 06.10 hours and 06.26 hours a series of important changes occurred on the cardiograph. The plaintiff’s heart rate fell to and below the minimum normal level of 120bpm. I find on the expert evidence that the decelerations, at 06.24 hours and 06.26 hours were small late decelerations, in their entirety out of phase with the uterine contractions which had caused them and, while the others were early decelerations, those at 6.10 hours were significantly deep. I find on the evidence that from a neurological viewpoint there was no need for anxiety at this time. However, I find on the expert evidence, particularly the evidence of Mr. Woolfson, Mr. Clements and Dr. McKenna that this Trace pattern was indicative of a fetus that was still well, but was now enduring hypoxic stress, or as Midwife-Supervisor Johnston put it “the fetus was feeling the pinch”. I find on the evidence that this Trace should have signified to the midwives that the situation now required careful watching. Though the Partograph Notes on Labour at 06.05 hours stated that Mrs. Fitzpatrick was to be reassessed at 07.00 hours, these changes did in fact cause Staff Midwife Murphy to summon Senior Midwife O’Dwyer back to Mrs. Fitzpatrick’s room at approximately 06.23 hours. Senior Midwife O’Dwyer signed the CTG Trace at 06.25 hours. I find on the evidence that she did so in order to record that she was present at this time and had seen this trace.
I am satisfied on the evidence that Senior Midwife O’Dwyer very appropriately decided to carry out a vaginal examination of Mrs. Fitzpatrick. The result of this examination was noted by her in the Partogtraph Note on Labour at 06.30 hours and, signed by her. It reads as follows:-
“Vaginal examination to re-assess longitudinal lie cephalic presentation no cord or placenta felt – cervix 9cms dilated – clear liquor, CTG noted FHR 112bpm – Oxytocin to remain pro – tem. at 120mls/hr.”
At 06.30 hours Senior Midwife O’Dwyer wrote on the cardiograph, “Vaginal Examination – cervix 9cm,” and placed an “X” on the Dilatation of Cervix Graph in the Partograph. She then left the room.
I find that between 06.30 hours and 06.47 hours the cardiograph trace deteriorated significantly. I find on the expert evidence that during this period it is very difficult to identify any convincing baseline but nonetheless there seemed to be a general consensus amongst the expert witnesses that one could be fixed at 130bpm. Mr. Woolfson told the Court that this drop in the baseline should have been seen as a worrying sign. The decelerations are becoming more frequent and deeper and longer with an increasingly slow rate of recovery. I find on the expert evidence that this was a sign of developing hypoxia in the plaintiff attributable to the effects of the Oxytocin.
At 06.40 hours the fetal heart rate dropped to 80bpm. Staff Midwife Murphy was correctly concerned and called Senior Midwife O’Dwyer who returned immediately. Between 06.47 and 06.50 hours there occurred a severe deep (95bpm) and prolonged (2½ – 3 minutes) deceleration or bradycardia. At the same time, in the period of 15 minutes between 06.35 hours and 06.50 hours I find that uterine contractions as shown on the tacograph exceeded again the maximum permitted number of seven in 15 minutes. I find on the evidence that all of these phenomena were caused by Oxytocin hyper-stimulation.
I find on the expert evidence, particularly with reference to the evidence of Mr. Woolfson that the decelerations at 06.30 hours, 06.32 hours, 06.44 hours and 06.45 hours were also significant and severe. I accept the evidence of Mr. Woolfson that at this point the Ph would have started to fall off and become acidotic, because the fetus due to the hyper-stimulation was unable to regenerate its oxygen reserves between contractions. He considered that from 06.40 hours onwards the CTG Trace should have been seen as “pathological” in the classification system.
There was disagreement between the expert witnesses as to whether the number of contractions involved was eight or nine during this 15 minute period. This depended upon whether or not one regarded the wave at 06.42 hours and the wave at 06.49.30 hours as indicating genuine contractions. It is unnecessary for me to resolve this problem. I find on the evidence that the number of uterine contractions was excessive and I find on the balance of probabilities that as no other causative factor was identified that this hyper-stimulation was due to the Oxytocin. Despite the evidence that counting uterine contractions by palpation produces a more accurate result than the external tocodynamometer, I find that the entry by Staff Midwife Murphy in the Partograph box, of six contractions in the 15 minute period between 06.35 hours and 06.50 hours could not be objectively correct and must indicate either a break in the continuity of the palpation, as had occurred earlier, or the selective disregarding by her of events which she decided were not genuine contractions. As on the previous occasion also, Senior Midwife O’Dwyer does not appear to have noticed this error.
I find on the evidence that the cardiotocograph record as it evolved in real time between 06.30 hours and 06.50 hours should have been a cause of “grave concern” to senior midwife O’Dwyer. This was the term used by Professor Turner, who I find was, throughout his evidence, gallantly endeavouring to defend the midwives. According to the uncontradicted evidence, she had remained present in Mrs. Fitzpatrick’s room from approximately 06.40 hours onwards until she left to summon Dr. Wiza for the second time. The expert witnesses were unanimous in their agreement that the decelerations shown on the cardiograph between 06.23 hours and 06.50 hours were Variable Decelerations. I find on the evidence that this trace indicated that the contractions were too powerful and too frequent, making the plaintiff potentially vulnerable and this should have given rise to anxiety and concern in the midwives.
I find on the evidence that the increasing depth and duration of these Variable Decelerations from 06.30 hours onwards, culminating in the prolonged and deep deceleration between 06.47 hours and 06.50 hours should indicate to a senior midwife acting with reasonable care, that the plaintiff was no longer responding well to the stresses of labour, was experiencing increasing difficulty in recovering between contractions and was becoming hypoxic and probably acidotic. I find on the evidence that a Senior Midwife, acting with reasonable care, would have concluded that the oxytocin had caused the uterine contractions to become too frequent and too powerful and that this was either the sole cause of or was contributing significantly to the plaintiff’s distress. I find on the evidence that a Senior Midwife, acting with reasonable care, ought to have concluded that this trace was abnormal and very unreassuring and that the immediate intervention of the Duty Registrar was necessary in order to assure the plaintiff’s future health and safety. I find on the evidence that the failure of Senior Midwife O’Dwyer to summon Dr. Wiza to review the situation at 06.50 hours was seriously substandard, and was negligent and in breach of the duty of care which she owed to the plaintiff. In the words of Mr. Clements, this was no longer a midwives case. From the evidence, Dr. Wiza was in his room and was freely available. I accept the evidence of Dr. Wiza, which was not questioned or contradicted, that a call from a labour room is always treated as a matter of priority in the National Maternity Hospital, so that if he had been called by Senior Midwife O’Dwyer, he would have come at once. I find on the expert evidence that the decision of Senior Midwife O’Dwyer at 06.50 hours to reduce the titrated levels of Oxytocin, – and then only from 120mls/ph to 90mls/ph – rather than to turn it off, was also substandard and negligent. I find that Senior Midwife O’Dwyer negligently and in breach of duty continued to administer Oxytocin to Mrs. Fitzpatrick from 06.50 hours to 07.15 hours or 07.20 hours during which time the level of distress being suffered by the plaintiff increased and, after 07.10 hours, increased dramatically.
I find on the evidence that at 06.50 hours, while the situation as clearly indicated on the CTG Trace was a matter for serious concern, it had not yet become an emergency. In this regard, I find that at 06.50 hours, it was not reasonably open to any midwife or obstetrician, acting with reasonable care in interpreting this trace, to consider that the CTG machine was possibly giving an exaggerated picture of the situation, something which on the expert evidence, appears to be a generally recognised difficulty with this very valuable diagnostic tool. I accept the evidence of Dr. Wiza that the midwives must look at the Trace and how it had developed, and if the fetus might be at all in danger to call the doctor. Observing and listening to Dr. Wiza giving evidence, I am satisfied that he did not believe that this had occurred in the instant case. I am satisfied on the expert evidence that at 06.50 hours, there was still sufficient time for remedial medical action to be taken to fully safeguard the health and safety of the plaintiff. However, I find on the expert evidence that the decision as to what measures should properly be taken at this time, was a decision for the Duty Registrar only and was no longer a decision which could reasonably and responsibly be taken by the midwives, even by a very experienced Senior Midwife, such as Senior Midwife O’Dwyer. I find that the decision of Senior Midwife O’Dwyer to continue to manage this labour herself was substandard and negligent, and a decision which no midwife of equivalent training and experience acting with reasonable care would have made.
It was clear from the evidence that Staff Midwife Murphy and Senior Midwife O’Dwyer both accepted that the CTG Trace was abnormal and Senior Midwife O’Dwyer responded at 06.50 hours by reducing the infused level of Oxytocin from 120mls/ph to 90mls/ph and, by turning Mrs. Fitzpatrick onto her left side. The Partograph Notes on Labour are silent in this regard, there being no note whatever between those at 06.30 hours and 07.10 hours. Mr. Woolfson stated that he was very surprised at this. In my judgment once these measures were taken, there was sufficient time for one of the midwives to maintain the vital continuity, accuracy and integrity of these Notes on Labour, something which, on the face of the Partograph, appears to have been done at 07.10 hours, 07.15 hours and 07.20 hours, despite the far more serious events then occurring. The entry in the Oxytocin/Contractions Box Chart on the Partograph by staff midwife Murphy, gives 06.50 hours as the time when the Oxytocin dosage was reduced to 90mls/ph. The evidence to this court clearly and unequivocally established that the dosage was reduced and Mrs. Fitzpatrick was turned onto her left side at 06.50 hours, even though Senior Midwife O’Dwyer noted the former on the cardiograph in the vicinity of 06.45 hours and the latter in the vicinity of 06.47 hours. She also signed the cardiograph at 06.51 hours. I find it very significant that Dr. McKenna, despite his eminence and enormous experience as a consultant obstetrician and Master of a leading Maternity Hospital, was misled by these entries on the cardiograph and by the lack of any Note on Labour in respect of them, into considering that the deep and prolonged deceleration appearing on the CTG Trace between 06.47 hours and 06.50 hours may have been a response to Mrs. Fitzpatrick being turned on her left side, even though the exact opposite was the true situation. Professor Baker was also confused at least initially by these matters and for the same reason.
I find on the expert evidence that while these measures initiated by Senior Midwife O’Dwyer were in themselves and, as far as they went, an appropriate response to what was being indicated by the CTG Trace between 06.30 hours and 06.50 hours, they were entirely insufficient and consequently substandard for the reasons I have already set out. An unfavourable comparison was sought to be drawn by Senior Counsel for the plaintiff between the CTG Trace at 04.45 hours and the then appropriate response of Senior Midwife O’Dwyer in calling Dr. Wiza and, what I find to be the far more abnormal trace between 06.30 hours and 06.50 hours and her failure to summon Dr. Wiza at 06.50 hours immediately after the deep and prolonged deceleration. I am not, however, satisfied on the evidence that such a simple and straightforward comparison can validly be made, because of the very different stages in the labour at which these events occurred and, these decision were made.
With the sole exception of Professor Turner, all the obstetric and midwifery experts on both sides of this tragic case were agreed that Dr. Wiza should have been called by Senior Midwife O’Dwyer at 06.50 hours. Up to that point, while there was universal acceptance that from 06.45 hours onwards there was clear cause for concern on the Trace, there was disagreement, for reasons which I find to be entirely justified and bona fide, between the expert witnesses as to whether Dr. Wiza should have been called and the Oxytocin turned off. Mr. Clements was very strongly of the opinion that medical intervention should have occurred and the Oxytocin should have been turned off between 06.00 hours and 06.15 hours. Professor Baker, stated that he personally would have intervened and would have turned off the Oxytocin at 06.30 hours, but added that he was cautious in such matters and that other obstetricians might not have acted in this way. Dr. McKenna stated that the Oxytocin should have been turned off and Dr. Wiza called at 6.40 hours. Professor Turner said that if there was a disimprovement in the CTG Trace after 06.50 hours the Oxytocin should have been turned off and Dr. Wiza called, but that it was reasonable to wait 10 to 15 minutes to see how the Trace would develop. Dr. Wiza himself was also of this opinion. Mr. Woolfson and midwives Johnston and Keenan were of the opinion that the necessity to call Dr. Wiza, (Mr. Wolfsan said “inform” but I was satisfied on the evidence that the practice in this country is, and was in December 2001, to call rather than inform the Duty Registrar) and turn off the Oxytocin did not arise until 06.50 hours.
I accept, on the evidence of the expert witnesses and from citations from very reputable text books and other pertinent publications in the field of obstetrics, that it might be an appropriate option for a midwife encountering some types of Variable Decelerations towards the end of first stage labour, to reduce rather than to terminate the administration of oxytocin. But in the instant case, having regard to the nature of the Variable Decelerations, occurring between 06.30 hours and 06.50 hours, to the accompanying uterine over-stimulation and to the fact that on a vaginal examination carried out at 06.30 hours, Mrs. Fitzpatrick was found to be 9cm, or almost fully dilated, I am satisfied that no senior midwife, acting with reasonable care, would have pursued this particular option. Mr. Woolfson gave evidence and, I accept his evidence which went unchallenged and was supported by Professor Baker that once 9cm dilatation has been achieved, the cervix can slip away on a further vaginal examination. Depending upon whether one accepts the “X” mark on the Dilatation of Cervix graph on the Partograph or the Note on Labour on the Partograph with the time of 07.10 hours, both the work of Senior Midwife O’Dwyer, as correctly recording the relevant time, Mrs. Fitzpatrick became fully dilated at 07.00 hours or 07.10 hours or somewhere between. However, reference to the opinions of experts and to reputable medical publications for the purpose of ascertaining what Senior Midwife O’Dwyer should have done in relation to the oxytocin at 06.50 hours appears to me to be of academic interest only.
Two documents setting out procedures for the use of oxytocin in the National Maternity Hospital were listed in their affidavit of documents by the defendant and were produced and proved in evidence. The first in order of time of these documents is dated 17th/18th September, 1996 and is entitled “Procedure for Use of Oxytocin”. It is signed by the then matron, (Maeve Dwyer) and the then Master (Dr. Peter Boylan). Paragraph 6 of this document provides as follows:-
“If at any time, the contractions exceed 7 in a 15 minute period in a primigravida . . . Sister is informed. At Sister’s discretion, the infusion may be altered by reducing the rate or reviewing accordingly”.
The second document in time is dated 6th November, 1996 and is signed by Dr. Peter Boylan only. It is entitled, “Protocol when Number of Uterine Contractions exceed seven in a 15 minute period. This must be reported to Sister or Acting Sister”. The first section of this Protocol which contains two numbered paragraphs bears the sub-heading, “When Patient is on Electronic Fetal Monitoring”. This was the situation in the instant case. These paragraphs provide as follows:-
“(i) If more than seven contractions are reported in a 15 minute period and the CTG Trace is reassuring, the oxytocin infusion should be increased according to normal protocol.
(ii) If the CTG Trace is unreassuring, leave the oxytocin at reported rate. The Assistant Master/or Registrar should review the CTG. Fetal Blood sample should usually be performed. Oxytocin may then be altered, depending on the result.”
It will be recalled that the modern title of “Senior Midwife” has replaced the historical designation “Sister”.
In another document, also listed on discovery of documents by the defendant and produced and proved in evidence, entitled “Fetal Blood Sample (FBS)”, and dated 17th September, 1996, and signed by Matron Dwyer and Dr. Peter Boylan (Master), it is noted that, “oxytocin is not turned off routinely during this procedure”.
I find that the aforecited paragraphs of the Protocol of 6th November, 1996 were intended to, and did supersede, the provisions of paragraph 6 of the Procedure of 17th/18th September, 1996. I find on the evidence that a designated Protocol of this nature must be regarded as mandatory by all to whom it is addressed. It was therefore mandatory on any midwife below the rank of senior midwife to report uterine over-stimulation to the senior midwife. Since electronic fetal monitoring was being employed in the labour in the instant case, the senior midwife was obliged to comply with the afore-cited paragraphs of the Protocol. I do not accept that these paragraphs were intended to be in the nature of guidelines only from which a senior midwife could depart if she considered it to be in the best interests of the mother or the fetus. I am unable to accept the evidence of Dr. Keane that as of December 2001, the afore-cited paragraphs of the Protocol of 6th November, 1996 had been informally abandoned or rescinded and paragraph 6 of the Procedure of 17th/18th September, 1996, reinstated and that this would have become known to all senior midwives through staff meetings. I am further satisfied on the evidence that it is the policy of the defendant to actively manage labour and delivery according to standard procedures and I find that it is altogether improbable that a Protocol as significant as that of 6th November, 1996, would be so informally discarded, while at the same time being left on the record with the resultant risk of serious confusion and the possibility of grave consequences.
I find on the evidence that Staff Midwife, Murphy, and Senior Midwife O’Dwyer, both regarded this Protocol as fully operational and applying to them, even though Senior Midwife O’Dwyer considered that senior midwives retained a discretion to depart from its terms. Significantly, there is no express reservation of such a discretion in the Protocol of 6th November, 1996, and, I find that the language employed and the internal structure and purpose of its provisions are inconsistent with an implied reservation of such a discretion. I am satisfied on the evidence that once a CTG Trace is unreassuring, a fetal blood sample is the principle way of obtaining positive and reliable reassurance that the fetus has not developed, and is not developing, metabolic acidosis. It is further very significant that the evidence established that this document of 6th November, 1996, remained in December 2001 on the active list of midwifery and medical staff instructions and was the only document thereon to be designated a “Protocol”. Dr. Wiza gave evidence that he considered that the Senior Midwife was obliged to comply with the terms of the Protocol unless some critical situation arose when it could be departed from in the best interests of either the mother or the fetus. Professor Baker and Mr. Woolfson agreed with this and considered that there was no discretion “as such” in the Senior Midwife.
Without prejudice to the foregoing findings, the action taken by the midwives at 06.50 hours did undoubtedly result in an improvement in the CTG Trace. However, this improvement was very brief and was an improvement relative only to the very bad pre 06.50 hour position. The CTG Trace did not in any sense return to normal. In the words of Dr. McKenna, to say that the Trace improved after 06.50 hours is only half true, it was a step in the right direction but it was not nearly enough.
I find that from 07.00 hours onwards to 07.10 hours, a new CTG Trace pattern could be seen to be evolving and becoming clearly established. The baseline was now rising – an ominous sign – and, though no longer as deep or as prolonged as between 06.30 hours and 06.50 hours, the onset nadir and the recovery of the decelerations were now all out of phase with the contractions – an ominous sign. I find it impossible to understand how Senior Midwife O’Dwyer could reasonably, if acting with reasonable care, have decided, which she now claims she did, that the Trace had returned to normal. Unfortunately, I found Senior Midwife O’Dwyer’s recall of events after 06.50 hours increasingly unreliable, at times contradictory and on a number of occasions manifestly inaccurate.
In my judgment a great deal of unprofitable discussion took place during the course of the hearing as to the correct terminology to be employed to describe these decelerations: whether they were properly described as “variable”, “variable with a late component” or “late”. Senior Midwife O’Dwyer gave evidence that she regarded these decelerations as variable with a late component. Professor Turner considered that 4 out to 5 were late decelerations. Dr. McKenna was of the same opinion. In my judgment this latter is the vital element and, I am satisfied that she fully recognised and appreciated its significance in relation to this Trace pattern. Mr. Woolfson had no doubt whatsoever that these decelerations were clearly late decelerations and I find his evidence totally convincing on this point. He said that when you see late decelerations you don’t test anymore, you deliver. There was no need for “crash tactics” at this point, but there was no reason why the plaintiff could not have been delivered by 07.25 hours. Professor Baker said the he considered that they were “variable” but added, very significantly in my judgment, that he would not criticise anyone for calling them late decelerations and that it was important that disputes concerning terminology must not be seen as altering the appropriate reaction to the possibilities arising from this Trace. I find on the evidence that this Trace pattern could only be regarded as ominous and that such a Trace pattern always signifies, particularly in the case of a primigravid, that the fetus was probably, (since the CTG Trace is non specific and a diagnostic aid only) suffering from hypoxemia and though still healthy and still able to rally was being seriously stressed. Yet Senior Midwife O’Dwyer decided that the plaintiff was not necessarily hypoxic and it was sufficient to keep a close eye on the Trace.
I find that at 07.06 hours at the latest, it would have been apparent to any senior midwife exercising reasonable care and, should have been very obvious to Senior Midwife O’Dwyer that this ominous pattern was firmly established and that this was not a case of an isolated late deceleration only. Even if I accepted the stand-alone opinion of Professor Turner, – which on the evidence I cannot, – that it was an option reasonably open to the midwives to wait 10 or 15 minutes after reducing the level of oxytocin and turning Mrs. Fitzpatrick on her left side, to see if the CTG Trace will return to normal, I find that by 07.06 hours it must have been totally obvious to them that this was not going to happen and that this Trace was indicating that the fetus was being compromised and that Dr. Wiza should have been called immediately. He was not called. I accept the clear and unequivocal evidence of Mr. Woolfson that the CTG Trace between 06.50 hours and 07.10 hours showed that the plaintiff was undoubtedly suffering hypoxia and though still able to recover, the process which would cause irreversible brain damage has started to occur so that desperate measures were now needed. He said that as Mrs. Fitzpatrick was almost fully dilated immediate preparation should have been made for a ventouse or a forceps assisted delivery.
At 07.10 hours the CTG Trace changed again and produced a new pattern. In her evidence in chief Senior Midwife O’Dwyer described this pattern as “grossly abnormal” and said that she was very shocked to see it, and did not expect it.
I find on the evidence that by 07.12 hours it must have been very obvious to Senior Midwife O’Dwyer that a pattern of very deep decelerations with no baseline variability was established. Dr. Wiza in his evidence told the court that this indicated a clear emergency involving the plaintiff. Professor Turner agreed and called it a “severe emergency”. I find on the evidence that there can be no shadow of doubt whatever about this. It was vital now that the plaintiff should be delivered as quickly as possible if irreversible brain injury was to be avoided. I find on the expert evidence that even in an emergency situation such as was here indicated, once a mother was fully dilated it would require no more than 15 minutes from the arrival of the obstetrician in the delivery room, to affect the delivery. I find on the expert evidence that after 07.10 hours a vaginal assisted delivery by ventouse or forceps would have been quicker than caesarean section.
Even faced with this emergency, Senior Midwife O’Dwyer still did not summon Dr. Wiza, despite the fact, as she admitted in evidence, that she did not know what was causing it. I find that at this time the CTG Trace was grossly pathological and that while the plaintiff had some reserves left not just minutes, but seconds now counted if there was to be a good outcome for the plaintiff. Without prejudice to my earlier findings that her failure to turn off the oxytocin and to call Dr. Wiza at 06.50 hours was substandard and negligent, I find that her decision at or just after 07.10 hours not to call Dr. Wiza but to carry out a vaginal examination, and at 07.15 hours or 07.20 hours to turn off the Oxytocin and then wait and see whether the CTG Trace would return to normal, while encouraging Mrs. Fitzpatrick to give a number of active pushes, completely incomprehensible in the circumstances, totally unjustifiable and, a decision which no senior midwife acting with reasonable care would have taken. She told the court that she thought the Trace indicated progress and the Mrs. Fitzpatrick would deliver soon. On the evidence particularly the evidence of Dr. Wiza this was wrong and delivery was not imminent. Dr. Wiza told the Court that the CTG Trace at 07.13 hours clearly indicated an emergency and that the plaintiff was in difficulty for at least 10 minutes before that. Mr. Woolfson said that at 07.15 hours there was a dire emergency, the CTG Trace was grossly pathological and pre-terminal and there was no excuse whatever for not getting the plaintiff delivered by whatever means was fastest. Professor Baker and Dr. McKenna were of the same opinion. Mr. Clements told the court that at 07.12 hours there was no justification whatever for any further delay in delivering the plaintiff who was in immediate danger of irreversible brain damage and that Senior Midwife O’Dwyer had absolutely no right to wait and see if the CTG Trace would improve after the Oxytocin was turned off.
I reject entirely the submission that the change in the CTG Trace pattern after 07.10 hours was not reasonably foreseeable by Senior Midwife O’Dwyer and Staff Midwife Murphy. Professor Baker, Professor Turner and Mr. Woolfson all gave evidence, that they had never previously encountered such a sudden and catastrophic change in a cardiotocograph recording as occurred in the instant case at 07.10 hours and, that such a change could not have been foreseen from the pre 07.10 hours Trace. While I accept, as I must accept having regard to this uncontradicted evidence, that the swiftness and extremity of the change could not have been reasonably foreseen by the midwives, I find on the evidence that a change of this sort was clearly foreseeable, indeed inevitable in the short term unless some specific test such as a fetal blood sample, demonstrated that the plaintiff had not become and was not becoming acidotic. Once the fact of such a change was reasonably foreseeable, in my judgment it does not matter that the person charged with the act or omission could not have reasonably foreseen the exact time or the exact severity of the change. Though none of the expert witnesses could explain the exact aetiology of the catastrophic collapse which occurred at 07.10 hours, I am satisfied on the evidence, on the balance of probabilities that it was caused by unrelieved hypoxic stress, increasing acidosis and by the inevitable exhaustion of the limited fetal reserves. Professor Baker conceded that it was a reasonable hypothesis that the continued use of the Oxytocin may have caused the 07.10 hours change. Mr. Woolfson found it difficult to link Oxytocin with the post 07.10 hours CTG pattern. I find on the evidence that there is an unbroken causal connection between the plaintiff’s condition prior to 07.10 hours as signalled by the cardiotocograph recording from 06.30 hours onwards and, his post 07.10 hours condition as indicated by that recording. Mr. Clements said that this was the very thing you would be worrying might happen. Mr. Woolfson agreed, but with the rider, that one could not foresee what actually did to happen or when exactly it would happen. Mr. Woolfson told the court that the process which would ultimately result in irreversible brain damage to the plaintiff had started at 06.55 hours and that at 07.10 hours all the signs were flashing, – hyper-stimulation, late decelerations, a long deep deceleration of almost 3 minutes and a pathological trace. This issue of foreseeability has no relevance whatever to the issue of why Senior Midwife O’Dwyer did not call Dr. Wiza at 07.12 hours.
It was submitted on behalf of the plaintiff that from after the 06.30 hours onwards, the Partograph Notes on Labour and the comments written on the cardiograph by Senior Midwife O’Dwyer and by others with her co-operation, were wholly unreliable, and save as to the acknowledged retrospective Note on Labour written by her at 08.45 hours, were not written at the times stated in those notes. It was admitted by Senior Midwife O’Dwyer during the course of her evidence that the comment, “Ventouse applied” written on the cardiograph at 07.38 hours was written at her direction by Midwife Heather Helen sometime later on the morning of the 26th December, 2001 when they were going over the Trace together. Midwife Heather Helen did not give evidence. No issue was taken that the comment, “Dr. Wyza called” appearing on the cardiograph at 07.20 hours and, “Dr. Wyza present” appearing on the cardiograph at 07.30 hours were in fact written by Senior Midwife O’Dwyer herself, even though on all other occasions she correctly wrote “Wiza” which is the correct spelling of his name. However, it was put to Senior Midwife O’Dwyer that these comments were not written at 07.20 hours and at 07.30 hours respectively but were written by her later on the morning of the 26th December, 2001 most probably at 08.45 hours when the acknowledged retrospective Note was written by her. Senior Midwife O’Dwyer denied this. Senior Counsel for the plaintiff asked Senior Midwife O’Dwyer why of all the comments written by her and by Staff Midwife Murphy on the cardiotocograph print-out only these three comments were written in a direction opposite to all the others. I find that one would have to be writing with one’s back to the CTG Machine with the print-out scrolling away from one. Unlike all the other comments, written on the cardiograph in particular the comment, “stopped pushing” which Staff Midwife Murphy gave evidence she wrote on the cardiograph at 07.28 hours, and therefore just before the comment “Dr. Wyza present”, Counsel pointed out that these three comments would appear upside down as the paper print-out unscrolled from the machine. Staff Midwife Murphy said she did not know who wrote the comments “Dr. Wyza called” and “Dr, Wyza present” on the trace.
Senior Midwife O’Dwyer said that the cardiotocograph machine was positioned against the wall of the room at the head of Mrs. Fitzpatrick’s bed on the left side as one looked up from the bottom of the bed and she had not moved it, so therefore she must have just written the comments at 07.20 hours and 07.30 hours in that particular way. Senior Midwife O’Dwyer said that she would think that she wrote the comment “Dr. Wyza called” after she had come back into Mrs. Fitzpatrick’s room having called him. She told the court that she wrote the comment “Dr. Wyza present” on the cardiograph at 07.30 hours to signify that he was then present in the room, because of the seriousness of the matter, even though he was actually present much earlier, – three or four minutes after 07.20 hours. Without prejudice to the important and very contentious issue as to the accuracy of this evidence and though I have very considerable reservations in the matter, I am not satisfied that the plaintiff has discharged the onus which lies on him of establishing on the balance of probability that these comments were not written by Senior Midwife O’Dwyer at 07.20 hours and at 07.30 hours respectively.
I find on the evidence of the tocograph record, particularly in the light of the very clear and unshaken evidence of Mr. Woolfson, that Mrs. Fitzpatrick gave five definite active and controlled pushes at approximately 07.15 hours, 07.17 hours, 07.18 hours, 07.20 hours and 07.21 hours. The pattern of the tocograph then changed and I find on the same basis that the pushing as recorded at approximately 07.23 hours, 07.24 hours, 07.25 hours and 07.27 hours was exhausted involuntary pushing something over which Mrs. Fitzpatrick had no control whatsoever. I find on the expert evidence that the tocograph pattern from 07.28 hours onwards does not indicate maternal pushing. I find on the evidence, with particular reference to the evidence of Professor Baker, that the comment, “stopped pushing” written by Staff Midwife Murphy on the cardiograph at 07.28 hours was accurate and entirely correct and is totally consistent with the evidence provided by the mechanical tocograph print-out of the CTG machine. Mr. Fitzpatrick gave evidence that after they had been told that Mrs. Fitzpatrick was fully dilated, Staff Midwife Murphy began encouraging her to push. He said that Senior Midwife O’Dwyer had told her to push with the contractions and then to relax and breathe. This he stated went on for a while before the doctor came. He said that he was holding one of Mrs. Fitzpatrick’s legs and that Staff Midwife Murphy was holding the other. Senior Midwife O’Dwyer agreed that this was so but only, she said, until the bottom section of the bed was removed. Mr. Fitzpatrick thought that Mrs. Fitzpatrick had given six or seven pushes during this time.
