Anne Bradley, Susanne Kiernan, Jonathan Bradley and Andrea Bradley v Lorcan Birthistle

• Jurisdiction: Ireland
• Judge: Mr. Justice Mark Heslin
• Judgment Date: 02 November 2021
• Neutral Citation: [2021] IEHC 695
• Docket Number: [2019 316 P]
• Court: High Court

Between

Anne Bradley, Susanne Kiernan, Jonathan Bradley and Andrea Bradley

Plaintiffs

and

Lorcan Birthistle

Defendant

[2021] IEHC 695

[2019 316 P]

THE HIGH COURT

JUDGMENT of Mr. Justice Mark Heslin delivered on the 2nd day of November, 2021

Introduction

1 The plaintiffs are four members of the same family, the first named plaintiff being the mother of the other three. The plaintiffs issued the present proceedings on 15 January 2019. Para. 5 of the plenary summons of that date appears in the following terms:-

“5. The plaintiffs and each of them bring these proceedings for personal injuries sustained by them as a result of the shocking circumstances leading to and surrounding their husband/father, Mr. Seamus Bradley, sustaining severe personal injuries while a patient of and under the care of the defendant, its servants or agents”.

2 The defendant is a nominee of St. James' Hospital. Mr. Seamus Bradley was the first named plaintiff's husband and was father to the other plaintiffs. He died on 08 October 2019, almost ten months after the present proceedings were issued. In the plenary summons it is alleged that the plaintiffs suffered post-traumatic stress disorder and the nature of the plaintiff's claim was described during the hearing which took place on 07 October 2021 as of a “nervous shock” type. Paras. 8 to 18 of the plenary summons plead “particulars of the circumstances relating to the commission of the wrong” and it is appropriate to set those out, verbatim as follows:-

“8. In September2016 the plaintiff's husband/father was referred to St. James' Hospital following a recent diagnosis of malignant neoplasm of the rectum and he thereafter came under the care of and was a patient of St. James' Hospital (hereinafter the hospital) and he remained under the care of the defendant, its servants or agents, at all material times thereafter. MRI performed on 12 October 2016 confirmed the presence of a bulky mid – rectal tumour which extended through the circumferential resection margin and into the superior portion of the seminal vesicles. There was evidence of tethering of the bladder but no definite tumour invasion. The plaintiff's husband/father was initially referred for chemotherapy and for radiotherapy which he underwent between 24 October 2016 and 1 December 2016 at St. Luke's Radiation Oncology Centre at St. James' Hospital.

9. A further MRI carried out on or about 3 January 2017 demonstrated a reduction in the bulk of the mid – rectal tumour with the overall dimensions unchanged. On 16 January 2017 the plaintiff's husband/father was admitted to the Hospital, where on 17 January 2017 he underwent pelvic exenternation with excision of his rectum, prostate and bladder and formation of an end colostomy and ileal conduit as an ileostomy, which procedure was carried out by servants or agents of the defendant (hereinafter “the first surgical procedure”). During the said procedure, the plaintiff's husband/father suffered an injury to the left common iliac artery during attempts to mobilise the left ureter prior to implanting the ureters in an ileal conduit. The iliac artery was repaired with a vein patch harvested from the great saphenous vein in the right groin. The vascular note for the operation indicates that the tear was at the bifurcation of the left common iliac artery into the external and internal iliac arteries (i.e. where the ureter crosses in front of the artery). The operation note does not indicate how close the tumour was to artery at this point or who performed the initial mobilisation of the left ureter. Following suturing of the patch there was good Doppler signals in the left foot.

10. Following extubating postoperatively, the left leg was well perfused but a compartment syndrome subsequently developed consequent upon a prolonged period of ischaemia occurring between the injury and subsequent revascularisation. Hourly Doppler tests were noted to have been done on the leg at this time but the results of same are not included in the notes seen to date. On 18 January 2017 the plaintiff's husband/father underwent four left leg compartment fasciotomies. It was noted that the muscle appeared viable. Postoperatively, the plan was for elevation of the left leg and Doppler checks every two to four hours. The medical notes record the left leg as warm and well perfused with palpable pulses and on 31 January 2017, the plaintiff's husband/father underwent closure of the fasciotomy wounds.

