The following is from a paper delivered by Michael Boylan at the Medical Negligence conference at Fitzwilliam Hotel, Dublin on the 4 December 2009:

The latest report of the NTMA published in July 2009 covering the activities of the State Claims Agency for the year ending December 2008 gave some interesting statistics. The State Claims Agency is now responsible for defending the great majority of medical negligence actions taken in this State. The latest report discloses that more than 84,000 medical accidents were reported to the Agency in the year 2008 alone. Even assuming that many of these accidents were relatively minor, no doubt there were enough to conclude, that probably, many more people are being killed and injured by medical accidents than are killed or injured on our roads.

Despite this, the report discloses that only 521 new legal claims were initiated in the year 2008. The same report discloses that the State Claims Agency managed to dispose of just over 400 compensation claims in the same year.

In the light of the foregoing one would expect there would be quite a number of written Judgments in medical negligence actions in any given year but in reality the number of cases that go all the way to Judgment are few and far between. I hope I have found all of the major Judgments in medical negligence cases handed down over the past two years but please forgive me if I have missed any.

I could only find about 7 that went all the way to Judgment in the past 2 years on the issue of liability. In addition, 5 others deal with important issues of practice and procedure. Thus, I have taken the liberty of including some relevant important UK Judgments delivered in the past 2 years to supplement the Irish Jurisprudence.

Practice and Procedure

Surgical forceps breaks during operative procedure. Whether Plaintiff must have PIAB authorisation pursuant to Section 3 of the Personal Injuries Assessment Board Act, 2003 prior to issuing Proceedings or whether the action was excluded pursuant to Section 3(d) of the said Act.

Gunning –v– National Maternity Hospital & Ors, [2008] IEHC 352 (2008)

Judgment delivered on 11 November 2008

Facts:

On the 10 October 2005 the Plaintiff underwent a laparoscopic right ovarian cystectomy at the Defendant Hospital during the course of which unfortunately the forceps broke and lodged in her abdomen requiring the procedure to be converted to an open laparotomy as a consequence of which she had to endure a longer procedure, longer hospitalisation and a surgical scar. High Court Proceedings were issued on the Plaintiff’s behalf without lodging an application with PIAB but objection was taken by the solicitors for the Defendant who argued that the Plaintiff had not complied with Section 3 of the PIAB Act, 2003 as they had not obtained from PIAB the necessary authorisation from the Board prior to issuing proceedings.

Defence Counsel submitted that the claim was in essence a defective product claim and not a medical negligence type claim and thus the Plaintiff was required to obtain PIAB authorisation before issuing proceedings. The Plaintiff argued that the proceedings against the hospital clearly came within the wording of Section 3(d) of the 2003 Act which provides as follows:

Section 3
This Act applies to the following Civil Actions – a) ….. b)…… c)….. d) A Civil Action not falling within any of the preceding paragraphs (other than one arising out of the provision of any health service to a person, the carrying out of a medical or surgical procedure in relation to a person or the provision of any medical advice or treatment to a person).

Hardly surprisingly O’Neill J decided:

In my view, Section 3(d) of the Act of 2003 should be construed as applying to the factual circumstances out of which an action arises rather than applying to the specific legal causes of actions set out in legal proceedings. I say this because if the latter approach is followed it would result in some parts of the same grievance or complaint falling within the remit of PIAB and others falling outside. This would clearly be an undesirable situation as it could result in two aspects of the same personal injury complaint proceeding in parallel in two jurisdictions, i.e. the Court and PIAB. The factual circumstances to which the Plaintiff’s personal injury claim arises in my view clearly occurred in the course of carrying out of a medical or surgical procedure and are well within the provisions of Section 3(d) of the 2003 Act…… In this action the Plaintiff alleges that the First Named Defendant was negligent on various grounds as set out in the Particulars quoted above. Manifestly these grounds extend far beyond merely alleging that the forceps was a defective product. Even if Mr Meehan (Defence Counsel) was correct in his submission that a defective product liability case was not caught by Section 3(d) of the Act of 2003 this could only result in the striking out of these proceedings, of that aspect of the Plaintiff’s claim against the First Defendant and no more. I was not urged by Mr Meehan to adopt that approach. In my view the case made by the Plaintiff in her Personal Injuries Summons comfortably falls within Section 3(d) of the 2003 Act.

Renewal Of Plenary Summons, Order 8 Rule 2, Meaning Of “For Other Good Reason

John O’Grady –v– Southern Health Board and Tralee General Hospital

Facts:

On 18 April 1999 the Plaintiff suffered a rupture injury to his patellar tendon in a fall from a bike. It required surgical repair at Tralee General Hospital by the insertion of wires. He was left post operatively with excruciating pain. Ultimately he attributed this excruciating pain to broken wires and the allegation was that X-rays ought to have been taken which would have disclosed evidence of broken wires and lead to earlier treatment. Instead he was subjected to a premature, painful physiotherapy regime and suffered months of severe pain, swelling and immobility. In the Spring of 2001 he sought a second opinion from another Orthopaedic Surgeon who recommended him to 2 another knee specialists. He sought legal advice from his solicitor who contacted both of these Dublin based knee specialists seeking advice and reports. They declined to become involved. As a protective measure on the 5 February 2002 (34 months post surgery) his solicitors issued a precautionary Plenary Summons which was done without having the benefit of any medical expert report. Between January 2001 and November 2002 there had been protracted correspondence between the Plaintiff’s solicitor and the Health Board seeking to recover all of the relevant medical records. The Plaintiff’s solicitor sought Senior Counsel’s advice first in March 2003 and received it in October 2003 regarding a suitable UK orthopaedic specialist. A Sheffield based orthopaedic surgeon was instructed in early 2004. He saw the Plaintiff on the 19 April 2004 and eventually issued a positive expert opinion on the 16 September 2004. Following receipt of the expert report the Plaintiff had a consultation with his solicitors in November 2004 and decided to proceed. In January 2005 the solicitor sent papers to Counsel to renew the Summons. An application was made ex-parte on 13 June 2005 (3 years and 5 months after the issue of the Writ) granting the renewal of the Summons. The Defendants then brought a Motion pursuant to Order 8 Rule 2 seeking to have the Order renewing the Summons set aside on the grounds that there was an inordinate and inexcusable delay from July 1999 to the likely Trial date which would be 10 years later and by virtue of the delay prejudice to the Defendant was to be presumed.

O’Neill J delivered his Judgment on the 2 February 2007:

In my view this Court and an application under Order 8 Rule 2 should not refuse to renew where the case would otherwise be Statute barred unless the Defendant demonstrates to the satisfaction of the Court the clearest possible case of actual prejudice such that his Defence to the claim has been in actual terms substantially impaired, mere presumptive prejudice should not suffice to cause the refusal of the renewal of a Summons. I would echo the following passage from the Judgment of Barron J in Prior –v– Independent Television News Limited 1993 1 IR403 as accurately stating what must be fundamental to these applications;

“It seems to me that the essential principle is that where proceedings have not been heard on the merits it may be unjust that they should be barred by procedural difficulties.”

However before practitioners gain too much comfort from the foregoing statements it should be noted the Court was severely critical of the Plaintiff’s efforts to progress the litigation stating:

In my view the delay from July 2002 to the engagement of Mr Kay in October 2003 was inordinate….. Engaging the services of a UK specialist should not have taken that amount of time…… Needless to say the expert thus engaged would require the medical records but his agreement to act could have been secured before the final assembly of these records. The Plaintiff knew from May 2001 that he needed the services of someone such as Mr Kay. No adequate reason has been advanced as to why no attempt was made to find and engage someone like Mr Kay until October 2003. In my view the delay from July 2002 to October 2003 when Mr Kay was engaged was inordinate and inexcusable, when viewed in the context of time lost before the expiry of the limitation period….. I am satisfied from the time Mr Kay was engaged the matter was progressed with acceptable, if not commendable, expedition but by then, approximately four years had been lost or wasted. I would readily accept that the Plaintiff and his legal advisors had an obligation to ensure that there was a sound basis in law for the claim before it was commenced and that it was legitimate for him as said by McGuinness J in Cunningham –v– Neary 2004 2ILRM at 502 to issue his Plenary Summons to stop the Statute running and delay serving it whilst he investigated the available medical evidence. However, this permission could not amount to a licence to delay. Indeed, I would be of the opinion that a Plaintiff in this situation carried an onerous duty to eliminate all unnecessary delay knowing that some delay in communicating the claim to the proposed Defendant would be inevitable because of the need to establish that there was sound medical evidence to support the claim. The inordinate loss of time as discussed impedes the Plaintiff in my view from claiming that his obligation to investigate the medical evidence provides a justification or acceptable excuse for not serving the Summons within the time prescribed by the Rules of the Superior Courts.

