Daniels v Heskin

• Jurisdiction: Ireland
• Judgment Date: 30 March 1954
• Date: 30 March 1954
• Court: Supreme Court

Daniels and Another v. Heskin

PATRICK DANIELS and PHILOMENA DANIELS

Plaintiffs

and

EDMOND HESKIN

Defendant.

Supreme Court.

Negligence - Doctor and patient - Insertion of stitches - Needle broken in course of stitching - Broken portion of needle left in patient's body - Failure to inform patient or her husband at time of accident - Needle removed after an interval of six weeks.

The second-named plaintiff gave birth to a child at her home on the 17th June, 1951, being attended by the local midwife. On the following day she was attended by the defendant, a medical doctor, for the purpose of inserting stitches in her perineum. While the defendant was inserting the stitches the needle broke. The defendant failed to find the broken portion of the needle and completed the stitching, leaving the broken portion in the patient's body. He did not inform either the patient or her husband of this fact. The patient was left in the care of the midwife, who had received instructions from the defendant that he was to be informed in the event of anything unusual occurring to the patient, and if the needle was not found within a period of six weeks the patient was to be X-rayed. Some six weeks later the midwife had the patient examined and X-rayed by another doctor, who performed an operation on the patient for the removal of the broken portion of the needle. The plaintiffs brought an action for damages in the High Court, and, on the trial of the action, the trial Judge, at the conclusion of the case, withdrew the case from the jury and gave a direction in favour of the defendant. On appeal by the plaintiffs it was

Held by the Supreme Court (Murnaghan, O'Byrne, Lavery and Kingsmill Moore JJ.; Maguire C.J. dissenting), affirming the trial Judge, that there was no evidence to support a finding that the breaking of the needle was caused by negligence; that the defendant in deciding to complete the stitching and to defer the operation for the removal of the broken portion of the needle acted reasonably and without negligence; that the non-disclosure to the patient or her husband of the fact that the broken portion of the needle remained in the patient's perineum did not cause damage, was reasonable in the circumstances and did not amount to negligence.

Gerber v. Pines 79 Sol. Jo. 13 discussed.

Appeal from the High Court.

The plaintiffs, Patrick Daniels and his wife, Philomena Daniels, sued the defendant, Edmond Heskin, a medical doctor, for damages for negligence in that he negligently and unskilfully permitted and caused a needle to break whilst stitching the second-named plaintiff's perineum and further permitted the broken portion of the needle to remain therein for a considerable time and failed to remove it or to inform the plaintiffs or either of them of the existence of the broken needle. The facts are summarised in the head-note and appear fully in the judgment of Maguire C.J., post. At the close of the defendant's case the trial Judge (Casey J.) acceded to an application on behalf of the defendant for a direction on the ground that there was no evidence upon which the jury might find that the defendant was guilty of negligence and judgment was entered accordingly. Against the said judgment the plaintiffs appealed to the Supreme Court (1).

Cur. adv. vult.

Maguire C.J. :—

The plaintiffs in this action, which was one of negligence tried by Mr. Justice Casey and a jury, seek to set aside the verdict and judgment entered against them by the direction of the trial Judge, and that a new trial be ordered.

They are husband and wife, and the negligence alleged is that of the defendant as a medical practitioner in his care of the wife. She had been safely delivered of a baby by the local midwife, Nurse Power. While being so delivered she suffered a tear of the perineum. The defendant, who is the dispensary doctor for the area, came in response to a summons from Nurse Power for the purpose of stitching the tear. While he was engaged in doing so a needle broke. Portion of this needle remained embedded in the flesh. The defendant completed the stitching with another needle. He did not tell the plaintiffs or either of them what had happened. They learned of it later and about eight weeks afterwards another doctor successfully removed the broken portion of the needle.

A medical practitioner is liable for injury caused to another person to whom he owes a duty to take care if he fails to possess that amount of skill which is usual in his profession or if he neglects to use the skill which he possesses or the necessary degree of care demanded or professed. This statement is taken from Halsbury's Laws of England, vol. 21, at para 634, and appears to me correctly to summarise the law.

It is conceded that the defendant did owe to the plaintiff, Mrs. Daniels, a duty to take care.

Negligence was alleged under three heads:— 1, the breaking of the needle; 2, failure to remove the broken portion promptly; 3, failure to inform the plaintiffs or either of them of the breaking of the needle.

The learned trial Judge ruled that there was no evidence to go to the jury upon which they could find negligence under any of these heads.

As regards the first head of negligence I am of opinion that there is no evidence upon which the jury could hold that the breaking of the needle was due to negligence on the part of the defendant.

The second head of negligence is that the defendant failed to remove the broken needle promptly from the body of Mrs. Daniels. From the expert evidence which on this point was in agreement, two courses were open; one was to suspend the stitching and have the broken needle removed before completing it; the other to complete the stitching and wait for a period of some weeks before having it removed. The latter was the course adopted by the defendant and from the expert evidence given it is clear that to adopt either course is in accordance with accepted medical practice. I am of opinion, however, that the question of whether the defendant was entitled to decide which course to adopt is wrapped up with the question whether it was his duty to inform either or both of the plaintiffs of the mishap directly it occurred.

The only case cited to the Court on this last question was Gerber v. Pines(1). There Mr. Justice du Parcq said that it seemed to him "that a patient in whose body a doctor found that he had left some foreign substance was entitled to be told at once. That was a general rule, but there were exceptions." Reference was also made to a note of an American case noted in Taylor's Medical Jurisprudence, 9th ed., vol. 1, at p. 83, Eislein v. Palmer(2), in which it was apparently decided that there was no duty on a physician to tell a patient or her husband that a broken needle had been left in the patient's body as long as she remained a patient but that there was a duty to tell her when discharging her from his care.

To my mind Mr. Justice du Parcq has laid down the rule correctly. In this case no reason is given why the defendant should be excused what seems to me to be his obvious duty. There was no evidence that any serious consequence would be likely to follow telling the patient what had happened

when it happened. Even if it were shown that to tell her might unduly shock Mrs. Daniels there is no reason why her husband should not have been informed. The fact that a choice lay between the two alternative courses of action mentioned above made it to my mind incumbent upon the defendant at least to inform the husband and to allow him to judge whether his wife should be told and in any case to allow the patient or her husband to make the choice. The defendant would clearly have advised that the stitching be completed and the operation of removing the broken needle deferred for some weeks. It was, however, the prerogative of the patient and her husband to decide whether they would accept or reject such advice if given.

In my view the jury should have been asked to consider the question whether or not the defendant was negligent in failing to inform the plaintiffs of the breaking of the needle.

The verdict and judgment should be set aside and a new trial should be ordered.

Murnaghan J. :—

I agree with the judgment about to be read by Mr. Justice Lavery.

O'Byrne J. :—

I agree with the judgment about to be...