I find on the evidence that at 07.28 hours the cardiotocograph record changed again. The trace now indicated that the plaintiff’s condition was terminal, that he was dying and, unless delivered immediately he would suffer irreversible brain injury and die.
I find on the evidence the Senior Midwife O’Dwyer did not call Dr. Wiza at 07.20 hours and, did not in fact call him until 07.30 hours or very shortly thereafter. Dr. Wiza gave evidence that he was resting in his room on the floor above Mrs. Fitzpatrick’s room and came immediately on hearing from Senior Midwife O’Dwyer on the telephone that the CTG Trace was shocking with very bad decelerations. He gave evidence that he arrived within 2 or 3 minutes at most. I am satisfied on the evidence that Dr. Wiza is mistaken in his recollection that he first went to Senior Midwife O’Dwyer’s office. Senior Midwife O’Dwyer told the court that she was surprised at how quickly he came: she thought he came within 3 or 4 minutes of her calling him. Staff Midwife Murphy agreed that Dr. Wiza came very quickly. All of the obstetricians who gave expert evidence were agreed that this was a remarkably rapid response on the part of Dr. Wiza, – less than a third of what they believed would have been a reasonable response time in the circumstances. Dr. Wiza gave evidence that Mrs. Fitzpatrick had stopped pushing before he arrived in the room and, thereafter only pushed when he instructed her to push. Despite the very strong, indeed almost indignant, evidence from Mr. Clements that a further vaginal examination was wholly unnecessary and undesirable in the extreme emergency prevailing, (even at 07.20 hours), Dr. Wiza insisted that he had no option, none whatsoever, but to carry out a vaginal examination himself and, that he could not have done so had Mrs. Fitzpatrick been pushing. Dr. McKenna, Professor Baker, Professor Turner and Mr. Woolfson all agreed that it would have been substandard in Dr. Wiza not to have examined the CTG Trace, carried out an abdominal examination and also a vaginal examination before proceeding any further. Staff Midwife Murphy, Senior Midwife O’Dwyer and Dr. Wiza all gave evidence that when he arrived in Mrs. Fitzpatrick’s room he first examined the CTG Trace, then immediately carried out an abdominal examination and immediately after that had put on surgical gloves and carried out a vaginal examination of Mrs. Fitzpatrick. While it is very difficult not to have considerable sympathy with Mr. Clement’s opinion, nonetheless I am satisfied on the overwhelming majority of the expert evidence that Dr. Wiza was entirely justified in considering that he could not, even in the face of such dire emergency, safely deliver the plaintiff without first carrying out these preliminary procedures. For these reasons I am quite satisfied that Mrs. Fitzpatrick stopped pushing at 07.28 hours. Therefore, on Dr. Wiza’s evidence he could not have arrived in her room before that time.
Staff Midwife Murphy gave evidence that at the same time as Senior Midwife O’Dwyer decided to turn off the Oxytocin, (that is at 07.15 hours or 07.20), hours, Senior Midwife O’Dwyer decided also to call the doctor. However Staff Midwife Murphy told the Court that she could not recall when Dr. Wiza was actually called other than by reference to the Partograph Notes on Labour and the comments on the cardiograph, written, it was accepted, by Senior Midwife O’Dwyer. Senior Midwife O’Dwyer was asked why she did not leave Staff Midwife Murphy to assist Mrs. Fitzpatrick in her active pushing and to go herself to summon Dr. Wiza. Senior Midwife O’Dwyer told the court that she could not do so as the plaintiff might be delivered and it was essential that she be present. It therefore seems highly improbable that Senior Midwife O’Dwyer, regardless of any earlier decision to call Dr. Wiza did in fact do so before Staff Midwife Murphy had marked “stopped pushing” on the cardiograph at 07.28 hours, as this would have necessitated her leaving the room.
I find on the evidence that after Mrs. Fitzpatrick had stopped pushing, Senior Midwife O’Dwyer informed Mrs. Fitzpatrick that she needed an instrument delivery and, that she was going to call the doctor. I find on the evidence that the two midwives then set about making the necessary preparations for an assisted vaginal delivery and that there was a limited conversation between Senior Midwife O’Dwyer and Mrs. Fitzpatrick as to what an assisted delivery might involve. These two matters most likely proceed simultaneously. As with almost every other aspect of this case there was disagreement between the parties on both these matters.
Mrs. and Mr. Fitzpatrick told the court that nothing was said to Mrs. Fitzpatrick about the doctor being called and that the bottom portion of the delivery bed was not removed and placed against the wall and her legs were not placed in paddles. Staff Midwife Murphy told the court that when Senior Midwife O’Dwyer told Mrs. Fitzpatrick that she needed an assisted delivery, Mrs. Fitzpatrick had asked what that involved and Senior Midwife O’Dwyer had said that it probably involved a ventouse but it was a decision for the doctor to take. Staff Midwife Murphy was certain that she and Senior Midwife O’Dwyer had removed the lower portion of the delivery bed which is designed to be so disassembled in order to facilitate an instrument assisted vaginal delivery. Senior Midwife O’Dwyer told the court that she told the Fitzpatricks that she was going to call the doctor as the baby showed signs of being tired and that Mrs. Fitzpatrick needed an assisted delivery. Mrs. Fitzpatrick, she said, had asked what this meant and she had replied that it probably meant a ventouse or forceps, but that it was a decision for the doctor. She told the court that Mrs. Fitzpatrick then asked her what a ventouse was and she replied that it was suction cup. Senior Midwife O’Dwyer told the court that she then assisted Staff Midwife Murphy in removing the bottom part of the bed and placing it against the wall. She then left the room to call Dr. Wiza.
In find on the balance of probabilities that the detachable lower portion of the delivery bed was removed by the midwives. Dr. Wiza had no doubt during his evidence that it had been removed before he arrived. I am satisfied on the evidence, particularly the evidence of Medical Midwife Manager Fanagan, and the uncontradicted evidence of Professor Turner, that while a ventouse assisted delivery could be carried out, though with considerable inconvenience, with the delivery bed intact and, that paddles were not employed in this procedure, a forceps assisted delivery could not possibly be carried out with the lower portion of the delivery bed in situ unless the obstetrician placed the mother in a transverse position across the bed, something which frequently has to be done in home delivery cases. Professor Turner told the court that paddles or stirrups when available are always employed for a forceps assisted delivery. It was common case between the parties that Dr, Wiza had abandoned his attempt at a ventouse assisted delivery and was intending to carry out a forceps assisted delivery when the plaintiff was born. There was however, no evidence that Mrs. Fitzpatrick was in the meantime moved into a transverse position across the bed or that the detachable lower portion of the delivery bed was removed, (which on the evidence causes the foot rests or “paddles” to swing automatically into place).
I also find on the balance of probabilities that the midwives recollection that there was an exchange of remarks, as indicated, between Senior Midwife O’Dwyer and Mrs. Fitzpatrick is more likely to be correct. In this regard, I find that Senior Midwife O’Dwyer had historically always offered some explanation to Mrs. Fitzpatrick as to what she was about to do. I do not believe however that Senior Midwife O’Dwyer said anything at all at this time about the baby showing signs of being tired and I prefer Staff Midwife Murphy’s recollection of the conversation between Mrs. Fitzpatrick and Senior Midwife O’Dwyer. Having regard to the cardiotocograph record at 07.20 hours to say that the baby was “tired” would have been a totally extraordinary and altogether unwarranted interpretation of the then appalling CTG Trace and at 07.30 hours it would be been a barefaced untruth and a deliberate deception.
I find on the evidence that these preparations took approximately 2 to 3 minutes to complete. All the necessary equipment for an assisted vaginal delivery was ready prepared on a trolley and Staff Midwife Murphy simply fetched in this trolley from the adjoining room. While the special delivery bed is designed to permit the lower section of the bed to be easily removed I find on the evidence that the removable footend and separate mattress are somewhat heavy and cumbersome. In these circumstances it is very probable that Staff Midwife Murphy did ask Senior Midwife O’Dwyer to assist her in removing these items and stacking them out of the way against a wall of the room. It is altogether improbable that these activities would have been going on while with Mrs. Fitzpatrick was being encouraged to push. I find therefore on the evidence and the balance of probabilities that Senior Midwife O’Dwyer in fact called Dr. Wiza not at 07.20 hours as claimed by her, but at 07.30 hours or very shortly thereafter. I am satisfied on the evidence, particularly the evidence of Professor Baker which was clear emphatic and unequivocal on this point, that it was substandard and negligent on the part of Senior Midwife O’Dwyer not to have called Dr. Wiza until 7.30 hours.
It was accepted that the inverted comment “Dr. Wyza called” was written by Senior Midwife O’Dwyer on the cardiograph at a point on the horizontal time scale equivalent to 07.20 hours. The Partograph contains the following Note on Labour written and signed by Senior Midwife O’Dwyer:-
“07.20 hours. CTG noted – prepared for assisted delivery – Dr. Wiza called. Paed[iatrician] called.”
The paediatrician Dr. Kennedy was not called in evidence though I find that the evidence established that she came to Mrs. Fitzpatrick’s room shortly after Dr. Wiza and remained somewhere in the room or at the door of the room throughout the delivery of the plaintiff who was then given immediately into her care. It is therefore probable that she would have been in a position to give important evidence to the court not only regarding the time at which she was called by Senior Midwife O’Dwyer but also with regard to the highly controversial events which the defendant claims occurred during the second stage of labour up to the delivery of the plaintiff. This failure to call Dr. Kennedy or to explain her absence is something to which I am entitled to attach some weight in arriving at my decision in this tragic case.
It was submitted on behalf of the defendant that the court must accept this Partograph Note on Labour as a contemporaneous and fully accurate record of what occurred as therein recited because the plaintiff had not put specifically to Senior Midwife O’Dwyer that it was a fraudulent misstatement, an unavoidable conclusion should the court hold that Dr. Wiza was not in fact called at 07.20 hours. On behalf of the plaintiff it was accepted that all the matters mentioned in this Note on Labour did in fact occur and issue was taken only with the stated time of 07.20 hours as being the time when these matters occurred. Senior Midwife O’Dwyer was cross examined at length with a view to establishing that these events did not occur at 07.20 hours but at 07.30 hours or even later. It was further put to Senior Midwife O’Dwyer that this particular Note on Labour and also the two preceding Notes on Labour timed by her at 07.15 hours and 07.10 hours were not in fact written at these times but were written at 08.45 hours, the same time as she wrote the identified retrospective Note on Labour. It was put perfectly clearly to Senior Midwife O’Dwyer, the admitted author of this note, that it was not a contemporaneous note and that the events described in it did not occur at 07.20 hours as stated by the Note. In these circumstances, I find that it would be absurd in this court to hold that the Note must be regarded as an accurate and contemporaneous record merely because it was not put directly to Senior Midwife O’Dwyer that she had deliberately and fraudulently written 07.20 hours for the purpose of counterfeiting the record. I am quite satisfied that it was very clearly and unequivocally put to Senior Midwife O’Dwyer, but without being unnecessarily offensive, that the time recorded for these events was wholly incorrect and that to this extent the record was inaccurate. The weight to be given to this evidence is of course a matter for the court. As appears from the aforecited evidence of Staff Midwife Murphy the decision to call Dr. Wiza and the implementation of that decision may not have been simultaneous and Senior Midwife O’Dwyer’s recollection of when she wrote this Note on Labour may not be accurate. I find that this Note on Labour is inaccurate and misleading as to the time when the events described in it occurred, but that is not necessary for me to find, and I do not find that the record was deliberately falsified by Senior Midwife O’Dwyer.
Though it is abundantly clear from the evidence that very significant and worrying changes were occurring in the cardiotocograph record between 06.30 hours and 07.10 hours, there is not even the most cryptic reference to these changes in the Partograph Notes on Labour, a matter particularly remarked upon by Mr. Woolfson. I find on the evidence of the expert witnesses that these Notes on Labour are, for a number of reasons, such as medical audit and medico-legal considerations, to be regarded as documents of the utmost importance and should present as complete and accurate a picture as possible consistent with their nature, the circumstances in which they are written and the fact that they are notes and not intended to be exhaustive narratives.
The Note made and signed by Senior Midwife O’Dwyer and timed by her 07.15 hours states as follows:-
“Oxytocin turned off – FHR 60BPM same recovered 135BPM.”
This statement with regard to the fetal heart rate is a total misrepresentation of the very shocking reality at this time. Senior Midwife O’Dwyer made the valid point that the original cardiotocograph print-out is kept as part of the Patient Chart and is always available and, that attention to the patient must always take priority over note taking. However, it has been pointed out these traces are fragile documents which are all too often lost or damaged. In my judgment writing an accurate and informative Note on Labour takes no more time than writing a misleading and inaccurate Note. Moreover, in my judgment neither of these considerations could possibly justify such a distorted and unrepresentative picture of the plaintiff’s health as that presented by this Note on Labour timed 07.15 hours. It is simply not acceptable to say that it was justified, without any qualification or reservation, because it was an accurate record of what had appeared on the digital display on the face of the CTG monitor for a second or part of a second at 07.15 hours.
The Partograph Note on Labour made and signed by Senior Midwife O’Dwyer and timed by her at 07.10 hours reads:-
“CTG noted – V[aginal] E[xamination] to assess, longitudinal lie, cephalic presentation, no cord or placenta felt, cervix fully dilated, clear liquor draining, FHR 132bpm.”
In a space reserved for that purpose in the bottom left hand corner of the first page of the Partograph marked “Full Dilatation”, I find on the evidence that Senior Midwife O’Dwyer wrote “07.10”. However, on the Dilatation of Cervix Graph on the same page of the Partograph, Senior Midwife O’Dwyer placed an “X” mark in front of the 9 hours in labour, (07.05 hours) line. In cross examination she said that this mark was “a bit off”, while accepting that all the other “X” marks corresponded with the times recorded on the Notes on Labour. Senior Midwife O’Dwyer, Mr. Woolfson and Professor Turner all gave evidence that the written record should be regarded as correct and this chart was intended as a progress chart only to provide continuity, and in absence of sub-divisions of the 1 hour spaces into minutes, the position of the “X” was not meant to be and could not be totally accurate. This suggests itself as a logical and reasonable explanation of the problem. However, in another document in Mrs. Fitzpatrick’s Chart entitled “Active 2ND Stage Fetal Heart Record”, which I find on the evidence was also completed and signed by Senior Midwife O’Dwyer, the “Start Time” is given as 07.10 hours but the actual graph which ends with the birth of the plaintiff at 08.03 hours, covers a period of 63 minutes on the horizontal time scale, thereby giving a starting time of 07.00 hours. When Senior Midwife O’Dwyer was questioned about this she said that the graph must be incorrect. Neither Senior Midwife O’Dwyer not Staff Midwife Murphy could explain the presence of, or say who made the faint “X” mark on this Graph at 02.05 hours. Despite the very controversial circumstances surrounding the plaintiff’s birth and the meeting on 16th January, 2002, the carbon copy of the Partograph was very surprisingly destroyed in accordance with routine hospital procedure.
In the Note on Labour made and signed by Senior Midwife O’Dwyer and timed 07.15 hours, it is stated inter alia, “Oxytocin turned off”. I find on the evidence that Senior Midwife O’Dwyer wrote on the cardiograph at 07.15 on the horizontal time scale, “Oxytocin off”. Yet, when one looks at the Oxytocin/Contractions Box Chart on the Partograph, which the evidence established as kept throughout by Staff Midwife Murphy, next to the legend, “Oxytocin off” is written “07.20” which appears to have been altered from “07.15”. Staff Midwife Murphy gave evidence that she erroneously continued to palpate Mrs. Fitzpatrick and to enter contractions in this Box after the Oxytocin had been turned off. She said that when she realised her error she drew a horizontal line through the last four entries, Nos. 72 to 75 inclusive and wrote the word “error” over them.
I am satisfied for all these reasons, that this Court could not rely on the accuracy of the Partograph from the 06.30 Note on Labour onwards with any degree of assurance and could not accept that in this period it provides any sort of reliable corroboration of the evidence of Staff Midwife Murphy and Senior Midwife O’Dwyer as to the fact or the timing of events stated by them to have occurred from 06.30 hours onwards.
There is a break of just over 1 minute in duration in the cardiotocograph record from 07.38 hours to approximately 07.39.5 hours. The evidence established that at 07.38.5 hours the cardiotocograph machine automatically changed the notation format which is printed automatically every 10 minutes from “DECG” (Direct Electrocardiograph) to “US2” (Ultrasound/External Probe). I find on the evidence that this signalled the removal of the fetal scalp electrode from the plaintiff’s scalp. I find on the evidence that this was done to enable the silastic cup of the ventouse, (a vacuum extractor) to be applied to the leading part of the plaintiff’s scalp. I reject the suggestion that it was removed by Dr. Wiza to enable him to carry out a vaginal examination. I accept the evidence of Dr. Wiza and Senior Midwife O’Dwyer confirmed here by the total cardiotocograph record, that the fetal scalp electrode is always left in place when carrying out a vaginal examination because it does not hinder the carrying out of the procedure in any way and the midwife or obstetrician does not wish to interrupt the vital flow of accurate information concerning the fetal heart rate provided by it. No challenge was made during the hearing of this action to the accuracy of the internal time keeping mechanism of this cardiotocograph machine. I find that the importance of this mechanically indicated change of modality is that it fixes 07.38.5 hours beyond argument as the time when Dr. Wiza, having completed his preliminary examinations removed the fetal scalp electrode from the plaintiff’s head in order to apply the ventouse cup for the first time. On Dr. Wiza’s own evidence and, on the evidence of the obstetricians who gave expert evidence in this case, I find that Dr. Wiza after he had arrived in Mrs. Fitzpatrick’s room took about 2 minutes to examine the CTG Trace, 1 or 2 minutes to carry out the abdominal examination and 2 or 3 minutes to put on surgical gloves, carry out the vaginal examination and inject the perineum with a local anaesthetic. Working backwards this corroborates the other evidence indicating that Dr. Wiza was called at 07.30 hours or shortly thereafter and was present in Mrs. Fitzpatrick’s room at 07.32 hours or 07.33 hours, as noted by Senior Midwife O’Dwyer on the cardiograph at 07.30 hours.
Senior Midwife O’Dwyer recalled that Dr. Wiza, after he had completed the vaginal examination told the Fitzpatricks that the plaintiff needed to be delivered and he was going to use a ventouse. It will be recalled that Mrs. and Mr. Fitzpatrick gave evidence that Dr. Wiza did not speak to them at all until after the plaintiff and the placenta had been delivered, when he advised Mrs. Fitzpatrick that the stitches which he had inserted in her perineum might appear tight for some days. I have already found that Mrs. and Mr. Fitzpatrick are mistaken in this recollection as regards the carrying out of the fetal blood sample. I shall defer until later in this judgment a decision as to whether Dr. Wiza spoke to Mrs. and Mr. Fitzpatrick during the second stage of labour up to the delivery of the plaintiff. Meanwhile, I find that if Dr. Wiza did speak to Mrs. and Mr. Fitzpatrick at this time it is highly probable that he made the remark recalled by Senior Midwife O’Dwyer.
In giving evidence in chief Dr. Wiza told the court that after he had completed the three preliminary examinations and advised Mrs. Fitzpatrick that he needed to do a ventouse assisted delivery, it had taken between 6 and 8 minutes to persuade Mrs. Fitzpatrick to give her consent to this procedure. Senior Counsel for the plaintiff objected to this evidence on the basis that this critically important matter was not pleaded, had not been raised with any of the witnesses, lay or expert, who had given evidence in the plaintiff’s case over the preceding twenty seven days of the hearing nor had any application been made to amend the pleadings in this regard. He also adverted to the fact that there was no reference to this alleged delay in any of four reports furnished to the defendant by Midwife Keenan, in any of two similarly furnished by Professor Turner or in a report furnished to the defendant by Dr. MacMenamin. (not called in evidence). In a report of March 2003, Professor Baker referred to the obtaining of consent “taking several minutes”. In his reports Mr. Woolfson merely stated that Mrs. Fitzpatrick had “ultimately agreed” to the procedure. These reports had been furnished to the plaintiff’s solicitors in accordance with the provisions of S.I. 391 of 1998 Rules of the Superior Courts No. 6. Senior Counsel for the defendant responded that he had referred to this delay in addressing the Court. No criticism of Mrs. Fitzpatrick was intended. She was, he said, entitled to take time to consider the position and Dr. Wiza was merely explaining why he had not proceeded to carry out the assisted vaginal delivery of the plaintiff sooner. The defendant did not wish to seek an amendment of the pleadings in its defence to plead this matter.
I am fully satisfied on the evidence that Dr. Wiza is totally mistaken in this recollection and that no such 6 to 8 minutes discussion or delay took place. It is only if Dr. Wiza was called by Senior Midwife O’Dwyer at 07.20 hours and had arrived at 07.22 hours or 07.23 hours that this issue could arise at all. If, as I find, Dr. Wiza was not in fact called by Senior Midwife O’Dwyer until 07.30 hours or very shortly thereafter, and arrived in Mrs. Fitzpatrick’s room at 07.32 hours or 07.33 hours, then, by reference to the unassailable fixed point of the first application of the ventouse at 07.39 hours, there could be no time for any alleged 6 to 8 minute discussion with Mrs. Fitzpatrick in order to convince her to permit a ventouse assisted vaginal delivery. I find on the evidence that on a Standard Form Report Sheet with the title “Operative Vaginal Delivery/Repair of Perineum” completed by him at 08.30 hours, only 27 minutes after the plaintiff had been delivered, Dr. Wiza wrote inter alia the following:-
“Ventouse assisted delivery for poor CTG. (silastic cup) … procedure explained to patient. Cup applied and checked … etc.”
I find that it is significant that this important Report does not record the time at which Dr. Wiza was called by Senior Midwife O’Dwyer or the time at which he arrived in Mrs. Fitzpatrick’s room. There is no reference in this Report to a resistance or disinclination on the part of Mrs. Fitzpatrick to consent to a ventouse assisted vaginal delivery nor is there any reference to 6 to 8 minutes spent persuading her to agree, even though the same note makes reference to attempts to persuade Mrs. Fitzpatrick to agree to other procedures. It will also be recalled that as regards the fetal blood sample, Dr. Wiza wrote in the Partograph Notes on Labour at 05.10 hours, “FBS offered – patient thinking about the offer”. It seem to me improbable, that if it had occurred, that Dr. Wiza would not have made a similar note with regard to the much more serious matter of a very significant and very crucial delay on the part of Mrs. Fitzpatrick in agreeing to permit a ventouse assisted vaginal delivery, at a time when on the expert evidence Dr. Wiza and Senior Midwife O’Dwyer must have known that the plaintiff was dying.
Nothing at all appears in the Partograph Notes on Labour, even in the retrospective Notes on Labour, which I find on the evidence was written by Senior Midwife O’Dwyer at 08.45 hours on the morning of the 26th December, 2001 that Dr. Wiza had explained to Mrs. Fitzpatrick that he needed to do a ventouse assisted delivery, that Mrs. Fitzpatrick had declined and that it required a period of between 6 and 8 minutes to persuade her to give her consent. Significantly in my view, remarks of this nature do appear in this retrospective Note on Labour regarding an episiotomy and a forceps assisted delivery. Dr. Wiza told the court that his examination of the cardiotocograph record showed him that an emergency involving the plaintiff had existed since 07.13 hours, and that the plaintiff had been in difficulties for at least 10 minutes before that. When, on the expert evidence with particular reference to that of Professor Turner not just minutes but even seconds counted if the plaintiff was to be saved from death or from irreversible brain injury, in my judgement it is altogether improbable, given the virtual certainty of some form of future inquiry if the plaintiff died or suffered such brain injury, that if Dr. Wiza was forced to spend 6 to 8 minutes convincing Mrs. Fitzpatrick of the need for a ventouse assisted vaginal delivery at his time, that he or Senior Midwife O’Dwyer but most probably both, would not have recorded this fact in his Report written later or in the retrospective Partograph Note on Labour or in some other contemporaneous record.
Further, having seen and heard Dr. Wiza giving evidence and having observed at first hand the reaction in the court to this evidence I am entirely satisfied that this alleged 6 to 8 minute conversation with Mrs. Fitzpatrick never took place, but was most probably something of which Dr. Wiza had convinced himself in retrospect between December 2001 and April 2007, probably in the context of re-examining the cardiotocograph record with the comments written thereon. Professor Baker who gave evidence in the case for the defendant was critical of this practice of writing comments on the cardiotocograph print-out.
To recapitulate, I find on the evidence that Dr. Wiza was not called by Senior Midwife O’Dwyer at 07.20 hours but was called by her at 07.30 hours or very shortly thereafter. I find Dr. Wiza arrived in Mrs. Fitzpatrick’s room at 07.32 hours or 07.33 hours and having examined the CTG Trace, carried out an abdominal examination and a vaginal examination and infiltrated the perineum, had removed the fetal scalp electrode at 07.38.5 hours and applied the ventouse silastic cup at 07.39 hours. There was no criticism on the part of any of the obstetricians who gave expert evidence of Dr. Wiza opting for a somewhat slower ventouse assisted rather than a forceps assisted vaginal delivery.
I find on the evidence of Professor Fleming CBE Consultant Neo-Natologist and Professor of Infant Health and Developmental Physiology, University of Bristol and, Professor Hill Consultant Paediatric Neurologist and Professor of Pediatrics, University of British Columbia whose qualifications and experience I found to be particularly pertinent and impressive, both of whom gave evidence in the case for the plaintiff, that the plaintiff, to the point of almost total certainty suffered a hypoxic-ischemic injury to his brain. I find on this expert evidence that this injury has caused his present levels of gross neurological dysfunction. I find on the evidence of these expert witnesses that the plaintiff’s liver, kidneys and blood forming system are also affected as a consequence of this injury.
I find on the evidence of these experts that this hypoxic-ischemic injury started to occur at 07.10 hours and continued occurring thereafter until the plaintiff was delivered at 08.03 hours. I find on the evidence that between 07.10 hours and 07.30 hours the plaintiff was getting oxygen for 20 or 30 seconds only between the uterine contractions. Though a fetus can for a time sustain metabolism without oxygen, lactic acid builds up and the heart rate starts to fall in the recovery period. I find on the evidence of the obstetricians who gave expert evidence, that this picture of serious fetal compromise was exactly the picture shown by the cardiotocograph trace between 07.10 hours and 07.20 hours. Professor Hill and Professor Fleming both agreed that they would defer to the opinion of an obstetrician on the interpretation of a CTG Trace.
I find on the evidence that between 07.20 hours and 07.30 hours the falling peaks and troughs seen on the CTG Trace indicated unequivocally that the plaintiff was not getting oxygen, that lactic acid had built up and that the plaintiff could not continue to compensate. The plaintiff was now close to suffering irreversible brain injury. I find on the evidence that after 07.38 hours the CTG Trace is completely unreliable, as a diagnostic aid and that the Trace pattern has to be regarded as an artefact and not as showing an improvement in the fetal heart rate. I find on the evidence that at 07.38½ hours, where the comment “Ventouse applied” is written on the Trace, the plaintiff was in a life threatening difficulty. When delivered at 08.03 hours the cord Ph, – arterial 6.96 and venous 6.98, – indicated severe acidosis and imminent death. This was corroborated by the Apgar Score which was initially recorded as “0 at 1 minute” and sometime later was changed to “1 at 1 minute”. An Apgar Score of 0 at 1 minute indicates that the plaintiff was initially considered to have been born dead.
I find on the evidence of Professor Hill, that fact that the plaintiff suffers from seizures and mental retardation and, the fact that his present brain volume is grossly micro-cephalic atrophied, due to extensive sub-cortical necrosis, indicates that he suffered a prolonged partial hypoxic-ischemic insult to the white matter of the cortex and sub-cortical areas of both hemispheres of his brain. I find that this damage occurred slowly but over a period of time of less than 1 hour prior to 08.03 hours. The plaintiff’s brain is so devastated that his head circumference at the time of the hearing of this action was six to seven times below that mean. I find on the evidence that the plaintiff also suffered a brief but very severe near total hypoxic-ischemic insult with caused serious injury to the basal ganglia and the thalami of his brain. During this incident all blood circulation and oxygen delivery to these areas of his brain ceased. I find that the opinion of Professor Hill, whose area of particular skill of necessity involves the special study and understanding of neo-natal brain injuries, considered together with the obstetric evidence, in particular the expert evaluation of the cardiotocograph print-out establishes well beyond a probability, that the damage to the white matter of the plaintiff’s brain was not merely secondary to the acute near total hypoxic-ischemic insult, but was caused by a separate prolonged partial hypoxic-ischemic insult to the plaintiff’s brain.
I find on the perinatal and neonatal evidence that if the plaintiff had been delivered at 07.30 hours there was a much better than even chance that any (if indeed there was any), damage done could still be fully reversed. If he had been delivered between 07.10 hours and 07.20 hours the probability that any damage done (if again there was any), could be reversed would have been very much greater still. I find that from 07.30 hours onwards irreversible brain damage was occurring and increasing in an exponential fashion. Every minute after 07.30 hours resulted in more brain damage occurring. I find on the evidence that at 07.38.5 hours the plaintiff had already suffered irreversible brain injury. However, I accept the opinion of Mr. Clements which corresponds with the opinion of Professor Hill that even if the plaintiff had been delivered at 07.42 hours he would be in a very much better condition than he now is.