However, thankfully, from the Plaintiff’s point of view, ultimately the Court decided when weighing the balance of Justice, to refuse the Defendant’s application and allowed the Order renewing the Summons to stand. O’Neill J stated:

Notwithstanding the inordinate, and in my view, inexcusable delay on the part of the Plaintiff, as so found, I am of the opinion that the time barring of the Plaintiff’s claim by the non-renewal of the Plenary Summons in the absence at this stage of evidence of actual substantial prejudice to the Defence of the Defendants is a result which would be in the nature of a pure penalty imposed on the Plaintiff and at this stage of the Proceedings is not warranted in the overall interest of achieving a just outcome to the dispute between these parties. Accordingly I will not set aside the renewal of the Summons.

The Court seems to have been heavily influenced by the fact that after a Statement of Claim is served the precise nature of the claim, the Defendant has to meet, will be known. The Defendant would then be in a better position to know if there was actual prejudice (as opposed to presumed prejudice) in the conduct of his Defence. The Defendant could then bring an application in the usual way to strike out the action on grounds of inordinate and inexcusable delay.

However, in the case of Bingham –v– Crowley 2008 IE HC December 2008 Feaney J came to a completely different view and set aside the Order to renew, notwithstanding the Plaintiff’s excuse was the unavailability of an expert report and there was no firm evidence proferred by the Defendants of actual prejudice. In the course of a lengthy Judgment Feaney J firstly approved the reasoning identified by Finlay Geoghegan J in Chambers –v– Kenefick 2007 3IR 526 and then stated:

A correct interpretation of Order 8 Rule 2 requires the application of fair procedures and that such procedures include the right on a Defendant in an Order 8 Rule 2 application to make submissions, that even on the facts originally before the Court, that the Court should not exercise its discretion to renew a Summons. The Court is satisfied that the proper Order 8 Rule 2 is to allow and permit an interparty application on notice as to the issue of whether a Court should exercise its discretion to permit a Summons to be renewed prior to any Appearance. The need to apply such an approach is illustrated by the facts in this case …. Dealing with this application in the manner identified in Chambers –v– Kenefick is not to treat the Hearing as an Appeal from the original Order. What the Rule provides is that there is a process which, in recognition of fair procedures, provides that before a Defendant who is affected by the renewal of a Summons made ex-parte enters and Appearance that such Defendant has an entitlement to be fully heard …. The application of fair procedures should ensure that all questions and issues including facts, questions of prejudice, the balance of hardship and any legal argument be ventilated at an inter-parties hearing as to why the Court should or should not renew the Summons.

Feaney J also referred to the Judgment of O’Sullivan J in Allerjan Pharmaceuticals (Ireland) Limited –v– Noel Deane Roofing and Cladding Limited (unreported) High Court July 2006 and approved of O’Sullivan J’s reasoning that the Court must consider the matter by reference “to the overall interests of Justice as between the parties”.

Feaney J went on to consider the decision of O’Neal J in O’Grady –v– Southern Health Board referred to immediately above but was not inclined to regard the Defendants’ requirement to prove actual prejudice as determinative of the issue stating after referring to the O’Grady decision:

Whilst prejudice a factor to take into account in considering the interests of Justice as between the parties, its presence or absence is not conclusive. The Court has already identified that the Statute of Limitations must be available on a reciprocal basis and that it is not a good reason to renew a Summons simply to prevent the Defendant availing of the Statute of Limitations.

Thus the Court set aside the Order granting a renewal of the Summons with the result that the Plaintiff’s claim thus became Statute barred. In my own view I think the Court was heavily influenced by the fact that the Plaintiff had instituted proceedings just three weeks before the Statute was due to expire at a time when the Plaintiff had made complaint to the Medical Council about the conduct of the doctors concerned. The proceedings had been taken against 9 different consultants and the Plaintiffs had consulted and instructed four different firms of solicitors during the currency of the proceedings and had made no less than three applications to renew the Summons. The major reason advanced by the Plaintiff for the delay in service was the absence of sufficient expert evidence but this excuse was firmly rejected by Feaney J in a detailed analysis of the events.

Creavy –v– Carroll Barry Kinsella, James Gardiner, Peter McKenna, Bill Boyd, Robert Harrison and the Rotunda Hospital The High Court, Mr Justice Dunne (unreported) 17 April 2008.

This is yet another case involving disputed attempts to renew a Plenary Summons. In this action the Plaintiff who gave birth to twins on the 31 October 2001 by Caesarean Section at the hospital suffered a post partum haemorrhage and in order to stem the haemorrhage a decision was made to perform a hysterectomy. The Plaintiff alleged that the management of the haemorrhage was negligent and the decision to perform the hysterectomy was also negligent. The Plenary Summons was issued on the 12 August 2004 and ultimately served on the 21 September 2006 following renewal of the Summons. The reason for delay in service of the Summons again proffered by the Plaintiff was the absence of supportive medical reports being to hand during the 12 month period after the issue of the Writ. The Court cited with approval the decision of Barr J in Riedy –v– National Maternity Hospital where the Court had described it as irresponsible and an abusive process of the Court to launch professional negligence proceedings against medical professionals/hospitals without having such supportive evidence available beforehand. The Court then went on to state:

It is necessary to consider whether the delay complained of in this case is such as to require this Court to set aside the renewal of the Summons. In considering such a step seems to me that the Court is required in the interests of Justice to balance the prejudice to the Plaintiff in setting aside the renewal against the prejudice to the Defendant in not setting aside the renewal of the Summons. The prejudice to the Plaintiff is obvious so far as the First and Fourth Named Defendants and the Sixth Defendant are concerned no specifical actual prejudice has been asserted by them other than the effect of the passage of time on the recollection of the witnesses. In assessing the respective prejudice of the Plaintiff and the First and Fourth Defendants and the Sixth Defendant it seems to me that the prejudice to the Plaintiff in not renewing the Plenary Summons herein far outweighs the prejudice to the Defendants. Having considered the matter I am satisfied that the interests of Justice requires that the Summons in this case should have been renewed and accordingly I am refusing the relief sought.

Thus we have three different decisions with different approaches and different results. In my own view, it seems to me that the ultimate result in cases where service of proceedings have been delayed due to the unavailability of medical evidence will largely depend upon the facts in each individual case. However, practitioners would do well to heed the warning given by Lord Diplock in Burkett –v– James 1977 2ALL ER 801 which was cited with approval by Feaney J in the course of his Judgment:

A late start makes it more incumbent on the Plaintiff to proceed with all due speed and a pace which might have been excusable if the action had been started sooner, maybe inexcusable in the light of the time that has already passed before the Writ was issued.

Inordinate And Inexcusable Delay – Application To Strike Out Proceedings

Christopher McBrearty (Person of Unsound Mind No So Found) –v– North Western Health Board, Andrew McFarlane, John Glynn and Jafpal Singh Judgment of Mr Justice MacMenamin dated 14 December 2007

Facts:

The Plaintiff was born on the 1 January 1981 and it was alleged on his behalf that he suffered deprivation of oxygen at birth as a consequence of the mismanagement of his labour resulting in him suffering spastic quadriplegic Cerebral Palsy and severe cognitive impairment. His parents were humble people with little formal education and they only became aware on their son’s 18 birthday that the injury which he suffered may have been as a consequence of lack of care around the time of his birth. When the Plaintiff was 18 the family GP informed the mother that he felt duty bound to tell them of his beliefs in the Plaintiff’s presence. Thereafter, they set about seeking legal advice, contacting Messrs Tansey & Associate Solicitors in November 2001 and proceedings were immediately issued by the said firm of solicitors against the first two Defendants only within 6 days of contacting them. A Statement of Claim was served on the 10 September 2003. A Defence was filed by the Health Board on 7 March 2005. On the 11 March 2005 the Health Board applied to join the Third and Fourth Named Defendants as third parties to these proceedings and in fact they were joined as Co-Defendants on the application of the Plaintiff.

As the last named Defendant was resident outside the Jurisdiction a delay occurred in serving the amended Writ and Statement of Claim and applications had to be made to renew the Summons for that purpose. Ultimately proceedings were served in July 2006 and August 2006 on the Third and Fourth Named Defendants. A limited Appearance was entered on behalf of Dr Singh and Dr Glynn in April 2007. On 10 May 2007 Defences were delivered on behalf of Dr Singh and Dr Glynn and on the 24 May 2007 the last two Defendants applied by way of Motion to have the action against them dismissed on the grounds of inordinate and inexcusable delay. This was followed by a similar application on the 31 May 2007 by the Health Board who up to this time had not sought to make any case of delay.

