Byrne -v- Ryan, [2007] IEHC 207 (2007)

Docket Number:2002 15260P
Party Name:Byrne, Ryan
Judge:Kelly J.
 
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THE HIGH COURT[2002 No. 15260P]BETWEENBRIDGET BYRNEPLAINTIFFAND

JOHN RYANDEFENDANTJUDGMENT of Mr. Justice Kelly delivered 20th day of June, 2007

INTRODUCTION

This is a claim for damages for negligence arising out of a failed sterilisation of the plaintiff. That sterilisation was sought to be achieved by a tubal ligation which was carried out in the Coombe Hospital on 16th December, 1999. Subsequent to it, the plaintiff bore two children.

She brings this claim against the defendant, who is the nominee of that hospital.

The plaintiff seeks damages under two headings. The first claim is for what her counsel described as the physical consequences of the failure of the operation. The second is for the recoupment of the cost of rearing the two children until such time as they cease to be dependant on their parents. In monetary terms this claim is by far the larger of the two.

Apart from the usual difficult questions which a court has to deal with in any medical malpractice suit this case has raised two others, neither of which have been the subject of judicial determination in this jurisdiction. The first is the vicarious liability, if any, of a public hospital for the negligence of a consultant doctor on its staff in treating a public patient. The second is the entitlement to recover damages for the cost of rearing a healthy child born subsequent to a failed sterilisation.

Neither of these questions will, of course, have to be answered unless the plaintiff proves that the operation in question was a failure and that its failure was as a result of the negligence of the consultant who carried it out. It is to these questions that I turn in the first instance.

The Plaintiff

The plaintiff was born on the 6th May, 1962. She married her husband Daniel on 13th October, 1979. She was then seventeen years of age.

The first of her seven children, James, was born on 17th December, 1979.

The plaintiff had a miscarriage in 1980.

On 27th December, 1981 her second son, Derek, was born.

On 19th November, 1984 she had twins, Donal and Aisling.

Her fifth child, Alan, was born on 19th June, 1988.

The plaintiff was dealt with in the Coombe Hospital for each of these confinements and for the miscarriage which took place in 1980.

In 1991 she had an ectopic pregnancy despite taking the oral contraceptive pill. Again she was treated in the Coombe Hospital. Following that experience she attended at the Adelaide Hospital for advice on the question of sterilisation. She decided against it. Throughout the 1990's she took the oral contraceptive pill.

In 1997 the plaintiff was involved in a motor accident and inter alia suffered depression as a result of it.

By late 1998, the plaintiff had decided that she did not want to have any more children. She was quite definite about it.

The plaintiff's general practitioner was Dr. Brian Dunne. She consulted him on the question of sterilisation. As a result he wrote a letter of referral to the Coombe hospital in the following terms: "19th November, 1998

Gynae Clinic

Coombe Hospital,

Dublin 8 Re - Bridget Byrne, 1567 Lee Drive, Calverstown, Kilcullen, Co. Kildare.

Date of Birth 06/05/1962. Dear Doctor,I would be grateful if your (sic) send Bridget an appointment to be assessed for tubal ligation.

She has five children and had a tubal pregnancy in 1991.Many thanks.

Yours sincerely,

Dr. Brian Dunne". It was as a result of that letter that she ultimately came under the care of Dr. Charles Murray.

Dr. Charles Murray

Dr. Murray qualified in medicine at University College, Dublin in 1962. He then went to Leeds United Hospital were he worked in the women's and maternity hospital. Whilst there he obtained his membership of the Royal College of Obstetricians and Gynaecologists. Thereafter he went to the United States on a research fellowship. He returned to the Coombe Hospital in 1969 as Assistant Master. He was then made Senior Registrar and in 1975 became a Consultant at that hospital. He remained as a Consultant at the Coombe until his retirement in June, 2001.

Dr. Murray has extensive experience of performing tubal ligations. He carried out his first such operation in the middle of the 1960's in England. At that stage the procedure was done by open surgery. It was not done laparoscopically until more recent times.

Dr. Murray recounted that in his early years "tubal ligation wasn't tolerated" in the Coombe Hospital. Then the board of the Hospital allowed it in restricted circumstances. Following the decision of the Supreme Court in the McGee case (McGee v. Attorney General [1974] I.R. 287), all of this changed. To use his own words "the law changed and things changed from there. So I did an awful lot of them."