I find on the evidence that had Dr. Wiza been called by Senior Midwife O’Dwyer at 06.50 hours he would have responded just as quickly then to the notification of a shocking CTG Trace as he did later. On the evidence, at 06.50 hours Dr. Wiza was just resting in his room as he was later at 07.30 hours. I find on the evidence, particularly on Dr. Wiza’s own evidence that if he had arrived in Mrs. Fitzpatrick’s room at 06.54 hours or 06.55 hours, (I believe one must reasonably allow 2 minutes or so to Senior Midwife O’Dwyer to make the telephone call to Dr. Wiza and explain the reason for it), he would first have examined the cardiotocograph record for the previous 45 minutes or thereabouts. I find on the evidence that this would have taken him 2 or 3 minutes. Dr. Wiza told the court that later, when he actually arrived in Mrs. Fitzpatrick’s room, he had examined the CTG Trace back to 06.47 hours, – back to just before the deep and prolonged deceleration. I find on the expert evidence that this was both necessary and appropriate. I find on the evidence that Dr. Wiza would next have carried out an abdominal examination of Mrs. Fitzpatrick which would have taken 1 or 2 minutes. I find on the evidence that he would then have put on surgical gloves and carried out a vaginal examination which would have taken 2 or 3 minutes.
In his evidence, Dr. Wiza insisted, despite the very strongly expressed contrary opinion of Mr. Clements which was put to him, that as Registrar he could not make a clinical decision as to how to proceed on the basis of the vaginal examination of Mrs. Fitzpatrick carried out by Senior Midwife O’Dwyer at 06.30 hours and the resultant Partograph Note on Labour written and signed by her at 06.30 hours. In this respect all the other obstetricians who gave expert evidence during the course of the hearing agreed with Dr. Wiza. I do not accept that Dr. Wiza would have waited to see if the turning of Mrs. Fitzpatrick on to her left side and the reduction in the rate of the Oxytocin infusion from 120mls/ph to 90mls/ph would cause the CTG Trace to return to normal before acting as above. These were merely recognised standard measures employed probably mostly by midwives to endeavour to address a worrying fetal heart rate, but it was clearly his duty as the person with overall responsibility for the safety and well being of the plaintiff and his mother to ascertain the facts for himself and to arrive by the exercise of his own skill applied to these facts at his own clinical judgment as to the probable cause of the CTG Trace pattern and the correct measures to be taken in response to it.
I find on the evidence that Senior Midwife O’Dwyer carried out a vaginal examination of Mrs. Fitzpatrick at or about 06.30 hours and found her to be 9cm dilated. Mr. Woolfson and Professor Baker told the court and this opinion was not questioned, that once 9cm dilatation is achieved a procedure such as a vaginal examination will almost invariably cause the cervix to become fully dilated. I find on the evidence on the balance of probabilities that at between 06.59 hours and 07.03 hours Mrs. Fitzpatrick would have become fully dilated had Dr. Wiza carried out a vaginal examination. Senior Midwife O’Dwyer found that Mrs. Fitzpatrick was fully dilated though it will be recalled that an issue arose as to whether this was at 07.00 hours or 07.10 hours or somewhere between. In my judgment this timing lends very major support to the opinion of Mr. Woolfson and Professor Baker.
I am satisfied on the evidence that once he had ascertained that Mrs. Fitzpatrick was fully dilated, Dr. Wiza would have proceeded to deliver the plaintiff at once. I find on the evidence that having regard to a very worrying CTG Trace since 06.30 hours and to what was emerging in real time on the CTG Trace from 06.58 hours onwards, it would have been seriously substandard for Dr. Wiza to have adopted any other course. I find that there is nothing whatever in the evidence to suggest that Dr. Wiza would have disregarded the whole previous suspicious history of the CTG Trace with which he had made himself familiar, the particularly worrying more recent development since 06.30 hours, especially the deep and prolonged deceleration patterns at 06.47 hours and 06.50 hours the established, or at least establishing pattern of late decelerations or variable decelerations with a late component and, the fact that Mrs. Fitzpatrick had been 9 hours in labour, and for some wholly unidentified reason decided not to set about delivering the plaintiff immediately.
I find on the evidence that Dr. Wiza would have been informed by the midwives of Mrs. Fitzpatrick’s birthplan or at least the features of it, relevant to second stage labour. It is clear on his evidence that he was informed by the midwives that Mrs. Fitzpatrick did not want an episiotomy and I am satisfied that he would have inferred from this, even if the midwives did not directly inform him that it was expressed in the birthplan, that she wanted the birth of the plaintiff to be as natural as possible. Further, all the expert witnesses were agreed that the appropriate course to adopt would be to encourage Mrs. Fitzpatrick to give a few pushes to see if the plaintiff would be delivered spontaneously and, if this did not occur, – and it did not in fact occur when tried between 07.15 hours and 07.21 hours, – to proceed without further delay to carry out an assisted vaginal delivery employing either a ventouse or a forceps for that purpose. I find that this is the course which Dr. Wiza would and should have adopted. I find on the evidence and, having regard to the foregoing, that Dr. Wiza, had he been called, as I find he ought to have been called by Senior Midwife O’Dwyer at 06.50 hours, would and should have commenced to deliver the plaintiff by ventouse assisted vaginal delivery at 07.13 hours at the very latest even allowing for three pushes and 4 minutes discussion about the ventouse. I find on the evidence that there was no physical or medical reason why the plaintiff should not have been delivered by 07.25 hours at the very latest so that any damage, (if any), which he might have suffered from 07.10 hours onwards would probably on a much better than even chance have been entirely reversible. Unless some circumstances beyond his control presented Dr. Wiza from delivering the plaintiff, I find that there is a clear causative link between the negligence of Senior Midwife O’Dwyer in not calling Dr. Wiza at 06.50 hours and the injury suffered by the plaintiff.
In the altogether unlikely event that a vaginal examination carried out by Dr. Wiza at between 06.57 hours and 07.00 hours would not have resulted in Mrs. Fitzpatrick becoming fully dilated, I am fully satisfied on the expert evidence, and particularly on his own evidence, that Dr. Wiza would have carried out a fetal blood sample to check whether the plaintiff had become or was becoming acidotic. Mr. Clements, Dr. McKenna, Professor Baker and Mr. Woolfson were all agreed that they would have carried out a fetal blood sample repeat test in the period up to 7.10 hours. I find on the expert evidence that the cardiotocograph record is a non specific screening test and if a worrying CTG Trace pattern is presenting, a fetal blood sample should be carried out to ascertain whether in fact the fetus has become or is becoming acidotic. This is the course which Dr. Wiza adopted at 05.10 hours having reviewed a far less worrying CTG Trace. I can find no reason on the evidence why he would adopt a different approach in the circumstances under discussion at between 06.57 hours and 07.00 hours. He also gave evidence that if the CTG Trace showed any abnormality he would do a fetal blood sample. He said that he might do a fetal blood sample two or three times if necessary in the course of labour.
There was much debate amongst the expert witnesses as to whether Dr. Wiza should have returned unsummoned to Mrs. Fitzpatrick’s room or ought to have been recalled by Senior Midwife O’Dwyer to carry out another fetal blood sample after the elapse of 1 hour from 05.30 hours, the time when the result of the previous fetal blood sample test became available. I find it unnecessary to resolve this problem, because Dr. Wiza further told the court that he would always carry out a fetal blood sample during the course of a labour if it seemed to him to be necessary, for example, if he thought that the Ph was dropping below 7.27. Mr. Woolfson told the Court that in his opinion by 07.00 hours the Ph had fallen below 7.2 having regard to all the signs. Dr. Wiza told the court that if the PH was below 7.25 he would not repeat the foetal blood sample, but would deliver the fetus at once. I am satisfied on the expert evidence that at 06.55 hours Dr. Wiza, on the balance of probabilities would have been concerned having regard to the clinical signs that the Ph had fallen below 7.27 and would have carried out a fetal blood sample. I am quite satisfied therefore that Dr. Wiza would have carried out a fetal blood sample between 06.57 hours and 07.00 hours if Mrs. Fitzpatrick was still not 10cm dilated. All the obstetricians who gave expert evidence were agreed that from the arrival of the doctor to completion of the print out of the result, approximately 10 minutes must be allowed for a fetal blood sample test.
In these circumstances I find on the evidence that Dr. Wiza would have remained present in Mrs. Fitzpatrick’s room waiting for the result of the fetal blood sample test and would have witnessed the late decelerations and probably also this sudden drastic deterioration in the CTG Trace at 07.10 hours. On the evidence of the obstetricians who gave expert evidence I find that after 07.10 hours it was too late for a fetal blood sample and there was no time to wait and see how the CTG Trace might evolve or whether turning off the Oxytocin would have an effect. Professor Baker said it would not be logical and Dr. McKenna said it would be “testing this baby to death”. I find that having regard to the suspicious history of this labour, to the fact that the decelerations were now clearly established as entirely out of phase with the causal contractions and to what would almost certainly have been a drop in the Ph, it would have been substandard in any Registrar of Dr. Wiza’s skill and standing, acting with reasonable care to have left Mrs. Fitzpatrick’s room and not to have continued personally to monitor the CTG Trace, the other clinical risk factors and, the progress of cervical dilatation, with a view to delivering the plaintiff as soon as possible.
I have no doubt whatever on the evidence that if called at 06.50 hours, Dr. Wiza would have been present in Mrs. Fitzpatrick’s room at 07.10 hours, and have by then carried out the three examinations. I find that there is no evidence of any medical or physical reason why the plaintiff would then not have then been delivered by 07.25 hours, at the latest. Having seen and heard Dr. Wiza give evidence and, having carefully considered his evidence to the court, I am fully satisfied that on the 25th and 26th December, 2001 Dr. Wiza adopted a very cautious, conservative and deliberate approach in the practice of his profession, the sort of approach one would expect in a Specialist Registrar on the threshold of his career as a Consultant Obstetrician. It was abundantly plain to me that Dr. Wiza would not have taken any risks at all in the management of this particular labour and would not have adopted any form of wait and see approach or have left the management of the labour in the hands of Staff Midwife Murphy and Senior Midwife O’Dwyer had he been called, (or even informed) as he ought to have been called at 06.50 hours.
I have held, that but for the fact that Dr. Wiza was not called at 06.50 hours or even at 07.12 hours by Senior Midwife O’Dwyer, on the evidence there was no medical or physical reason why the plaintiff should not have been delivered at or before 07.30 hours. I find on the evidence of all the experts that if Dr. Wiza was called at 06.50 hours or even at 07.12 hours and was not obstructed by the plaintiff’s parents then not to have delivered the plaintiff uninjured by 07.30 hours at the very latest was unacceptable, substandard and negligent. I have held that Dr. Wiza was called at 07.30 hours or very shortly thereafter and arrived in Mrs. Fitzpatrick’s room at 07.32 hours or 07.33 hours. However, it is common case that the plaintiff was not delivered until 08.03 hours. It is the defendant’s case that this delay in delivering the plaintiff, was due to the fact that Mrs. Fitzpatrick needed to be persuaded to permit a ventouse assisted vaginal delivery, that this took 6 to 8 minutes, that she then refused to grant permission for an episiotomy when one became necessary and, when the ventouse was unable to overcome the resistance offered by the perineum she refused to allow a forceps assisted delivery. The defendant submits that these same difficulties would have arisen whether Dr. Wiza had been called at 06.50 hours or at 07.12 hours, so that the plaintiff could still not have been delivered before 07.30 hours.
I have already found that there was no 6 to 8 minute delay as alleged in persuading Mrs. Fitzpatrick to permit a ventouse assisted vaginal delivery. Mrs. Fitzpatrick told the court that she would have consented to an episiotomy and to a forceps assisted vaginal delivery, or to any other procedure had she been told that there was something wrong with the plaintiff. Mr. Fitzpatrick told the court that he would have done everything in his power to persuade his wife to consent, had he been aware that there was something wrong with the plaintiff. Both the Fitzpatricks told the court that Dr. Wiza did not speak to either of them before the plaintiff was delivered at 08.03 hours. Both recalled that just before the plaintiff was delivered Senior Midwife O’Dwyer had said that the plaintiff was tired and that was the only reference made by Staff Midwife Murphy, Senior Midwife O’Dwyer or the doctor, they said they did not know his name then, – to the plaintiff’s condition. The recollections of Staff Midwife Murphy, Senior Midwife O’Dwyer and Dr. Wiza in this regard are quite different to those of Mrs. and Mr. Fitzpatrick.
I find on the evidence that Mrs. and Mr. Fitzpatrick are mistaken in their recollection that Dr. Wiza did not speak to them or to either of them from the moment he arrived in Mrs. Fitzpatrick’s room until after the plaintiff had been delivered. Dr. Wiza gave evidence which was not disputed or questioned that when using the ventouse, the obstetrician must pull and the mother must push at exactly the same time and in synchronisation with the contractions. He told the court that only he could tell Mrs. Fitzpatrick exactly when to push so as to synchronise her pushing with his pulling and with the contraction. I find that no other person could do this satisfactorily other than through a system of most elaborate and carefully prearranged signals between that person and the obstetrician. There was no evidence of a need for any such arrangement in the instant case and, it is altogether improbable that a Senior Midwife and a Specialist Registrar in Obstetrics would indulge unnecessarily in such an elaborate mime particularly against the background of a terminal CTG Trace and the life or death imperative to deliver the plaintiff immediately.
Staff Midwife Murphy, Senior Midwife O’Dwyer and Dr. Wiza all agreed that it was most important that Mrs. Fitzpatrick should remain as calm and co-operative as her circumstances would permit. The expert witnesses did not dissent from this opinion. In my judgment, nothing would be more calculated to cause serious agitation in a woman at Mrs. Fitpatrick’s stage of labour than an obstetrician carrying out invasive procedures for almost thirty minutes without addressing a single word to her.
If I were to accept the recollection of Mrs. & Mr. Fitzpatrick I would of necessity have to conclude that Dr. Wiza’s Operative Vaginal Delivery Report written at 08.30 hours on the 26th December, 2001 was a deliberate fabrication and a conscious and intentional fraudulent misrepresentation of events insofar as it states:-
“Ventouse assisted delivery… procedure explained to patient, need for episiotomy explained to the patient… effort of convince patient failed.”
I would be obliged to reach a similar conclusion regarding Senior Midwife O’Dwyer’s stated retrospective Partograph Note Labour made at 08.45 hours on the 26th December, 2001, insofar as it states:-
“Need for episiotomy explained to Michelle – same refused… Need for forceps delivery explained to Michelle and partner by Dr. Wiza same refused….”
Having observed Dr. Wiza giving evidence, while there were occasions when I considered his evidence to be somewhat exaggerated and over dramatic, I can find nothing in his background, training or personality which would suggest that as a matter of probability he said nothing at all to Mrs. or to Mr. Fitzpatrick throughout the entire second stage of labour, until after the plaintiff was born, not even in relation to the episiotomy and the forceps issue and not even so much as a greeting upon entering her room. That he would then conspire with Senior Midwife O’Dwyer that they would both present a wholly different picture of what had occurred in the Operative Vaginal Delivery Report prepared by him and in the retrospective Partograph Note Labour written by her, carefully ensuring that their notes generally corresponded.
I find, on the balance of probabilities that the recollection of Senior Midwife O’Dwyer is correct and that when Dr. Wiza came into Mrs. Fitzpatrick’s room he briefly greeted Mr. and Mrs. Fitzpatrick with some polite phrase like, “Hello again”. Mr. Fitzpatrick told the court that the Doctor seemed to him to be methodical, deliberate and even gentle in carrying out the fetal blood sample test. Having observed Dr. Wiza giving evidence I came to the same conclusion: that he was methodical, deliberate, careful and not in any way arrogant, opinionated, distant or discourteous. I find on the evidence that he had been asked by Senior Midwife O’Dwyer to come immediately to Room 5, (and not her office as he recalled), because the CTG Trace was shocking with bad decelerations. Despite the existence of a serious crisis involving the plaintiff which this message almost certainly suggested to him, I find it improbable that Dr. Wiza, an experienced Specialist Registrar, would have become so overwhelmed by the seriousness of the problem as to overlook the ordinary courtesies on entering a room, and his expressed concern that Mrs. Fitzpatrick should remain calm.
I find that Senior Midwife O’Dwyer is correct in her recollection that Dr. Wiza having examined the CTG Trace, made an abdominal examination and carried out a vaginal examination, and informed Mrs. and Mr. Fitzpatrick that he needed to do a ventouse Assisted Delivery. I noted that Dr. Wiza seemed very conscious of what he perceived to be the overriding necessity of obtaining informed patient consent to any form of invasive medical procedure. That is what he did at 05.10 hours when he considered that a fetal blood sample was necessary. This also explains the note, “procedure explained to patient” in his Operative Vaginal Delivery Report written at 08.30 hours on 26th December, 2001. I find on the evidence that Dr. Wiza would never carry out a ventouse assisted vaginal delivery or an episiotomy or a forceps assisted delivery without first obtaining the consent of the patient and would not delegate the task of obtaining that consent to anyone else. For these reasons and, because I accept the evidence of Dr. Wiza that he had to synchronise Mrs. Fitzpatrick’s act of pushing with his traction and with the contractions by telling her when to push, I am satisfied that Mrs. Fitzpatrick is incorrect in her recollection that Dr. Wiza did not discuss the ventouse with her and that she only realised that a ventouse was being employed when Mr. Fitzpatrick told her that he could see the plaintiff’s head but was unable to tell her the colour of his hair because of the ventouse cup on his head.
On the evidence I do not accept that Dr. Wiza, when informing Mrs. and Mr. Fitzpatrick that he needed to do a ventouse assisted vaginal delivery added that the baby was tired and needed to be delivered. Staff Midwife Murphy considered that he had said this, “or words to that effect”, while Senior Midwife O’Dwyer recalled that he said that the baby needed to be delivered though she could not recall the exact words. It was Dr. Wiza’s own recollection that he told Mrs. and Mr. Fitzpatrick that the baby was not getting enough oxygen and needed to be delivered at once. Significantly there is nothing in the Partograph Notes on labour or in Dr. Wiza’s Operative Vaginal Delivery Report to corroborate these recollections, all of which were firmly denied by Mrs. and Mr. Fitzpatrick.
I find on the expert evidence that from 07.20 hours onwards the CTG Trace clearly indicated that the plaintiff was getting no oxygen. In such circumstances for Dr. Wiza to have said that the plaintiff was tired or even very tired would have been a deliberate untruth and a gross deception of the Fitzpatricks, and on the expert evidence would have been seriously substandard in an obstetrician of his training and skill acting with reasonable care. While I have no doubt that Dr. Wiza correctly read the cardiograph record as indicating that the plaintiff was anoxic, I find on the balance of probabilities that he did not say this to Mrs. and Mr. Fitzpatrick, that he did not say that he needed to do a ventouse assisted vaginal delivery because the plaintiff was not getting enough oxygen and needed to be delivered at once. Had he said that, I have no doubt but that Mrs. and Mr. Fitzpatrick and also Staff Midwife Murphy and Senior Midwife O’Dwyer would never have forgotten it, and the whole subsequent tragic sequence of events on the balance of probabilities would never have occurred.
I find on the balance of probabilities that Dr. Wiza is correct in his recollection that he had told Mrs. and Mr. Fitzpatrick that he needed to do a ventouse assisted delivery. She had asked if it was not possible to deliver the plaintiff naturally and, that he had replied that it was but they did not have time to wait. I find on the balance of probabilities and for the above stated reasons, that Dr. Wiza did not add the words, “because the baby’s heart rate if very low and it is not getting enough oxygen”. Dr. Wiza told the court that Mrs. Fitzpatrick had then agreed to the use of the ventouse. I find on the evidence including the expert evidence of Mr. Clements that the entire business of informing Mrs. and Mr. Fitzpatrick of the need to carry out a ventouse assisted vaginal delivery and obtaining Mrs. Fitpatrick’s consent to that procedure probably took 2 or 3 minutes at the most and, in all likelihood took place while Dr. Wiza was concluding the vaginal examination.
There was no real controversy as to what then occurred. Dr. Wiza removed the fetal scalp electrode, applied the silastic cup of the ventouse and checked that it was properly in place on the plaintiff’s head. Senior Midwife O’Dwyer set the ventouse machine in operation and a vacuum was built up which sucked the plaintiff’s head firmly into the cup. Dr. Wiza then told Mrs. Fitzpatrick when to push and synchronised her pushing with his traction and with the uterine contractions. After two contractions the plaintiff’s head descended well, to near crowning on Mrs. Fitzpatrick’s perineum but the ventouse cup was unable to distend the perineum sufficiently to permit the plaintiff to be delivered and the cup came off the plaintiff’s head. I find on the expert evidence that this resistance is a very common and frequent occurrence in primigravids because the perineum had not been previously stretched and the ventouse machine has a particularly sensitive disengagement mechanism to prevent injury to the fetal skull. Dr. Wiza’s Operative Vaginal Delivery Report of 08.30 hours of 26th December, 2001 corroborates this sequence of events as recalled by Mr. Fitzpatrick, Staff Midwife Murphy, Senior Midwife O’Dwyer and Dr. Wiza himself.
Mr. Fitzpatrick and Senior Midwife O’Dwyer both gave evidence that they saw Dr. Wiza reach for a package on the instrument trolley, open the package and take out an episiotomy scissors. Mr. Fitzpatrick told the court that he assumed the Doctor was going to carry out an episiotomy and he had said “No”. He said that the Doctor appeared to be going to carry on with the procedure regardless but Senior Midwife O’Dwyer had said “No” in a raised voice and then he stopped. Dr. Wiza and Staff Midwife Murphy told the court that Dr. Wiza had explained to Mrs. Fitzpatrick that she needed an episiotomy but that she and Mr. Fitzpatrick would not agree. This recollection is supported by Dr. Wiza’s Operative Vaginal Delivery Report of 08.30 hours, which records “need for episiotomy explained to patient but declined”.
Mrs. and Mr. Fitzpatrick and Senior Midwife O’Dwyer all recalled that Senior Midwife O’Dwyer told Mrs. Fitzpatrick that she needed an episiotomy and asked her why she would not permit it pointing out that otherwise she would tear. All three recalled that Mrs. Fitzpatrick had replied that she did not mind if she tore. Mrs. Fitzpatrick recalled that she had added that she believed that a natural tear would heal easier than a surgical cut. Given her circumstances at this time I consider it most unlikely that Mrs. Fitzpatrick would have volunteered this explanation for refusing and she was confusing this occasion with discussions which had taken place at Medical Midwife Manager Fannigan’s Ante Natal classes. It was Mr. Fitzpatrick’s evidence that after Mrs. Fitzpatrick stated that she did not mind if she tore that Senior Midwife O’Dwyer had shrugged her shoulders and returned to the bottom of the bed.
Senior Midwife O’Dwyer gave evidence that after Mrs. Fitzpatrick had said that she did not mind if she tore she said to Mrs. Fitzpatrick that they were not doing an episiotomy to avoid her tearing but because the baby was very tired and needed to be delivered. She said that Mrs. Fitzpatrick answered “No”. She said that she then told Mrs. Fitzpatrick that if she would not consent to an episiotomy they could not be responsible for the consequences for her or her baby. She said that Mrs. Fitzpatrick still said “No”. Staff Midwife Murphy told the court that she recalled Senior Midwife O’Dwyer saying to Mrs. Fitzpatrick that she could not be responsible for the consequences if she continued to refuse “or words to that effect”. In cross examination Dr. Wiza told the court that at this time and again later when a forceps assisted vaginal delivery became an issue, Senior Midwife O’Dwyer had said to Mrs. Fitzpatrick that if she did not allow them to do this she (Mrs. Fitzpatrick) was the one who was going to be responsible for it. Both Mrs. and Mr. Fitzpatrick very firmly, and in the case of Mrs. Fitzpatrick with apparent shock and very considerable outrage and disbelief, denied that Senior Midwife O’Dwyer had said these things to her. Mrs. and Mr. Fitzpatrick gave evidence that no one, not Staff Midwife Murphy, Senior Midwife O’Dwyer or the Doctor had at anytime during the labour said that there was something wrong with the plaintiff, or that he was getting sick and needed to be delivered, or that he needed to be delivered quickly for his own safety, or that he was distressed, or that he needed to be delivered quickly because he was not getting enough oxygen.
Mrs. Fitzpatrick recalled that Senior Midwife O’Dwyer had said to her that the plaintiff was very tired but that this was just before he was delivered. She thought that this was because the labour had gone on for so long (nine hours and fifty seven minutes). Both Mrs. and Mr. Fitzpatrick told the court that there was no air of urgency whatsoever in the room. Staff Midwife Murphy and Senior Midwife O’Dwyer accepted that this was so and I am satisfied on the expert evidence that this was entirely proper. Mrs. Fitzpatrick gave evidence that the first time she felt that there might be something wrong with the plaintiff was after he was born and she noticed that he was not crying and that his arms seemed to be hanging down loosely by his sides. Mr. Fitzpatrick told the court that he told Mrs. Fitzpatrick after the birth that it was a little boy and that he was fine but that this was only to reassure her. He said that he noticed the plaintiff was not clearing his lungs and he saw about ten people at the door of the room so he knew something was terribly wrong with the plaintiff.
Mrs. and Mr. Fitzpatrick gave evidence that they did not know that the oxytocin had been turned off and that no one had discussed the CTG Trace with them. Mr. Fitzpatrick said that he saw the Doctor looking at the Trace and then speaking to the midwives about it but he had said nothing at all to them. In cross examination Mrs. Fitzpatrick told the court that if anyone had said that there was something wrong with the plaintiff she would have agreed to anything immediately. Mr. Fitzpatrick said in evidence that if he had been told that an episiotomy was necessary because the plaintiff needed oxygen he would have told Mrs. Fitzpatrick, and he had no doubt whatsoever that she would have immediately permitted it. Mr. Clements told the Court that in all his years of practice since 1963 he had never known a mother not to fully co-operate if told that her baby was short of oxygen and needed to be delivered at once. No one sought to qualify or to contradict this evidence from Mr. Clements.
I find on the evidence that Senior Midwife O’Dwyer wrote the following Note on Labour in the Partograph:-
“Retrospective note written at 08.45 hours (26.12)
At 07.50 hours.
Need for episiotomy explained
to Michelle – same refused.
Ventouse cup came off – need
for forceps delivery explained
to Michelle and Partner
by Dr. Wiza same refused
spontaneous delivery of
Male infant at 08.03… etc.”
Senior Midwife O’Dwyer told the court that this Note on Labour meant that all these things had occurred prior to 07.50 hours as she had looked at the clock. I find myself quite unable to accept this evidence with regard to the timing of these recorded events.
I find on the evidence that the first attempt to deliver the plaintiff by ventouse assisted vaginal delivery starting at 07.39 hours must have taken about 6 minutes and it is possible that it took longer than this. Dr. McKenna and Mr. Clements considered that it would be reasonable to allow 10 minutes for a ventouse assisted delivery while Professor Turner and Mr. Woolfson considered 8 minutes to be sufficient, particularly in the dire emergency of the situation. The CTG machine print-out irrefutably fixes 07.38.5 hours as the moment when the fetal scalp electrode was removed and before which the silastic cup could not have been emplaced. I accept the evidence of Mr. Clements that the cup was almost certainly applied at 07.39 hours. The expert evidence established that the contractions were coming every two or three minutes and though Mr. Clements and Dr. McKenna considered that it would have taken longer I find that for Dr. Wiza to have checked the secure placement of the silastic cup and for the vacuum to be built up would have taken not more than two minutes using a modern machine.
When one looks at this retrospective Note on Labour written by Senior Midwife O’Dwyer the preposition “at” is very consciously and very deliberately placed and having regard to its position could not possibly be considered to be mere surplusage. In their common and ordinary usage the words employed must mean and could only mean that the events described occurred exactly at and after 07.50 hours up to 08.03 hours. There is nothing whatever to indicate that the words used should be given any special extended, restricted or technical meaning. It is worthy of note that Professor Baker and Professor Turner, both distinguished academics who gave evidence in the case for the defendant, interpreted this Note on Labour as meaning that the events described occurred between 07.50 hours and 08.03 hours. Indeed, Professor Baker was critical of the practice of making retrospective notes of this type and of making comments on the cardiotocograph print-out, particularly retrospective comments.
A Memorandum by Dr. Declan Keane, then Master of the National Maternity Hospital, dated 21st January, 2002 was proved in evidence by him. It states, inter alia the following:-
“Re: Meeting with Michelle Gilroy and Paul Fitzpatrick
… Wednesday 16th January, 2002 at 10.30a.m. …
In Attendance: Paul Fitzpatrick, Michelle Gilroy, Dr. Anne Twomey,
Sr. Geraldine Duffy, Sr. Clare O’Dwyer and Dr. Declan Keane
The above meeting was arranged at the request of Michelle Gilroy and
her partner Paul Fitzpatrick….
This couple were extremely difficult to deal with in labour and there is copious documentation in the notes of the patient’s continuing refusal to accept various forms of treatment including fetal blood sampling, oxytocin administration, forceps application and an episiotomy. In the end this delay in applying a forceps and performing an episiotomy may have had significant deleterious effects on the baby and may be partly responsible for its severe condition. (the emphasis is mine)
… … …
In addition the couple stressed at the meeting that if the labour ward staff on the night had pointed out the severity of the baby’s condition they would have agreed to the various forms of treatment that they refused on the night. This was rejected by the Sister, who had explained to them quite clearly that she had said this to them on the night as indeed had Dr. Wiza, the Registrar who performed their delivery.
… … …”.