In a comprehensive 44 page written Judgment, Judge MacMenamin reviews all of the Irish Authority on inordinate and inexcusable delay including:

  • Rainsford –v– Limerick Corporation 1995 2ILRM 561,
  • Anglo Irish Beef Processors –v– Montgomery 2002 3IR510,
  • Primor Plc –v– Stokes County Crowley 1996 2IR459,
  • Carroll Shipping –v– Matthews Mulcahy and Sutherland (The High Court McGuinness J 18 December 1996),
  • Stephens –v– Flynn (High Court 30 April 2005),
  • Brennan –v– Western Health Board Macken J (High Court (Unreported) 18 May 1999), Gilroy –v– Flynn 2005 1ILRN 290,
  • Rogers –v– Mitchell & Tyre The High Court, Clarke J 28 June 2005 (unreported),
  • Article 6 of the European Convention on Human Rights,
  • Seymour Human Rights Practice Chapter 6 – 158,
  • Thompson Sweet and Maxwell,
  • McMullen –v– Ireland European Court of Human Rights (29 July 2004),
  • Toal –v– Duignan 1 1991 ILRM 135,
  • Toal –v– Duignan 2 1991 ILRM 140,
  • Reddy –v– National Maternity Hospital the High Court Barr J 31 July 1997 (unreported),
  • Glynn –v– The Rotunda Hospital The High Court, O’Sullivan J 6 April 2000 (unreported),
  • Faughnan –v– McGuire and Others O’Sullivan J 2006 IE HC 282

Having reviewed all of the aforesaid jurisprudence MacMenamin J stated at para 37:

Having regard to the principles outlined in Primor and as applied in Stephens I consider that the late start after inexcusable delay made it more incumbent upon the Plaintiff to proceed with all due speed…….

The Balance Of Justice

Having found that these delays were inordinate and inexcusable the Court must then exercise its discretion to decide whether on the facts of the particular case the balance of Justice is in favour of dismissal or permitting the action to proceed. In doing so the Court should again apply the principles identified by Finlay J in Rainsford and also Hamilton CJ in Primor. The Court must look to the conduct of the Defendant since the commencement of the Proceedings for the purposes of establishing whether any delay or conduct on the part of the Defendant amounted to acquiescence in the Plaintiff’s delay and whether the Defendant was guilty of any conduct which induced the Plaintiff to incur further expense in pursuing the action. The Court must also assess whether the delay is likely to cause, or has caused, serious prejudice to the Defendants of a kind that would make the provision of a fair Trial impossible which would make it unfair to the Defendant to allow the action to proceed, thereby rendering it just to strike out the action.

Prejudice

The Supreme Court’s decision in Toal –v– Duignan was considered in detail and other subsequent unreported High Court cases dealing with the issue of prejudice. Judge MacMenamin stated:

60: One of the acid tests applied in the exercise of this discretion is whether there is available sufficient documentation or whether the absence of such documentation constitutes a serious prejudice or a substantial risk that it was not possible to have a fair Trial…. The moving party has not identified any other factor intervening between the events in issue and the hearing of this Motion where recollection records or events have materially altered or been affected.

63: Further unique features distinguish this case even despite the very substantial time lapse. Not only are Dr Singh and Dr Glynn both alive but the nursing records include a narrative of events which although not full by the standards of today contain the midwives records and sequence over the period in question ….. most remarkably it has not been suggested that even one of the persons involved in the events in question is not available or has died despite the very long period of 26 years time elapse. Indeed all but one of the nursing staff involved in the case are actually still working in Letterkenny General Hospital. It is not submitted that any of the named nursing staff is unavailable to give evidence …… no evidence has been adduced by the Health Board or any one of the moving parties in relation to any question of specific prejudice or lack of recollection by the other identified participants in the events apart from the two medical attendants.

68: A final factor here is that, the Plaintiff, suffering from an incapacity which is severe and on-going and cannot in the balance of Justice be held liable for delay by his solicitor any more than a minor (CF Kelly –v– CIE 1973 IR Henchy J)

69: Weighing each of these factors as identified in Primor and with reference to the test as to the balance of Justice I find the Defendant has failed to discharge the onus of proof upon him of demonstrating injustice.

MacMenamin J then went on to consider the jurisprudence in relation to the inherent jurisdiction of the Court to dismiss proceedings even if brought within time (as recognised by Section 3 of the Statute of Limitations Act, 2000). In particular the Court considered the decisions to dismiss actions in respect of a series of tobacco cases particularly Manning –v– Benson and Hedges and Others 2004 IR556 Finlay Geoghegan J which set out six significant issues bearing on whether the Court should exercise its inherent jurisdiction to dismiss actions for delay. Having considered all of these principles, the Court distinguished the present case from the tobacco litigation.

79: There has undoubtedly been delays in prosecuting the incident case but as observed earlier where those delays were sufficient to make the failure to prosecute the claim expeditiously inexcusable, there were nonetheless other factors to be weighed in the balance of Justice, that is the paradox of the primor test. The Court in the exercise of its equitable inherent jurisdiction should look at the personal position of the Plaintiff. The person suffering from an incapacity rather than the conduct of his legal representatives whose conduct falls to be considered more appropriately in the realm of inexcusable delay. Thus on the facts, this case is substantially different from O’Domhnaill –v– Merrick delay with a Plaintiff full age at the time of the application.

Thus having regard to these important distinctions which apply to each of the Defendants I do not consider that any of the moving parties have established that this is a case where the Court should prevent a Trial from proceeding in the exercise of its inherent jurisdiction. Whilst the Defendants undoubtedly will suffer a detriment by reason of the lapse of time and the absence of memory these in themselves do not outweigh the other factors which indicate that on balance, the Trial should be permitted to proceed. Absence of recollection per se cannot prevent a civil Trial from proceeding any more than a Defendant who cannot recollect an accident or even a Defendant who is deceased. The balance of rights and framework of reference falls within Article 34 of the Constitution as opposed to a different weighing which would apply to a criminal Trial pursuant to Article 38 of the Constitution. Even in the case of a criminal Trial it has been recently held that absence of recollection may not be a barr to a Trial (cf Murphy –v– DPP, O’Neill J The High Court (unreported) 23 October 2007).

Inquests In Wrongful Death Claims

Grant –v– Roche Products Ireland Limited and Other 2008 IE SC 35

I thought it was worth just a brief comment to refer to the above Supreme Court Judgment of Hardiman J regarding the recovery of inquest expenditure arising from legal representation at inquests into hospital based deaths. Whilst the case in question concerned a suicide after taking certain dermatology medication and the comments were made in the context of an application by the Defendants to stay proceedings in circumstances where they alleged they had offered all that could be claimed as solatium by the Plaintiff’s family. The Court did consider the question of the Plaintiff’s entitlement to claim expenditure arising from legal representation at the Coroner’s inquest. The Defendants argued that such legal representation was not recoverable as an item of Special Damage in a wrongful death claim. Hardiman had the following comments to make on that point:

We have already seen in the quotation from the Act of 1961 that a person entitled to sue for the wrongful death of another may recover funeral expenses and “other expenses actually incurred”. There is in my opinion a bona fida and justicable issue between the parties as to whether the considerable and expenses research engaged in by the Plaintiff in preparation for the inquest into the deceased death is expenditure recoverable under the Statute. It is clearly expenditure which would not have arisen but for the death of the deceased and which was foreseeable and appears to me at the least arguable thus to be recoverable. The Plaintiff’s case may derive some support on this point from the Judgment of Barrington J in Condon –v– CIE and others (unreported) High Court Barrington J 16 November 1984 but I do not intend to decide this issue or to consider the cases cited on it for the reasons given by Costello J in D.K –v– King cited above. It is sufficient to say that the existence of that or any other justicable issue between the parties in my view of itself would preclude an Order striking out the proceedings at present.”

It is therefore at least arguable that legal representation at an inquest in a medical negligence matter is a legitimate item of special damages to be included in a subsequent wrongful death claim. This could have significance for practitioners in this area. In my own personal experience inquests into hospital based deaths can be extremely complex and require a huge amount of pre-inquest research and instruction of experts. The inquest itself can last a number of days and thus considerable legal costs and outlays can be incurred by the family in order to have proper legal representation at the inquest.

Causation

Dispute on factual causation, whether or not the ataxia and dysarthria (slurring of speech) from which the Plaintiff suffers had been caused or contributed to by reason of the Defendant’s negligence in allowing the Plaintiff to contract pancreatitis or were caused by an unrelated non tortious condition?

