Cooke v Cronin & Neary

• Jurisdiction: Ireland
• Judge: LYNCH J,Justice Denham,Keane
• Judgment Date: 14 July 1999
• Neutral Citation: [1999] IESC 54
• Court: Supreme Court
• Date: 14 July 1999

COOKE v. CRONIN & NEARY

BETWEEN:

EILEEN COOKE

APPELLANT/PLAINTIFF

AND

BASIL CRONIN AND MICHAEL NEARY

RESPONDENTS/DEFENDANTS

[1999] IESC 54

DENHAM J

KEANE J

LYNCH

THE SUPREME COURT

Synopsis

Medical Negligence

Professional negligence; personal injury; damages; plaintiff had given birth to a healthy child; during childbirth, an episiotomy cut had been required; cut was stitched after birth using eight soluble stitches (internally) and four non-soluble stitches (inserted in the outer skin); three non-soluble stitches fell out before they were due to be removed; plaintiff seeking damages for personal injury due to the alleged professional negligence of the defendants; High Court had dismissed plaintiff's claims; whether defendant had sewn stitches too tightly; whether defendant had been shown to be negligent.

Held: Appeal dismissed; High Court finding manifestly supported by the evidence.

Per curiam: commencement of professional negligence proceedings is irresponsible and an abuse of the process of the Court unless the persons advising such proceedings have reasonable grounds for so doing; greater care should be taken when drafting Notice of Appeal carefully to identify the parties.

Cooke v. Cronin - Supreme Court: Denham J., Keane J., Lynch J. - 14/07/1999

The plaintiff appealed the decision of the High Court that she had not suffered any loss or damage as a result of the defendants' professional negligence. The appeal was entirely unstateable; the plaintiff's symptoms had not been caused by the negligence of the defendants. The joinder of the second defendant as a personal defendant was unwarranted. His inclusion as a respondent on appeal was deplorable and could not be excused by the apology that his inclusion on the notice of appeal was an oversight. Alleging professional negligence where there are no reasonable grounds for doing so is irresponsible and an abuse of process of the Court. The Supreme Court so held in dismissing the plaintiff's appeal.

Citations:

REIDY V NATIONAL MATERNITY HOSPITAL UNREP BARR 31.7.1997 1998/10/2907

CONNOLLY V CASEY & FITZGIBBON UNREP KELLY 12.6.1998 1998/14/4864

WOOLF ACCESS TO JUSTICE FINAL REPORT CH 15 195–196 (1996)

1 14th DAY OF JULY1999BY LYNCH J

LYNCH J

2 This is an appeal by the Plaintiff against an Order of the High Court(Quirke J) made on the 10th July 1998 dismissing her claim for damagesfor personal injuries allegedly due to the professional negligence ofmedical practitioners in Our Lady of Lourdes Hospital Drogheda, CountryLouth who are sued through their nominee, the first Defendant.

3 The Plaintiff was born on the 9th September 1967. She was admitted tothe hospital on the 12th February 1990 then aged approximatelytwenty-five and a half years in the expectation of the imminent birth ofher first child. A healthy child was born to the Plaintiff on the 13thFebruary 1990 during the course of which an episiotomy cut was required.Following the birth, the episiotomy cut needed as usual to be stitched.Eight catgut soluble stitches were inserted in the internal muscularparts of the vagina and four nylon non-soluble stitches were inserted inthe outer skin. One of the nylon stitches fell out on the fifth dayafter thebirth: two fell out on the sixth day after the birth and the fourth wasremoved on the seventh day when the nylon stitches were scheduled to beremoved in any event. It is in relation to the fact that three of thefourth nylon stitches fell out as aforesaid that the Plaintiff allegednegligence against the medical practitioners in the hospital. She hadalso complained in her Statement of Claim of difficulties in inducinglabour: of difficulties in inserting a drip after labour was induced:and of difficulties in administering an effective local anaesthetic forthe purpose of stitching the episiotomy out but none of those complaintswas pursued at the trial in the High Court. The sole issue in High Courtand on this appeal was an allegation that the four nylon stitches hadbeen sewn too tightly and as a result fell out leaving the outer aspectof the episiotomy cut to heal by secondary intention and thus allegedlycausing a tenderness, discomfort and a lack of elasticity in thevagina.

4 For the defence it was accepted that if the nylon stitches had been sewntoo tightly and as a result thereof had fallen out and had caused to thePlaintiff the tenderness, discomfort and disability complained of, thatwould amount to actionable negligence. It was however vehemently deniedthat the stitches had been sewn in too tightly and further denied thatthe Plaintiff suffered the alleged tenderness, discomfort or lack ofelasticity in the vagina.