Dr. Keane accepted that the statement that Mrs. and Mr. Fitzpatrick were extremely difficult to deal with in labour was a record of what was said to him by Senior Midwife O’Dwyer. He accepted that Mrs. and Mr. Fitzpatrick had not refused a fetal blood sample and had not refused oxytocin administration. I have heretofore found on the evidence that there was nothing whatever untoward in their taking time to discuss these recommended procedures before agreeing to them, and they did not delay unduly in reaching their decision to permit the fetal blood sample and in agreeing to the administration of oxytocin.
I find on the evidence that Senior Midwife O’Dwyer did not, nor did Dr. Wiza, nor indeed did Staff Midwife Murphy (though on the evidence it was hardly her place to do so given the presence of the others) explain the severity of the plaintiff’s condition to either Mrs. Fitzpatrick or Mr. Fitzpatrick at any time prior to the birth of the plaintiff. I cannot imagine how it could be legitimately stated that this couple were extremely difficult to deal with in labour. I have already found that they were encouraged to and did formulate a birthplan which was given to and discussed with Staff Midwife Murphy on Mrs. Fitzpatrick’s admission to the labour ward, who then brought Senior Midwife O’Dwyer into the discussion. All of the matters of concern to them, other than the fetal blood sample, – and I am satisfied on the evidence that this was not discussed by Medical Midwife Manager Fanagan at the ante-natal classes, – and their preferences in respect of these matters were clearly signalled in this birthplan. On the evidence there is no doubt but that these were the very choices to which they thereafter sought to adhere and in respect of which they were later accused of being extremely difficult to deal with. I reject entirely the idea that they should be considered to have been difficult and at fault because they did not instantly abandon what they had indicated in the birthplan merely because the obstetrician indicated that he needed to do an episiotomy, and later, that he needed to carry out a forceps assisted delivery.
I find that the evidence clearly establishes that Mrs. and Mr. Fitzpatrick could be persuaded to and did in fact agree to change their minds, for example in relation to the administration of oxytocin and, could be convinced to permit a procedure once satisfied that it was necessary and would not hurt the plaintiff, for example the attachment of the fetal scalp electrode and the carrying out of the fetal blood sample. All the expert witnesses accepted that their behaviour as regards these matters was both natural and reasonable. Though the very second item on the front of the birthplan stated, “I would like to have a natural birth”, I have found that Mrs. Fitzpatrick readily abandoned that position once Dr. Wiza and Senior Midwife O’Dwyer had told her that she needed to have an assisted vaginal delivery.
If I were to accept the evidence of Staff Midwife Murphy, Senior Midwife O’Dwyer and Dr. Wiza with regard to what they claim was said by Senior Midwife O’Dwyer and Dr. Wiza to the Fitzpatricks in relation to the need for an episiotomy, I would have to accept that Mrs. Fitzpatrick without feeling or scruple put her own perceived ease of healing before the life of her baby. No other possible construction could be placed on a statement by an obstetrician that the baby was not getting enough oxygen and its heart rate was very low and on statement by a Senior Midwife that unless she agreed to an episiotomy the midwives and obstetrician could not be responsible for the consequences for her and her baby. There was no evidence that Mrs. Fitzpatrick was so tired and so distressed by her long labour or in such pain that she was unable to comprehend what was allegedly said to her. In any event Mr. Fitzpatrick was present at all times.
I am satisfied that it is a universally acknowledged and established fact that save in the case of certain very infrequent and very tragic circumstances, expectant mothers are extremely solicitous for the well being of their unborn children. This is a matter of which I take judicial notice. There was no evidence of any such tragic circumstance in this case. I find on the evidence that Mrs. and Mr. Fitzpatrick had throughout the labour demonstrated this natural concern for the safety and well being of the plaintiff. They were very concerned he the might suffer pain or discomfort during the attachment of the fetal scalp electrode and during the taking of the fetal blood sample. In my judgment it is wholly inconsistent with this proven level of anxious care for the plaintiff that particularly Mrs. Fitzpatrick would consciously disregard an alleged warning that the plaintiff was not getting enough oxygen and needed to be delivered at once, merely because she had been told by another woman that a natural tear would heal more quickly than a surgical cut.
If Dr. Wiza had said what he claims to have said then I do not understand how he could have reasonably considered, given the entirely unnatural reaction of the Fitzpatricks, that the message that the plaintiff was in a life or death situation had got across to Mrs. and Mr. Fitzpatrick. I find on the expert evidence, particularly on the very strong evidence of Mr. Clements, Dr. McKenna and Mr. Woolfson, that there was a very heavy onus on Dr. Wiza to ensure that the Fitzpatricks were informed in as plain and as blunt terms as the situation demanded that the plaintiff was in extreme danger and that an episiotomy had to be performed at once if he was to be saved. Dr. McKenna gave evidence that the Fitzpatricks should have been told that it was a life or death situation for the plaintiff. Professor Baker said that a succinct explanation was necessary. Mr. Woolfson told the Court that it would be substandard not to have given appropriately worded advice as without it the Fitzpatricks could not have made an appropriate decision in relation to the episiotomy and the forceps. Mr. Woolfson agreed with Dr. McKenna and told the Court that Dr. Wiza should have been as blunt as was necessary with the parents. He should have said something like – we appreciate that you do not want on episiotomy but we cannot wait until you tear, because that could take another 30 minutes. If Mrs. and Mr. Fitzpatrick still refused, Dr. Wiza should have spelled it out plainly for them that the baby would suffer severe brain damage if she did not agree. If she still would not agree, he was of the same opinion as Dr. McKenna and Mr. Clements that Dr. Wiza, to save the plaintiff, should have done the episiotomy and apologised and explained later.
I find that there is a lack of consistency between the recollections of Staff Midwife Murphy, Senior Midwife O’Dwyer and Dr. Wiza as to what is alleged to have been said to the Fitzpatricks at this crucial time. The extremely laconic entries in the retrospective Partograph Note on Labour written by Senior Midwife O’Dwyer at 08.45 hours and in the Operative Vaginal Delivery Report written by Dr. Wiza at 08.30 hours, that the need for an episiotomy was explained to Mrs. Fitzpatrick but was refused do not identify the basis for that need, the nature of the explanations offered or the reasons given for the refusal. These were notes written after the plaintiff was delivered and when the extreme seriousness of the situation was known, and at a time when at least Senior Midwife O’Dwyer considered the Fitzpatricks to be extremely difficult people to deal with.
Three weeks after the birth of the plaintiff at the meeting in the hospital arranged at their request, Mrs. and Mr. Fitzpatrick in the presence of Senior Midwife O’Dwyer, (Staff Midwife Murphy and Dr. Wiza were not requested by their employer to attend this meeting and on the evidence there is very considerable doubt as to whether they were even aware that such a meeting was taking place), stressed that if the labour ward staff on the night had pointed out the severity of the plaintiff’s condition they would have agreed to the episiotomy, and if necessary to the forceps assisted delivery. On the evidence if the episiotomy had been carried out there would have been no necessity for a forceps assisted delivery.
Though not mentioned in Dr. Keane’s Memorandum I am satisfied on the evidence that Mrs. Fitzpatrick complained at the meeting on the 16th January, 2002 that no one had told her that the plaintiff was in distress or that anything was wrong with him. I accept the evidence of Mrs. Fitzpatrick because it accords with Senior Midwife O’Dwyer’s own evidence that at the meeting on the 16th January, 2002 she said that she had told Mrs. Fitzpatrick that the plaintiff was very tired and needed to be delivered urgently. I accept the evidence of Mrs. Fitzpatrick that she had responded that Senior Midwife O’Dwyer had mentioned that the plaintiff was tired only and that was just before he was delivered and that she had never said that he was in any distress. I accept the evidence of Mrs. Fitzpatrick that Dr. Keane had replied that words such as “distress” were not used in the National Maternity Hospital to women in labour and that she had responded that perhaps they should.
Senior Midwife O’Dwyer told the court that on that occasion they were anxious not to panic Mrs. Fitzpatrick. However, Mr. Clements, Dr. McKenna and Mr. Woolfson while accepting that this was generally a laudable object considered that in the circumstances prevailing at the time when the issue of the need for an episiotomy arose it should have been made unmistakably clear to Mrs. and Mr. Fitzpatrick by whatever plain blunt language was necessary, that the plaintiff was in serious difficulties and needed to be delivered at once and an episiotomy was necessary for that purpose.
I find on the evidence that Mrs. Fitzpatrick and also Mr. Fitzpatrick genuinely believed that the only matter at issue was that Mrs. Fitzpatrick would tear unless she agreed to an episiotomy. I find on the evidence that had Mrs. Fitzpatrick been aware that the plaintiff was in any distress she would have immediately consented to the episiotomy. I find on the evidence that Dr. Wiza and Senior Midwife O’Dwyer did not inform Mrs. and Mr. Fitzpatrick that the plaintiff was in distress and that his life was in danger, (which was the true position from 07.30 hours onwards), unless an episiotomy was performed at once, and the plaintiff was delivered immediately. I find on the evidence that nothing was said by Dr. Wiza or by Senior Midwife O’Dwyer that ought reasonably to have suggested to Mrs. or Mr. Fitzpatrick that some very serious problem had arisen in the labour and that they should immediately co-operate fully and unquestioningly with Dr. Wiza’s requests and instructions. I find that this failure on the part of Dr. Wiza and Senior Midwife O’Dwyer was substandard and negligent and that but for this negligence Mrs. Fitzpatrick would have immediately consented to the episiotomy and, if necessary, to forceps assisted vaginal delivery. I am satisfied that it would be expecting far too much of a Registrar, even of a Specialist Registrar on the point of becoming a Consultant Obstetrician to have gone ahead and carried out an episiotomy despite the refusal of consent. This of course is entirely without prejudice to my finding that Mrs. Fitzpatrick would have given her consent had she been informed that the plaintiff was in any distress.
The Operative Vaginal Delivery Report completed by Dr. Wiza at 08.30 hours on the 26th December, 2001 referring to the refusal to permit an episiotomy states “effort to convince patient failed”. Significantly the nature of the alleged effort is not even briefly described. I find that it would have been just as easy and just as economical with space to record something like, – patient told fetus lacking oxygen but still refused episiotomy. This after all is what Dr. Wiza now recalls that he said to Mrs. Fitzpatrick. The same is true of Senior Midwife O’Dwyer’s retrospective Partograph Note on Labour made by her at 08.45 hours. If I accepted, which I do not, that Dr. Wiza when explaining that he needed to do a ventouse assisted delivery had said to Mrs. Fitzpatrick that the plaintiff’s heart rate was very low, and that he was not getting enough oxygen and she then permitted him to proceed, it is very difficult to imagine how she could possibly have forgotten this less than twelve minutes later, and that Mr. Fitzpatrick who was by her side, had forgotten it also. I find on the evidence that Dr. Kennedy, the Paediatrician, arrived in Mrs. Fitzpatrick’s room shortly after Dr. Wiza and remained present somewhere in the room or at the door of the room until the plaintiff was born and was immediately delivered into her care. In my judgment I am entitled to take into account and give weight to the fact that she was not called to give evidence.
Dr. Wiza gave evidence that he re-applied the ventouse silastic cup to the plaintiff’s head and tried to deliver the plaintiff again, but the perineum would still not stretch sufficiently and the cup came off. He told the court that he again re-applied the cup, and again the cup came off. This evidence is supported by the recollection of Staff Midwife Murphy and Senior Midwife O’Dwyer, and is also in accord with Senior Midwife O’Dwyer’s retrospective Partograph Note on Labour and Dr. Wiza’s own Operative Vaginal Delivery Report. It was also the recollection of Mr. Fitzpatrick. What occurred then was a matter of further deep disagreement between the parties.
Dr. Wiza told the court that he now felt desperate. He said that he stood up and said to Mrs. Fitzpatrick that the matter was serious and he would have to use forceps to deliver the baby. To say that the matter was “serious” and Mrs. and Mr. Fitzpatrick deny that it was said, was a travesty of the true situation at this time. He told the Court that Mrs. Fitzpatrick had shouted at him and he repeated and emphasised the phrase, “she shouted, she actually shouted at me, no you will not, don’t you touch me”. He said that he was extremely shocked as he was only trying to help. He then stood back as there was nothing more he could do. In the light of the expert evidence I am quite unable to accept the validity of this statement. He said that Senior Midwife O’Dwyer was begging Mrs. Fitzpatrick to let him use the forceps but she continued to refuse. He said that Senior Midwife O’Dwyer then encouraged Mrs. Fitzpatrick to push and after four or five contractions the baby was delivered naturally.
Senior Midwife O’Dwyer told the court that she had anticipated a forceps delivery when the ventouse cup kept coming off and she had asked Staff Midwife Murphy to open the pack. At that point Dr. Wiza had said to Mrs. Fitzpatrick that he needed to do a forceps delivery. Senior Midwife O’Dwyer recalled that Mrs. and Mr. Fitzpatrick replied in unison, “No you won’t”. She then said to Mrs. Fitzpatrick that they were not doing this unnecessarily, that the baby was very tired. They both said “No”. She then said that there was nothing better they could do that the baby was very very tired and needed to be delivered, but they both still answered “No”. Dr. Wiza she said just stood there, he could do no more. Senior Midwife O’Dwyer told the court that she then got Mrs. Fitzpatrick to push and the plaintiff was delivered after three or four pushes. In giving this evidence Senior Midwife O’Dwyer became extremely upset and sobbed, “this baby was asking for help and we were not allowed to give it”. Justice requires that I also record that Mrs. Fitzpatrick, Mr. Fitzpatrick and Clinical Midwifery Manager Keenan all became very distressed in giving evidence. Their distress, which I am satisfied was totally genuine is very understandable. Such suffering must stand as an indictment of this ghastly process for resolving these tragic cases even where, as in the instant case, the matter is handled as sensitively as possible by counsel on all sides.
Staff Midwife Murphy recalled that Dr. Wiza indicated, though she did not recall his exact words, that he needed to do a forceps delivery. Senior Midwife O’Dwyer had asked her to get the forceps which was in a package on the instrument trolley on her left hand side. When Mrs. and Mr. Fitzpatrick saw the forceps they both said “No, No”. Mr. Fitzpatrick looked at the CTG machine and said to Mrs. Fitzpatrick that the baby’s heart rate was fine. Senior Midwife O’Dwyer then got Mrs. Fitzpatrick to push a few times and the baby was delivered normally. Mrs. Fitzpatrick accepted that Senior Midwife O’Dwyer had said to her that the plaintiff was very tired, but insisted that this was just before he was delivered. She thought that Senior Midwife O’Dwyer was referring to the fact that the labour had gone on for so long, (nine hours and fifty seven minutes). In cross examination Mrs. Fitzpatrick told the court that Dr. Wiza had not said anything to her about a forceps. She denied that she and Mr. Fitzpatrick had shouted, “No you won’t”. It was put to her, though significantly no witness for the defence subsequently gave that evidence, that when Dr. Wiza had told her that he would have to use a forceps, she had refused and had tried to close her legs. She denied that Mr. Fitzpatrick had said anything to her about the plaintiff’s heart rate being fine.
Mr. Fitzpatrick told the court that he saw the Doctor opening a package and taking out a forceps. He was certain that it was the Doctor who opened the package not one of the Midwifes. He said that about one minute after this the plaintiff was born. The Doctor had said nothing at all to him or to Mrs. Fitzpatrick and he denied that he and Mrs. Fitzpatrick had said “No, No” or “No you won’t”. He denied that Senior Midwife O’Dwyer had said that they had to use the forceps and that they were not doing it unnecessarily. He said that he had not looked at the CTG machine, and said to Mrs. Fitzpatrick that the plaintiff’s heart rate was fine. Senior Midwife O’Dwyer’s retrospective Partograph Note on Labour and Dr. Wiza’s Operative Vaginal Delivery Report were put to him and he said that they contained things that simply had not happened on the occasion.
I find on the evidence, on the balance of probabilities that Dr. Wiza did say to Mrs. and Mr. Fitzpatrick that he needed to use a forceps. I am satisfied on the expert evidence that this was the only option open to him which would overcome the resistance of the perineum without recourse to an episiotomy. I am totally convinced having seen and heard Dr. Wiza giving evidence that he would not attempt to carry out any such procedure without first obtaining Mrs. Fitzpatrick’s permission. Senior Midwife O’Dwyer recalled that she had anticipated this situation and had asked Staff Midwife Murphy to get the forceps. Mr. Fitzpatrick recalled that he saw Dr. Wiza opening the package containing the forceps. I have already found that Mrs. and Mr. Fitzpatrick were incorrect in their recollection that Dr. Wiza did not speak to them at all until after the plaintiff had been delivered. I find that the recollection of Dr. Wiza, supported by the recollections of Senior Midwife O’Dwyer and Staff Midwife Murphy, is correct in this instance save that I find that he did not say that the matter was serious. If he had said that the matter was serious I am satisfied that Senior Midwife O’Dwyer and Staff Midwife Murphy would have recalled the fact and, it is altogether unlikely that Senior Midwife O’Dwyer would have detracted from this by saying that the plaintiff was very tired. I find that the retrospective Partograph Note on Labour made by Senior Midwife O’Dwyer at 08.45 hours is correct in recording that the need for a forceps delivery was explained to Mrs. and Mr. Fitzpatrick by Dr. Wiza.
This retrospective Partograph Note on Labour continues, “Same refused”, while the 08.30 hours Operative Vaginal Delivery Report made by Dr. Wiza records, “Patient refused forceps application to deliver baby”. I am satisfied on the evidence, on the balance of probabilities that Mrs. Fitzpatrick did say “No” and that Mr. Fitzpatrick probably repeated it for emphasis. Senior Midwife O’Dwyer told the court that she then said that they were not doing it unnecessarily: the baby was very tired and needed to be delivered. Both Mrs. and Mr. Fitzpatrick denied that Senior Midwife O’Dwyer had said, that they were not doing it unnecessarily. However, Mrs. Fitzpatrick did recall that Senior Midwife O’Dwyer had said that the baby was very tired. She said that she assumed that this was referring to the fact that the labour had gone on for so long and she did not know that there was anything wrong with the plaintiff.
I do not accept that Mrs. Fitzpatrick had shouted at Dr. Wiza, “No you will not, don’t you touch me”. As I have already stated it was put to Mrs. Fitzpatrick that she had also attempted to close her legs. This is alleged to have occurred after she had been told by Mr. Fitzpatrick that he could see the plaintiff’s head. In my judgment this is totally improbable, but it must have been related to counsel as something which had occurred on that occasion. According to Senior Midwife O’Dwyer, Mrs. and Mr. Fitzpatrick “replied in unison, No you won’t”. It is significant that none of this most quite extraordinary behaviour is recorded anywhere in Senior Midwife O’Dwyer’s retrospective Partograph Note on Labour, or in Dr. Wiza’s own Operative Vaginal Delivery Report, even though Dr. Wiza and Senior Midwife O’Dwyer gave evidence that they were both terribly shocked, on that occasion. Dr. Wiza said that Senior Midwife O’Dwyer was begging Mrs. Fitzpatrick to permit him to use the forceps and she would not. On the evidence, I find that both Dr. Wiza and Senior Midwife O’Dwyer were fully aware that there was an emergency involving the plaintiff since at least 07.13 hours. If Dr. Keane’s Memorandum of 21st January, 2002 is correct, at least Senior Midwife O’Dwyer had come to the belief that the Fitzpatricks were “extremely difficult to deal with” and, yet none of this alleged, absolutely shocking behaviour on the part of the Fitzpatricks appears either in Senior Midwife O’Dwyer’s retrospective Notes on Labour or in Dr. Wiza’s Operative Vaginal Delivery Report. When asked why this was so, Dr. Wiza said that he did not record it because he did not wish to appear judgemental. I find this explanation utterly implausible. How could recording something like, patient shouted “No you won’t, don’t you touch me” be judgmental: it is simply a statement of fact, and an important statement to be recorded in these circumstances. I find that all of this is exaggeration due to afterthought: that the recollection of Staff Midwife Murphy is correct, and that Mrs. and Mr. Fitzpatrick had simply said “No” when Dr. Wiza said that he needed to carry out a forceps assisted delivery. This recollection accords both with Senior Midwife O’Dwyer’s retrospective Note on Labour and Dr. Wiza’s Operative Vaginal Delivery Report.
Both Mrs. and Mr. Fitzpatrick gave evidence that there was never any hint of panic in Mrs. Fitzpatrick’s room at any time. Staff Midwife Murphy and Senior Midwife O’Dwyer both agreed with this. In my judgment the events described by Dr. Wiza and by Senior Midwife O’Dwyer, if not amounting to panic, were certainly something approaching very near to pandemonium. The Paediatrician, Dr. Kennedy was summoned by Senior Midwife O’Dwyer at the same time as she called Dr. Wiza, and on the evidence arrived at Mrs. Fitzpatrick’s room shortly after Dr. Wiza and remained thereafter in the room, or at the door of the room until the plaintiff was born so that it is altogether unlikely that she would not have witnessed such extraordinary events. In my judgment I am entitled to have regard to this and to the fact that she was not called in evidence in reaching a conclusion as to whether these alleged events occurred or not. Dr. Wiza said that Senior Midwife O’Dwyer was begging Mrs. Fitzpatrick to permit him to use the forceps. It is interesting to recall that Senior Midwife O’Dwyer in giving evidence regarding the episiotomy issue employed the same phrase that Dr. Wiza was begging Mrs. Fitzpatrick to permit him to carry out the episiotomy. If this had occurred on either of these occasions it is impossible to reconcile with the established fact that Mrs. Fitzpatrick was very concerned that the fetal scalp electrode and the fetal blood sample might hurt the plaintiff unless one accepts her evidence and that of Mr. Fitzpatrick that they did not know, and were not told, that there was something wrong with the plaintiff.
Dr. Wiza told the court that at the time he was urging Mrs. Fitzpatrick to permit a ventouse assisted vaginal delivery, Mr. Fitzpatrick had looked at the CTG monitor and said that the plaintiff’s heart rate was fine, and that he (Dr. Wiza) had responded that it was not fine. Staff Midwife Murphy however, told the court that this had occurred when Dr. Wiza said that he needed to do a forceps assisted delivery. The recollections of Dr. Wiza, Senior Midwife O’Dwyer and Staff Midwife Murphy are rather vague, and often contradictory with regard to events which they each assert were quiet extraordinary and the like of which they had never before experienced. Further, if one accepts that at 07.50 hours the need for an episiotomy was explained to Mrs. Fitzpatrick, and if one also accepts the expert evidence that the contractions were occurring on average every two or three minutes, and that to fix the ventouse cup in place, check its positioning and build up the vacuum force in the machine would require approximately two minutes, there is simply not enough time for the number of pushes said by Dr. Wiza and Senior Midwife O’Dwyer to have been given by Mrs. Fitzpatrick after she had declined to permit the use of the forceps and Senior Midwife O’Dwyer had apparently taken over the delivery of the plaintiff from Dr. Wiza. I find on the evidence on the balance of probabilities that Mrs. and Mr. Fitzpatrick are correct, that the plaintiff was delivered very shortly after Senior Midwife O’Dwyer had said to Mrs. Fitzpatrick that he was very tired, and very shortly after the time Mr. Fitzpatrick saw Dr. Wiza taking the forceps out of its packaging.
I find on the evidence that Senior Midwife O’Dwyer was negligent and in breach of duty in not calling Dr. Wiza at 06.50 hours and in not turning off the Oxytocin and, without prejudice to this finding, was further guilty of negligence and breach of duty in failing to call Dr. Wiza at between 07.10 hours and 07.12 hours. By reason of this negligence and breach of duty on her part I find that the plaintiff was deprived of the opportunity to being delivered without irreversible brain injury and injury to his liver, kidneys and blood forming system. But for this negligence and breach of duty on the part of Senior Midwife O’Dwyer I find that Dr. Wiza would and, acting with reasonable care in the proper discharge of his duties as Special Registrar in Obstetrics, should have delivered the plaintiff at or before 07.30 hours thereby ensuring that the plaintiff would have been born uninjured or that any, (if any), injuries sustained by the plaintiff from 07.10 hours onwards to 07.30 hours would, stand a much better than even chance of being entirely reversible. I find on the evidence, with particular reference to the clear and resolute evidence of Professor Baker in this regard, that it was substandard on the part of Senior Midwife O’Dwyer not to have called Dr. Wiza until 07.30 hours or shortly thereafter. Because of this negligence and breach of duty on her part, the plaintiff was deprived of all opportunity to being delivered without irreversible brain damages and other injuries. I find on the evidence that the delay on the part of Dr. Wiza in not delivering the plaintiff, between 07.33 hours and 07.48 hours and not in fact delivering the plaintiff until 08.03 hours was in the circumstances of the dire emergency then prevailing seriously substandard. This negligence and breach of duty on the part of Dr. Wiza materially contributed to the amount of irreversible brain damage and other injuries suffered by the plaintiff between 07.30 hours and 08.03 hours. All of the obstetricians who gave expert evidence were agreed on this unless, the delay was excusable by reason of the alleged delay on the part of Mrs. Fitzpatrick in permitting the use of the ventouse and her alleged total refusal to permit an episiotomy or a forceps assisted vaginal delivery.
I find on the evidence that there was no material or untoward delay on the part of the Mrs. Fitzpatrick in permitting the use of the ventouse. I find on the evidence that the refusal of the episiotomy and of the forceps assisted delivery would not have occurred but for the failure of Dr. Wiza and of Senior Midwife O’Dwyer to inform Mrs. and Mr. Fitzpatrick in plain and unequivocal terms that the plaintiff was in distress and unless delivered immediately would die or suffer serious injury to his brain. I find on the expert evidence that it was negligent and seriously substandard on their part not to have so informed Mrs. and Mr. Fitzpatrick. I find on the evidence that but for this negligence and breach of duty Mrs. Fitzpatrick would have immediately consented to these procedures or to any other necessary medical procedures at whatever time she might have been asked. I find on the evidence the plaintiff suffered increasing irreversible hypoxic-ischemic injury to his brain and other injuries during the period from 07.30 hours to 08.03 hours and that this delay contributed materially to his present state of cerebral dysfunction.
Geoghegan v. Harris
[2000] IEHC 129; [2000] 3 IR 536 (21st June, 2000)
THE HIGH COURT
BETWEEN
PETER GEOGHEGAN
PLAINTIFF
AND
DAVID HARRIS
DEFENDANT
JUDGMENT of Mr Justice Kearns delivered the 21st day of June, 2000.
1. The Plaintiff in this case is a married man and business man who lives in County Kildare. He was born on the 27th November, 1944.
2. He is suing the Defendant for alleged negligence in the carrying out of a dental implant procedure on the 1st July, 1992. As a result of a bone graft which was taken from his chin in the course of the procedure, the Plaintiff suffered damage to the incisive nerve at the front of his chin which, from the time of the procedure, has left him with a condition of severe pain at the mid line of his chin known as chronic neuropathic pain. It is this aspect of the procedure, namely, the bone graft, rather than the insertion of the actual dental implants themselves, which is accountable for the Plaintiff’s symptoms.
3. The Plaintiff has also sued the Defendant for failing to disclose to him in advance of the operation the risk that chronic neuropathic pain might eventuate as a consequence of this procedure. This was, in fact, his initial complaint against the Defendant.
4. The hearing before this Court, largely because of the highly technical evidence involved, lasted some twenty days. Two days were taken up with legal submissions on informed consent/duty of disclosure. With a view to shortening the trial and for the purpose of complying with the recently enunciated requirement of the Supreme Court that, even in relation to fact, submissions should be made at the conclusion of the evidence, the parties were invited to make such submissions in writing and the same have been received by the Court prior to the delivery of this part of the judgment.
5. Because of the complex and technical nature of the evidence, the parties have agreed that the Court should be free to deliver its judgment in successive parts. The issue of quantum, should it arise, has by agreement been deferred to a later time. The first part of the Judgment deals with the allegation that the Defendant failed to disclose a material risk.
6. The second part of the judgment, which does not overlap with the first, addresses the central question of fact upon which the claim of negligence is brought: Did Dr Harris, in the course of harvesting a bone graft from the Plaintiff’s chin on the 1st July, 1992, take the bone graft at a point on the chin too close to the apices of the Plaintiff’s lower incisor teeth? The evidence in the case clearly establishes that general and approved practice in the medical profession is that one should respect a 5 mm zone between the apices of the teeth and the upper margin of any bone graft. The crucial factual issue to be determined therefore, is whether or not Dr Harris transgressed this barrier. Dr. Harris denies that he did. In this regard, the Court has to consider not only Dr Harris’s own evidence, but the entire subsequent history of the lower incisor teeth, a detailed anatomical study of the chin and its nervous system, and also the significance and interpretation of a number of X-rays taken in the aftermath of the particular procedure. The evidence in relation to the X-rays alone consumed many days of the hearing and is highly complex. Part of the difficulty arises because the Defendant and his experts challenge the reliability of X-rays, including Dr Harris’s own X-rays, when it comes to the accurate measurement of fine distance between two objects or points of reference given that X-rays are two dimensional representations of three dimensional reality.
7. It is therefore my intention to deal separately with the factual issue upon which the claim in negligence is based, and separately also, if necessary or appropriate, with the legal consequences of a finding of fact (if such be the case) that Dr Harris transgressed the 5 mm barrier when taking the bone graft on the 1st July, 1992.
8. Accordingly, in the present section of the judgment, only those facts which are germane to the issue of disclosure will be addressed in detail. All issues addressed by the technical evidence, together with evidence as to the execution of the procedure and the expert views in relation thereto, will be dealt with in the second part of the judgment to be delivered at a later date. No Order will be drawn up until those issues, and their consequences, have been dealt with.
9. However, even this section of the judgment cannot commence without a brief explanation of the history and function of dental implants. In essence a dental implant is a pillar which is inserted into the jaw bone to constitute a post over which an artificial crown or bridge attachment can be fitted. For hundreds, if not thousands, of years crude efforts at dental implantology were carried out, usually with very bad results.
