Buckley -v- O'Herlihy & Anor,  IEHC 51 (2010)
|Docket Number:||1999 6193 P|
|Party Name:||Buckley, O'Herlihy & Anor|
THE HIGH COURT1999 6193 P
TERESA BUCKLEY PLAINTIFFAND
COLM O'HERLIHY AND THE NATIONAL MATERNITY HOSPITAL DEFENDANTS
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's evidence
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:
bAlternative methods of contraception including vasectomy
bPregnancy may occur in cycle in which operation is performed
bRisks of the operation/Risk of laparotomy if laparoscopy not feasible
bPossibility of subsequent menstrual disorder
bLater need for hysterectomy
bOther matters discussed - specify
Failure rate 3/1000
I am also of opinion that Tubal Ligation is appropriate in this case."8. 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 Form". That form was signed by a medical practitioner. There was no mention by that doctor of any risk associated with the procedure of laparoscopy.
She was brought to the operating theatre. The medical records indicate that the operation was carried out at about 9am and that between 9.30am and 10.30am she was in the post operative area and at approximately 10.30am she was returned to the day care centre. She felt very tired that day sleeping on and off.
She recalled going to the toilet attached to the day care centre at around 3pm. She made her own way to the toilet and in the toilet she became nauseous and vomited. At the same time, blood spurted from her stomach area from her belly button area. She said it sort of spattered onto the walls behind the toilet from her bellybutton area. She was surprised and alarmed, she went outside the toilet and met a sister or a nurse and told her what had happened. She asked her to go back to the bed and lie down and said that she would call the first named defendant. He subsequently attended her and she conveyed her concern to him. She had no idea that event could possibly happen. As she was very concerned about what had happened she said she spoke about her husband who was due to collect her at 5pm and she did not want to leave. The first named defendant said that he would deal with the matter and that her husband could wait whilst he dealt with it. He said that he was going to put a stitch in. She said she knew from hindsight from talking to people that the first named defendant did put a stitch into the wound but she is not sure whether she was given any local anaesthetic prior to the stitch. Shortly after, the first named defendant had treated her, her husband arrived to drive her home.
She cannot remember getting any particular advice from the first named defendant before she went home other than to come back for a scheduled check-up.
On her way home she felt very unwell and faint. When she arrived home, she sat on the couch in the sitting room feeling tired and unwell. Later that evening, she realised that some blood had seeped through from the operation wound. She showed it to her husband who put another dressing on top of it. She went to bed around 10pm or 11pm feeling unwell and there was a lot of pain at that stage in the abdomen area. It was a sort of constant pain and very severe. She had not experienced this pain level earlier. Pain developed between 10.00pm/11.00pm and by midnight it was bad. She could not sleep and was in agony in the bed. The site of the laparoscopy wound as a result of the procedure was just below the bellybutton.
She informed her husband of the pain. Her husband made the telephone call downstairs to the second named defendant's hospital. Following this he gave her medication for the pain which he said was the advice which had been given to him on the phone by the hospital. She could not remember whether the painkiller was a prescription given to her or whether it was something she had at home but it eased the pain and she slept.
The following morning she said to her husband that she needed to go to the bathroom and she was again in pain. He went to bring the children to school. When he was gone out she walked out on her own and fainted onto the bed and lay there until he came back.
She told her husband what had happened. Her husband made a further phone call to the hospital, following which he gave the plaintiff painkillers. During that day she was weak and tired. She could not recall pain that afternoon. Later that evening she recalled getting up off the couch in the sitting room to go to bed and climbing the stairs and she felt what she was wearing appeared to be wet on the outside. She knew straightaway it was blood on the outside of what she was wearing. There seemed to be a lot of blood coming through her bellybutton area. The time was approximately 9pm on 15th October, she asked her husband to phone an ambulance. The blood was pumping out at that stage, very fast. The ambulance...
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