Brendan Ward –v– South Western Health Board, Midlands Health Board, Paul O’Regan and Humphrey J O’Connor The High Court, (unreported) Quirke J Judgment delivered 24 June 2008

Facts:

The Plaintiff was suspected as suffering from a condition known as ascending cholangitis which is a bacterial infection of the bile ducts caused by an obstruction within those ducts. He was recommended to have an ERCP procedure which carried with it a 3-5% risk of serious injury including acute pancreatitis. He underwent this procedure in April 1998. He was acutely ill following the procedure in constant pain. He was diagnosed as suffering from acute post ERCP pancreatitis. He remained in hospital throughout May 1998 and had surgical drainage and debridement of a cystic mass. He was gravely ill and required transfer to the Mercy Hospital, Cork where he was treated until August 1998. He suffered severe pain, rigours, required blood transfusions several times whilst he was subjected to continual attempts to drain the cyst. He suffered substantial weight loss and was fed his nutrition by nasal gastric tubing and intravenous fluids. Upon discharge from hospital he weighed only 57 kilos. He was readmitted as an inpatient for treatment on approximately six subsequent occasions between 1998 and 2001. He was unable to return to playing football which he did and enjoyed prior to his illness. Despite all his illnesses in September 1999 he secured employment with a drug company on a production line and after two years he was promoted and subsequently became quality control supervisor with the company which involves 80% of his time at sedentary desk work.

Towards the end of 1998 and in the early stages of 1999, as his strength returned, he began to notice a problem with his balance and noticed that his speech became slurred and he often appeared to other persons to be intoxicated. His balance and co-ordination remained permanently impaired and have not improved or recovered in any respect in the intervening period up to the time of the Trial.

It was the Plaintiff’s case that he was subjected to an unnecessary and inadvisable ERCP procedure and that as a consequence he suffered post ERCP pancreatitis with extreme pain and serious illness arising directly therefrom. Further it was the Plaintiff’s case that all of his neurological permanent sequelae (ataxia and dysarthria) were caused or contributed to as a consequence of his post ERCP pancreatitis. The Defendants initially denied any negligence or breach of duty but on the sixth day of the Trial they admitted negligence and breach of duty and acknowledged that it had caused the Plaintiff’s pancreatitis. The Court found that the Plaintiff was entitled to €75,000.00 compensation for the injuries which he suffered as a direct result of his negligently contracted pancreatitis. However the Defendants maintained that his neurological symptoms of ataxia and dysarthria were not caused or contributed to by the Defendant’s negligence. Rather they contented his neurological symptoms resulted from a genetic mitochondrial disorder which had been present but dormant within the Plaintiff since his birth.

The principal neurological expert called by the Plaintiff, Professor Finlay, Consultant Neurologist, was of the view that the Plaintiff’s neurological injuries were caused when he:

was metabolically challenged during his treatment for pancreatitis and that he suffered damage to the brain resulting in ataxia and loss of co-ordination.

He was of the view that a combination of intravenous antibiotics, blood transfusions and total parental intravenous feeding probably resulted in the alteration of the function of the blood brain barrier which is a protective mechanism separating the brain from the rest of the body. He thought that it was unlikely that the Plaintiff had developed a mitochondrial encephalopathy as a result of his pancreatitis.

The Defendants called two principal expert witnesses, both Consultant Neurologists. Professor Hutchinson expressed the view that the Plaintiff’s ataxia and dysarthria were due to a mitochondrial disorder and not pancreatitis. Dr Donal Costigan was of the firm opinion that the Plaintiff’s neurological complaints were unrelated to his pancreatitis and he expressed the view that the MRI scan results carried out on the Plaintiff did not rule out a mitochondrial disorder as the source of the Plaintiff’s ataxia.

Interestingly in the course of his Judgment, Quirke J stated:

The most frequently expressed and most plausible expert view on that issue, is that the medical condition or disease which caused those symptoms cannot be established with any degree of conviction. I accept that view.

Nevertheless the Court felt obliged to decide between the two completely different hypothesis as to the cause of the injury and the Judge did not shy away from this challenge stating:

Difference of opinion between eminent medical practitioners on issues such as those which have arisen in these proceedings are by no means unusual. I have no doubt whatever, that the views expressed are conscientiously held by the expert witnesses who expressed them. Each of the witnesses in evidence provided cogent and logical reasons in support of the views which they expressed…. In the instant case it has been acknowledged that the Plaintiff was subjected by the Defendants to treatment which was negligent. The issue of negligence is not in contention. What fails to be determined is whether admitted negligent treatment gave rise to particular medical consequences for the Plaintiff. In so far as that issue must be determined, I take the view that it should be determined by this Court applying the ordinary civil standard of proof, that is to say by requiring the Plaintiff to establish what he seeks to prove by way of evidence and on the balance of probabilities.

It would appear that the Court was heavily influenced in reaching its decision by the temporal relationship between the development of the neurological symptoms and him suffering post ERCP pancreatitis as the Judge stated:

I am satisfied that whilst it is possible that the development by the Plaintiff of ataxia and dysarthria immediately after his treatment for pancreatitis was coincidental it is probable that the explanations provided by Professor Finlay are correct and that the Plaintiff’s condition resulted from a very lengthy and severe treatment which he required arising out of his acute pancreatitis. It follows that the Plaintiff has discharged the onus of proving on the evidence and on the balance of probabilities that the symptoms of ataxia and dysarthria from which he has suffered since Autumn 1998 and from which he will suffer into the future was caused by reason of the negligence and breach of duty of the Defendants.

Having favoured the Plaintiff’s causation hypothesis over that of the Defendants hypothesis the Court awarded the Plaintiff an additional €150,000.00 general damages to compensate him for his neurological injuries to date and into the future which added to the €75,000.00 general damages for the injuries consequential on his acute ERCP pancreatitis gave a total award of €225,000.00 and costs.

It is interesting to contrast the result and the approach of the Court in Ward’s case with the approach and result of the Court in Quinn –v– Mid Western Health Board (1). In Quinn, as in Wards case, the Court was faced once again with two entirely different hypothesis as to how the Plaintiff’s injuries had been caused. The Defendant’s case was the injury was the result of a non tortious acute accident/event at 28 weeks gestation whereas the Plaintiff’s case was the injury was tortuously caused after 35 weeks gestation as a result of placental insufficiency. However, the Learned Trial Judge in Quinn felt unable to resolve the conflict of the scientific/medical evidence and therefore dismissed the Plaintiff’s case on onus of proof grounds. Two very different results in equally complicated medical cases where there was a total conflict between eminent medical men each side contending for different causes of the Plaintiff’s injuries.

The Supreme Court in Quinn upheld a Trial Judge’s right to adopt such an approach. However, it is the writer’s view that it will be very exceptional indeed a case in which a Court will not be able to reach a conclusion and express a preference of one body of expert evidence over another given that the test is on the balance of probabilities.

Before leaving the Quinn case it is important to stress what the case is not about. At the Trial, no case was made, (quite rightly given the evidence), by the Plaintiff’s on “material contribution” grounds and certainly not on a “material increase in risk”. As such cases were not run at the Trial any attempt to introduce them at the Appeal was firmly rejected by the Supreme Court. Kearns J in the Supreme Court confirmed as much when he stated:

… the case was presented to the Trial Judge on an “all or nothing basis”. No case was made along the lines that the delay in intervention meant that the Plaintiff had lost a chance for a better outcome for which she is entitled to be compensated. Furthermore, any claim that the negligent delay materially contributed to the Plaintiff’s condition as distinct from bringing it about in its entirety was expressly abandoned by the Plaintiff’s advisors during the course of the Trial.

It is quite evident therefore that the Law relating to “material contribution” did not require to be and was not as such canvassed before or considered by the Court.(2)

Causation – The doctrine of material contribution. Where there are two or more concurrent or cumulative causes for the injuries sustained including the Defendant’s negligence.

In the UK over the past few years there have been some important Judgments on the applicability of the “material contribution” test of causation in the area of medical negligence. These Judgments demonstrate that the doctrine of “material contribution” to injury is still alive and well and an important concept of the common law.

The case of Grainne Bailey –v– The Ministry Of Defence 2008 LSLAW Med 481 was decided by the Court of Appeal 29 July 2008.

Facts:

The Plaintiff sustained brain damage as a result of a cardiac arrest in January 2001 at St Mary’s Hospital Portsmouth. The injury was the culmination of a prolonged period of hospitalisation which began with her admission to another hospital (Royal Hassler Hospital) to undergo bile duct surgery. The procedure known as ERCP carried out on the 11 January was complicated by bleeding and over the course of the following two days she became very unwell. On the morning of the 14 January she had developed bleeding from the gut, renal failure and acute pancreatitis. Respiratory failure was beginning. She was transferred to the intensive care unit and then subsequently transferred to a third hospital, Queen Alexandra where she underwent further surgery on the 15 January for a massive bleed to the liver. She nearly died but started to make a slow recovery such that on the 26 January she was transferred out of intensive care to a renal ward at St Mary’s Hospital. The transfer was made at 6pm but her condition again deteriorated such that by midnight she vomited, aspirated the vomit, precipitating cardiac arrest. As a consequence of the cardiac arrest she sustained hypoxic brain damage.