10. However, some 30 years ago in Sweden Professor Branemark made a most important discovery. He discovered that a titanium implant which had been inserted into a rabbit’s bone marrow could not later be taken out. The titanium had integrated with the bone in a process which he characterised as osseointegration.
11. The implications for dental science were immediately apparent, because titanium fixtures in the jaw clearly offered a more secure and more predictable support for any tooth replacements to be inserted in the mouth. Dental implants, based on Branemark’s discovery and published work, became available from 1982 onwards.
12. The treatment is divided into three main stages. Firstly, the implants are placed in the jaw bone in an operation usually carried out in hospital under a general, or local anaesthetic, depending on patient preference and the number of implants to be inserted. Post-operatively, patients usually report only minimal discomfort of a type no more than that associated with tooth removal. Usually, any complaints of pain or discomfort clear away within days or within a maximum period of two weeks.
13. The second stage six months later involves a minor procedure carried out under local anaesthesia in which special titanium pillars (abutments) are attached to the implants onto which the tooth replacements are then fixed.
14. The construction of the tooth replacements can usually be completed and fitted within six-seven weeks and while this is being carried out, patients may wear their own denture, specially modified, as a temporary measure.
15. Following completion of the work, a dental hygienist shows the patient how to correctly clean around the fixtures. The procedure has a very high success rate and is associated with many benefits for the patient which are detailed later in this judgment.
16. The Defendant is a highly qualified oral surgeon. He became a fellow in dental surgery of the Royal College of Surgeons in England in 1968. He later received his fellowship of the Faculty of Dentistry from the Royal College of Surgeons in Ireland. He is on the specialist all surgery registry in the UK and Denmark. He has been certified by the Irish Dental Council as having fulfilled criteria for specialist registration in the EU. He has been in private practice in oral surgery since 1973. He moved to the Blackrock Clinic in 1983/4 where he presently conducts his private practice. Most of his work is in implants. He also does private work in London. He is senior lecturer in implant dentistry in Trinity College since 1997. He is also involved in a significant way in major international bodies with a special interest in implant technology.
17. The Plaintiff was referred to the Defendant by Mr John O’Grady in April, 1992. This arose out of some dental treatment which the Plaintiff had received from Mr O’Grady. The Plaintiff had neglected his dentition for many years and had many gaps in his teeth. He was missing 16 or 17 teeth, including many at the back of his mouth and was doing most of his chewing with the teeth to the front. Eventually Mr O’Grady, having outlined the different options to the Plaintiff, suggested he go to see Dr Harris, who has rooms close to Mr O’Grady’s in the Blackrock Clinic, for the purpose of assessing him in relation to three implants at tooth locations second upper right, fourth upper right and fourth upper left (see photo in appendix). For that purpose he had prepared study models and had obtained a panoramic X-ray, which in fact was taken by Dr Harris at a time prior to his involvement with the Plaintiff. These materials were made available to Dr. Harris.
18. The first meeting took place in Dr Harris’s rooms in the Blackrock Clinic on the 2nd June, 1992. The meeting lasted about 45 minutes.
19. During the meeting Dr Harris explained the different options available and explained what dental implants would involve. Mr Geoghegan told Dr Harris he wanted a very nice job done and that the cost was not a concern.
20. Following an examination, Dr Harris informed the Plaintiff that there appeared to be a shortage of bone at the site of the proposed implant at the fourth upper right and explained how a piece of bone could be harvested from the Plaintiff’s chin to be placed at the site for the purpose of bedding in and securing the implant.
21. Mr Geoghegan’s recollection is that he said to Dr Harris: “That sounds very painful”, whereupon he asserts that Dr Harris said: “No, there is definitely no pain, no pain whatsoever.”
22. Dr Harris for his part vehemently denies that he gave any such representation to the Plaintiff. He has told the Court that he explained the complications of the procedure to Mr Geoghegan as including swelling, bruising and discomfort. He feels sure he mentioned pain and would have told the Plaintiff that there could be pain and discomfort in the first 48 hours but that it could be well controlled with normal analgesia and that after two weeks it should all have settled. Mr. Geoghegan states that the was told only that there could be swelling under the eye and on the chin which would be temporary. In cross-examination he accepted he expected some pain which might last for a couple of days but “nothing major”. He associated any pain he might have with the pain of having a tooth pulled and in this case it would be the equivalent of several teeth, but this had not been any problem for him in the past.
23. There was also a discussion about whether the procedure should be carried out under general and local anaesthesia, in which context Mr Geoghegan revealed he had some concerns. He disclosed he had lost his brother following a coronary bypass operation some six months previously. This seems to have been Mr Geoghegan’s principal focus in relation to the operation which, at this meeting, was fixed for the 1st July.
24. Dr Harris explained to Mr Geoghegan that dental implants were a relatively new procedure and that the high success rate for implants could not be applied when grafting was involved. He explained the procedure of taking a bone graft in detail to Mr Geoghegan. He told the Court that he felt Mr Geoghegan was not all that interested in the detail.
25. Mr Geoghegan opted to undergo general anaesthetic and, at the end of the meeting, was quite determined to go ahead. A further meeting was fixed for the 22nd June for a particular reason.
26. Dr Harris explained to the Court that he had a protocol or procedure which he followed in this case as he did in relation to any operation. He would invariably require a patient to attend for two consultations prior to any operation. Following the first consultation he would give an information video and brochure to the patient with a request that the patient peruse same. The purpose of the second meeting would be to discuss any questions which the patient might have as a result of looking at this material and the whole procedure would then be discussed in detail again. The purpose of this protocol was to ensure that the patient was fully prepared and informed prior to his operation. In addition, the patient would be required to undergo a physical check-up prior to any surgery.
27. Mr Geoghegan told Dr Harris he had had a medical check-up done in the previous year. Nonetheless, Dr Harris told him he wished Mr Geoghegan to see a physician at the clinic.
28. Following that meeting, Mr Geoghegan accepts he neither looked at the video or the brochure.
29. It is perhaps pertinent to discuss briefly what each contains insofar as risks or complications are concerned. The brochure contains simply one paragraph dealing with “possible complications and side effects” as follows:-
“Osseointegration implant surgery has been performed successfully since 1965 in Sweden. No reports of any serious side effects in the short or long term have been reported with its use in many thousands of patients.”
30. The information video, in addition to contributions from Dr Harris and a narrator who details the history of the technology, contains mainly testimonials from patients who have undergone the procedure. It is hardly surprising that most of these are glowing recommendations in favour of dental implants. Most of the patients describe only minor discomfort associated with the procedure. One patient expresses surprise that such major surgery produced no pain and that she had “no pain whatsoever”. Another patient describes symptoms akin to having a tooth removed. One patient refers to having numbness for about one month in the aftermath of the procedure.
31. No reference of any sort to the possibility of chronic neuropathic pain is made in either the video or the brochure. Neither the video or the brochure address the question of bone grafts, which are only required in a small percentage of dental implant procedures where lack of suitable bone at the proposed implant site requires to be supplemented by the graft.
32. The second meeting took place not as arranged on the 22nd June but on the 30th June, the eve of the operation.
33. There is no real dispute about what happened in the interim.
34. Dr Harris’s secretary phoned the Plaintiff on the 21st June reminding Mr Geoghegan of his appointment the next day. According to Dr Harris, he was told by his secretary that Mr Geoghegan was too busy to attend. He informed his secretary to tell Mr Geoghegan this was not acceptable to him and that the Plaintiff must come in and have a further discussion or otherwise the operation would be cancelled. Further approaches were made to Mr Geoghegan who was unable to attend a meeting prior to the 30th June, this being the only date which suited him.
35. Mr Geoghegan’s recollection in relation to his dealings with Dr Harris’s secretary is to the effect that he told her on the 21st June that he did not need this second meeting, that he had been through it all with Dr Harris and was well aware of what was going on. He accepts that some days later Dr Harris’s secretary rang back to say the Defendant was insisting on this second meeting.
36. At the second meeting, Dr Harris says that details of the procedure were gone over again with Mr Geoghegan.
37. At this meeting the question arose as to whether or not Dr Harris would also put an implant the premolar area of in his lower jaw. This had not been on the original schedule of work to be carried out.
38. Dr Harris phoned Mr O’Grady there and then about this proposal. Mr O’Grady was quite happy to leave this matter in Dr Harris’s discretion, but Dr Harris decided to wait until surgery to see if he could in fact do it. In the event he did not do the fourth implant to the lower jaw because in the course of the operation he noted the bone in the premolar area was quite thin and felt there was a risk he might go too near the mental nerve which innervates the lower lip and the vestibule between the lip and the front of the mandible. (See Appendices for illustrations).
39. Dr Harris states that he explained to Mr Geoghegan the possibility of nerves being cut in the area which could cause some numbness or altered sensation both in the teeth and in the lip and chin area. Mr Geoghegan’s recollection, however, is that Dr Harris only referred to the possibility of some numbness in the chin area, which he indicated by pointing his little finger to the tip of his chin.
40. Dr Harris further stated that he pointed out the mental nerve to him because it was visible on X-ray and emphasised that he was going to stay well away from it in carrying out the procedure. According to Dr Harris there was quite a bit of discussion about this implant to the lower jaw and he put more emphasis for this reason on the possibility of numbness and altered sensation to the lip and chin.
41. Dr Harris accepts that he did not discuss or disclose any possibility or risk of chronic neuropathic pain or prolonged pain which might be associated with damage to any nerves which lay in the area where the implant to the lower jaw and bone graft were to take place.
42. Mr Geoghegan told Dr. Harris he had not looked at the video and explained his failure by reference to his brother’s unfortunate death, his explanation being he had some difficulty with medical matters and realised he should pay more attention.
43. Dr Harris went on to tell Mr Geoghegan he himself had never had the operation and that sometimes unanticipated complications could occur in any procedure. He says he repeated the caution about pain and mentioned the possibilities of infection and bleeding.
44. Either before or after the consultation Dr. Harris sent the Plaintiff for a medi-check to Dr Comiskey which was carried out that same day in the Blackrock Clinic.
45. At the end of the meeting Dr Harris asked the Plaintiff to wait while a letter was typed up for him to take away and read.
Mr Geoghegan then went home, watched the video twice and read the brochure. He did not read the letter because he thought it was a repeat of everything Dr Harris had said to him.
46. It is important to quote the letter in full:-
“Dear Mr Geoghegan
The following is a short summary of the treatment plan that we have discussed in detail on your last two visits.
In order for Dr O’Grady to restore three missing teeth in your upper jaw, he has requested that three implants be provided. As you know the limiting factor from the point of view of placing implants in the upper jaw is the amount of bone that is available. Clinical and radiographic examination revealed that there is sufficient bone on the left side of your jaw beside the canine or eye tooth to place one implant and also towards the front for the missing incisor tooth. However, on the right side of your upper jaw there is insufficient bone stock to hold an implant and this will be required to be augmented with a bone graft. This graft will be taken from your lower jaw beneath the incisor teeth. In addition to these three implants it is planned to place one implant in your lower jaw to provide support for a crown where there is a tooth missing in the lower right premolar region.
We discussed that although osseointegrated implants are a well documented and proven procedure, that when combined with a graft no firm guarantees can be given as to the successful outcome, although our experience to date has been most favourable.
As you know the procedure is carried out in two main phases. The first stage has been arranged for you as an in-patient in Blackrock Clinic on Wednesday 1st July. This first stage involves the grafting procedure and placement of the implants and will be carried out under a general anaesthetic. An arrangement has been made for you to have a pre-operative medical assessment with Dr Comiskey prior to this. The main post operative problems that are encountered are swelling and bruising and on occasion this may extend into the soft tissues of the neck and below the eye.
Some numbness of the lower lip or chin may also occur. One week later the sutures will be removed and no further treatment will be carried out by me for a period of six months when stage 2 will commence. This involves a more minor procedure under local anaesthesia and will not require admission into hospital. At this time the heads of the implants will be exposed and the titanium cylinders that are used to connect through the gum tissues will be attached. Some three weeks later Dr O’Grady can commence his work to construct the crowns on the implants. The following are the costings which do not include hospital or anaesthetist fees nor any work that is to be carried out by Dr O’Grady.
Placement of three osseointegrated implants upper jaw
Provision of implant components stage 1 and 2 surgery £2,400.00
Grafting procedure £1,200.00
Provision of implant components lower jaw £800.00
£4,400.00
Payment will be requested as follows:
Prior to first stage for purchase of implant components £1,400.00.
Following first stage £2,400.00
Balance due on completion of second stage.
If there is any aspect of the above treatment that you do not understand or wish to discuss further with me, please do not hesitate to let me know.
Yours sincerely
(Dr) David Harris”
47. Mr Geoghegan only read the letter after his operation. His recollection is that the reference in the letter to possible numbness in the lip had never been mentioned to him by Dr Harris.
48. It is common case that the following morning Mr Geoghegan attended for the operation and, in meeting Dr Harris beforehand, had no queries or questions arising out of his viewing of the video or his reading of the brochure.
49. It is perhaps pertinent to point out that the implant which did not take place, i.e. in the lower right premolar region, is in an area close to the inferior dental nerve (the alveolar nerve) and close to the point where it divides into two branches, namely, the mental nerve and the incisive nerve. While this implant was not proceeded with, no decision to that effect had taken place prior to surgery, so that any requirement to give a warning must include any risks or complications which might be associated with an implant at this particular site also. Dr. Harris believes he complied with any such requirement.
50. Dr Harris in the course of the hearing was cross examined by Mr Ryan as to what he saw as his duty and obligation to give information about rare complications. He indicated that the advice he had always been given was that if the incidence was over 1%, it should be considered. He went on to state that if you knew a complication could occur, then you must tell the patient about it. His standard would be to look at what he himself would want to know if he was in a similar situation so that he could make a decision. He stated that he would give as much information as he could in the context of the particular procedure.
51. However, chronic neuropathic pain did not occur to him as being a risk associated with this procedure. For his part, Mr. Geoghegan told this Court in empathic terms that he would not have undergone the operation had he known of this risk, even if the risk was “one chance in a thousand”.
LEGAL CONSIDERATIONS, OTHER EVIDENCE AND CONCLUSIONS
Duty of Disclosure/Informed Consent
52. The obligation on a medical practitioner carrying out or arranging for the carrying out of an operation to inform the patient of any possible harmful consequence arising from the operation, was addressed by the Supreme Court in Walsh -v- Family Planning Services Limited & Ors ., (1992) 1 IR 496.
53. The immediate issue the Court had to resolve insofar as the warning was concerned was, firstly, had a warning been given and, secondly, was the warning sufficient. A majority of the Court determined that it would not disturb on appeal the trial Judge’s determination that a warning had been given and that it had been sufficient.
54. In arriving at their conclusions, those members of the Court comprising the majority and who gave judgments (Finlay CJ and O’Flaherty J) did so by reference to different legal principles. I think it is fair to say that the contrasting approaches have caused commentators, Judges and practitioners alike some considerable difficulty for this reason. On the one hand Finlay CJ applied the principles and test set out in Dunne (an Infant) -v- National Maternity Hospital , (1989) IR 91 as indicating the appropriate standard of care.
55. In a nutshell, that test is to determine whether the medical profession generally, or a reputable school of opinion within it, would regard a warning as necessary, subject to the exception that a general and approved practice might contain inherent defects which should be obvious to any person giving the matter due consideration. If that latter position were to obtain, then the fact that a medical practitioner followed general medical practice would not suffice to exonerate him from responsibility.
56. O’Flaherty J., with whose judgment Hederman J concurred, took a different approach from the Chief Justice and did not accept that the question of whether a warning should be given in relation to a particular procedure is to be determined in accordance with the criteria as set out in Dunne as regards general and approved practice. He stated:-
“Rather I think it is a matter for the trial Judge, in the first instance, to find whether there has been a breach of the duty of care owed by the defendants to a person such as the plaintiff. That is to be resolved on the established principles of negligence. This was the approach of the Supreme Court of Canada in Reibl -v- Hughes , (1980) 114 DLR (3D) 1.”
57. This approach, at the other end of the spectrum, concentrates on the patient’s right to determine what is to be done to his body. It requires full disclosure of all material risks incident to the proposed treatment, so that the patient, thus informed, rather than the doctor, makes the real choice as to whether treatment is to be carried out.
In “Medical Negligence Actions” by John White, the author states at p. 190:-
“It is not unfair to observe that Walsh’s case is bewildering both in the alternative criteria of decision adopted by its adjudicators and in the application of those criteria of decision to the facts of that case.”
58. In relation to the approach set out by Finlay, C.J. Mr. White states (at p. 189):-
“The fact is that, if the principles of negligence liability with respect to negligence in diagnosis and treatment are to apply mutatis mutandis with respect to disclosure of the risks of adverse consequences associated with proposed treatment, the result would be that the standard of disclosure will be limited to what ‘general and approved practice’ within the medical profession, or a reputable school of opinion within that profession, requires subject to the exception that the defence of general and approved practice can be defeated where the plaintiff can demonstrate that ‘such practice has inherent defects which ought to be obvious to any person giving the matter due consideration’. But what can this caveat mean in the non technical context of what a person is entitled to know concerning the risks of adverse consequences attending proposed treatment? And, in any event, how can that entitlement be satisfied by a standard which is based upon the customary practice of the medical profession with the opportunity, in exceptional cases, for the plaintiff to establish that the standard of the profession was unacceptable? And, although the Chief Justice also exhibited a benign willingness to overrule the standards of the profession in the context of nondisclosure of risks of adverse consequences, the result of such a course is to work the policy of the Canterbury doctrine within the confines of a prima facie professional standard criterion applicable to diagnosis and treatment which is obviously unacceptable.”
Canterbury -v- Spence (150 US App D.C. 263), which was followed in Reibl -v- Hughes , adopted the proposition that, as a general principle, the patient has a right to know of all material risks associated with a proposed form of treatment in exercise of the individual’s right to self-determination.
59. The concept of materiality may be taken to embrace (a) severity of the consequences and (b) statistical frequency of the particular risk. As was stated in Canterbury (p. 788):-
“A very small chance of death or serious disablement may well be significant; a potential disability which dramatically outweighs the potential benefit of the therapy or the detriments of the existing malady may summons discussion with the patient. There is no bright line separating the significant from the insignificant; the answer in each case must abide a rule of reason.”
60. However, in relation to the issue which the Court is called upon to address in this case, an analysis of the judgments yields the same answers, arrived at by the application of the different principles, in relation to two critical questions, that is to say:-
(a) The requirement on a medical practitioner is to give a warning of any material risk which is a “known complication” of an operative procedure properly carried out.
(b) The test of materiality in elective surgery is to enquire only if there is any risk, however exceptional or remote, of grave consequences involving severe pain stretching for an appreciable time into the future.
61. All five Judges of the Supreme Court clearly agreed in Walsh that in elective surgery any risk which carries the possibility of grave consequences for the patient must be disclosed. The requirement is set out in the various judgments without qualification in respect of statistical frequency. In fact, this consideration is firmly ruled out.
62. At no point in his judgment did Finlay C.J. resile from the description of the duty so trenchantly stated by O’Flaherty J at p. 535:-
“I have no hesitation in saying that where there is a question of elective surgery which is not essential to health or bodily well being, if there is a risk – however exceptional or remote – of grave consequences involving severe pain stretching for an appreciable time into the future and involving the possibility of future operative procedures, the exercise of duty of care owed by the defendants requires that such possible consequences should be explained in the clearest language to the plaintiff.”
63. Similar views were expressed by McCarthy, J. and Egan J.
64. Finlay C.J. in his judgment stated at p. 510:-
“I am satisfied that there is, of course, where it is possible to do so, a clear obligation on a medical practitioner carrying out or arranging for the carrying out of an operation, to inform the patient of any possible harmful consequence arising from the operation, so as to permit the patient to give an informed consent to subjecting himself to the operation concerned. I am also satisfied the extent of this obligation must, as a matter of common sense, vary with what might be described as the elective nature of the surgery concerned. Quite obviously, and even apart from cases of emergency surgery which has to be carried out to persons who are unconscious or incapable of giving or refusing consent, or to young children, there may be instances where as a matter of medical knowledge, notwithstanding substantial risks of harmful consequence, the carrying out of a particular surgical procedure is so necessary to maintain the life or health of the patient and the consequences of failing to carry it out are so clearly disadvantageous that limited discussion or warning concerning possible harmful side effects may be appropriate and proper. On the other hand, the obligation to give warning of the possible harmful consequences of a surgical procedure which could be said to be at the other end of the scale to the extent to which it is elective, such as would undoubtedly be the operation of vasectomy, may be more stringent and more onerous.”
65. He went on to state as follows at p. 511:-
“On the evidence in the case, Dr. Sheehy Skeffington was at that time aware of one case out of a number of thousands of the carrying out of the operation of vasectomy by the First Defendant in which such a complication occurred (i.e. pain lasting for some years after the operation). Notwithstanding medical evidence to the contrary from some of the witnesses called, I take the view that there was an obligation on this doctor to inform the plaintiff of that possible consequence .” (Bracketed words and emphasis added).
66. In effect, Finlay C.J. arrived at the same conclusion as his colleague, albeit by applying a different principle. While some of the witnesses called in Walsh felt no warning was required, Finlay C.J. clearly felt that the exception for inherent defects provision in Dunne could be invoked in the circumstances of the case so that there was a requirement to give a warning of a remote risk with grave consequences.
67. It is important to underline, as Finlay C.J. did, that the duty extends to “known complications” of a “carefully carried out operation”, so that clearly the duty must be confined to such consequences or to consequences which may be described as foreseeable or predictable consequences arising from such complications. Mere coincidental and unrelated risks, for example, could not properly fall within the compass of any duty, any more than consequences which might flow from the practitioner’s negligence.
Bolton -v- The Blackrock Clinic & Ors ., (unreported decision of the Supreme Court, 23rd January, 1997) did not purport to vary or alter the requirement for the type of warning necessary in elective surgery.
68. Hamilton CJ at p. 13 stated:-
“The surgery contemplated in this case on the 4th day of March, 1988 viz the sleeve resection operation was undoubtedly elective surgery in the sense that it was a matter for the Appellant to decide whether or not she would undergo such an operation and to give or withhold or consent thereto.
Before obtaining such consent there was a clear obligation on Mr. Wood to (i) satisfy himself as to the necessity for the operation (ii) explain to the appellant the necessity for the operation and the consequences of failing to have the operation (iii) explain to the appellant the nature of the operation, and (iv) inform the appellant of any possible harmful consequence arising from the operation.” (emphasis added)
69. The questions this Court has to address therefore in the instant case are as follows:-
(1) Is chronic neuropathic pain a known or foreseeable consequence when placing an implant in the lower premolar area or when taking a bone graft from a patient’s chin?
(2) If so, is there a requirement to warn, regardless of the remoteness of the risk and the views of the medical experts in the case that a warning is not required?
(3) Had an appropriate warning been given, would the Plaintiff nonetheless, as a matter of probability, have elected to undergo the procedure?
(4) Insofar as the Plaintiff has made an allegation of a misrepresentation against Dr. Harris that he said there would be “no pain, no pain whatsoever” associated with the procedure, is he precluded from pursuing a case in negligence for breach of the duty of disclosure if the Court finds as a fact that no such statement was made by the Defendant?
(5) Was the Plaintiff in the category of “inquisitive patient” to whom a special duty was owed?
(1) Was neuropathic pain a known complication ?
70. It is submitted on behalf of the Defendant that the Plaintiff’s chronic pain is a unique occurrence, not just a rare occurrence. None of the expert medical witnesses who gave evidence on both sides had ever experienced in any of their patients the development of such a symptom at this site, nor was any one of them aware of a single instance of such a phenomenon being recorded in the medical literature.
71. It was further argued that the mandible and the teeth are commonly and frequently the sites of more radical and invasive surgery carried out by both maxillo facial surgeons and oral surgeons which necessarily involves severe damage to the incisive plexus of nerves and other nerves and yet, not even in those cases, has there been recorded or experienced a single instance of the onset of chronic neuropathic pain.
72. Mr. Cooney cited from Jones Medical Negligence (2nd Ed. 1996) at p. 121 the following passage in relation to “unforeseeable harm” as follows:-
“It is axiomatic within the concept of negligence that if a particular danger could not reasonably have been anticipated, the defendant has not acted negligently, because a reasonable man does not take precautions against unforeseeable consequences. This is measured by reference to knowledge at the date of the alleged negligence, not with hindsight.”
73. Be that as it may, the medical evidence in this case, including that of the Defendants’ experts, is all the one way in respect of the phenomenon of nerve damage.
74. Dr. Sambrook, Dr. Hutchison, the neurologists, Mr. Beirne, the maxilliofacial surgeon and Professor Van Steenberghe, professor of the dental faculty in Louvain, all agree that any nerve which is traumatised can exhibit one or other of the following characteristics:-
(a) Numbness or reduced sensation
(b) Altered sensation
(c) Very occasionally, intractable neuropathic pain.
75. The mechanism for the severe pain is a distorted message sent to the brain either from damage to or incomplete healing or repair of the nerve in question.
76. Not one expert called in this case on either side however believed then or now that a warning about intractable neuropathic pain was or is necessary having regard to the remote nature of the risk. It is one in multiple thousands. Nonetheless, various experts did instance occasions where nerve damage with lasting consequences had occurred in the facial area which has a sensitive nerve system. The infra orbital nerve of the cheekbone is one such site where chronic neuropathic pain can occasionally result if that nerve is damaged. Equally it is known that the removal of a wisdom tooth can, in rare instances, produce a similar outcome if the alveolar nerve is damaged.
77. Dr. Beirne, one of the Defendant’s experts, further mentioned a case he was aware of where four lower wisdom teeth had become devitalised as a result of a bone graft where the surgeon had in fact stayed outside the 5mm zone between the apices of the teeth and the bone graft site which general and approved practice requires.
78. The extremely rare occurrence of chronic neuropathic pain as a consequence of nerve damage is in contrast with the other two possible consequences at (a) and (b) above which are more commonly encountered, although usually only as transient symptoms.
79. There is evidence from Mr. Hutchison in this case that the trigeminal nerve which supplies innervation to different parts of the skull and face is particularly sensitive. The alveolar nerve is one emanation which runs down the lower jaw and bifurcates at the premolar area of the mouth into the mental nerve, which exits the bone and supplies sensation to the lip and soft tissues in the vestibule between the lower teeth and the lower lip, and the incisive nerve which innervates the bone and teeth at the front of the lower mandible. (See Appendices).
80. It is quite clear that the procedure which Dr. Harris was initially proposing to undertake was one which might compromise one or both these nerves having regard to their location in the chin area. Dr Harris stated (B.9.p.151) that it was not possible to put in implants “without damaging the incisive nerves”. The same view was expressed in relation to bone grafting (B.9.p.154/5). Dr. Harris’s own letter to Mr. Geoghegan shows an awareness of the possibility of nerve damage in its references to the risk of numbness at both the chin and lip. This was, and could only be, nerve damage. Dr Harris himself mentioned cases where damage to the mental nerve had caused “prolonged pain”. (B.9.p.122)
81. Bearing in mind that the procedure which Dr. Harris was engaged was a relatively new procedure, I do not find it at all surprising that there is an absence of any other recorded case of chronic neuropathic pain in respect of either implants or bone grafts in the particular area of the chin. The procedure goes back to 1982. For a number of years grafts (required in a small number of cases) were taken from the iliac crest and only since 1989 from the chin. There was clearly in 1992 a retrievable archive of short duration only and obviously such an archive, insofar as it may be said to exist, must relate to cases where the procedure including bone grafting, was carried out in accordance with approved guidelines and procedures.
82. It seems to me that nerve damage must be seen as a “known complication” of this procedure be it implants per se, or bone grafts, in the chin area. The particular symptom of neuropathic pain is in a subdivision, not in a different species of risk or unrelated risk. It is foreseeable as a consequence of damaging nerves and certainly those nerves with which this case is concerned. Once that is established, the fact that the particular manifestation of the nerve damage is very remote and unusual seems to me immaterial from a legal point of view. It is within the range of what is known or can or should be known by the medical practitioner. By way of example, if it be generally known that, on rare occasions, a piece of coal may explode while burning in a grate, that “known complication” can hardly be said not to exist in respect of coal harvested from a new mine where such an event has not occurred over a fairly short period of time since that mine was opened. It will always remain a known possibility of a generic type.
(2) Obligation to Warn.
83. While the issue of quantum has been deferred to a later stage of this hearing, both the medical evidence I have heard in the context of liability and the Plaintiff’s own evidence satisfy me that the Plaintiff does have an extremely painful and hitherto intractable version of this nerve damage. He has a burning sensation at the mid line of his chin which, as the day progresses extends up his jaw on either side towards his ears. The condition is exacerbated by talking. He is frequently obliged to drink iced water and broken ice in an effort to get relief from his symptoms. He sometimes drinks too much gin in the evenings to deaden the pain. He has been around the world in a search for a cure, up to now without success.
84. None of the medical practitioners have to this point queried the genuineness of the Plaintiff’s condition which, the Plaintiff says, has destroyed his life.
85. The Plaintiff himself in the witness box was agitated and emotional when describing his difficulties and understandably somewhat obsessed about his condition. This is not intended as any criticism of Mr Geoghegan, who struck me as a decent and honourable person, but a person who has lost objectivity because of his ongoing symptoms. His condition merits the description of being severe, though clearly it is well short of the category which may include conditions such as paralysis, loss of a limb or reproductive function. The requirements of Walsh -v- Family Planning Services Limited are therefore met in the instant case.
86. Even though the views of the medical experts were all to the effect that no warning was necessary of the remote risk of neuropathic pain, the decision in Walsh must nonetheless bind me. I accordingly hold there was an obligation to warn.
Is the ‘Reasonable Patient’ test the preferable option?
