Anne Marie Quinn (A Minor) suing by her mother and next friend, Kathleen Quinn v Mid Western Health Board and Donal O'Sullivan

• Jurisdiction: Ireland
• Judge: Mr. Justice Kearns
• Judgment Date: 08 April 2005
• Neutral Citation: [2005] IESC 19
• Court: Supreme Court
• Docket Number: [S.C. No. 432 of
• Date: 08 April 2005

[2005] IESC 19

THE SUPREME COURT

Denham J.

Geoghegan J.

Kearns J

[S.C. No. 432 of 2003]

Quinn (A Minor) v. Mid Western Health Board and O'Sullivan

BETWEEN:

ANNE MARIE QUINN (A MINOR) SUING BY HER MOTHER AND NEXT FRIEND, KATHLEEN QUINN

PLAINTIFF/APPELLANT

AND

MID WESTERN HEALTH BOARD AND DONAL O'SULLIVAN

DEFENDANTS/RESPONDENTS

Abstract:

Tort - Medical negligence - Causation - Onus of proof - "But for" test - Whether onus of proof should be reversed or transferred to defendant - Whether trial judge had evidence to support finding

The plaintiff was born with severe brain damage. The defendants ultimately did not dispute that there had been negligence in that the plaintiff should have been delivered earlier but contended that the plaintiff's brain damage had been caused by an acute episode and that the outcome would not have been any different had she been delivered at an earlier time. The High Court (O'Sullivan J.) dismissed the plaintiff's claim and awarded costs in favour of the defendants.

Held by the Supreme Court (Denham, Geoghegan and Kearns JJ) in dismissing the appeal that the trial judge was entitled to conclude, as he did, that the evidence led on behalf of the defendants was such as to bring about a situation where the plaintiff had not tilted the scales decisively in favour of the case of causation contended for by the plaintiff's experts. The "but for" approach to causation had to be followed by the Court. Any approach which had the effect of reversing the onus of proof would be one of such importance that it would require a full court - or perhaps even legislation - before a change of such magnitude to the existing law could take place.

Reporter: R.W.

1 JUDGMENT of Mr. Justice Kearns, delivered the 8th day of April, 2005.

2 The facts of this case and the evidence at trial are set out fully and comprehensively in the judgment of the learned trial judge (O'Sullivan, J) in the High Court and do not require detailed elaboration in this judgment.

3 The plaintiff was born on the 4th May, 1990 in Limerick Maternity Hospital at a gestational age of 39 weeks and 1 day. She brings these proceedings through her mother and next friend, Kathleen Quinn, with whom she resides at Fortanne, O'Callahans Mills, County Clare. The first named respondent has or had responsibility for the Limerick Maternity Hospital at the material time. The second named respondent is a consultant obstetrician and gynaecologist who had responsibility for the obstetric management of the plaintiff's gestation and subsequent delivery. When Anne Marie was born she had severe brain damage attributable to a condition subsequently diagnosed as periventricular leukomalacia (PVL). The basis of her case against the defendants in the High Court was that she ought to have been delivered not later than week 35 of her gestation, in which case it was contended the plaintiff would have avoided all, or substantially all, of the brain damage which occurred.

4 The defendants ultimately did not dispute that there had been negligence in the management of the pregnancy and that the plaintiff should have been delivered earlier than she was. However, the defendants contended that the plaintiff's brain damage was sustained as a result of an acute episode which occurred between 28–30 weeks of the pregnancy and that the outcome would not have been any different had she been delivered at any earlier time than she was.

5 The hearing before O'Sullivan J. was spread over a period of 17 days between the 13th May and 16th July, 2003, following which judgment was delivered on the 14th October, 2003. It had been agreed between parties that the trial should deal only with the issues of breach of duty, causation and life expectancy - the issue of damages (if any) being postponed until these issues were decided. In delivering judgment, O'Sullivan J. dismissed the plaintiff's claim and on the 31st October, 2003, awarded costs in favour of the defendants.

6 The plaintiff's mother is an insulin-dependant diabetic who was diagnosed as such in 1988 and her pregnancy is thus agreed to have been a "high risk" pregnancy. She consulted her general practitioner regularly during the pregnancy and also attended at the first named defendant's diabetic clinic in Limerick Regional Hospital. She was weighed regularly and her blood sugar levels noted. Some high blood sugar readings were recorded on the 7th September, 1989, along with some hypoglycaemic episodes. A change in insulin regime was put in place in September, and an incident of vaginal bleeding was noted on the 25th October. There was also a recorded weight loss of 2 kilos between 3rd October and 2nd November.

