Browne v Van Geene

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 20 October 2017
• Neutral Citation: [2017] IEHC 612
• Judgment citation (vLex): [2017] 10 JIC 2015
• Court: High Court
• Docket Number: [2012 No. 3367 P.]
• Date: 20 October 2017

[2017] IEHC 612

THE HIGH COURT

Barr J.

[2012 No. 3367 P.]

BETWEEN

MARGARET BROWNE

PLAINTIFF

AND

PETER VAN GEENE

AND

MOUNT CARMEL MEDICAL GROUP (KILKENNY) LIMITED TRADING AS AUT EVEN HOSPITAL

DEFENDANTS

Tort – Damages & Restitution – Medical negligence – Loss of earnings – Nature and extent of injuries – Restricted employment – Disability allowance

Facts: The plaintiff filed a claim for damages against the defendants. The plaintiff contended that due to medical negligence of the first defendant, she had suffered medical complications and underwent several operations. The plaintiff claimed loss of past earning that was disputed by the defendants.

Mr. Justice Barr awarded general damages to the plaintiff along with the agreed special damages. The Court also allowed the damages for loss of job opportunity; un-vouched travel and subsistence expenses; and consultant reviews. The Court held that the plaintiff was left with no choice but to seek back office work due to medical difficulties experienced by her. The Court, however, declined to award disability allowance to the plaintiff on the basis that she had already been compensated by the Court for awarding damages for the loss of job opportunity.

JUDGMENT of Mr. Justice Barr delivered on the 20th day of October, 2017

Introduction

1 This is a medical negligence action, in which liability is not in issue. Very briefly, the plaintiff's case is that in the years prior to 2010, she had been quite unwell with complaints of chronic fatigue, urinary tract infections and most particularly, she felt unwell at the time of menstruation. After various unsuccessful tests and treatments, she was eventually sent to see a Dr. Stratton in Waterford University Hospital. He carried out a laparoscopy, which revealed that the plaintiff had extensive endometriosis and cysts on her ovaries. A decision was made that she would have operative treatment in the form of a total abdominal hysterectomy and an oophorectomy. Due to there being a long waiting list and the operation of the National Treatment Purchase Fund, the plaintiff came under the care of the first named defendant, at the hospital owned and ran by the second named defendant.

2 On 6th April, 2010, the first named defendant carried out the hysterectomy operation. In the course of that operation, he placed sutures in the ureter leading to the left kidney. This caused a total obstruction of the ureter. Unfortunately, despite the fact that the plaintiff had continuing distressing symptoms of pain, the blockage was not identified until the following month. At that time, the plaintiff had a further operation when a new ureter was effectively formed by means of a Boari flap. It is not necessary to set out the full extent of the plaintiff's complaints in the years that followed, as these are set out fully in the summary of her evidence given later in the judgment, suffice it to say that in the years which followed, the plaintiff continued to experience severe pain and discomfort. She underwent multiple investigations and procedures. Eventually, a decision was made that her left kidney was functioning at such a low level, that it needed to be removed. Accordingly, on 15th April, 2013, the plaintiff underwent a total left nephrectomy.

3 It is the plaintiff's case that notwithstanding this further treatment, carried out in 2013, she continues to experience significant sequelea as a result of the negligent operation carried out in April 2010 and the subsequent investigations and procedures carried out in the years thereafter, culminating in the left nephrectomy in April 2013. In particular, her main complaint is that she has been left with an unstable bladder, such that she is obliged to go to the toilet on a very frequent basis; approximately 10 – 14 times during the day and approximately 4 – 10 times at night. She further claims that she has experienced psychiatric illness as a result of the injuries and the protracted treatment given to her in the years 2010 – 2014, in the form of Post Traumatic Stress Disorder and depression. The plaintiff states that while improvement has been made in relation to these complaints, she has been advised that further psychiatric treatment, in the form of cognitive behavioural therapy, is needed. Finally, she complains that since the index event, she has experienced pain in her back and in her side, and since 2013 she has also experienced phantom pain in the area of the left kidney. Additionally she complains of some loss of sensation and pain on touch to the outer aspect to the left leg.