87. The legal principles to be applied in cases of alleged medical negligence have been settled by the decision of the Supreme Court in Dunne (Infant) -v- National Maternity Hospital [1989] IR 91. In Dunne’s case they are detailed by Finlay C.J. at p. 109 of the report:-
“1. The true test for establishing negligence in diagnosis or treatment on the part of a medical practitione is whether he has been proved to be guilty of such failure as not medical practitioner of equal specialist or general status and skill would be guilty of if acting with ordinary care.
2. If the allegation of negligence against a medical practitioner is based on proof that he deviated from a general and approved practice, that will not establish negligence unless it is also proved that the course he did take was one which no medical practitioner of like specialisation and skill would have followed had he been taking the ordinary care required from a person of his qualifications.
3. If a medical practitioner charged with negligence defends his conduct by establishing that he followed a practice which was general, and which was approved of by his colleagues of similar specialisation and skill, he cannot escape liability if in reply the Plaintiff establishes that such practice has inherent defects which ought to be obvious to any person giving the matter due consideration.
4. An honest difference of opinion between doctors as to which is the better of two ways of treating a patient does not provide any ground for leaving a question to the jury as to whether a person who has followed one course rather than the other has been negligent.
5. It is not for a jury (of for a judge) to decide which of two alternative courses of treatment is in their (or his) opinion preferable, but their (or his) function is merely to decide whether the course of treatment followed, on the evidence, complied with the careful conduct of a medical practitioner of like specialisation and skill to that professed by the defendant.
6. If ther is an issue of fact, the determination of which is necessary for the decision as to whether a particular medical practice is or is not general and approved within the meaning of these principles, that issue must in a trial held with a jury be left to the determination of the jury.”
88. In applying the third principle from Dunne to the duty of disclosure considered in Walsh, Finlay C.J. invoked the exception in the following manner (p. 511):-
“It may be, certainly in relation to very clearly elective surgery, that the Court might more readily reach a conclusion that the extent of warning given or omitted contained inherent defects which ought to have been obvious to any person giving the matter due consideration than it could do in a case of complicated medical or surgical procedures.”
89. With considerable diffidence, I venture to suggest that this statement really only highlights the unreality of relating or contrasting the duty of disclosure to or with complicated medical treatment which is a separate and quite different function.
90. Beyond indicating that a lower threshold may be sufficient for the Court to intervene, the criteria for doing so are not further elaborated. The ease or otherwise of the Court’s task is hardly an appropriate marker for intervention.
91. Where the medical professional standard is adopted, subject to a caveat or saver, then, to me at least, it makes no great sense to oust from any meaningful role the views of the self-same medical practitioners as to the materiality of a risk or the need for a warning. Their views are received and relied upon in ordinary medical negligence cases. Who else can supply evidence of inherent defects? To substitute its own view, effectively in opposition to the experts on whose views, at least in the first instance, it purports to rely, the Court sets at nought the professional standard test and the result in the instant case is that the Defendant must be found to be in breach of duty when not a single expert from either side believes a warning to be necessary.
92. The Court has such power, for as Mr John Healy points out in his erudite “Medical Negligence: Common Law Perspectives” (1999) at p. 71:
“…. the courts have recognised the institutional reality that they retain at the very least a residual power to override expert opinion, even where that opinion unanimously supports the defendant’s propositions. The Irish Courts, considerably more pragmatic in this regard have repeatedly acknowledged this to be so.”
93. However, the author continues:
“A principle of this nature amounts to no more than reaffirmation of a power the courts already possess, indeed a power the courts are constitutionally obliged to exercise. In this context, the principle serves to remind the medical community that ultimately the rule of law applies to doctors as equally as it applies to solicitors or engineers, and that in any case the courts are entitled to hold liable a defendant whose adherence to general practise has been blind, lax, or inherently negligent .” (my emphasis)
94. This passage would suggest that very good reasons indeed should exist before the Court should act in this way. That these are the criteria for applying the saver is clear from the Supreme Court decision in Roche -v- Peilow (1986) ILRM 189 where the Court found that a professional practice (whereby solicitors failed to conduct pre-contract searches when advising purchasers with regard to the purchase of houses provided by a system of a building contract followed by a lease) contained such inherent defects that they ought to have been obvious to any person giving the matter due consideration.
95. At p. 197, Henchy, J. stated:-
“Conformity with the widely accepted practice of his colleagues will normally rebut an allegation of negligence against a professional man, for the degree of care which the law expects of him is no higher that that to be expected from an ordinary reasonable member of the profession or of the speciality in question. But there is an important exception to that rule of conduct. It was concisely put as follows by Walsh J. in O’Donovan -v- Cork County Council [1967] IR 173, at p. 193:
‘If there is a common practice which has inherent defects, which ought to be obvious to any person giving the matter due consideration, the fact that it is shown to have been widely and generally adopted over a period of time does not make the practice any the less negligent. Neglect of duty does not cease by repetition to be neglect of duty.’
The reason for that exception is that the duty imposed by the law rests on the standard to be expected from a reasonably careful member of the profession, and a person cannot be said to be acting reasonably if he automatically and mindlessly follows the practice of others when by taking thought he would have realised that the practice in question was fraught with peril for his client and was readily avoidable or remediable.” (my emphasis)
96. At p. 204, McCarthy, J. stated
“The possibility of there being a charge against the property upon which the builder was going to construct a house using the ’employers’ money for that purpose was a clear and present danger ; (my emphasis) it was the solicitors’ duty to guard against it.”
97. Elsewhere, Walsh, J. stated at p. 193
“It is clear from the evidence given by solicitors, including the Respondents in this case, that this particular risk was well known to them”
and (at p. 195)
“The consequences of the risk materialising could not be said to be unforeseeable when the evidence in this case indicates that it was a well known risk and the consequences were obvious if it should materialise.”
Roche -v- Peilow strongly suggests that the exception should only operate where a high onus is met and the defect, ignored or tolerated by the approved practice of a profession relates to an obvious risk or danger, which is in very marked contrast to the instant case. The exception is there to address an obvious lacuna in professional practice usually arising from a residual adherence to out-of-date ideas. It seems an inappropriate mechanism to find fault with medical practitioners for failing to warn of very remote risks which for that very quality cannot be regarded as obvious or ‘clear and present dangers’ even on due consideration. It is yet another reason to think that the third principle in Dunne, though suitable for medical treatment, is perhaps inappropriate in the distinctly different context of disclosure. One must surely conclude that the more remote the risk, the harder it is to judge any practice of not disclosing it to be ‘blind, lax or inherently negligent.’ The converse approach adopted in Walsh was justified by reference to the elective nature of the surgery, but that consideration, discussed later, is more appropriate to the issue of causation than any duty of disclosure, where the seriousness of the consequences and the frequency of the risk are the real concern.
98. The application of the reasonable patient test seems more logical in respect of disclosure. This would establish the proposition that, as a general principle, the patient has the right to know and the practitioner a duty to advise of all material risks associated with a proposed form of treatment. The Court must ultimately decide what is material. ‘Materiality’ includes consideration of both (a) the severity of the consequences and (b) statistical frequency of the risk. That both are critical is obvious because a risk may have serious consequences and yet historically or predictably be so rare as not to be regarded as significant by many people. For example, a tourist might be deterred from visiting a country where there had been an earthquake causing loss of life, but if told the event happened fifty years ago without repetition since, he might well wonder why his travel agent caused him unnecessary worry by mentioning it at all.
99. The reasonable man, entitled as he must be to full information of material risks, does not have impossible expectations nor does he seek to impose impossible standards. He does not invoke only the wisdom of hindsight if things go wrong. He must be taken as needing medical practitioners to deliver on their medical expertise without excessive restraint or gross limitation on their ability to do so.
100. The decision in Walsh effectively confines the test of materiality to severity of consequences only. This approach is best encapsulated in the memorable passage of McCarthy, J. when he stated (at p. 521):-
“… those concerned … if they knew of such a risk, however remote, have a duty to inform those so critically concerned with that risk. Remote percentages of risk lost their significance to those unfortunate enough to be 100% involved.”
101. However, the attractiveness of the observation should not occlude the possibility that at times a risk may become so remote, in relation at any rate to the less than most serious consequences, that a reasonable man may not regard it as material or significant. While such cases may be few in number, they do suggest that an absolute requirement of disclosure in every case is unduly onerous, and perhaps in the end counter productive if it needlessly deters patients from undergoing operations which are in their best interest to have.
102. As pointed out by Mr Healy (p. 99): “materiality is not a static concept”. If the assessment of materiality is to “abide a rule of reason”, any absolute requirement which ignores frequency seems much at variance with any such rule.
103. Each case it seems to me should be considered in the light of its own particular facts, evidence and circumstances to see if the reasonable patient in the Plaintiff’s position would have required a warning of the particular risk.
(3) CAUSATION
104. It is not sufficient to establish that a warning should have been given but was not given to entitle a plaintiff to recover damages. He must also establish that, had he been given a proper warning, he would have opted to forego the procedure.
105. Probably because of the finding that a warning, an adequate warning, had been given in Walsh -v- Family Planning Services , the Court did not consider in any detail the question of causation as an element in the duty of disclosure.
106. Finlay C.J. concluded his discussion on negligence in relation to the warning by stating at p. 512:-
“For this reason, I conclude that quite apart from any question of the Plaintiff having denied the giving of such a warning and, therefore, not being in a position to express any view, other than a hypothetical one, as to what he would have done if he had been given it, the warning accepted by the learned trial judge to have been given by Dr Sheehy-Skeffington, on this occasion, was sufficient, on the facts, to discharge her responsibility to exercise reasonable care .”
107. Mr Justice McCarthy stated at p. 521:-
“It does not automatically follow that the patient would not have undergone the operation despite being informed of the risk. The Plaintiff testified that if he had known he would not have undergone the procedures … it follows, in my judgment, that the Plaintiff has established his right to damages.”
108. Egan J. stated at p. 537:-
“The Plaintiff denied that he had received any warning from Dr Sheehy-Skeffington but his evidence was rejected in this regard. I cannot accept the proposition, however, that his wrongful denial precludes the Court from engaging in an examination of whether adequate warning was given to the Plaintiff. Neither do I consider it necessary that there should be proof by the Plaintiff that had the proper warning been given to him, he would not have submitted to the original operation. If he never, in fact, received a proper warning his answer to a question asking how it would have affected his attitude would necessarily be hypothetical and, unless it was by any unlikely chance in the negative, the Court would be entitled to come to the conclusion that the failure to give the advice was negligent and actionable.”
109. The views of Egan J. on this point appear to be at variance with established legal principles on causation and the Plaintiff accepts in the instant case that causation is an issue which this Court must address. It is not perhaps as simple an issue as McCarthy J. suggested. It is a very easy thing for a disappointed patient to say, in the aftermath of a procedure, as Mr Geoghegan has done, that he would not have undergone the operation had he been warned of the particular risk which came to pass. There may be many instances where the only evidence available to a Court is that of the patient and/or a spouse, one or both of whom may be prejudiced by bitterness and the wisdom of hindsight. It is a most unsatisfactory backdrop to the task which the Court must face in these cases.
110. As stated by Mr. White at p. 193 of “ Medical Negligence Actions ”:-
“In short, the plaintiff patient would hardly have sued for non-disclosure unless prepared to swear beyond contradiction that he would have foregone the therapy had he been properly advised of its consequences.”
111. These concerns prompted the United States Court of Appeals for the District of Columbia in Canterbury -v- Spence , (1972) 464 F 2D 772 and the Supreme Court of Canada in Reibl -v- Hughes , (1980) 114 DLR (3D) 1 to require that the issue of causal connection be determined upon an objective basis, i.e, for causal connection to be established the plaintiff must show that proper disclosure would have caused a reasonable person in the plaintiff’s position to decline the treatment in question because of revelation of the risks involved. This is by way of contrast to a subjective test where the Court endeavours to determine what the particular plaintiff in the particular case would have decided had a proper warning been given.
112. Robinson J. in delivering the opinion of the Court in Canterbury -v- Spence explained the preference for an objective test at p. 15:
“No more than breach of any other legal duty does non-fulfilment of the physician’s obligation to disclose alone establish liability to the patient. An unrevealed risk that should have been made known must materialise, for otherwise the omission, however unpardonable, is legally without consequence. Occurrence of the risk must be harmful to the patient, for negligence unrelated to injury is non-actionable. And, as in malpractice actions generally, there must be a causal relationship between the physician’s failure to adequately divulge and damage to the patient.
A causal connection exists when, but only when, disclosure of significant risks incidental to treatment would have resulted in a decision against it. The patient obviously has no complaint if he would have submitted to the therapy notwithstanding awareness that the risk was one of its perils. On the other hand, the very purpose of the disclosure rule is to protect the patient against consequences which, if known, he would have avoided by foregoing the treatment. The more difficult question is whether the factual issue on causality calls for an objective or a subjective determination.
It has been assumed that the issue is to be resolved according to whether the fact finder believes the patient’s testimony that he would not have agreed to the treatment if he had known of the danger which later ripened into injury. We think a technique which ties the factual conclusion on causation simply to the assessment of the patient’s credibility is unsatisfactory. To be sure, the objective of risk disclosure is preservation of the patient’s interest in intelligent self-choice on proposed treatment, a matter that the patient is free to decide for any reason that appeals to him. When, prior to commencement of therapy, the patient is sufficiently informed on risks and he exercises his choice, it may truly be said that he did exactly what he wanted to do. But when causality is explored at a post injury trial with a professedly uninformed patient, the question of whether he actually would have turned the treatment down if he had known the risks is purely hypothetical: “viewed from the point at which he had to decide, would the patient have decided differently had he known something he did not know?” And the answer which the patient supplies hardly represent more than a guess, perhaps tinged by the circumstances that the uncommunicated hazard has in fact materialised.
In our view, this matter of dealing with the issues on causation comes in second best. It places the physician in jeopardy of the patient’s hindsight and bitterness. It places the fact finder in the position of deciding whether a speculative answer to a hypothetical question is to be credited. This calls for a subjective determination solely on testimony of a patient witness shadowed by the occurrence of the undisclosed risk.
Better it is, we believe, to resolve the causality issue on an objective basis: in terms of what a prudent person in the patient’s position would have decided if suitably informed of all perils bearing significance. If adequate disclosure could reasonably be expected to have caused that person to decline the treatment because of the revelation of the kind of risk or danger that resulted in harm, causation is shown, but otherwise not. The patient’s testimony is relevant on that score of course but it would not threaten to dominate the findings. And since that testimony would probably be appraised congruently with the fact finder’s belief in its reasonableness, the case for a wholly objective standard for passing on causation is strengthened. Such a standard would in any event ease the fact finding process and better assure the truth as its product.”
In Reibl -v- Hughes , Laskin CJC, delivering the Judgment of the Canadian Supreme Court, defined the objective criterion of causal connection:-
“An alternative to the subjective test is an objective one, that is, what would a reasonable person in the patient’s position have done if there had been proper disclosure of attendant risks.”
113. In relation to the subjective test, he stated as follows at p. 15:-
“It could hardly be expected that the patient who was suing would admit that he would have agreed to have the surgery, even knowing all the accompanying risks. His suit would indicate that, having suffered serious disablement because of the surgery, he is convinced that he would not have permitted it if there had been proper disclosure of the risks, balanced by the risks of refusing the surgery. Yet, to apply a subjective test to causation would correlatively, put a premium on hindsight, even more of a premium than would be put on medical evidence in assessing causation by an objective standard.”
At p. 16 he stated:-
“The adoption of an objective standard does not mean that the issue of causation is completely in the hands of the surgeon. Merely because medical evidence establishes the reasonableness of a recommended operation does not mean that a reasonable person in the patient’s position would necessarily agree to it, if proper disclosure had been made of the risks attendant upon it, balanced by those against it. The patient’s particular situation and the degree to which the risks of surgery or no surgery are balanced would reduce the force, on an objective appraisal, of the surgeon’s recommendation. Admittedly, if the risk of foregoing the surgery would be considerably graver to a patient than the risks intendant upon it, the objective standard would favour exoneration of the surgeon who has not made the required disclosure. Since liability rests only in negligence, in a failure to disclose material risks, the issue of causation would be in the patient’s hands on a subjective test, and would, if his evidence was accepted, result inevitably in liability unless, of course, there was a finding that there was no breach of the duty of disclosure. In my view, therefore, the objective standard is the preferable one on the issue of causation.
In saying that the test is based on the decision that a reasonable person in the patient’s position would have made, I should make it clear that the patient’s particular concerns must also be reasonably based, otherwise, there would be more subjectivity than would be warranted under an objective test. Thus for example, fears which are not related to the material risks which should have been but were not disclosed would not be causative factors. However, economic considerations could reasonably go to causation where, for example, the loss of an eye as a result of non-disclosure of a material risk brings about the loss of a job for which good eyesight is required. In short, although account must be take of a patient’s particular position, a position which will vary with the patient, it must be objectively assessed in terms of reasonableness.”
114. However, the subjective approach has been adopted in Australia in Ellis -v- Wallsend District Hospital [1989] 17 NSWLR 553 and in two other Australian cases, Bustos -v- Hair Transplant Pty Limited & Anor (unreported judgment New South Wales Court of Appeal 15th April, 1997) and O’Brien -v- Wheeler (New South Wales unreported judgment 23rd May, 1997).
In Ellis -v- Wallsend District Hospital , Samuels J.A., in opting for the subjective test, set out the rationale as follows:-
“The subjective test was regarded in Reibl (in which Canterbury was applied) as ‘hypothetical and thus unreliable’ and, as Laskin C.J.C. observed (at p. 16) calculated to ‘put a premium on hindsight, even more of a premium than would be put on medical evidence is assessing causation by an objective standard’.
I do not myself find these objections to the subjective test persuasive. I respectfully agree with Cox J. in Gover -v- South Australia , (1985) 39 S.A.S.R. 543 when he said:-
“…. At any rate the basic causation principle governing actions in negligence plainly supports, in my opinion, the subjective test.” ”
115. He later went on:-
“It is, of course true that the patient’s evidence about what he or she would have done if told of certain risks may be coloured by the fact that the risks did in fact eventuate; but it is open to a Court to disbelieve evidence found to be tainted by hindsight: Manderson, ‘ Following Doctors Orders: Informed Consent in Australia’ (1988) 62 ALJ 430 at 434. Obviously, endeavouring to ascertain what the plaintiff’s response would have been to adequate information had it been conveyed at the appropriate time, a Court will be greatly assisted by evidence of the plaintiff’s temperament, the course of any prior treatment for the same or a like condition, the nature of the relationship between patient and doctor including pre-eminently, so far as it can be established, the degree of trust reposed in the doctor by the patient. The extent to which the procedure was elective or imposed by circumstantial exigency and the nature and degree of risk involved will all be matters of considerable importance: see Robertson, ‘Informed Consent to Medical Treatment’ (1981) 97 L.Q.R. 102 at 122.
Despite these practical difficulties, I agree with the learned Judge that the subjective test is the correct one to apply. It is supported by a persuasive authority and is consistent with the principle by which proof of causation is governed in other areas of the law of negligence. To the extent that there may be a choice open to be determined upon grounds of policy (there being no decision of any appellant Court in Australia upon the point), while there are difficulties inherent in both tests, I would more readily accept the threat of hindsight than adopt medical practice as the determinant. As Manderson (op cit at 434) points out the causation question, on the objective view:-
‘resolves itself into a consideration of whether reasonable persons would have refused treatment if they had known the information concealed from them. The answer must be that reasonable persons would have gone ahead with the proposed treatment despite the risks, if it was likely to be beneficial to their health. Yet how is the Court to determine whether medical risks are, in short, worth taking, except by asking the opinion of the medical profession?’ ”
In O’Brien -v- Wheeler , Mason, P. addressed the subjective test at p.6:-
“The test requires a Plaintiff who has proved that his or her doctor negligently failed to notify the patient of a particular risk of treatment to satisfy the Court that the Plaintiff would not have accepted the treatment had the warning been given.
Such an approach reflects the autonomy of the adult patient, who is regarded as having the right (if properly informed) to decide for himself or herself whether or not to embark on the procedure. An adult patient who is in a position to make a choice has the right to elect a surgical procedure which the hypothetical “reasonable” person in his or her shoes would avoid, and refuse a procedure which the hypothetical “reasonable” person in his or her shoes would embrace.”
116. Shortly afterwards he stated:-
“Normally a Plaintiff shoulders this burden by stating in evidence what he or she would have done. Of course, such evidence is hypothetical, but it comes from the person best placed to address the essentially subjective question. No doubt there may be cases where the Court can infer this element of causation from other evidence …”
117. In short, therefore, the subjective test caters for the idiosyncratic patient who does not conveniently fit into the box which contains “the reasonable patient” for reasons peculiar or particular to that individual patient.
118. In Britain, the subjective approach has also been preferred in Chatterton -v- Gerson , (1981) 1 QB 432 and Hills -v- Potter , (1984) 1 WLR(4). The problems of causation were well described by Mr Justice Hutchison in Smith -v- Barking HA [1995] 5 Med LR 285 as follows (p. 288):-
“There was some discussion as to whether the issue of causation should be approached on what was called the objective or the subjective basis – i.e. was the question to be resolved by deciding what a reasonable person in the Plaintiff’s position would have chosen to do or by deciding what the Plaintiff herself would have chosen to do. In support of the former approach I was referred to the Canadian authority of Reibl -v- Robert Hughes [1980] 2 SCR 880 and in support of the latter to the decision of Hirst J. in Hills -v- Potter [1984] 1 WLR 641. Both Counsel invited me to accept that in the end the matter must be one for a decision on a subjective basis. This must plainly as a matter of principle be right, because the question must be: If this Plaintiff had been given the advice that she should have been given, would she have decided to undergo the operation or not?
However, there is a peculiar difficulty involved in this sort of case – not least for the Plaintiff herself – in giving, after the adverse outcome of the operation is known, reliable answers as to what she would have decided before the operation had she been given proper advice as to the risks inherent in it. Accordingly, it would, in my judgment, be right in the ordinary case to give particular weight to the objective assessment. If everything points to the fact that a reasonable Plaintiff, properly informed, would have assented to the operation, the assertion from the witness box, made after the adverse outcome as known, in a wholly artificial situation and in the knowledge that the outcome of the case depends upon that assertion being maintained, does not carry great weight unless there are extraneous or additional factors to substantiate it. By extraneous or additional factors I mean, and I am not doing more than giving examples, religious or some other firmly held convictions: particular social or domestic considerations justifying a decision not in accordance with what, objectively seems the right one: assertions in the immediate aftermath of the operation made in a context other than that of a possible claim for damages: in other words, some particular factor that would suggest that the Plaintiff had grounds for not doing what a reasonable person in her situation might be expected to have done. Of course, the less confidently the judge reaches the conclusion as to what objectively the reasonable patient might be expected to have decided, the more readily will he be persuaded by her subjective evidence.”
119. I would very much agree with these sentiments except to say that in relation to the last sentence in the quoted passage, the converse is surely preferable given the risks of prejudice and hindsight. It seems to this Court that both approaches are valuable in different ways and that both should be considered. In the first instance it seems to me that the Court should consider the problem from an objective point of view. What would a reasonable person, properly informed, have done in the Plaintiff’s position? This is the yardstick against which the particular plaintiff’s assertion must be tested.
“In the Plaintiff’s position” can be taken as meaning the Plaintiff’s age, pre-existing health, family and financial circumstances, the nature of the surgery – in short, anything that can be objectively assessed, though personal to the Plaintiff.
120. Purely subjective factors would include not only the matters referred by Hutchison J. in Smith -v- Barking , (which may overlap to some degree) but also the dialogue between the particular patient and the medical practitioner, information to be gleaned from contemporaneous notes or correspondence, admissions to third parties (particularly contemporaneous admissions), and, perhaps most importantly, evidence of the actual conduct of the patient prior to surgery, given that actions generally speak louder than words.
121. There may be many instances where there is a shortfall of subjective material or information in which case the Court will have to decide a causation issue on its own best estimate from the evidence of what a reasonable person would have done in the particular circumstances. That is another good reason for starting with the objective test.
122. However, it seems to me that any objective test must sometimes yield to a subjective test when, but only when, credible evidence, and not necessarily that of the Plaintiff, in the particular case so demands. While obviously the Court must accord due deference to the testimony both of the patient and the medical practitioner, the cases already cited highlight the difficulties each may have in providing an account on which the Court can safely or absolutely rely. Wherever possible, the Court should look elsewhere for credible confirmation. If a reliable picture in fact then emerges, the Court can act on it to reach a conclusion one way or the other. If this dual and combined approach smacks of pragmatism so be it. It is in my view well justified if it achieves a better result in terms of deciding what probably would have occurred. At the end of the day it seems to me that the different approaches are more about methodology than any legal principle. It is an exercise in “fact construction”. In any such hypothetical though necessary exercise, there are dangers in dogmatically adopting one approach to the exclusion of the other, and certain aides to analysis would be forsaken by doing so.
123. In determining what a reasonable person would do, it seems to me that the views of medical practitioners as to the statistical likelihood of the risk occurring, are extremely important. A point must come where on medical evidence a risk is so remote that a reasonable person would be unlikely to be deterred by it. This is the evidence of ordinary everyday life where people make journeys by air, sea and road, conscious of a small but nonetheless acceptable level of risk. Indeed, I would guess that any one of the forms of travel mentioned might contain statistically more proximate or serious risk than that identified in the instant case.
124. Insofar as elective surgery is concerned, I agree with the following passage contained in Mr. John White’s “Medical Negligence Actions ” at p. 190:-
“’Elective’ in this context is a descriptive term of little value. Moreover, since what is at issue is the plaintiff’s entitlement to know – to make his own informed decisions – the ‘elective’ nature of the therapy involved can be of little significance in determining what the duty of care with regard to disclosure of adverse risks required in the circumstances. Where the ‘elective’ nature of the therapy becomes of major significance is in the context of establishing causal connection between an established negligent failure to disclose and the plaintiff’s decision to undergo the therapy. In the latter context, the option given by the ‘elective’ nature of the therapy will be of significance as demonstrating that a reasonable patient in the plaintiff’s position might well have decided to forego the therapy when he had a real choice in the matter.”
125. This is surely where “elective” significance lies, ie, in causation, rather than the duty to inform. Further, it is obvious common sense to hold that a person may forego surgery when he has a real choice in the matter.
126. However, even in making a decision as to whether or not to undergo elective surgery, the reasonable man, in my view, would be greatly influenced by the statistical likelihood of the particular adverse consequence ever taking place. If the risk is virtually off the spectrum, then I believe a reasonable man might accept or disregard such a risk where it is not in the more serious category and when he has regard to the perceived benefits attaching to the proposed procedure.
127. In the context of any warning he was obliged to give about neuropathic pain, Dr Harris would have told such a patient that the risk in question was extremely remote, perhaps one in multiples of thousands, and, while some damage to nerves might be involved in the procedure, chronic neuropathic pain had never yet been known to occur either from the implants or at the bone graft site as a complication of this particular procedure.
128. A reasonable patient would then place in the balance in making any decision the benefits associated with the procedure. In Mr Geoghegan’s case, the surgery was undoubtedly elective, but it had both a cosmetic and functional component. From the cosmetic point of view, the proposed implants would have improved the appearance of his teeth and preserved his jaw profile. The evidence suggests that lack of teeth is associated with resorbtion of bone, or loss of bone through thinning which, over the years, produces the sunken-cheek appearance associated with elderly people in the past. From a functional point of view, Mr Geoghegan could look forward to dentition which was more secure in his mouth than a denture, improved capacity to chew and masticate food and the provision of additional support for his existing teeth. These are very real and tangible benefits, lest it be supposed that elective surgery is an option to be declined at the slightest suggestion of a remote risk or danger. I am satisfied in the instant case that all of these benefits were conveyed to Mr Geoghegan by Dr Harris both through the video and brochure and in the course of their two consultations.
129. Commencing with the objective test, it seems to me that had a proper warning been given by the Defendant to a reasonable patient in Mr Geoghegan’s position, such a reasonable patient was more likely, for the reasons stated, to have proceeded with this operation. However, as a credible and reliable picture emerges overall on analysing the evidence particular to this case, the issue can and must be resolved by reference to the subjective test of what Mr. Geoghegan himself, again as a matter of probability, would have done.
130. Mr Geoghegan struck me as a man haunted by pain and somewhat overwhelmed by his condition. As previously mentioned, he has been around the globe in search of both a cure and for the purpose of marshalling expert witnesses for his case. He has been to California where, in the context of a psychological evaluation, he informed doctors that he harboured feelings of hatred towards the Defendant because of what had happened. In Mr Geoghegan’s view, Dr Harris should have done the honourable thing and admitted to having gone too close to the apices of his teeth when taking the bone graft. Dr Harris, it must be said, adamantly denies that he did so.
131. Further, Mr Geoghegan admits that, in the immediate post-operative period, he wanted to stop Dr. Harris from carrying out this kind of operation ever again. He also indicated to Dr O’Grady that he would make Dr Harris pay for what he had done. He declined to pay his bill for the Blackrock Clinic. He commenced to follow medical negligence cases in the newspapers and indeed, on one occasion wrote to a particular Plaintiff who was suing a dentist to offer his assistance. These are very good reasons for the Court to be sceptical of the Plaintiff’s assertions made now as to what he would have done then.
132. I imagine the Mr Geoghegan who attended Dr Harris prior to his operation in 1992 was a very different person from the witness in Court, free as he was at the time of the pain shortly to dominate his personal life as a result of this procedure. There is nothing in the material before this Court to indicate that in 1992 he was hypersensitive, or unusually cautious or the kind of man who would back away at the mention of a remote risk.