He recalled that he was asked by the then Master to take over the family planning clinic at the Hospital. He described that title as a misnomer because what he called "standard family planning" was conducted elsewhere and the patients referred to this clinic were almost universally sent for consideration for tubal ligation. Thus it was he who was in charge of the conduct of tubal ligations in the Coombe Hospital for many years. By the year 2000 he estimated that he would have carried out that procedure "in the high hundreds and probably in the thousands". He was therefore a consultant of great experience in tubal ligation.

The operation

The plaintiff was considered suitable for tubal ligation and it was carried out on the 16th December, 1999 by Dr. Murray. Not surprisingly he had no recollection of the operation but the theatre records and operating notes of the procedure had been kept and he was able to refresh his memory by reference to them.

The procedure was carried out laparoscopically. Dr. Murray described filling the plaintiff's abdomen with three litres of carbon dioxide gas and then inserting the relevant instruments around the belly button area. He discovered that there were multiple adhesions from the anterior abdominal wall present. That was because the plaintiff had had previous surgery and also had had an ectopic pregnancy. He dealt with those adhesions as part of the procedure. He was able to dissect them off with the instruments which he was using so that he could see what he was supposed to be doing. Then he "just clipped the tubes". He said there was a little difficulty because of the adhesions but he was satisfied that he had clipped the tubes.

Dr. Murray went on to say that over the years there were three or four instances where he was not altogether happy that he had achieved a satisfactory tubal ligation. In such circumstances he organised a histo- salpinogram to be carried out some six weeks after the operation. He did not do so in this case.

Following the operation Dr. Murray wrote to Dr. Dunne as follows:"This is just to let you know that your patient Mrs. Byrne had a laparoscopic sterilisation undertaken here a few weeks ago. The operation was straightforward and she was discharged a few hours later". In evidence Dr. Murray said that the use of the term "straightforward" in that letter meant that there were no complications. He pointed out that the procedure is fraught with a lot of serious things which may go wrong such as damage being caused to the bowel, to the bladder, or to blood vessels. What he meant by the letter was that nothing of that nature occurred.

It is quite clear that Dr. Murray believed that he had carried out an effective tubal ligation. He believed that he had been able to deal with the adhesions and had clipped the plaintiff's tubes. Had he had any doubts about, this I am satisfied that he would not have proceeded laparoscopically but would have changed to an open procedure and/or would have had a histo-salpinogram carried out. He was fully satisfied that the operation done by him was a success.

Unfortunately Dr. Murray was wrong. It is common case that a second tubal ligation was carried out on the plaintiff in December, 2002. It was done by Dr. Peter Boylan. He made a video recording of the procedure. The video was seen by Dr. Murray and he accepted (and indeed had no doubt) that, rather than clipping one of the plaintiff's fallopian tubes, he in fact attached the clip to tissue just beside it. He was unable to explain how this happened. Counsel then put the following questions to him:"Question: Doctor, I have to suggest to you that if you had been using the care which was appropriate to somebody of your experience and eminence that would not have happened? Answer: I was a very careful surgeon all my life.

Question: I understand that.

Answer: And I operated carefully. I cannot explain why this happened or how it happened but I would reject the idea that I wasn't careful.

Question: But it is not something that can happen if the procedure which you have described is carried out carefully? Answer: Well, we were dealing with adhesions here. I freed adhesions to a degree that allowed me, as far as I was concerned, to establish - I was not looking for the full length of the fallopian tube but for an area of tube that I could clip… Question: So the existence of the adhesions did not prevent you from identifying the fallopian tube?

Answer: I don't think so. I would doubt that.

Question: In fact you have already said to us that if you had been unhappy about your capacity to visualise the fallopian tube because of adhesions, you would have gone to a laparotomy?

Answer: I would have gone to a laparotomy, yes.

Question: So I now return to my question, Doctor, if you had removed or dissected away the adhesions sufficiently to visualise the fallopian tube, how could you apply the clip to something other than the fallopian tube if you had carefully followed the procedure which you have described to us?

Answer: I can't answer that one because I don't know, but I assume that I mistook a roll of tissue which was adjacent to the tube as the tube in this circumstance. That is all I can say. I have no idea…

Question: But what I am putting to you is that that...

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