5 The Plaintiff's case was sought to be established by calling aswitnesses only the Plaintiff herself and a general medical practitionernamely Dr. Dermot Halpin. Dr. Halpin was the Plaintiff's solicitor's ownpersonal general practitioner. He was not the Plaintiff' for the firstand only time on the 15th June 1998 and reported on the 16th June 1998the case being then scheduled to commence on the 17th June 1998. It wasexplained on behalf of the Plaintiff that her usual general medicalpractitioner was unavailable because he was on holidays and hence thereferral to Dr Halpin. Howeverthe case did not go on the 17th June. It was adjourned for three weeksto the 8th July and it went on on that day and the following day andjudgment was reserved overnight and delivered on the 10th July 1998.Presumably by the 8th July the Plaintiff's own general medicalpractitioner was available, but if he was, he was not called as awitness.

6 The Plaintiff said that she was told by Dr Neary that the stitches fellout because they must have been sewn in too tightly. Dr Halpin said thatthe only reason why the stitches would have fallen out in the cause ofthe Plaintiff was because they were sewn in too tightly in the firstplace.

7 Dr Pauline Morris who had done the stitching gave evidence on the 9thJuly 1998 as follows;

"170	Q	Would you use any instruments when you are suturing?
	A	Yes you would. You would have the needle and the material and youwould have the forceps to hold those. You would stitch we two pieces ofmuscle or vaginal wall together with the suture and you would tie theknot. After completing that you would hold up the knot and with closedscissors you insert them between the skin and the knot to ensure thatthere was adequate space.
171	Q	When you finish you hold up the knot to slide the scissorsunder?
	A	The closed scissors underneath.

172	Q	Closed scissors?
	A	Yes.
173	Q	Why do you do that?
	A	to ensure that the stitches are not pulling tootightly."

8 And again at questions 199 to 204:

ldquo;199	Q	In your experience from putting in sutures and in your time inthe hospital was it unusual for sutures to fall out?
	A	They do fall out on occasions yes.
200	Q	So if is not an unusual occurrence?
	A	It is not an unusual occurrence no.
201	Q	You heard the evidence I think of the plaintiff that she allegedthat Dr Neary had told her that the sutures were put in tootightly?
	A	Yes.

202	Q	From your experience in the hospital and dealing with Dr Neary ifthat had happened would you have heard anything from Dr Neary?
	A	Of course. Yes. He would have said it back to me.
203	Q	What would he have done?
	A	He would have indicated that the stitches were incorrectly put inand would have been shown me and instructed me how to do them correctlyif that was the case.
204	Q	Would he have in a sense had you back for retraining?
	A	He would yes."

9 Dr Neary gave evidence of being asked to examine the Plaintiff after thefirst stitch had fallen out and of doing so and he continued asfollows:

"335	Q	You had to examine Ms Cooke, obviously, on thisoccasion?
	A	I did, yes.
336	Q	Would you have had an opportunity of observing the three stitcheswhich were still in position?

	A	Oh I did. They appeared perfectly normal.
337	Q	If there had been anything abnormal about them such as they weretoo tight or were biting into the skin or something of that sort wouldyou have recorded it?
	A	I would yes.
338	Q	Would you have done anything about it?
	A	I would have removed them.
339	Q	That is what this case is about, the suggestion being that thesestitches had been put in too tightly. As far as your records go, did yousee anything of that sort?
	A	I saw no evidence of that at all ...
370	Q	Had you at any stage mentioned anything to Ms Cooke about thestitches having been put in too tightly?
	A	No.

371	Q	Had you found anything to suggest that they had been put in tootightly?
	A	No.
441	Q	Is there any particular reason why that particular stitch wouldbe the first to give?
	A	Not really. Any of the sutures can fall out at any time andindeed do. We do not have a particular reason for it. It is notsomething that we particularly worry about.
442	Q	When that stitch had fallen out you had no reason to suspect thatthe other stitches were suspect or liable to -
	A	No. The other stitches looked to be perfectly well inserted andlooked entirely normal.
443	Q	Can you given an explanation to the Court how those stitches fellout within the next eighteen hours of you inspecting the wound, how theywould have fallen out and why they had fallen out?

	A	I have no idea. Absolutely not. Stitches sometimes fall out.Five/six days after delivery it is not something we particularly worryabout, because the majority of healing has taken place at the time. Wewould have taken the sutures out on the following day anyway.
449	Q...