Buckley (plaintiff) v O'Herlihy & National Maternity Hospital

CourtHigh Court
JudgeMr. Justice O'Keeffe
Judgment Date26 February 2010
Neutral Citation[2010] IEHC 51
Docket Number[No. 6193P/1999]
Date26 February 2010

[2010] IEHC 51


[No. 6193P/1999]
Buckley v O'Herlihy & National Maternity Hospital






GEOGHEGAN v HARRIS 2000 3 IR 536 2000/9/3504


FITZPATRICK v ROYAL VICTORIA EYE & EAR HOSPITAL (WHITE) 2008 3 IR 551 2008 2 ILRM 99 2007/23/4814 2007 IESC 51


Medical negligence

Duty of care - Professional negligence - Relevant principles which applied - Whether negligence against professionals distinct category of negligence - Tubal ligation - Injury to blood vessel - Nature of risk - Whether material risk - Whether warning of risk required - Whether sufficient warning given of potential risks - Whether subjective or objective approach applied regarding conduct - Post operative treatment - Whether failure to advise plaintiff to return to hospital - Dunne (an infant) v National Maternity Hospital & Jackson [1989] IR 91; Geoghegan v Harris [2000] 3 IR 536; Walsh v Family Planning Services Ltd & ors [1992] 1 IR 49; and Fitzpatrick v Royal Victoria Eye and Ear Hospital [2007] IESC 51, [2008] 3 IR 551 considered - Damages of €70,000 awarded against second named defendant only (1999/6193 - O Keeffe J - 26/02/2010) [2010] IEHC 51

Buckley v O Herlihy and National Maternity Hospital

Facts: The plaintiff claimed damages for negligence arising from a sterilization operation carried out by the first named defendant at the hospital of the second named defendant. A complication arose in the course of an operation. The plaintiff submitted that the warning given to her by the first named defendant was inadequate and that she should have been warned of the risk of an inadvertent injury to a blood vessel. The plaintiff also contended that the complications arising from the surgery were not competently dealt with. While the plaintiff signed a consent form, there was no mention by the doctor of any risk associated with the procedure of laparoscopy. Blood began to spurt from her stomach area after such a procedure at the site of the laparoscopy would. The issue arose as to the legality of the warning provided and the manner in which the hospital had dealt with the complications. Extensive evidence was provided as to the risks involved and the complications.

Held by O'Keefe J. that a warning should have given to the plaintiff by the first named defendant. Applying the objective test, as the plaintiff never received such a warning, her answer to a question asking how such a warning would have affected her attitude was necessarily hypothetical. It appeared that she would not have been deterred from proceeding. There was a lack of evidence as to the subjective issue. If the plaintiff had received the warning she would not have opted to forego the procedure. The evidence of the absolutely rate nature of the occurrence was extremely relevant. The Court accepted the evidence as to the account of the plaintiff of the bleeding and the evidence of the nurse informing the first named defendant as to the ooze of blood and that the nurse ought to have investigated this bleeding further and that the failure to proceed appropriately in this regard was a breach of the duty of care which the second named defendant owed to the plaintiff as a patient. The examination of the plaintiff by the first named defendant was in accordance with acceptable medical practices. There was a failure on the part of the second named defendant in its duty of care to the plaintiff in failing to advise the plaintiff to return to the hospital. No case of negligence was established as against the first named defendant and the plaintiff had succeeded against the second named defendant. General damages would be fixed at €60,000, with €10,000 for the future and an agreed amount of special damages.

Reporter: E.F.

JUDGMENT delivered by
Mr. Justice O'Keeffe
on 26th day of February, 2010

In this case, the plaintiff claims damages for negligence alleged to have occurred from a sterilisation operation carried out by the first named defendant on 14th October, 1997 at the second named defendant's hospital in Dublin. In particular, she complains about a complication that arose during the course of the operation which was caused to one of her blood vessels.


The first named defendant is the Professor of Obstetrics and Gynaecology at the second named defendant's hospital.