7 On the 7th November, 1989 (at 14 weeks gestation), the plaintiff's mother attended the second named defendant for the first time. She had been referred by her general practitioner and saw the second named defendant on four subsequent occasions thereafter, those dates being the 2nd January, 1990 (22 weeks gestation), the 27th February, 1990 (29 1/2 weeks gestation), the 10th April, 1990 (36 weeks gestation) and the 1st May, 1990 (39 weeks gestation).

8 On the 2nd March, 1999 (at 30 weeks gestation), her general practitioner noted a drop in weight and queried "IUGR" (Intra Uterine Growth Restriction). This possibility was not further explored. On the 27th April, 1990, the general practitioner noted that despite a gestation of 38 weeks and 1 day that the fundus equalled 34 weeks. This was the first time that a discrepancy was noted between gestation and fundal height.

9 The plaintiff's mother made a further visit to the second named defendant on the 1st May, 1990 (at 39 weeks gestation), and he recorded a reduction in weight but did not note any discrepancy between the height of the fundus and gestation. No ultra-sound scans were at any time undertaken. On the 3rd May, 1990, the second named defendant suggested that the plaintiff's mother be admitted to Limerick Maternity Hospital and she was admitted there on the 4th May, 1990, at a point when gestation was at 39 weeks and 1 day.

10 A foetal heart monitor (CTG) was attached the reading from which was flat, meaning there was no base line variability and no accelerations. Delivery by caesarean section was ordered and at delivery there was a finding of "grossly diminished liquor volume"(oligohydramnios), liquor being the fluid surrounding the foetus in the uterus. At birth, the plaintiff's weight was 2.09 kilos with a head circumference of 30.5 cm. She was grossly and symmetrically growth retarded, her birth weight and head circumference being well below the third centile for the date of gestation.

11 She was a very ill child who had poor activity and a poor cry. At 1 minute the plaintiff's Apgar score was 3 and was 6 at 5 minutes. She developed respiratory problems and had poor colour, with twitching and chronic activity. Within 12 hours of birth the plaintiff suffered epileptic-type seizures. It became evident that the plaintiff had suffered major brain damage and a diagnosis of PVL followed.

12 A CT scan of the plaintiff's brain was performed on the 28th May, 1990, and a further CT scan was performed on the 7th June, 1990. Some 10 years later an MRI scan of the plaintiff's brain was carried out on the 28th June, 2000.

13 While multiple grounds of appeal have been advanced on behalf of the plaintiff, her case can be fairly summarised in the following way. The plaintiff alleges that her difficulties evolved as part of a unitary pathological process, namely, placental insufficiency (most probably linked to maternal diabetes), which caused a chronic hypoxic ischaemia in utero. This led to a gradual deprivation of oxygen and vital nutrients from before the 28th week which continued up to birth at 39 weeks and 1 day. An important feature of the early stages of this process on the plaintiff's case was the suggestion that a compensatory mechanism known as "brain sparing" would have operated. Under this process, the brain would have been preferentially favoured by shunting of the available blood and oxygen supply at the expense of other organs during the initial period of chronic placental insufficiency, but this process could not have continued beyond 35 weeks. Had there been proper scanning and other monitoring, the fact that there was IUGR. would have been detected at around 30 weeks and this in turn would, it was contended, have led to delivery between the 32nd and 35th week of gestation thereby avoiding the catastrophic and irreparable damage caused to the plaintiff's brain thereafter and in the neo-natal period. The witnesses for the defendants, however, denied that the plaintiff's PVL was caused by a lengthy process which was continuing up to the time of delivery and denied that it was the result of placental insufficiency. They contended that there was an acute, relatively brief insult at 28 weeks to 30 weeks which caused catastrophic brain damage, and that the growth retardation was either caused by the same insult or resulted from the brain damage which occurred at that time. The defendants ultimately accepted during the trial that there was a period of placental dysfunction during the 3 to 4 weeks prior to delivery, but denied that this was connected with the plaintiff's brain damage. In making their case, the defendants relied in particular on the information subsequently yielded up by the MRI scan. The MRI scan was the subject of detailed investigation and evidence by Professor Olaf Flodmark, a distinguished consultant neuroradiologist from Stockholm who was retained on behalf of the defendants, whose evidence as to the timing of the injury at 28 to 30 weeks was to prove decisive in the decision ultimately arrived at by the trial judge.

14 Both Professor Flodmark and Dr. King, a consultant paediatric neurologist who was also called for the defendants,...