It was alleged against the Defendant that the underlying complication of pancreatitis itself was not the result of negligence but there had been a lack of post operative care and resuscitation after the first operation (11 January) which had ultimately lead 15 days later to her cardiac arrest.

At the original Trial the Court upheld the Plaintiff’s claim. The Trial Judge held that the negligent care, post the first operation, had caused a deterioration in the Plaintiff’s condition such that she was rendered unfit to have a further procedure on the 12 January which would have avoided all or at least some of the traumatic and life threatening events that followed. The Court further held that this negligence had been the cause of a considerable weakening of the Plaintiff’s condition. The physical cause of her aspiration and cardiac arrest was her weakness and inability to react to her vomit and that contributory cumulative causes of that weakness were firstly the non-negligently caused pancreatitis and secondly the negligent lack of care after the original operation, although it was not possible to say which cause contributed to a greater or lesser degree. Thus liability was established because the negligent cause had “contributed materially” to the overall weakness and it was the overall weakness in her condition that inhibited her gag reflex and allowed her more than 10 days later to aspirate the vomit and cause the brain injury.

The decision was upheld by the Court of Appeal. Waller LJ having held that medical cases were no different to other cases in relation to the application of the usual test in the law of causation and he stated:

I would summarise the position in relation to a cumulative cause cases as follows. If the evidence demonstrates on a balance of probability that the injury would have occurred as a result of the non-tortious cause or causes in any event, the claimant will have failed to establish that the tortious cause contributed…. If the evidence demonstrates that but for the contribution of the tortious cause the injury would probably not have occurred. The claimant will obviously have discharged the burden. In a case where medical science cannot establish the probability that “but for” an act of negligence the injury would not have happened but can establish that the contribution of the negligent cause was more than negligible the but for test is modified and the claimant will succeed…. The instance case involved cumulative causes acting so as to create a weakness and thus the Judge in my view applied the right test and was entitled to reach the conclusion he did.

A good example of the application of Bailey to a case of brain injury sustained in a premature baby was the case Canning-Kishver –v– Soundwell and West Birmingham Hospital NHS Trust (2008) LS Lower Med Web 51. The Plaintiff was born prematurely with immediate admission to the Defendants NICU. She was regularly monitored and daily records kept. She had several medical complications. At six days of age she was extubated. It was common ground that the first 36 hours following extubation would be a critical struggle for such a newborn to overcome. Just over 36 hours later she was found by a doctor in cardiac collapse and had to receive life-saving measures. She survived but had neurological disabilities consistent with Cerebral atrophy which must have been suffered before or relatively shortly after birth. It was claimed that the Defendant was negligent in that during the hours leading up to her cardiac collapse her condition had so deteriorated that the nursing staff ought to have summoned a doctor hours before the cardiac collapse/respiratory failure.

The Court found on the issue of breach of duty that a doctor ought to have been called at least an hour earlier than he/she was called and that if a doctor had been called, timely intervention would have occurred such as to prevent the cardiac collapse.

The Defendants had also disputed causation. The Court found that the evidence did not establish on the balance of probabilities that the injury had arisen solely from her immaturity at birth (a non tortious cause). Whilst prematurity could not be excluded as a possible cause of injury there was nothing to suggest that a non-tortious cause was probably responsible for her injury. The fact that there were residual possible non-tortious causes which, on the expert medical evidence, could not be ruled out would militate against the Plaintiff’s success if a rigid “but for” test was adopted. However on the balance of probabilities her cardiac collapse, (caused by the Defendant’s negligence) constituted a contribution to the Cerebral atrophy which was more than negligible so therefore the Plaintiff succeeded. The Court applied the rationale in Bailey –v– The Ministry For Defence and in the relevant passage of the Judgment at paragraph 37 the Court held:

All that said the fact of residual possibilities militates against success for Ayesha by reference to a “but for” test. However, I am entitled to find, and I do find, that on balance of probabilities the contribution of the collapse occasioned by the breach of duty constituted a contribution to the atrophy of the cerebellum that was more than negligible so that the claim succeeds.

Yet another example of the application of material contribution causation test to medical negligence litigation is to be found in Boustead –v– North West SHA [2008] LS LAW MED 471. In this case a negligent decision had been made to deliver a young mother vaginally at 28 gestation by using oxytocin rather than to deliver her by Caesarean Section. It was held that the additional hypoxia consequent upon the negligence had amounted to a material contribution to the intraventricular haemorrhage suffered by the Plaintiff, albeit that there had been concurrent cumulative causes (including non-tortious causes i.e. extreme prematurity, unavoidable birth asphyxia secondary to retro placental haemorrhage, respiratory distress due to lung immaturity). The Court applied the older authority of Bonnington Castings –v– Wardlaw 1956 AC6110.

The above authorities in the writers view emphasise that “material contribution” to injury remains a fundamental doctrine of the law of causation and the common law. Indeed McKechnie J recently has stated:.(3)

It has never been the law of causation that one had to prove that the negligence was the sole cause of the damage claimed. In the vast majority of cases whilst that would be so, it is not a pre-condition to establishing liability. Indeed a claimant does not even have to prove that the wrongful act or omission was the principal cause of his injury or illness. It has always been sufficient to show that it materially or substantially contributed to the harm in question. Such a rule has no implication whatsoever for where the onus of proof lies or what that standard of proof is.

This view of the law is consistent with the relatively recent Court of Appeal case of Paige –v– Smith (2) {1996} 1WLR 855 where Master of the Rolls, Sir Thomas Bingham (as he then was) stated:

“It was argued that the Judge had erred in asking whether on the balance of probabilities that the Defendant’s negligence had materially contributed to the recrudescence of the Plaintiff’s symptoms. He should it was said have asked himself whether on the balance of probabilities the Plaintiff would have suffered the injury for which he was claiming compensation but for the Defendant’s negligence. I do not for my part accept these criticisms. In a case in which other causes could have played a part in the causation of the Plaintiff’s exacerbated symptoms, it was in my view entirely appropriate for the Judge to direct himself that a cause was only to be regarded as material if it was more than minimal or trivial or insignificant.

Alleged Negligently Performed Hand Surgery – “Honest difference of opinion as which is the better of 2 ways of treating the patient”.

Peter Dunne –v– Eastern Regional Health Authority, the South Western Health Board, John O’Brien and Matt McHugh Judgment 17 October 2008 Mr Justice Peart

Facts:

On 28 October 1997 whilst running along a road the Plaintiff tripped, caught his finger in a strapping attached to a pole and suffered a significant laceration to the skin on the underside of his middle finger. He attended A&E at Naas General Hospital for initial wound treatment and was transferred to St James’ Hospital for an operation on the 2 November 1997. This operation was performed by a trainee surgeon and was for exploration, repair, split skin graft plus a terminalisation of the tip of the finger. In essence the allegation from the Plaintiff was that the operation involved pinching the end of the finger as tight as possible and because of the missing skin they couldn’t shut it completely so a skin graft was taken from the left forearm to patch the hole at the end of the finger.

It was an additional but very much secondary plank of the Plaintiff’s case that the operation should not have been carried out by a trainee surgeon without the direct physical supervision by a Senior Consultant Surgeon.

As part of the operation the remaining fingernail was pulled off, bone was removed from the end of the finger, pulling the tissues together to cover the bone, stitching it and using the split skin graft to cover the hole left by the missing skin and nail. It was alleged that not all of the nail bed had been removed in the operation so inevitably the nail started to grow back but because of alleged negligent abnormal stretching of the nail bed it was inevitable that the nail would grow back in a curved fashion creating a parrot’s beak type appearance which would make functional use of the finger problematical. The Plaintiff’s case was that it would have been more appropriate to amputate the fingertip back to the end of the joint in the initial operation. In the event that did not occur. However, subsequently because of on-going problems with the parrot’s beak/deformed nail the Plaintiff had to undergo a second operation which involved amputating the tip of finger back to the joint. It was alleged that the Plaintiff was exposed to an unnecessary second operation and prolonged healing time as a result of the type of operation initially carried out.

The Trainee Surgeon gave evidence that he did not believe that he pulled the nail bed into an abnormal position. He stated that he was actually aware of the importance of the hand and that whilst amputation at the initial surgery would have healed without complications the first got was to maintain the functional length even if this involved a further procedure at some later stage.

The Defendant’s expert (Mr Early, Plastic Surgeon) gave evidence that there were a number of acceptable methods of treating such an injury from the application of the conservative method of mere application of a dressing, the use of skin flaps, the use of skin grafts and finally the amputation of the fingertip back to the joint. He gave evidence that the classical surgical teaching books commented on all of these methods and did not condemn any of them. The surgeon’s decision in this case to perform the skin graft technique in an effort to preserve the length of the finger was a reasonable choice. He disagreed with the Plaintiff’s expert that it was an inappropriate choice of operation. He stated it was:

…. a reasonable choice given the wide spectrum of choices that exist with poor evidence base to show that any particular one is better than the other.