Counsel for the plaintiff stated that the plaintiff's case can be summarised in two ways: firstly, the plaintiff was not warned before she underwent the surgery of the risk which such surgery carries of inadvertent injury to a blood vessel. Secondly, when complications occurred, the plaintiff's problems arising from such complications were not competently dealt either in the immediate aftermath in hospital, or in the events that ensued subsequently.


The plaintiff was born on 15th April, 1960 and married Tony Collison on 30th March, 1985. She had three children who were born between June 1988 and October 1992. In 1997, she was a mainstream class teacher in a boy's school in Terenure. Her husband is a qualified secondary school teacher. The first named defendant attended the plaintiff for the birth of her three children. She subsequently had two miscarriages, one in June 1995 and the other in September 1995. She consulted the first named defendant in a follow up to the second miscarriage. Following the second miscarriage she discussed with the first named defendant having a sterilisation and he recommended that she should come back to him in six months time. She and her husband subsequently discussed it and thought about other methods of contraception. They went to two different clinics as they contemplated that her husband might have a vasectomy. She referred to pain being a complication of that procedure and they decided on sterilisation. They felt the procedure would be easier - a simple one day off work procedure.


She signed a consent form on 30th May, 1997 when she visited the first named defendant with her husband. At this consultation he said the procedure would be irreversible, that it was not foolproof, that there were possibilities that it might not work. There was a very slight possibility that she could become pregnant after the operation. He discussed the option that her husband may have a vasectomy. He explained to her that the procedure would be keyhole surgery, that the procedure would take place in the day ward and that she would go in and out on the same day. She would have to be picked up going home. She said that the first named defendant did not mention any other risks associated with the procedure.


She said that if mentioned to her that the procedure would carry a risk of an injury to one of her blood vessels even if the procedure was properly carried out, she would not have had the procedure as it was not necessary for her as they had used condoms and it was a procedure she did not need to have.


The consent form is a pre-printed form headed"Tubal Ligation. Consent by Patient". It stated that the plaintiff consented to undergo the operation of Tubal Ligation and that the nature and purpose of such operation had been explained to her by the first named defendant. It confirmed that she had been told that the intention of the operation was to render her infertile and incapable of becoming pregnant. It stated she understood that there was a small failure rate. It consented to the administration of a general, local or other anaesthetic. She understood that the procedure was not reversible. No assurance had been given to her that the operation would be performed by any particular surgeon. The form was dated and signed by herself and her husband. The form continued in the following terms and was signed and dated 30th May, 1997 by the first named defendant:-

"I confirm that I have explained the nature and purpose of this operation and during the consultation I discussed the following:


Alternative methods of contraception including vasectomy


Pregnancy may occur in cycle in which operation is performed


Risks of the operation/Risk of laparotomy if laparoscopy not feasible


Possibility of subsequent menstrual disorder


Later need for hysterectomy


Other matters discussed - specify


Failure rate 3/1000

I am also of opinion that Tubal Ligation is appropriate in this case."


In relation to the matters which the form states were discussed by the first named defendant with the plaintiff, she stated that the first named defendant had discussed alternative methods of contraception including vasectomy and that a pregnancy could occur in the cycle in which the operation was performed. There was no discussion, she said, on the risks of the operation/risk of laparotomy if laparoscopy was not feasible. Neither did she hear mention of a risk of possible subsequent menstrual disorder or a later need for a hysterectomy. She agreed that they had discussed irreversibility and the failure rate but did not recall a number being discussed. Whilst the procedure was originally to take place during the summer holidays it was subsequently arranged for 14th October, 1997.


She attended the day care centre around 8am on 14th October, 1997 and it was intended that her husband should pick her up from the day ward at 5pm on the same day. When she attended the day care centre, she signed two further consent forms. One was entitled Gynaecological Day Care Centre and her signature was witnessed by M. Jacob, a nurse in that department employed by the second named defendant. She also signed a second form entitled "Consent...

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