11. In the early hours of 4 February 2017, the plaintiff's husband/father became very unwell. From in or around 04.00 he experienced significant pain and hematemesis (vomiting blood). An endoscopy was planned under general anaesthetic but not performed until in or around midday and which reported signs of stasis due to post – operative ileus but did not identify a source of bleeding. Resuscitation was continued and the plaintiff's husband/father was referred for an urgent CT Thorax Abdomen and Pelvis which was performed at 14.49, the principle findings of which were active extravasation of contrast from the (ruptured) left common iliac artery into the small bowel in addition to features of pseudo — aneurysm of the left common iliac artery likely to have been caused by sepsis.

12. Throughout this period the plaintiff's husband/father was bleeding significantly and was hypotensive and tachycardic despite transfusion with pulse and blood pressure measurements reported as follows:-

• 05.00: Pulse —, BP 102/80

• 07.40: Pulse 125, BP 97/66

• 08.10: Pulse 135, BP 94 systolic

• 08.20: Pulse 135, BP 116/80

• 08.30: Pulse 118, BP 139/75

• 09.30: Pulse 119, BP 89/62

• 09.50: Pulse 103, BP 89/62

• 10.20: Pulse 2013 (sic), BP 107/72

13. Following the CT scan, the plaintiff's husband/father was taken to theatre. From the records seen to date it is difficult to determine the exact timings of this event and the plaintiffs will plead further on receipt of full and complete records and/or other documentation but it appears that this was almost 12 hours after the onset of bleeding and in any event, there was a delay in performing an endoscopy and/or CT scan and surgery. The clinical notes seen record that the plaintiff's husband/father arrived in theatre in a shocked state with unpalpable peripheral pulses, very cold and abdominal pain his NIBP was 135/58 with a HR of 115/min. He experienced severe hypotension post induction.

14. On 4 February 2017 the plaintiff's husband/father underwent an emergency laparotomy during which procedure the left common iliac artery was clamped, and an adherent segment of small bowel resected, confirming the presence of a fistula between the artery and the bowel at the site of the vein patch. The ends of the resected bowel were stapled and the common, internal and external iliac arteries were ligated. The said operation was carried out by servants or agents of the defendants and is hereinafter referred to as “the second surgical procedure”. During this procedure the plaintiff's husband/father suffered a cardiac hypovolemic arrest. The medical notes record a plan to do a temporary skin only closure with re – operation the following day for anastomosis and not to revascularise the left leg at the time intra – operatively because of the risk of infection and his haemodynamic state. A post – operative ICU note of 4 February 2017 noted no plans for vascular intervention that night to restore the circulation to the left leg following ligation of the iliac arteries but that it was possible that a femora — femoral – bypass graft would be performed on 5 February 2017. A further note on 5 Januarys (sic) 2017 indicated that the left foot was mottled and cold and that there were no pulses present.

15. On 5 February 2017 the plaintiff's husband/father underwent laparotomy, small bowel resection and anastomosis to restore gastro – intestinal continuity following the emergency surgery carried out the previous day. There is a further entry in the medical notes for 5 February 2017 that indicates that the left leg was cold and pulseless and that the vascular team were aware of this but had indicated that he was not for by – pass. A further entry at 20.00 on 5 February 2017 describes mottling and discolouration of the left leg, that the vascular team were aware of this and that amputation might be required.

16. There are contrasting notes for 6 February 2017 with one noting that the colour of the left leg/foot was worsening but an entry made on the same date (untimed) stating that the left leg remained viable. There is also a note that femora – femoral crossover was not an option and another stating that the patient could have an axillofemoral bypass graft. Some of the notes are illegible and the plaintiffs reserve the right to plead further in this regard on receipt of legible records. There is a further note following vascular review at 20.00 on 6 February 2017 advising that the leg should not be elevated and should not be exposed. The note also suggests that the limb was on a warming blanket.

17. On or about 8 February 2017 the plaintiff's husband/father went a left above knee amputation for end stage acute ischaemia post – tie off of the left common iliac artery, external iliac artery and internal iliac artery carried out by servants or agents of the defendant. The findings at operation were recorded as inter alia viable muscle tissue at the point of amputation but minimal bleed. Subsequently, a left axillary – femoral by – pass was performed on 10 February 2017 due to a concern that the above knee amputation stump was ischaemic. The plaintiff's husband/father remained in hospital until May 2017.

18. By reason of the matters aforesaid, and the negligence and/or breach of duty (including statutory duty) of the defendant, its servants or agents, the plaintiffs and each of them suffered nervous shock, psychiatric sequelae, personal injuries, loss, damage,...