He further gave evidence that regardless of what technique is used the result can be a parrot’s beak nail deformity. In effect although the Judgment does not refer at all to the Dunne principles the Defendants were running a Defence under Dunne 4 i.e. “an honest difference of opinion between doctors as to which is the better of two ways of treating a patient”. In the event the Court held with the Defendants and found that the choice of operation made by the surgeon was a reasonable one in the circumstances, particularly for the Plaintiff who was a manual worker and that the trainee surgeon attempted a procedure which would have, if successful, have maintained as much functional length of the finger as possible. The Judge stated:

I am not satisfied that that the fact that the split skin graft was applied is of itself negligent given the evidence both from Mr Early and from the statements contained in Green’s operative hand surgery that grafting of skin onto a finger to close the wound is something which some surgeons do. Whilst not all surgeons may on all occasions use this method of closing the end of a finger it seems clear that it is nevertheless a method which is recognised as a reasonable method of achieving closure of the wound. Mr Early considers that it was reasonable in this case that this method was adopted, I cannot regard that procedure as having been negligent.

The key point in my view to emphasise is that the Plaintiff’s expert did not condemn per se the choice of using this split skin graft technique for the surgery. With regard to the second plank to the Plaintiff’s case of lack of supervision the Judge stated:

Mr McDonnell (the trainee surgeon) took relevant advice from his senior and I’m not satisfied from the evidence that there was negligence from the fact that this senior person was not physically present in the theatre when the operation was performed. Mr Early has made it abundantly clear that it is accepted practice that a trainee surgeon would take advice in the way Mr McDonnell did on this occasion.

It is worth emphasising that it was not part of the Plaintiff’s case that the operation was of a complexity that mandated its performance by a consultant hand surgeon.

Statute Of Limitations

A subsidiary issue in the above case was whether or not the Plaintiff’s claim was Statute barred in circumstances where proceedings had not been initiated until the 9 September 2002 i.e. four years and 10 months after the initial alleged negligent surgery. The Plaintiff consulted a solicitor who wrote seeking medical records on the 30 March 1999 to the Defendant hospital. There was a significant but unspecified delay on the part of the Defendant hospital in providing the records.

The Judge considered in detail Section 2 of the Statute of Limitations Amendment Act, 1991 stating:

It ought not to be regarded as fatal to the Plaintiff’s claim that they did not do so and chose instead to delay the issue of proceedings until they had obtained the necessary expert medical opinion on negligence provided that the delay in question can be seen as justified. The Plaintiff is entitled to have relied upon his solicitors expertise in that matter. I do not believe that the Plaintiff has been in any way at fault in that regard.

The Judge went on:

As far as Section 2(1)(c) of the Act is concerned …. it was certainly not until Mr Evan’s report arrived that any allegation of negligence could be thought to exist. The mere fact that the finger turned out to require a further operation would not have justified the commencement of proceedings. As far as Section 2(2) is concerned, the Plaintiff could not come within these provisions unless there was to conclude that there had been an unexplained and unreasonable delay in seeking out the opinion of Mr Evans or some other expert I am not so satisfied. As I have said there appears to have been some delay on the part of the Defendants in providing the Plaintiff with his medical records ….. I have no evidence as to when these records were provided. It would be incumbent upon the Defendants to satisfy me that they were provided in a timely fashion thereafter before I could barr the Plaintiffs on this ground and the Defendants have not sought to aduce that evidence.

No doubt the rationale adopted by Judge Peart will come as a great comfort to Plaintiff practitioners like myself who have regular nightmares about whether or not to issue proceedings within two years of the date of the treatment complained of. We all have had cases where the patient has waited in vain for a cure or rehabilitation from the initial treatment/surgery and comes to you for advice perhaps 18 or even 23 months after the treatment to be enquired into. Are you to issue a precautionary writ without even having medical records or do you withhold issuing proceedings until such time as you have thoroughly and properly investigated the matter and had the benefit of expert supportive medical evidence? I would caution practitioners not to base too much reliance on this decision. If at all feasible my preference is to issue proceedings within 2 years but every case will depend largely on its own facts. The key in my view is whether there had existed a set of circumstances which would lead a patient to attribute their adverse outcome to potential substandard medical treatment. The circumstances may be sufficient to put them on enquiry immediately and to seek soon after the treatment complained of the appropriate expert medical and legal advice. For example, see the Supreme Court decision in Cunningham –v– Neary and others and the case of O’Grady –v– SHB and anor discussed above.

In the High Court case of John English –v– North Eastern Health Board and Ursula Mulcahy (2009) IE HC189 Charlton J dismissed the Plaintiff’s action.

Facts:

The Plaintiff claimed damages for his treatment at Louth County Hospital against the hospital and the General Surgeon arising out of three operations in June 1996, July 1996 and April 1999. The second of the operations was to amputate the little finger on his left hand. The first and third operations were to correct a dupuytrens contracture (a condition which pulls the fingers into a clenched position). The Plaintiff claimed that his left hand had been rendered practically useless due to negligence in not dealing properly with the dupuytrens contracture in the first operation. There was a serious dispute on crucial facts with the Court ultimately favouring the Defendant’s version of the facts which was crucial in the Court’s determination of the liability issue.

However the decision of the Court is interesting from the point of view that the Court stated that the standard of care against which the Defendant doctor was to be judged was not that of a specialist hand surgeon but rather of a General Surgeon, there being only five dedicated hand surgeons practicing in the country at the time. Charlton J stating:

The Second Named Defendant is not to be judged against the standard applicable to a specialist hand surgeon. At the time of these operations there were four or five such specialists practicing in the State. The Second Named Defendant did not refer the Plaintiff to one of these and that in itself was pleaded as a ground of liability. The standard of care which the Plaintiff was entitled to expect at Louth County Hospital was that which a careful and competent General Surgeon engaging from time to time in hand surgery could give.

In my own humble view, this interpretation of the law must be open to question. One could readily understand where there was a need for urgent surgery that it would be perfectly acceptable for a General Surgeon to perform the operation but in terms of non-urgent and elective surgery surely a patient should be give the option of a referral to a specialist hand surgeon. It is not clear to me from reading the Judgment whether there was evidence before the Court that this was such a complex operation that it was wrong of a General Surgeon to attempt to embark upon it. If that evidence was given and accepted by the Court it is difficult to envisage a Court adopting a lower standard applicable to the generalist rather than the specialist surgeon.

Birth Injury – Alleged Negligent Management Of Labour By Midwives/ Obstetric Registrar Causing Cerebral Palsy

Fitzpatrick (An Infant) –v– National Maternity Hospital (unreported) March 2008 Herbert J

The first point to be made about this Judgment is that on consent it has been set aside as part of an agreed settlement of the action between the parties. However, that does not take away from the fact that in an extraordinary detailed Judgment, the Court (Herbert J), delivered a Judgment of over 100 pages dealing with the huge bank of factual and expert evidence given in the case during the course of a record 55 day Trial. The Court found for the Plaintiff on the issue of liability. After that Trial the Defendants lodged an immediate Appeal but very shortly after the Appeal was lodged they commenced settlement negotiations and consented to Judgment in the sum of €4,500,000 plus costs in consideration of the Plaintiff agreeing to set aside the Judgment of the High Court and allow the Appeal. Thus, the Judgment should be viewed in that light and with that caveat. Nevertheless the Judgment contains an extraordinarily detailed analysis of the evidence given and is relevant and useful for practitioners not least because it contains one High Court Judges views on the acceptable limits of practice and expertise of a qualified midwife and when and in what circumstances during the course of an abnormal labour the midwife should summon for medical/obstetric help.

Facts:

The Plaintiff was born at 8.03hrs on the 26 December 2001 at full term in very poor condition. He had severe HIE in the first days of life and an MRI scan was consistent with acute hypoxia ischemia. He went on to develop severe quadriplegic Cerebral Palsy. The Plaintiff’s case was that the midwives failed to properly monitor the labour and failed to heed abnormalities on the CTG trace during a 7 hour period prior to delivery. The Plaintiff submitted that the CTG abnormalities mandated turning off the oxytocin infusion and calling the duty obstetric registrar by 06.50hrs. The oxytocin was not in fact switched off until 07.15hrs and the Plaintiff claimed that the Registrar was not called until approximately 07.30hrs and didn’t arrive until shortly thereafter.

On the Plaintiff’s case therefore there was a 25 minute negligent delay in switching off the oxytocin and an alleged 40 minute negligent delay in calling the doctor. It was common case that there was a dramatic worsening of the CTG trace from 07.11hrs indicating very severe foetal distress. The Plaintiff further contended that there was hyperstimulation of the uterus from 06.35hrs onwards which was unrecognised. It was the Plaintiff’s case on causation that the Plaintiff sustained his injury progressively and exponentially over 33 minutes approximately between 07.30hrs and delivery at 8.03hrs.