4 The plaintiff alleges that as a result of the complaints outlined above, she has been disabled in the work aspects of her life and remains so disabled. She claims that she will only ever be fit for part time employment, if she can obtain a job where she will be able to go to the toilet on a frequent basis. This gives rise to a significant claim for loss of earnings and other ancillary losses into the future.

5 The defendants' case can be briefly summarised in the following terms: firstly, the defendants accept that the plaintiff suffered a significant injury as a result of the negligence of the first named defendant when carrying out the hysterectomy operation in April 2010. They accept that the plaintiff was subjected to a number of invasive treatments and tests in the years between 2010 and 2013, culminating in the left nephrectomy in April 2013. They accept that she suffered significant pain and distress during this period.

6 The main point of dispute between the parties, is whether the plaintiff has any significant ongoing complaints after the nephrectomy operation in 2013. The defendants submit that allowing for the post operative recovery period after the nephrectomy operation, the plaintiff had gone on to make a good physical recovery by the end of 2013. In support of that proposition, the defendants point to the fact that the plaintiff set up her own online clothing business, which commenced trading in January 2014 and continued until November 2016. In addition, she had a small shop premises on the quay in Waterford, which opened in January 2014, and continued until 9th July, 2015, when the plaintiff announced on her Facebook page that she was closing the shop for health reasons and due to the economic climate. However, she continued the online business for a further eighteen months until November 2016.

7 In further support of their submission, the defendants point to various notes made by unconnected doctors who treated the plaintiff in the years 2014 and 2015, wherein it was noted that the plaintiff was generally well and much improved when they saw her in various outpatient clinics. The defendants also refer to the plaintiff's G.P. records which show that while there was a significant number of visits by her to the G.P. in 2014, there were only two visits in relation to complaints connected to these proceedings in 2015 and three visits in 2016, but these may have been to do with psychological issues.

8 In further support of this contention, the defendants point to the fact that the plaintiff was able to enter a dancing competition in 2015, and was engaged in organising a fashion show to be run in conjunction with the dancing competition. The only reason that she did not complete these projects, was due to the fact that she had an ongoing knee injury, which required surgery in the middle of 2015. That knee injury was totally unconnected with the injuries the subject matter of these proceedings. The defendants also refer to the fact that at some time in early 2016, the plaintiff participated in a promotional video, which was placed on YouTube wherein she was shown participating in a vigorous boxing exercise lasting a number of minutes. This video was made to promote a personal trainer and his gym, which the plaintiff had attended for some months in 2015.

9 In these circumstances, the defendants submit that while the plaintiff certainly had a torrid time in the years 2010 to 2014, by January of 2014 she had gone on to make a reasonably good recovery from her physical injuries. They submit that the plaintiff is no longer restricted in the work that she can do. It was submitted that this was demonstrated by the fact that she ran her own clothing business for three years until November 2016. While the plaintiff had argued that she had closed the online business because she could no longer cope with the demands of that work, the defendant submitted that having regard to the postings on her Facebook page, she was well able for the demands of the work. They submitted that the real reason the shop had closed, was probably due to commercial reasons, such that her business was simply not economically viable in the current market. On the basis that the plaintiff had engaged in this business for three years, the defendants submitted that there should not be any award of damages for loss of earnings into the future.

10 In relation to the plaintiff's psychiatric difficulties, the defendants accept that she has some continuing P.T.S.D., but it was submitted that her psychiatric difficulties are not affecting her ability to work, as in fact had been conceded by the plaintiff in cross examination. They submitted that the plaintiff will go on to make a full recovery from her ongoing psychiatric difficulties in the near future.

11 Finally, the defendants have submitted that in relation to the loss of earnings claim put forward by the plaintiff, both in relation to her past loss of earnings and in relation to her alleged future loss of earnings, the plaintiff had attempted to mislead the court in a material respect and that accordingly, her entire action should be dismissed pursuant to the provisions of s. 26 of the Civil Liability and Courts Act 2004. The plaintiff's loss of earning claim had been based on the fact that she...