133. Mr. Geoghegan’s conduct and behaviour in 1992 speak more eloquently than any oral testimony. He was keen to undergo a cosmetic procedure because he had neglected his teeth over a period of years. He was well aware of all the benefits to be gained. He was given a video and brochure by Dr Harris after their first meeting, but did not look at either until the evening prior to the operation and only then at Dr. Harris’ insistence. He did not adhere to the protocol which Dr Harris followed by way of preparation for the surgery. Dr Harris had to chase him down to come in to his surgery for a second consultation and threaten to cancel the operation if he failed to do so. Mr Geoghegan had refused one request to come in on the 21st June, 1992, because he felt he had been over things with Dr Harris and was “well aware of what was going on.” On the occasion of the second meeting, Dr Harris gave to Mr Geoghegan a letter intended to be read before the operation which addressed certain possible complications, including complications of nerve damage. Hard as it is to credit, the Plaintiff never read the letter. Nothing could be more revealing as to his mindset. I conclude he was simply so busy throughout the pre-op period and had his mind so well made up to proceed that he was not concerned in any real way with detail.
134. Mr Cooney characterised Mr Geoghegan’s approach to the surgery as “casual” and “cavalier”. I think that is greatly overstating the position, but I am satisfied that Mr Geoghegan’s conduct clearly suggests that he was not going to be put off having his operation because of some very remote risk when balanced against what he saw or perceived as the benefits the procedure would bring.
135. I therefore find against the Plaintiff on the issue of causation.
(4) Misrepresentation
136. The Plaintiff has stated that he was assured by Dr Harris that there would be “no pain, no pain whatsoever” associated with this procedure.
137. This is vehemently denied by Dr Harris, who has explained that some pain is inescapable following on a procedure of this nature. He says he never told Mr Geoghegan that there would be “no pain whatsoever”, nor was it ever part of his practise to make any such assertion to a patient. I find Dr Harris’s evidence on this specific point to be more credible, not least because the Plaintiff gave a somewhat different account to his own expert, Dr Vaughan, telling him that Dr. Harris had stated it “would not be accompanied by much pain”. Further, the phrase “no pain whatsoever” is uttered by a patient on the video to describe her experience of the procedure and I cannot avoid thinking that the Plaintiff unconsciously picked up the phrase from this source.
138. However, that said, I do not think that my conclusion carries with it any connotations of the sort suggested by Mr Cooney in his closing submission to the effect that the Plaintiff can hardly pursue a claim based in negligence for failure to disclose if in fact his case in reality is one of misrepresentation.
I should say that any such representation, even if it was made, would have to be seen and understood as limited to the context of the procedure itself. It had nothing to do with the long term extremely unusual condition which the Plaintiff suffered as a result of damage to his incisive nerve.
139. In short, I do not think the resolution of this specific allegation of fact against Mr Geoghegan can in any way affect the obligation of the Court to consider the question of the requirement for an adequate warning and to consider further whether, if such a warning had been given, Mr Geoghegan would nonetheless have undergone his operation
(5) The Inquisitive Patient
140. Mr. Trainor on behalf of the Plaintiff submits that, quite apart from a medical practitioner’s obligation to offer information concerning proposed treatment, a patient is entitled to full and comprehensive information when he specifically asks for advice. He referred to the following passage in ” Medical Negligence Actions ” by Mr. White at par. 9.3.01 where he says as follows:-
“There is, it is submitted, no doubt but that, when a medical practitioner is directly questioned by his patient concerning the risks associated with the proposed therapy, he must give a direct and full answer to the patient’s questions unless he can rely upon a compelling therapeutic privilege; and the scope of the operation of such privilege is necessarily strictly limited in the face of a direct request for information by the plaintiff.”
In Sidaway -v- Bethlem Royal Hospital Governors & Ors. , (1985) 1 All ER 643, various members of the Court expressed their views in relation to the “inquisitive patient” as follows:-
“No doubt, if the patient in fact manifested this attitude by means of questioning, the doctor would tell him whatever it was the patient wanted to know.” (Diplock L.J. at p. 659)
And:-
“I should perhaps add at this point, although the issue does not strictly arise in this appeal, that, when questioned specifically by a patient of apparently sound mind about risks involved in a particular treatment proposed, the doctor’s duty must, in my opinion, be to answer both truthfully and as fully as the questioner requires.” (Per Bridge L.J. at p. 661).
And:-
“Mrs. Sidaway could have asked questions. If she had done so, she could and should have been informed that there was an aggregate risk of between 1% and 2% of some damage either to the spinal cord or to a nerve route resulting in injury which might be vary from irritation to paralysis…. If a patient knows that a major operation may well entail serious consequences, the patient cannot complain of lack of information unless the patient’s ask in vain for more information.” (Templeman L.J. at p. 664).
141. These views receive support in Jackson & Powell ” Professional Negligence ” (3rd Edition) (1992) at par. 6.128 as follows:-
“Where however the patient does ask specific questions, generally speaking he is entitled to accurate answers, so far as the doctor is able to give them.”
142. Mr. Trainor submits that Mr. Geoghegan expressed a particular concern about pain connected with the bone graft procedure, and thus, by implication, about any sequelae also.
143. However, on further analysis the assertion appears to be based on evidence given at the trial to the effect that Mr. Geoghegan in the course of one of the two preoperative visits made a query about the possibility of pain arising from the procedure along the lines of “… Dr. Harris that sounds very painful” at a time when Dr. Harris was explaining that the procedure would involve a bone graft from the chin. However, as Dr. Harris has told this Court that it never occurred to him that there could be long term neuropathic pain as a result of any part of the procedure, that evidence alone really precludes the possibility of any specific question in response to which any meaningful reply by Dr. Harris could have been given in respect of chronic neuropathic pain associated with the particular procedure.
144. I do not believe Mr. Geoghegan directed any question to Dr. Harris about the possibility of continuing or long term pain. I am further satisfied that any mention of pain was in the context of the procedure itself and its immediate aftermath.
145. Mr. Geoghegan admits that he did expect there would be some discomfort, “a bit of pain, a bit of a sting in his face for maybe a few days, for which he would take some pain killers and then the thing would be gone”. He would have had no problem with that type of sequelae, but “the idea of aggressive pain or anything like that just turned him off”.
146. As far as Dr. Harris is concerned, his recollection is to the effect that he would have told the Plaintiff that there could be some pain and discomfort from the procedure, particularly in the first 48 hours, but that in his experience that could be well controlled with analgesics and that after a period of two weeks it should all have settled.
147. It is further submitted on behalf of Mr. Geoghegan that the Plaintiff was particularly conscious of any unusual complications that the procedure might entail for him. This arose because his brother had some time before hand died as a result of a complication which occurred subsequent to a bypass operation at the Blackrock Clinic. His brother had been advised of a 2% risk with the procedure. Had it been a 3% risk, he felt his brother would not have undergone the procedure. Again, I can see no correlation between this concern and any possibility of chronic neuropathic pain.
148. Finally, it is suggested that particular significance should be attached to the evidence given by Mrs. Geoghegan. She testified that she put it to Dr. Harris during the course of a telephone call after the operation that he had told her husband that this was a painless procedure, whereas he was in dreadful pain. She says that Dr. Harris replied “It is most unusual, I have never known it to happen before”, or words to similar effect. She was not subject to cross-examination on this conversation, but I do not see this exchange establishing anything more than Dr. Harris’s surprise at the turn of events in the aftermath of the operation.
149. Specifically, I do not see it as supporting the allegation of a misrepresentation by Dr. Harris, nor do I see it having any particular significance in the context of the supposed “inquisitive patient”.
150. Having regard to the heavy obligations imposed on medical practitioners by Walsh -v- Family Planning Services , it seems to me that any real consideration of the “inquisitive patient” is subsumed by the onerous obligations of disclosure set down by the Supreme Court. Current Irish law requires that the patient be informed of any material risk, whether he inquires or not, regardless of its infrequency.
151. From a perusal of the authorities, it appears to this Court that the “inquisitive patient” doctrine, if such it can be called, arose in England because of the limited duties of disclosure imposed on medical practitioners by Bolam -v- Friern Hospital Management Committee , (1957) 2 All E.R. 872.
152. As Lord Scarman stated in Sidaway (at p. 881) the Bolam principle may be described in the following terms:-
“The Bolam principle may be formulated as a rule that a doctor is not negligent if he acts in accordance with the practice accepted at the time as proper by a responsible body of medical opinion even though other doctors adopt a different practice. In short, the law imposes the duty of care; but the standard of care is a matter of medical judgment.”
Sidaway added the refinement that a trial Judge might, in certain circumstances, come to the conclusion that disclosure of a particular risk was so obviously necessary to an informed choice on the part of the patient that no reasonably prudent medical practitioner would fail to make it.
153. In conclusion, I am not satisfied the Plaintiff has made out any collateral or alternative case that he asked a question which could reasonably be construed as relating to ongoing pain, or any question which required disclosure to him of the risk of chronic neuropathic pain.
tcjkearnspg
APPENDIX (I)
154. Photograph and illustrations
[See hard copy of this judgment for the appendix referred to above.
155. The summary which follows was distributed with this judgment].
THE HIGH COURT
No. 1995 2264p
BETWEEN
PETER GEOGHEGAN
PLAINTIFF
AND
DAVID HARRIS
DEFENDANT
SUMMARY of Judgment of Mr Justice Kearns delivered the 21st day of June, 2000.
156. This part of the judgment deals exclusively with the issue of the medical practitioner’s duty of disclosure of risks attending operative procedures.
157. The Court has received submissions of fact from the parties in relation to the separate issue of fact relating to the location of a bone graft which was taken from the Plaintiff’s chin in the course of the procedure as a result of which the Plaintiff suffered damage to the incisive nerve or nerves at the front of his chin which has left him with a condition of severe pain at the mid line of his chin known as chronic neuropathic pain. A judgment on that issue will be given at a later date and no order of any sort will be drawn up prior to that time.
158. It is the view of this Court that current Irish law imposes the following obligations on a medical practitioner in relation to disclosure of risks as follows-
(a) The requirement on a medical practitioner is to give a warning of any material risk which is a known or foreseeable complication of an operative procedure properly carried out.
(b) The test of materiality in elective surgery is to inquire only if there is any risk, however exceptional or remote, of grave consequences involving severe pain stretching for an appreciable time into the future.
159. That being so, the questions which the Court has to address in the instant case are as follows:-
(i) Was chronic neuropathic pain a known or foreseeable consequence when placing an implant in the lower premolar area or when taking a bone graft from the Plaintiff’s chin?
(ii) If so, was there a requirement to warn, regardless of the remoteness of the risk and the views of the medical experts in the case that a warning was not required?
(iii) Had an appropriate warning been given, would the Plaintiff nonetheless, as a matter of probability, have elected to undergo the procedure?
(iv) Insofar as the Plaintiff has made an allegation of misrepresentation against Dr Harris to the effect that he said there would be “no pain, no pain whatsoever” associated with the procedure, thereby precluded from pursuing a case of negligence for breach of duty of disclosure if the Court finds as a fact that no such statement was made by the Defendant?
(v) Was the Plaintiff in the category of “inquisitive patient” to whom a special duty was owed?
160. In short, I have found the answers to these questions to be as follows:-
(1) Nerve damage is a known and foreseeable complication of both the implant and bone graft. Chronic neuropathic pain, though unusual and rare, is a type of such nerve damage, being in a subdivision of that risk, rather than a separate species of risk. It is therefore a “known complication”.
(2) Having regard to the decision of the Supreme Court in Walsh -v- Family Planning Services Limited & Ors [1992] 1 IR 496, this Court is obliged to hold that a warning of this risk was required, despite the extremely remote nature of the risk and the evidence of the medical experts that a warning was not necessary.
161. Different legal principles were applied in the different judgments of the Supreme Court in Walsh -v- Family Planning Services to arrive at its conclusions.
162. This Court is of the view that the ‘reasonable patient’ test, which requires full disclosure of all material risks incident to proposed treatment, is the preferable test to adopt, so that the patient, thus informed, rather than the doctor, makes the real choice as to whether treatment is to be carried out. It is the view of this Court that assessment of the duty of disclosure on this basis is more logical than the professional standard test, whereby the Court adopts the standard of the medical profession, yet reserves the right to override the views of the medical experts as and when it sees fit.
(3) The Court is of the view that, even had an appropriate warning been given to the Plaintiff, he would nonetheless, as a matter of probability, have elected to undergo the procedure.
163. Different jurisdictions adopt different approaches to causation. In some jurisdictions, the test is to inquire whether the reasonable patient, in the Plaintiff’s position, would have elected to undergo or decline the procedure (the objective test). In other jurisdictions, the matter is determined by reference to the Courts best estimate of what the particular Plaintiff in the instant case would have done (the subjective test).
164. It is the opinion of this Court that this problem of retrospective “fact construction” demands a pragmatic approach, whereby the Court first considers what a reasonable person in the Plaintiff’s position would have done. That will usually determine the issue. However, that approach must at times yield to a subjective approach where clear and convincing evidence exists from which the Court can safely and reliably infer what the particular patient would have decided. The strength and credibility of the evidence determine whether or not a subjective test can apply in a particular case.
165. In the instant case, such evidence is available and, in the opinion of this Court, it points in a coercive way to the conclusion first stated above, namely, that Mr Geoghegan, even if properly warned, was more likely to have proceeded with his operation. On this issue, therefore, the Plaintiff fails on the requirement of causation. I would add that if an objective test applied, I would have reached the same conclusion.
(4) The Court finds as a fact that Dr Harris did not say there would be “no pain, no pain whatsoever” associated with the procedure.
166. While such an observation was made by a patient on a video which was given to Mr Geoghegan prior to his operation, I do not believe it could be construed as a representation or as relevant to the Plaintiff’s condition because the expression is clearly limited to the immediate procedure itself. The risk which eventuated in this case was of a totally different character in the sense it is a long term enduring consequence. Equally, I do not believe the Plaintiff is precluded from pursuing his claim in negligence for breach of the duty of disclosure despite the finding that Dr Harris did not make the particular statement or representation.
(5) The Court does not believe that any category of “inquisitive patient” exists in Irish law because of the onerous obligations imposed on medical practitioners by Walsh -v- Family Planning Services Limited which obliges medical practitioners to warn of all risks with severe consequences, regardless of their infrequency.
167. While obviously a doctor must answer as fully as he can and to the best of his knowledge and ability any questions a patient may ask, the issue essentially is subsumed in the wider obligation imposed on medical practitioners by the Supreme Court decision. In any event, I do not believe Mr Geoghegan asked any specific questions which would demand a warning about the possibility of chronic neuropathic pain.
McCann v. O’Reilly
[2002] IESC 76 (18 December 2002)
THE SUPREME COURT
Denham J.
Murray J. No. 299/00
McGuinness J.
BETWEEN/
ORLA McCANN
Plaintiff/Appellant
and
THOMAS O’REILLY
Defendant/Respondent
Judgment delivered on the 18th day of December, 2002 by Denham J. [Nem Diss.]
1. This is an appeal by Orla McCann, the plaintiff/appellant, hereinafter referred to as the plaintiff, against the order of the High Court (Lavan J.) made on the 25th October, 2000 in which he dismissed the plaintiff’s case. In this case the plaintiff alleges medical negligence on the part of Thomas O’Reilly, the defendant/respondent, hereinafter referred to as the defendant.
2. The case was at hearing for two days before the High Court. On the second day, the 25th October, 2000, the learned High Court judge indicated that he did not require any further evidence and that he did not require to hear submissions from either party.
3. The plaintiff has appealed against the order of the High Court. The grounds of appeal, set out in the notice of appeal, were that the trial was unsatisfactory in that:
a) The learned trial judge failed to give the plaintiff a fair and proper hearing;
b) The learned trial judge made up his mind prematurely;
c) In particular, the learned trial judge made up his mind before the completion of the evidence;
d) The learned trial judge failed to attach any or any sufficient weight to the evidence of the plaintiff and her expert witness;
e) The learned trial judge placed too much reliance upon the evidence of the defendant;
f) The learned trial judge repeatedly interrupted senior counsel’s cross-examination of the defendant and sought to limit same;
g) The learned trial judge decided the case before the defendant’s evidence was completed;
h) The learned trial judge decided the case in the defendant’s favour notwithstanding the fact that the plaintiff’s evidence that the doctor who performed the procedure in question had failed to give her any or any adequate warning, was uncontradicted by the said doctor in the circumstances that the plaintiff’s expert evidence, and indeed the defendant himself, gave evidence that such failure on the part of the said doctor was unacceptable and constituted negligence;
i) The learned trial judge failed adequately or at all to hear and assess the evidence which was proffered and the further evidence which ought to have been proffered, before deciding the case;
j) The trial judge failed to deliver a reasoned judgment.
4. Facts
The plaintiff is a lady in her twenties who was born with a pigmented mole growing on the skin of the lateral side of the lower third of her right thigh. In 1993 the plaintiff was referred by her general practitioner to the defendant who is a consultant plastic surgeon at the Blackrock Clinic. On the advice of the defendant the plaintiff agreed to have the mole excised and this was done on the 6th September, 1993 under local anaesthetic. The plaintiff alleges that the defendant was negligent in his care of her in the excision of the mole.
5. The issue before the High Court was liability. Quantum was not an issue.
6. Submissions of the Plaintiff
Mr. de Blacam, S.C., counsel for the plaintiff, submitted that there were three legs to his case:
1) The plaintiff stated that she was told by the defendant that she would be left with a one inch scar in a thin white line.
2) The plaintiff should have been told on the date of the operation of the nature and purpose of the operation and that she should have given her consent again.
3) The manner in which the operation was performed was not in accordance with the proper techniques.
7. Submissions on behalf of the Defendant
Mr. Hanratty, S.C., counsel for the defendant, submitted that, in essence, there were two questions to be answered in the case. First, whether the Supreme Court should intervene in view of the evidence given in the High Court? Secondly, whether the Supreme Court should intervene because of the manner in which the trial was conducted? He submitted that the answer to both questions was in the negative.
The court was referred extensively by both counsel to the evidence given in this case over the two days at which it was at hearing before the High Court.
8. Decision
The plaintiff was born on the 31st December, 1974. She had a pigmented mole on her upper right thigh. The mole had become itchy and discoloured. The plaintiff had seen a television programme regarding the nature of moles. When she was at her general practitioner she mentioned the mole, and he referred her to the defendant.
First, I shall consider the information given as to the nature of the scar which the plaintiff would incur. The plaintiff met the defendant on the 25th November, 1993. The defendant wrote a letter to the plaintiff’s general practitioner on the 25th November, 1993 in which he said:
“Many thanks for referring this lady to me. She presents with a small congenital compound naevus on the lateral aspect of her right thigh. The risk of malignancy in these lesions is very low but I feel that as a precaution it requires an excisional biopsy. I discussed the nature of scars and scarring with her and she is happy to proceed. I will be in touch with you in due course.”
The plaintiff gave evidence that on the 25th November, 1993 when she saw the defendant:
“Then I asked about the scar and he said it would take the form of a thin white line about an inch long. He said he would do it under local anaesthetic.
33. Q: Did he say anything else about the scarring that would result?
A. No.
34. Q: Can I just ask you specifically in relation to what is raised in the defence – this is the document coming to us from Mr. O’Reilly, where I understand that it will be in his evidence that he discussed with you the possibility of a sub-optimal scar greater in diameter to the lesion owing to its nature and location and the fact that the skin would stretch. Did he say that to you?
A. No.
35. Q: Did he say to you, as is outlined in his solicitor’s letter, did he discuss with you the small risk of malignant transformation?
A. Yes, but he said this was very slight.
36. Q: He offered you a scar revisional procedure; is that right?
A. Yes.
37. Q: His solicitors say to your solicitors that Mr. O’Reilly explained to you that a scar would result and that in this procedure and having regard to the nature of the lesion, the scar would be approximately twice the diameter of the lesion to be removed?
A. No.
38. Q: He did not say that?
A. No.
39. Q: If he had said anything like that to you would you have gone ahead with the removal of the mole?
A. No.
40. Q: You did go ahead with the removal of the mole; is that not right?
A. I did yes.
41. Q: I think it was removed on the 6th December, 1993; is that right?
A. Yes, that is right.”
On the 13th December, two sutures were removed and the plaintiff was seen by the defendant. Five days later, on the 18th December, the plaintiff saw her general practitioner and she was told to go to St. Vincent’s Hospital. On the 20th December the plaintiff went to St. Vincent’s and the wound was found to be infected. On the 22nd December the plaintiff went to hospital. On the 23rd December, the plaintiff saw a doctor and the doctor noted the separation of the wound.
On the 23rd December, 1993 the defendant wrote to the plaintiff’s general practitioner:
“This lady was admitted under my care and had excision of a large congenital intradermal naevus on the lateral aspect of her right thigh. Unfortunately the primary repair was quite tight and the wound has dehisced over the distal half. However, it is clean and should heal by wound contraction over the coming weeks.
I will keep her under review.”
On the 27th January, 1994 the defendant wrote to the plaintiff’s general practitioner:
“This ladys scar has healed. It has stretched slightly and may require revision in the future. I will review her again in six months time.”
There was a conflict of evidence as to the warning and information given to the plaintiff about the type of scar she might have. While the plaintiff gave evidence that she was told that she would have a scar with a thin white line and that she got a result that she was not warned of, the evidence of the defendant was entirely different.
Mr. O’Reilly gave evidence as follows:
“107 Q: If she says that you said that it would be, approximately, one inch long she may be correct in that?
A. Yes, possibly, maybe a little bit longer than one inch yes. I cannot recall if I used inches or centimetres but I would always say, at least, two to two and a half times the diameter of the lesion to give an approximate length.
108. Q: She says you said, approximately, an inch long and she may well be right.
A. Yes.
109. Q: Could I put it to you that she is more likely to be right because she is the one patient against you with many patients?
A. Not necessarily so. I would have made it in my mind perfectly clear what the length of the scar would be like and, again, what this would be like down the line.
. . .
137. Q: Might it be, Mr. O’Reilly, that Ms. McCann came out with the impression and that you gave her the impression that she would be left with a scar that would not be significant?
A. She would have come out with the impression that she would have a significant scar following this procedure.
Mr. Justice Lavan: Would you like to put to this witness the height of your case Mr. Murphy?
Mr. Murphy: I’m doing that.
Mr. Justice Lavan: No, you are not. You are most unfair to the witness. The height of your case is Mr. Goldin’s evidence that the scar is not far off what he, Mr. Goldin, would have expected.
Mr. Murphy: My Lord I am cross examining this witness and I will not be interrupted.
Mr. Justice Lavan: I have given seven opportunities and you have gone back on the same – that is the case that your expert has given me in sworn evidence. You may put that to the witness but you have not so far put it to him.
. . .
138. Q: Mr. O’Reilly, in relation to Mr. Goldin ‘s evidence,
Mr. Goldin’s opinion is that you should have informed her that she would have a scar that would be likely to be larger than the lesion that was being removed?
A. I would, certainly, have informed her that she would have a wide scar in the area. As I said, it is impossible to predict. She, certainly, has a wide scar and of that there is no doubt. I would like to think that if the wound didn’t burst open that the scar would be of a narrower dimension than it is now but I do not think there is any way that one could predict the final dimensions of the scar.
139. Q: Do you agree with Mr. Goldin that you ought to have told her that it was larger. That the resulting scar was likely to be larger than the lesion being removed?
A. I would, certainly, infer that she would end up with a wide scar. Now, I cannot recall whether I would have inferred that in relation to the size of the lesion that was to be removed.”
Mr. Henry Goldin, consultant plastic surgeon gave evidence. He gave evidence on behalf of the plaintiff’s case. He stated, inter alia:
“289. Q: If I understood your evidence I think you are seeking to suggest to the court that there could be another explanation, namely, that the tension on the stitching was too tight?
A. Yes.
290. Q: I have to suggest to you that that is not a probable explanation because if the tension in the wound was too tight that is something which would have been observed either by Dr. Murphy when he came to stitch it or even if he had missed it it would have been observed by Mr. O’Reilly on the 13th December when he saw Ms. McCann one week later?
A. I would have expected the wound to be tight from the dimensions of the excision and from the fact that we have all accepted the wound gets a little larger when you make the incision so the wound was going to be tight right from the beginning. I think it is more likely than not that the stitches disrupted for some reason and the wound, therefore, broke down and that while infection is a possible explanation in my opinion it is more likely that the wound just broke down. The stitches did not hold, it was very tight and it broke down.
291. Q: What other reason, Mr. Goldin, are you suggesting to the court would cause the stitches to break down?
A. It’s just the tension, that’s all.
292. Q: There are stitches at two levels here, is that correct?
A. Yes.
293. Q: There are sutures deep down?
A. Yes.
294. Q: Subcutaneously, is the operating note?
A. Yes.
. . .
297. Q: Which are you suggesting would have broken down firstly?
A. You see the problem is that when some of the stitches were removed the wound was not completely healed. Two stitches were removed correctly leaving other stitches behind because the wound was not yet sufficiently well healed for all the other stitches to be taken out. That is good standard practice. When the next dressing was done the wound was found to be open. Why was the wound open. My belief is the tension that is the main problem here. That the stitches did not hold. The skin was too tight. The movement of the patient. The size of the wound. The stitches did not hold. I am not suggesting that the surgeon did not tie his knots properly or did not put them in properly but they were going through fat which is friable tissue and the stitches did not hold under a tight wound and that is why it opened.
298. Q: You are not suggesting that the reason it opened was due to any wrong way in which the stitches were put in by the surgeon, is that correct?
A. I am not suggesting the stitches were put in wrongly. I am suggesting the thing was very tight and that the stitches did not hold.
299. Q: Are you simply suggesting to the court that it may have been simply some movement of Ms. McCann which caused the wound to open?
A. It is not as simple as one thing, it is a combination of things. You have the tightness of the wound, you have the size of the wound. Whether steps were taken to release the tension or not. How long the stitches remained in for. Were there infection or haematoma. Whether the haematoma was there interfering with the wound healing without infection and then you get infection.
300. Q: I have to respectfully suggest to you that you are being a little disingenuous now. Can I firstly say to you my instructions are that Dr. Murphy’s practice at the time was that he would have carried out undermining of the skin edges if he had considered that it was necessary given the size of the wound that it was not his practice and Mr. O’Reilly and Mr. Lawlor I am instructed will give similar evidence that it was none of their practices to record undermining in operation notes?
A. Where do you draw the line as to what you record in the notes and what you don’t record in the notes. You put down all the material facts I believe.
. . .
302. Q: Now if I give you that information that Dr. Murphy will be telling the court that it was his practice where he considered it necessary to undermine the skin for the very reason you say to be able to draw the skin back together and give him a little bit . . .
A. I am quite ready to accept that if he said that he did that.
. . .
305. Q: . . . What I have to suggest to you is that in the absence of any abnormality or anything wrong being observed on the 13th that it must follow that the most probable cause of the break down by the following Friday or Saturday is that the infection has eaten into the sutures and caused the breakdown of the wound?
A. You suggest that it is an abscess. I feel that on the balance of probabilities, on balance, I cannot say for certain, but on balance that the wound was very tight and that’s the reason that it broke down.
306. Q: What evidence have you found of that Mr. Goldin?
A. Because the wound broke down.
307. Q: Have you any evidence at all that the wound tightened?
A. There is a letter, for example, in the notes suggesting that the wound was rather tight.
308. Q: That is the letter written on the 23rd December?
A. Yes, and as I said I would have expected the wound to be tight from that size of excision on a young woman’s thigh.
309. Q: If I understand you then you are telling the court that you think the wound was probably tight because of the position of the wound on Ms. McCann, is that correct, because it was on the thigh?
A. Yes.
310. Q: Was I correct in understanding you to say that you are not suggesting that there was anything incorrect in the way the stitching was done?
A. Correct.
311. Q: Are you therefore telling the court that you can have this breakdown of a wound without any fault on the part of the surgeon?
A. Yes.
312. Q: That is what you believe to have occurred on this occasion?
A. Yes.
In light of the evidence before the High Court the question arises as to whether this appellate court should interfere with the decision of that Court. The jurisdiction of this court has been referred to many times. See Hay v. O’Grady [1992] 1 I.R. 210.
From an analysis of the transcript it is clear that there was a conflict of evidence. The learned trial judge heard the evidence. He heard and saw the plaintiff while giving her evidence, and her medical witness. He heard the evidence of the defendant. All of the points raised by the plaintiff were put to the defendant. There was a conflict of evidence. The learned trial judge was entitled to make a determination on this conflict of fact. There was evidence upon which the learned trial judge could reach his conclusion. The trial judge relied on the evidence of the defendant, which he was entitled to do. This evidence was supported by that of Dr. Goldin upon which the trial judge was also entitled to rely. The plaintiff has been left with a scar which the medical evidence indicated is pretty much the type of scar one would expect. In light of the evidence it is clear that the High Court judge was entitled to determine the case, as he did, against the plaintiff.
As to the issue of consent, it was not contested that the plaintiff had consented to the procedure. It was submitted that she should have given her consent again to Dr. Murphy immediately before the procedure itself.
The consent form was signed and was in evidence before the trial court. There was sufficient evidence for the finding of the trial judge to be sustainable. There was a conflict between the plaintiff and the defendant. But there is no doubt that evidence existed that the plaintiff was informed. There was the evidence of the defendant and the letter of the defendant to the G.P. referring to the matter, which letter is set out previously in this judgment.
Allied to the question of consent was a contention made on behalf of the plaintiff that she had not been adequately informed as to the nature and extent of the scar with which she would be left. The plaintiff’s evidence was that she was told by Mr. O’Reilly that she would be left with a scar in the form of a thin white line about an inch long. She stated that if she had been informed that the procedure would result in a scar approximately twice the diameter of the lesion to be removed she would not have undergone it. In conflict with this evidence the defendant, Mr. O’Reilly, rejected the suggestion that he had told the plaintiff that she would end up with a one inch scar which would be a thin white line. In evidence he explained why he did so as follows:
“Two reasons, number one the length of the scar I cannot remember what I have said in the actual dimensions but I made it clear that the scar would be, approximately, two to perhaps two and a half times the length, the diameter of the lesion. That is point number one. Number two, in this part of the thigh in a young girl, in anyone, the skin is quite tight there so that the scar would have a tendency to stretch and I would have made that clear as well. This will almost certainly not be a white line scar. This scar would have a tendency to stretch. In other words become widened with time. I cannot remember if I put dimensions on the width of the scar but I would have made it clear it would not be a nice fine line scar.”