Full Defence was delivered with a novel plea of contributory negligence alleging that the mother’s birth plan had interfered with a timely administration of various medical treatments and had delayed delivery of the child with the use of forceps.

Findings of the High Court

After a 55 days Trial and a mass of factual and expert evidence, the Court found for the Plaintiff. The principle findings of negligence can be summarised as follows:

  • The CTG trace from the outset was suspicious and therefore the clinical team and the midwives needed to be particularly vigilant in their monitoring and assessment of the CTG and other clinical signs.
  • There were more than 7 contractions (> maximum safe amount) in the 15 minute period between 06.35hrs and 06.50hrs. This hyperstimulation was caused by oxytocin and was the cause of the worsening CTG changes evident on the trace during this period.
  • The hospital’s written protocol regarding contraction rates/oxytocin was binding on the Sister in Charge and therefore the protocol required a doctor to be called no later than 06.50hrs.
  • The CTG from 06.40hrs/06.50hrs onwards was pathological and therefore the Sister in Charge should have called the Obstetric Registrar and in not calling him she was acting below the standard to be expected of a competent midwife.
  • Had the Obstetric Registrar been called by that time (06.50hrs) and had full dilatation occurred he would have, at that time, commenced an instrumental delivery. If immediate instrumental delivery was not possible by circa 07.00hrs (because of lack of full dilatation) the Registrar would and should have stayed with the mother as birth was imminent and the trace was pathological.
  • The catastrophic collapse in the CTG which occurred at approximately 07.10hrs was caused by unrelieved hypoxic stress and was the inevitable result of exhaustion of foetal reserves.
  • The Court rejected the Defence’s expert witnesses that it was reasonable for the Sister in Charge to adopt “a wait and see” approach at 06.50hrs given the pathological CTG trace.
  • At 07.11hrs the CTG became dramatically worse and grossly pathological and mandated urgent delivery. The midwife’s failure to call the Registrar at that time was completely incomprehensible and unjustifiable and a decision which no Senior Midwife, acting with reasonable care should have taken.
  • There was no medical reason why it should have taken any longer than 15 minutes to deliver the Plaintiff by forceps/ventouse from the time the Registrar arrived and the Court accepted his evidence that he came within 2-3 minutes of being called.
  • The Registrar was not in fact called by the Sister in Charge until 07.30hrs or shortly thereafter i.e. 40 minutes after he should have been called and arrived within 2/3 minutes of being called.
  • The irreversible brain damage suffered by the Plaintiff commenced at 07.30hrs and was getting exponentially worse with each passing minute up to 08.03hrs.
  • But for the failure to call the Registrar at 06.50hrs and/or by 07.12hrs the Plaintiff would have been born before 07.30hrs and therefore would have avoided any brain damage.
  • Even if the Plaintiff had only been delivered at 07.42hrs he would have been substantially better off and less injured.
  • It could not be legitimately claimed that the parents were difficult to deal with. They didn’t, at any stage, realise that in refusing an episiotomy that they were causing any danger to the infant Plaintiff and if Mum had so realised there was danger she would have immediately consented. The Registrar and Midwife gave inadequate warnings of the imminent dangers to the Plaintiff and thus there negligent in the warnings they gave.

I think the most important point that the writer takes out of this Judgment is that it represents one High Court Judge’s view as to the limits of authority for a midwife managing a labour with an abnormal/ pathological trace indicative of foetal distress. The Judge emphatically rejected the Defence that it was reasonable or acceptable for a midwife, even a Senior midwife to decide herself without the benefit of medical/obstetric advice to adopt a “wait and see” approach in the presence of serious foetal distress. It was the Court’s view that in such circumstances it is incumbent upon the midwife to seek medical/obstetric help.

Although not dealt with explicitly in the Judgment, the doctrine of material contribution was part of the Plaintiff’s case on causation and it is perhaps significant that the Judge made a finding of fact that the Plaintiff “would have been substantially better off and less injured” had he been delivered 21 minutes sooner than he was notwithstanding that the Plaintiff would already have endured 12 minutes of hypoxic insult causing permanent brain injury by then.

Paediatric Negligence – Undiagnosed/Untreated Volvulus (Twisting Of The Intestine/Gut) In A Newborn Resulting In Serious Permanent Injury. Whether there was novus actus interveniens

Paul Healy (a minor) –v– Health Service Executive and Robert Fitzsimons (The High Court Judgment Mr Justice Quirke 8 May 2009)

Facts:

The Plaintiff was born on the 14 February 2000 at Tralee General Hospital, run by the First Named Defendant. The Second Named Defendant was a Consultant Paediatrician attached to the Hospital providing paediatric care to the Plaintiff before, during and after his birth. During the course of the natural delivery the Plaintiff suffered a malrotation of his intestine due to it being inadequately secured to the abdominal wall resulting in a volvulus which is a twisting or corkscrew twisting of the intestine. It causes an obstruction and ischemia of the intestine and if untreated will result in necrosis of that part of the gut affected causing it to become gangrenous. It is an acute surgical emergency requiring urgent treatment to correct the bowel obstruction. One of its classical symptoms for the condition is bile stained vomit which is known by competent Paediatricians to be a highly characteristic symptom of the condition. There was a significant dispute between the evidence of the Plaintiff’s mother and that of the nursing staff as to the frequency and colour of the vomit which was passed by the infant Plaintiff in the 3 days after he was born. In the event, the Court found in favour of the mother’s evidence on this factual dispute, holding that there were numerous occasions of bile stained vomiting, throughout the 16 February 2000. The mother brought the Plaintiff’s stained clothing to the nursing station on a number of occasions to display her concerns.

The Second Named Defendant was advised of the presence of bile stained vomit but rather than refer the Plaintiff for surgical opinion to the appropriate hospital he directed that the Plaintiff should be observed for further vomits and mid stream urine analysis be taken.

Initially, the Plaintiff’s claim was denied in total but on the the 6th day of Trial the Defendants admitted negligence but the Trial continued to determine which of the Defendants and in what proportion they should bear responsibility to meet the Plaintiff’s claim.

The key findings of the Court were as follows:

  • Where one yellow vomit in a new born baby is noted, bile should be presumed by the paediatric and nursing staff to be its cause unless it can be excluded. At a minimum the baby must be closely observed and monitored. Where a second yellow vomit is noted in a newborn after observation and monitoring then the treating paediatrician and the hospital nursing staff should assume immediately refer for surgical investigation and intervention.
  • The Second Named Defendant’s decision to not refer for surgical assessment but to continue observation of the Plaintiff after he had been notified of the second bile stained vomit was a decision below the requisite standard expected of a competent paediatrician. General and approved medical practice at the time required the Second Named Defendant to immediately refer the Plaintiff for investigation either by way of barium meal X-ray or Paediatric Surgeon.
  • The First Named Defendant i.e. the hospital/nursing staff’s subsequent failure to refer further instances of concerns and vomiting to the Second Named Defendant later on the 16 February 2000 and the decision to discharge the Plaintiff on the 17 February 2000was not care in accordance with general and approved practice and accordingly the hospital and nursing staff were negligent and in breach of duty for these subsequent failures to act appropriately.
  • The Second Named Defendant submitted that it was not his failure to immediately refer for surgical investigation on being notified on the 16 February 2000 that the Plaintiff had vomited twice, that it was the proximate cause of the Plaintiff’s injury. Rather he contended that other subsequent acts and omissions on the part of the Hospital and nursing staff (on the 17 February 2000) were interposed between his initial negligent acts and the subsequent injury and damage to the Plaintiff. It was argued on behalf of the Second Named Defendant that the nursing and medical staff subsequent negligent acts comprised novus actus interveniens which gave rise to and caused the Plaintiff’s injury. In support of this submission the Second Named Defendant relied on the cases of:
    • Conole –v– Redbank Oyster Company 1976 IR191
    • Crowley (an infant) –v– Allied Irish Banks Limited 1987 IR 282
    • Hayes –v– Minister for Finance 2007 3IR
    • McMahon and Binchy 3rd Edition Irish Law of Torts page 77

Having considered all of this authority the Trial Judge rejected this submission. Judge Quirke stated:

It is therefore foreseeable by him (although it may not necessarily have been probable or likely) that the Plaintiff might be discharged (as he was) on the 17 February 2000 without having been adequately observed for symptoms indicating a probable malrotation and a potential vulvulous. He made no further enquiries about the Plaintiff’s condition. He failed to follow up upon his own recommendations for the Plaintiff’s investigation and possible treatment. The members of the nursing and medical staff of the hospital were in serious breach of their duty to the Plaintiff when they discharged him from the hospital on the 17 February 2000….. They have been in serious breach of duty of care which they owed to the Plaintiff on several occasions on 16 February. However, the proven negligence of the hospital’s nursing and medical staff during the night of the 16 February and throughout the 17 February did not comprise a novus actus sufficient to break the chain of causation between Dr Fitzsimons negligence and the injury which the Plaintiff suffered. Dr Fitzsimons was the most senior person responsible for the care of the Plaintiff and for his medical treatment immediately after his birth and whilst he was a patient in the hospital. The members of the hospital nursing and medical staff were entitled to look to Dr Fitzsimons for direction and supervision in the care and treatment afforded to the Plaintiff after his birth and whilst he was in hospital. Dr Fitzsimons was negligent and failed in his duty to provide appropriate care and treatment to the Plaintiff. He also failed to provide the direction and supervision which the nursing and medical staff at the hospital were entitled to expect from him. Although this concurrent negligence by Dr Fitzsimons did not discharge the separate and independent obligations and duties which the medical and nursing staff owed to the Plaintiff, it did not absolve Dr Fitzsimons from his separate and independent liability to the Plaintiff either. I am satisfied that both Defendants are jointly and severely liable to the Plaintiff in respect of his injuries and his consequential loss and damage. There are concurrent wrongdoers who have by their negligence and breach of duty, jointly and separately caused the Plaintiff’s injury and his consequent loss and damage. The Plaintiff is entitled to recover Judgment against both Defendants jointly and severely to compensate him for the injuries which he has suffered and the consequential loss and damage of which he has sustained.”


The Court then went on to assess the claims for contribution and indemnity made inter se between the Defendants holding that the Second Named Defendant, the Consultant Paediatrician was 75% liable and the hospital was 25% liable for the Plaintiff’s injuries. The Plaintiff had compromised his claim for damages for the sum of approximately €2 million on day 8 of the Trial and the Court made the appropriate Orders.

Issues Of Vicarious Liability

Byrne –v– Ryan (2007) IE HC 207 Kelly J was a case involving a number of important legal issues but it is the issue of vicarious liability that I would wish to consider here. The Plaintiff was a public patient with five children attending the Coombe Hospital for tubal ligation which was a failure. She subsequently, accidentally became pregnant and instituted proceedings claiming damages for the cost of rearing a healthy child. The Court found the operation was a failure as a result of negligence on the part of the Consultant who carried out the operation. The hospital denied responsibility for the actions of the Consultant arguing that he was not an employee and that they had no control over his actions.

In the course of his Judgment Kelly J cited various English authorities as being valid in Irish Law which he considered to be “correct and applicable in the instant case”. In particular he cited with approval the Judgment of Denning LJ (as he then was) in Cassidy –v– Ministry of Health (1951) 2 KB 343 Court of Appeal:

Who employs the doctor or surgeon – is it the patient or the hospital authority? If the patient himself selects and employs a doctor or surgeon as in Hillyers case the hospital authorities are of course not liable for his negligence because he is not employed by them but where the doctor or surgeon, be he a Consultant or not is employed and paid, not by the patient but by the hospital authorities, I am of the opinion that the hospital authorities are liable for his negligence in treating the patient….. the hospital authority accepted the Plaintiff as a patient for treatment and it was their duty to treat him with reasonable care. They selected, employed and paid all the surgeons and nurses who looked after him. He had no say in their selection at all. If those surgeons and nurses did not treat him with proper care and skill then the hospital authorities must answer for it, for it means that they themselves did not perform their duty to him…… the Plaintiff knew nothing of the terms in which they employed their staff; all he knew was that he was treated in the hospital by people whom the hospital authorities appointed and the hospital authorities must be answerable for the way in which he was treated.

Kelly J went on to conclude:

The Plaintiff was referred not to a particular surgeon but to the Coombe Hospital. She had no say in the choice of who would carry out her sterlisation. It was done by Dr Murray who is part of the “organisation”, or permanent staff of the hospital. The performance of the operation was part of a service provided by the hospital to the Plaintiff. Dr Murray was the person in the hospital’s organisation through whom that service was provided. In these circumstances it matters not whether Dr Murray was employed under a contract of service or a contract for services. In my view having regard to the principles enunciated in both Cassidy and Roe’s case the hospital here is liable for any want of care on the part of Dr Murray.

It is interesting to contrast the above case with the decision in Gottstein –v– McGuire and Walsh 2004 IE HC 416 Johnson J. In that case the shoe was on the other foot so to speak. Johnson J found for the Plaintiff on the basis he came to the view that the failure of the hospital to have no ENT trained doctor in the hospital on duty at night or any person in the ICU specifically trained for the purposes of replacing a tracheotomy tube amounted to an “inherent defect” (in terms of Dunne 3 principles) in current practice which should have been obvious to anyone giving the matter due consideration. The hospital therefore were obviously held liable. However, Johnson J went on to hold against the Second Named Defendant, the private hospital consultant:

I find that because of his overall responsibility for the patient he must be held to be legally responsible for the failure of the First Named Defendant to provide the appropriate care in the Intensive Care Unit in the events that arose and in those circumstances I also find the Second Named Defendant negligent.

Alvin Reilly –v– Graeme Moir, Precision Laser Care Limited and Clane General Hospital and by Order Nigel Carver and Private Patient’s Services Limited Third Parties. Judgment Peart J delivered 3 April 2009.

Facts:

The Plaintiff, a medical doctor, aged 54 in 2000 decided to undergo breast enlargement surgery but was unhappy with the outcome alleging that the implants had been placed too high with resulting scars being highly visible and too long. The First Named Defendant, the surgeon who performed the operation, the Second Named Defendant, made the arrangements with the Plaintiff for that surgery to be performed, the Third Named Defendant was the hospital in which the surgery was performed, the First Third Party was a London Surgeon and senior colleague of the First Named Defendant whom the Plaintiff believed was going to perform the surgery. The Second Named Third Party (PPS) was a UK Limited Company which provided secretarial management and accountancy services for a group of 12 London Surgeons including the First Named Third Party and the First Named Defendant. The First Named Defendant believed he had, but did not in fact, have indemnity cover to perform surgery outside the UK. The Second Named Defendant also had insurance difficulties due to the late notification of the claim. At the Trial, Mr Moir, who was not professionally represented, candidly admitted that the surgery had been performed negligently by him. The Trial Judge in additional to assessing damages (he ultimately made an award of €80,142.00) had to determine whether the Second Named Defendant Precision Laser Care Limited had been negligent and if so whether it was entitled to an indemnity in respect thereof from either or both of the Third parties.

After a lengthy analysis of the business relationships between the parties Peart J concluded:

I am satisfied firstly when performing surgery in Ireland Mr Moir did so as an independent contractor. He was not an employee as such of PPS. That company’s involvement is confined to the provision of essentially secretarial and administrative services as described. They were the contact point for PLL when arranging for a surgeon to see clients and where necessary to perform surgery. Their duty obviously involved ensuring that any surgeon so provided with a suitably qualified surgeon but that is not the same as saying PPS would be liable for any surgery which was performed negligently as in this case. Any such negligence is a matter between the patient and that surgeon and possibly between the patient and PLL with whom the contract for surgery was made… Those surgeons provided through PPS were not employees of PPS and there is no question of any vicarious liability arising. The fact that Mr Carver is a 50% shareholder in PPS does not alter his position. He was not in any way negligent in this case. As it happens, Mr Carver was at Clane Hospital on the day the Plaintiff underwent her surgery with Mr Moir. He was operating on a patient in an adjoining theatre in the hospital… It cannot be said that Mr Carver was in any supervisory role in relation to the Plaintiff’s surgery in the sense that he shared responsibility to ensure the surgery was properly performed. Mr Moir was the surgeon. He was fully qualified to perform that surgery and the responsibility for the unsatisfactory outcome is the responsibility of Mr Moir.

I am satisfied therefore that it is the First Named Defendant who was negligent in relation to the Plaintiffs surgery. Whilst the Second Named Defendant owed a duty of care to the Plaintiff arising from the relationship with her there is no evidence that it breached its duty of care to her. It had no direct involvement in the surgery, either directly or on the basis of any vicarious liability since Mr Moir was not its employee and the surgeon provided by PLL through PSS was appropriately qualified to carry out this operation on the Plaintiff. There is no issue about that.

Footnotes

  1. Quinn –v– Mid Western Health Board
  2. The Supreme Court did however, albeit in effect obiter, deal with the issue of whether or not the traditional test of causation might ever be modified in medical accident cases by adopting the House of Lords approach in Fairchild’s case.
  3. Causation And Loss Of Chance In Medical Negligence Actions” paper delivered by Mr Justice William McKechnie SC October 2008 to Law Society Conference Cunningham –v– Neary and others

16 April 2010

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