In referring to the scar the plaintiff’s expert, Dr. Goldin, acknowledged that while the scar was not an ideal one, it was not far off what he would have expected after an incision of this nature at this site. (The relevant extract is cited below)
The learned trial judge heard all the evidence tendered on behalf of the plaintiff and the defendant on this point and he was entitled to resolve the matter by relying on the defendant’s evidence in preference to the plaintiff’s.
On the issue of whether the surgery was carried out negligently there was evidence in support of the defendant. There was the defendant’s evidence and the evidence of Mr. Goldin, who was the expert called on behalf of the plaintiff. For example, on the transcript of the evidence heard on the 24th October, 2000 Mr. Goldin was asked and answered as follows:
“248. Q: In relation to the procedure itself by Dr. Murphy?
A. The notes indicate a fairly standard type of surgical procedure. The notes are not very detailed about exactly what he did and whether or not he took steps to try and reduce tension or not. I have to say also that if he did take all necessary steps to reduce tension the outcome may well have been the same.”
It was on the basis of this and other evidence that the defendant submitted that the plaintiff had not established negligence. Apart from the above evidence was given by Dr. Goldin that:
“243. A. It is not an ideal scar but it is not far off what I would have expected after having an excision of this nature at this site. It is perhaps a little wider than one might otherwise normally expect but it is nor far off.
. . .
297. A. . . . Why was the wound open. My belief is it is the tension that is the main problem here. That the stitches did not hold. The skin was too tight. The movement of the patient. The size of the wound. The stitches did not hold. I am not suggesting that the surgeon did not tie his knots properly or did not put them in properly but that they were going through fat which is a friable tissue and the stitches did not hold under a tight wound and that is why it opened.
298. A. I am not suggested that the stitches were put in wrongly. I am suggesting the thing was very tight and the stitches did not hold.
. . .
308. A. . . . I would have expected the wound to be tight from that size of excision on a young woman’s thigh.
309. Q. If I understand you then you are telling the court that you think the wound was, probably, tight because of the position of the wound on Ms. McCann, is that correct, because it was on the thigh?
A. Yes.
310. Q. Was I correct in understanding you to say that you are not suggesting that there is anything incorrect in the way the stitching was done?
A. Correct.
311. Q. Are you, therefore, telling the court that you can have this breakdown of a wound without any fault on the part of the surgeon?
A. Yes.
312. Q. That is what you believe to have occurred on this occasion.?
A. Yes.”
In light of the evidence before the court there is no ground to argue that a finding of the trial judge in favour of the defendant was without basis. In the circumstances I could not interfere with this aspect of the determination of the High Court.
An issue also arose in the High Court as to whether or not the defendant had warned the plaintiff of the danger of infection and that it would make the scar worse. I am satisfied that it is quite clear that this did not form part of the plaintiff’s case. It was not specifically pleaded; it was an issue that arose during the case. No evidence was given as to this by the plaintiff. The plaintiff’s expert was not asked as to this issue and gave no evidence as to the matter of a warning of infection. At the close of the plaintiff’s case there was no case made of medical negligence on the lack of warning of infection. However, in spite of all of that, when this matter arose the defendant gave an answer. While the trial judge held it would be inadmissible, the defendant said an infection would be a most exceptional situation. In any case, as has already been pointed out, the plaintiff’s expert, Dr. Goldin, expressed the view that the resultant scar was more or less what one would have expected from such a procedure on that part of the thigh. Moreover, there is no evidence that the defendant fell below the standard of care in relation to a warning of infection. This was not simple elective surgery. It arose in a situation where the plaintiff had a mole which had become itchy and discoloured. The plaintiff had seen a programme on television on moles and had mentioned the matter to her general practitioner. She was then referred to the plastic surgeon.
I am satisfied that the submission that there was an unfair trial is not sustainable. All the essentials of a fair trial were met. The plaintiff had the opportunity to present her case and to cross examine the defendant. The absence of an opportunity to make submissions, in the circumstances, does not render the trial unfair. Sometimes events occur in trials that are less than ideal. Sometimes in the cut and thrust of a case unfortunate interventions may be made by a judge. However, in this case the interventions were not such as to render the trial unfair.
The two books of transcripts were opened extensively on this appeal. I have read and considered the evidence. There is no doubt that on occasions in cases there are interventions by judges which are made in the heat of the moment. Perhaps they are not all as measured as they should be, in a perfect world. However, in this case the plaintiff gave extensive evidence and presented her views. Her evidence was called. She had the opportunity of presenting her case and of cross-examining the defendant’s evidence. There was a considerable body of evidence and there was some conflict of evidence. The trial judge had the duty of determining the facts, of making a decision on the conflicting evidence. Looking at the case as a whole I would not intervene in the decision of the High Court or hold that there was an unfair trial.
I am satisfied that there are no grounds as submitted or for the purpose of doing justice upon which to interfere with the ruling of the High Court on this matter.
9. Conclusion
For the reasons stated I would dismiss the appeal and affirm the order of the High Court.
Hamilton v. Cahill
[2000] IEHC 54 (15th February, 2000)
THE HIGH COURT
No. 1999 169CA
BETWEEN
SUSAN HAMILTON
PLAINTIFF/RESPONDENT
AND
AIDAN CAHILL
APPELLANT/DEFENDANT
JUDGMENT of O’Higgins J. delivered the 15th day of February 2000 .
1. The Plaintiff became a patient of the Defendant, a Dublin Dentist, in 1996. In October of that year, Dr. Cahill took an impression to make a new crown for a tooth and also provided her with some antibiotics for an infection. She turned to Dr. Cahill on the 21st October. Her gum area was aching and she was experiencing discomfort. Dr. Cahill took an X-ray and told the Plaintiff she had a large cavity in the lower first right molar tooth and that it would be necessary to have the tooth extracted. On the 23rd October, 1996 under sedation, he performed an extraction of the tooth which gives rise to this litigation.
2. The Plaintiff claims that the Defendant was negligent in failing to advert to the fact that he had left a portion of the root of the extracted tooth in the jaw and to take proper steps to remedy that situation.
3. On the 25th October, two days after the extraction, the Plaintiff returned and had sutures removed. Her mouth was swollen and her condition was worse. Her gum was sore. She told Dr. Cahill that her mouth was swollen and sore and she gave a sharp intake of breath which she described as a type of a yelp when the suture was being removed. Dr. Cahill told her that the soreness would heal up by itself. He did not inform her that any portion of root was left in her mouth, and she complains of his failure to deal with the fragment that was left in her mouth. She complains that he should have adverted to her pain and that should have alerted him to the fact that there was a portion of root left in her mouth. He merely told her to come back when she was better and he would fix the crown.
4. At the end of October the Plaintiff went to London to see her mother and when she was in London her glands were sore, she had a throbbing pain going up under her ear and she noticed the tooth next to the extracted one was wobbling. She was in discomfort and she was not sleeping well. Her mother persuaded her to see Dr. David Price and she saw him on the 7th November, approximately two weeks after the extraction. He told her that he could see an infection and he took an X-ray and informed her that the problem was that part of the root was left in her mouth. He told her it would be necessary to remove the piece of the root but he did not want to do this immediately. On the next day, Dr. Price put in a temporary crown and set an appointment for the end of November for the removal of the root.
5. While she was away in London, Ms Keely, the dental nurse of the Defendant, had made an appointment concerning the crown. The Plaintiff’s husband had told her that Mr. Cahill had left a portion of root in her mouth. Ms Hamilton complained that in a conversation with Ms Keely, Ms Keely told her that she was not to let anybody touch her mouth, explaining that Mr. Cahill had an X-ray and that they could see something there that she could not see. Ms Hamilton said “You are making this sound very sinister” and Ms Keely said “ Yes, it is sinister”. This upset the Plaintiff very much as she was worried in case she might have had a tumour in her mouth. However, she was reassured by Dr. Price.
6. On the 26th November she got a letter from Dr. Cahill which read as follows:-
“Dear Susan
I have not left the root of six in your jaw. Anyone who says I did or that there is a root in this area is wrong. I am absolutely certain about this and have clear evidence to this effect.
Be very careful that nobody operates on you to retrieve a root that is not there. The consequences could be dire.
With very best wishes.
Sincerely
Dr. Aidan Cahill”.
7. The effect of this letter was also frightening because it magnified what the nurse had said. She was frightened by the phrase “the consequences could be dire”.
8. The Plaintiff said that after the treatment by Dr. Price on 26th November she began to feel better. She was unaware that Dr. Price had retained some of the tooth and sent it for analysis. She had to wait ten days for the stitches to be healed and she was feeling tired and said that it was a horrible experience. She was stressed, tired and irritable and could not sleep. It took her about two and a half months until she felt better – this was over the Christmas and she could not pull her weight at work.
9. Dr. David Price, a very experienced dental expert, made a diagnosis that she had pain as a result of a retained root. He had no doubt but that it was a difficult extraction but he was certain of his diagnosis from the X-ray. He had no criticism of the fact that the tooth was broken during the extraction nor did he find fault with part of the root being left in in these circumstances. However, the criticism is that Mr Cahill could have relieved the pain, and he could have told the patient and planned the removal of the root. Forty-eight hours later was not enough time to assess the pain. He should have detected the presence of a fragment of tooth on the X-ray.
10. Dr. Barry Harrington, an experienced dental expert, was also called on behalf of the Plaintiff. He examined the pre-operative X-ray taken by Dr. Cahill and the post-operative X-ray. The post-operative X-ray looked to him as if there was the root of a tooth remaining in the bone. His criticism of Dr. Cahill was because –
(a) he knew the tooth had fractured,
(b) he had the post-operative X-ray, and
(c) the history of pain given by the Plaintiff.
11. These matters should have indicated that things were not progressing as well and he should have followed up.
12. Central and essential to the allegation of negligence against the Defendant is the proposition that he should have adverted to a fragment of tooth, which the Plaintiff said was apparent from the x-rays taken by Mr Cahill. Dr Price said that the Defendant should have noticed form the x-ray that a fragment of root of the tooth remained. Dr Harrington stated that the x-ray together with the increase of pain and the fracture of the tooth should have alerted the Defendant to the fact that there was a problem with the extraction. Both Dr Price and Dr Harrington were of the view that the x-ray showed the presence of a portion of root. Their opinion is however, at variance with the view :
1. of the Defendant himself
2. the view of Mr Wilson, a Consultant Radiologist
3. the view of Mr Beirne, a Consultant Maxillo Facial Surgeon and
4. the view of Dr Gowan, a Dental Surgeon,
all of whom were of the opinion that the post-operative x-rays did not disclose a portion of a root remaining. It is difficult for the Court to resolve such a conflict between the expert opinions. On balance however, I am not satisfied that the x-ray on examination disclosed a portion of a root left in the jaw. The evidence of Mr Wilson is particularly important in this regard. In his view there was a well defined sclerotic area measuring 6mm x 7mm in the bone adjacent to the remedial root partly superimposed on the root in the photograph. In the post-operative radiograph, according to him, the sclerotic area persists unchanged. He also says that the area should not be confused with retained root because
1. there is no pulp cavity to be seen within it, and
2. the sclerotic area is much wider than a root (6mm x 4mm)
13. In his view the sclerotic area in the bone represents a compact bone island which is a common lesion in this are. The pre-operative x-ray taken by Dr Price did not show anything different. It is to be noted that Dr Wilson took precise measurements with a calliper. It is also of relevance, I think, that Dr Price had not the benefit of the pre-operative x-ray taken by Dr Cahill. I am not convinced therefore, that the x-ray disclosed the presence of a portion of a root. It follows therefore, that Dr Cahill was not negligent in failing to advert to such. Even if I am wrong in that conclusion and the opinion of Dr Price and Dr Harrington that a root remained is correct, in my view it could not be said that the Defendant was negligent in failing to advert to the presence of something the existence of which is doubted by experts who have carefully examined the x-ray in the context of their litigation.
14. A sample containing two fragments of hard tissue taken by Dr Price was sent for examination by Dr Mary Toner, Senior Lecturer and Consultant in Oral Pathology in the Dublin Dental School. Her findings were
“The presence or absence of inflammation cannot be assessed as the soft tissue has not been preserved (due to previous storage in water or saline).
Almost all of the hard tissue consists of sclerotic bone, mostly lamellar but with focal woven areas indicating some bone turnover. The area of protrusion, seen grossly, appears to be a small fragment of cementum. It can be difficult to distinguish cementum from bone, but in my opinion, the growth and histological features indicate that this is a small fragment of cementum, and therefore constitute (sic) a peripheral part of the root of a tooth with hyercementosis. It should be noticed that this fragment makes up less than 5% of the tissue submitted”.
15. It is common case that cementum itself is not normally removed, and that cementum does not of itself cause a problem that occurred. Both Dr Price and Dr Harrington interpret the findings of Dr Toner as supportive of their view that there was indeed part of a root left which was extracted by Dr Price. Mr Beirne however, for the Defendant took the opposite view and said that the finding of less than 5% cementum was inconsistent with root being there. In my view the findings of Dr Toner are not of assistance, because I am unable in the evidence before to resolve her findings in favour of the Plaintiff or indeed of the Defendant. (I note that in the procedures carried out by Dr Price, he, of necessity, removed some of the material, which may have supported his contention). I find therefore, that the Plaintiff did not fall below the requisite standard of care in his interpretation of the x-rays taken pre and post his operation. In my view that is fatal to the Plaintiff’s case. Absent any warning of difficulty provided by the x-ray, the fact that the tooth had fractured (even when coupled with the Plaintiff’s symptoms) was not in itself sufficient to alert the Defendant to a potential problem. Indeed, such case has not been made. Furthermore, while I am satisfied that the Plaintiff was in discomfort and even pain at the time when she returned to have the sutures removed, and I accept that she had a sharp intake of breath (which she described as a yelp) at their removal, I am not satisfied that she communicated to Dr Cahill that she was in real pain (apart from the pain attendent on having the suture removed). In my view, if she had communicated her pain to the doctor it is likely that she would have been prescribed painkillers as had been done on a previous occasion when she had complained of pain.
16. While Dr Price faulted the Defendant for removing the sutures so quickly the matter was not pursued in the case and I am not prepared to make a finding of negligence in that regard. Likewise the failure of Dr Cahill to specifically to invite the Plaintiff back in the event of her having problems, as opposed to the invitation to come back to have the crown fitted, cannot in my view constitute negligence. I have no doubt whatsoever that the Plaintiff felt quite at liberty to return.
17. This case is not about the correctness or otherwise of the contention that a piece of root was left in the Plaintiff’s jaw, it concerns the negligence of the Defendant.
18. The Plaintiff said that Nurse Keeley told her that they had an x-ray, and that they could see something that she the Plaintiff could not. When she said to Nurse Keeley that she was “ making it sound sinister ” Nurse Keeley replied ” yes, it is sinister “. While I have no reason to doubt the Plaintiff was distressed by whatever transpired in her conversation with Nurse Keeley, I am satisfied that there was no intention on the part of Nurse Keeley to frighten or browbeat the witness, in any event she was reassured by Dr Price. Clearly there was a misunderstanding. Likewise, while the Plaintiff was further upset by the letter of Dr Cahill, I do not accept that he intended it to be threatening or frightening. It has to be taken in the context of her refusal to speak with him on the telephone. The letter was unfortunate in that it left itself open to misinterpretation. Such misinterpretation caused distress to the Plaintiff.
19. In view of the failure of the Plaintiff to prove the negligence alleged the Plaintiff’s case must be dismissed and the appeal allowed.
Ward v Sheridan
[2010] IEHC 308, Lavan J.
Judgment of Mr. Justice Lavan delivered the 28th day of July, 2010
Issue
This is an application by Mr. Patrick Ward to recover damages arising as a result of a vasectomy which he underwent following on from a road traffic accident in which his wife was injured in 1996. The Plaintiff is also claiming damages as a result of the loss of a baby which arose from the termination of his wife’s pregnancy in the aftermath of the accident, which the Plaintiff argues was necessary for his wife’s physical and mental health. The Plaintiff claims damages for pain suffered as a result of the vasectomy as well as for mental distress, depression, grief and anguish as a result of the vasectomy and the termination of his wife’s pregnancy.
The substantive action for damages for personal injury, loss, damage, inconvenience and expense sustained by the Plaintiff’s wife was settled in 2007. The Plaintiff’s mother’s claim for damages for nervous shock was also settled. No claim for damages was made by the Plaintiff arising from the road traffic accident in 1996 until the present action.
Essentially, what is at issue and what needs to be determined by this Court is whether the Plaintiff is entitled to recover damages as a result of his decision to undergo a vasectomy which he claims was necessitated following on from his wife’s road traffic accident in 1996, or whether damages are unrecoverable on the basis that the Plaintiff elected to undergo such a procedure and any pain or suffering which he experiences as a result of it are not related to the said accident. In the event that the Court is satisfied that the Plaintiff is entitled to recover damages, the Court must also consider whether the Plaintiff is suffering from pain, in the form of the condition of post operative orchalgia since his vasectomy. Further, the Court must consider whether the Plaintiff can claim damages as a result of the loss of the baby which arose from the termination of the pregnancy which the Plaintiff’s wife underwent in the aftermath of the accident.
Background
The background to the case is as follows: The Plaintiff was born on the 29th June, 1962, and is now forty-eight years of age. He is a business man and he resides at 8 Redford Court, Greystones, Co. Wicklow. He is married to Gráinne Ward since the 10th of August, 1989, and she is also forty-eight years old, having been born on the 30th July, 1961. The couple have two children, aged nineteen and sixteen years.
The Plaintiff’s wife was involved in a road traffic accident on the 6th of February, 1996, at or near the junction of the Bray/ Greystones Road and Redford Estate in Co. Wicklow. In the accident, her car was struck from behind by the first named Defendant’s vehicle and was then struck by a vehicle driven by the second named Defendant. The Defendants’ motor vehicle’s registration numbers are 90D 44796 and YZS 142, respectively. The Plaintiff’s wife suffered severe personal injury, loss, damage, inconvenience and expense as a result of the accident. More specifically, she suffered soft tissue injuries to her neck and back, a TMJ problem, tinnitus and a post traumatic stress disorder. Her claim was settled in 2007 and she received €325,000 damages.
The Plaintiff’s mother, who was not in the Plaintiff’s car at the time and who did not suffer injuries in the accident, instituted proceedings claiming damages in respect of nervous shock arising from having come across the accident scene after the accident had occurred. Her claim was also settled and the Defendants agreed to pay €45,000 damages to her for nervous shock.
The Plaintiff was not in his wife’s car at the time of the accident. He did not suffer any injury in the accident or as a result of the accident. He did not suffer from nervous shock by reason of the accident or the effect of same on his wife and/or her injuries. No claim for damages for nervous shock is made by him in the proceedings.
Following the accident, the Plaintiff’s wife became pregnant. Her medical consultant informed her of the difficulties which the pregnancy would create for her in the light of her physical injuries sustained in the accident and she decided to travel to England to have her pregnancy terminated. She was advised that any further pregnancies would be a danger to her health, both physical and mental. She was informed by her doctor that the best contraceptive method in the couple’s situation would be sterilisation and the Plaintiff’s wife was counselled about tubal ligation. The Plaintiff attended his wife’s doctor in 1998 to discuss the possibility of a vasectomy as he wished to take more responsibility. It is further observed that all of the risks associated with this procedure were discussed with the couple. The Plaintiff had a vasectomy operation on the 6th March, 1998.
The Plaintiff alleges that as a result of undergoing his vasectomy procedure he suffers from a pain condition known as post operative chronic orchalgia. He contends that he would not have had a vasectomy if the accident which the Defendants caused had not happened. It was, he argues, necessitated because of his wife’s injuries. The Plaintiff further contends that the loss of the baby which arose from the termination of the pregnancy and the inability of the Plaintiff to father any other children has caused him great mental distress, depression, grief and anguish. He contends that the Defendants, by reason of their negligent driving caused the said pain condition and are liable to him in damages for same.
The Defendants deny that the Plaintiff has suffered the alleged or any personal injury, loss, damage, inconvenience and expense. The Defendants say that any personal injury, loss, damage or distress suffered by the Plaintiff as a result of the termination of the pregnancy is not amenable to damages, as the award of same would be contrary to public policy. The Defendants argue that if, contrary to what the Defendants contend, the Plaintiff is entitled to damages for the personal injury, loss, damage and distress caused to him as a result of the termination of the said pregnancy, the Plaintiff was guilty of contributory negligence in impregnating the Plaintiff.
Thus the issue before this Court is whether the Plaintiff is entitled to recover damages as a result of his decision to undergo a vasectomy which he claims was necessitated as a result of his wife’s road traffic accident in 1996, or whether damages are unrecoverable on the basis that the Plaintiff elected to undergo such a procedure and any pain or suffering which he experiences as a result of the vasectomy are not related to the said accident. The Court must also consider the Plaintiff’s wife’s termination of the pregnancy which has caused the Plaintiff great mental distress, depression, grief and anguish and the link to the road traffic accident in 1996.
Submissions of the Plaintiff
Counsel for the Plaintiff outline that the road traffic accident in 1996 was caused by negligence and breach of duty by the Defendants to this case, Niall Sheridan and Christine Quinn. The Particulars of Negligence and Breach of Duty on the part of the Defendants include inter alia driving at an excessive speed, failing to keep any proper lookout, failing to give any adequate warning or signal of approach, failing to have any adequate brakes or to apply same, failing to stop or swerve so as to avoid collision and breach of Bye Law 18 of the Road Traffic Bye Law 1964 in driving too close to the Plaintiff’s wife’s vehicle.
Counsel for the Plaintiff submit that following the said accident, the Plaintiff and his wife decided not to continue with the pregnancy because of the risk to the health of the Plaintiff’s wife. The Plaintiff’s wife subsequently travelled to England to have her pregnancy terminated. She was also informed that as a result of her condition, it would not be advisable for her to have a sterilisation process. Consequently, the Plaintiff had a vasectomy operation on the 6th of March, 1998.
Counsel for the Plaintiff submit that the Plaintiff would not have had a vasectomy if the accident which the Defendants caused had not happened. The vasectomy was, however, necessitated because of the Plaintiff’s wife’s injuries. Counsel also contend that the loss of the baby which arose from the termination of the Plaintiff’s wife’s pregnancy as well as the inability of the Plaintiff to father any other children has caused the Plaintiff great mental distress, depression, grief and anguish. Further and other adverse sequelae are also noted as a distinct possibility. As a result of this, Counsel submit that the Plaintiff claims damages, including unascertained special damages such as doctors’ fees, hospital fees, medication and miscellaneous.
Submissions of the Defendants
Counsel for the Defendants submit that the Court must first decide whether or not it accepts the evidence of the Plaintiff that he is suffering from pain, in the form of the alleged condition of post operative chronic orchalgia, since his vasectomy. Counsel puts forward a number of factors for the Court to consider including the fact that the Plaintiff did not contend that he was suffering from pain as a result of the vasectomy until the 26th May, 2000, which was more than two years after the procedure took place and the pain was mentioned for the first time in a Reply to Notice for Particulars.
Counsel also submits that the Plaintiff’s allegation, that his wife’s termination of a pregnancy was necessitated because her life was in danger, is not supported by evidence.
Counsel also outline that the Plaintiff asserted in evidence that he could not recall the amount of damages that he had been paid on the settlement of claims relating to two road traffic accidents, in which he was involved, that occurred subsequent to the accident in 1996. The Plaintiff also asserted in evidence that he could not recall the amount that his wife received on settlement of a claim brought by his wife relating to a road traffic accident in 1987. The Plaintiff’s wife stated that she had received £84,000 compensation for this.
Counsel argues that the Plaintiff accepted that prior to undergoing his vasectomy he was fully advised as to the risks of same, including the risk of the pain condition complained of. Ms. Deborah Orr, the surgeon who performed the vasectomy, states in her report dated the 14th February, 2002, that prior to undergoing the procedure, the Plaintiff informed her that he had no concerns or questions regarding the warning given to him and had no doubt about his decision to proceed with the surgery. She records that she had not, at the time of her report, seen the Plaintiff since his operation. The Plaintiff was also advised that a vasectomy could be reversed. A reversal could remove any pain condition. The Plaintiff has not, at any point in time, taken any step with a view to reversing the vasectomy and/ or his pain condition, if same exists. Counsel also note that no objective, independent evidence was tendered to establish or support the existence of the Plaintiff’s alleged pain condition. Overall, Counsel argues that the Court should not accept the evidence of the Plaintiff to the effect that he is suffering from the pain complained of. If the Court accepts the Plaintiff’s evidence to the effect that he is suffering from pain relating to the vasectomy, legal issues arise for determination.
Counsel for the Defendants also argues that the claim made by the Plaintiff is not a recognisable cause of action under Irish law. The Plaintiff was not in his wife’s car when the accident occurred. He did not suffer any physical injury as a result of same. He did not suffer any mental injury, in the form of nervous shock or a recognised psychiatric illness, as a result of same. He does not advance a claim for damages for loss of consortium resulting from the injuries to his wife. He does not advance a claim for damages for nervous shock suffered by him arising from the proximity of his relationship to his wife. Counsel submit that his cause of action, being one for pain resulting from an independent event, namely his vasectomy, that occurred over two years following the date of his wife’s accident, is not an action that is recognised under Irish law.
As Counsel outline, subject to two exceptions, recovery of damages for injuries resulting from a tort can only be made by the person against whom the tort has been committed. The tort in the present case was committed against the Plaintiff’s wife, not against the Plaintiff. Counsel argues that the Court should refrain from extending Irish law as a matter of policy. In arguing this, Counsel referred to the case of Devlin v. National Maternity Hospital [2008] I.R. 222 to support the fact that Irish courts, as a matter of policy, are not prepared to readily, or at all, extend categories of causes of action on policy grounds.
Counsel argue that if the Plaintiff satisfies the Court that the cause of action on which his claim is based exists under Irish law, he must then establish that the tort complained of caused the injury that is alleged. Counsel submits that the Plaintiff has not established that the pain suffered by him was caused by the tortious acts of the Defendants in the proceedings. In particular, Counsel argue that the Plaintiff made a decision himself to undergo the vasectomy and that it was not necessitated as a means of contraception as the couple had other options open to them. For example, the Plaintiff’s wife could have undergone tubal ligation, despite the Plaintiff’s arguments to the contrary, as no medical evidence was produced to counter this. Further, it was argued that the evidence has established that the Plaintiff was fully advised in relation to the vasectomy and in relation to the risks associated with the procedure. Counsel also observed that the Plaintiff had an opportunity to reverse his vasectomy and he decided against doing this.
According to Counsel, if the Court takes the view that the Plaintiff has a cause of action and has surmounted the causation hurdle, the question then arises as to whether or not the damage suffered by him is too remote. The Plaintiff cannot recover damages for injury that is not reasonably foreseeable. Counsel relied on the dicta of Barrington J. in Condon v. CIE & Ors, High Court, 16th November, 1984, as follows:
“I accept that in determining liability for the consequences of a tortious act of negligence the test to be applied is whether the damage is of such a kind as a reasonable man should have foreseen. I also accept that if the damage is of such a kind as a reasonable man should have foreseen it is quite irrelevant that no one foresaw the actual extent of the damage”.
Counsel outlined a number of factors which the Defendants would have had to have reasonably foreseen, including inter alia, that the Plaintiff’s wife would travel to England to terminate the pregnancy that occurred following the accident notwithstanding the fact that her life was not in danger by reason of the pregnancy; that subsequently the Plaintiff’s wife would decline to undergo tubal ligation; that the Plaintiff would undergo a vasectomy notwithstanding the fact that a condom was used for sexual relations with his wife on at least two occasions following the termination; that the Plaintiff would undergo the vasectomy notwithstanding having been fully warned as to the possible consequences thereof, including the pain condition complained of; that the Plaintiff, because of a dislike of medical procedures, would decide not to undergo a reversal of the vasectomy, thereby causing or permitting the alleged pain to continue.
Overall, Counsel submit that on the facts of this case, it was not reasonably foreseeable by the Defendants and that the continuing pain which the Plaintiff is complaining of is too remote to enable an award of damages to be made in his favour.
Conclusions
The Plaintiff in this case made a decision himself to have a vasectomy. It is evident that the couple had other options available to them in terms of contraception. For example, the Plaintiff’s wife was counselled about the possibility of undergoing tubal ligation. Instead, the Plaintiff attended his wife’s doctor in 1998 to discuss the possibility of a vasectomy as he wished to take more responsibility. Further, all of the risks associated with this procedure were discussed with the couple and the Plaintiff was aware of the risk of pain. In this regard, it is not necessary for this Court to consider whether the Plaintiff is suffering from pain. The Plaintiff seeks damages for pain, mental distress, depression, grief and anguish suffered as a result of the vasectomy as well as for unascertained special damages such as doctors’ fees, hospital fees and medication costs arising as a result of the vasectomy. I find as fact that the Plaintiff has failed, on the balance of probability, to establish causation on the part of the Defendants. I therefore must dismiss the Plaintiff’s case. No damages are awarded in respect of this claim.
The Plaintiff is also claiming damages as a result of the loss of a baby which arose from the termination of his wife’s pregnancy in the aftermath of the accident, which the Plaintiff argues was necessary for his wife’s physical and mental health. The Plaintiff claims damages for mental distress, depression, grief and anguish as a result of this. Again, I find as fact that the plaintiff has failed, on the balance of probability, to establish causation on the part of the Defendants. I therefore must dismiss the Plaintiff’s case. No damages are awarded.