Doherty v Reynolds

• Jurisdiction: Ireland
• Judge: Mr. Justice Diarmuid O'Donovan
• Judgment Date: 13 February 2004
• Neutral Citation: [2004] IEHC 25
• Docket Number: No. 5682P/1999
• Court: High Court
• Date: 13 February 2004

[2004] IEHC 25

THE HIGH COURT

No. 5682P/1999

DOHERTY v. REYNOLDS & ST JAMES HOSPITAL BOARD

BETWEEN

CHRISTOPHER DOHERTY

PLAINTIFF

AND

JOHN REYNOLDS AND ST. JAMES HOSPITAL BOARD

DEFENDANTS

Citations:

BEST V WELLCOME FOUNDATION LTD 1993 3 IR 421

LYNDSAY V MID WESTERN HEALTH BOARD 1993 2 IR 118

Synopsis:

NEGLIGENCE

Medical negligence

Res ipsa loquitur - Whether doctrine of res ipsa loquitur applied - Whether injury could have occurred if plaintiff had received appropriate care all times (1999/5682P - O'Donovan J - 13/2/2004)

Doherty v Reynolds

Facts: The plaintiff was admitted to hospital and underwent an operation on his stomach area. After the operation the plaintiff experienced severe pain in his right arm and right shoulder and had since experienced disability and hypersensitivity in the arm. It was common case that there was nothing wrong with the plaintiff’s arm when he entered hospital. He brought a medical negligence action against the consultant surgeon who had carried out the operation and the hospital.

Held by O’Donovan J. in finding that the plaintiff was entitled to succeed against the hospital that the doctrine of res ipsa loquitur applied. The plaintiff’s claim against the surgeon failed. The injury suffered by the plaintiff had to be attributable to some want of care while he was under the control of the hospital and the court was entitled to conclude that the hospital was responsible without being able to say precisely how it was caused.

Reporter: R.W.

Mr. Justice Diarmuid O'Donovan

1 The plaintiff in this case, Christopher Doherty, is a 45 year old married man with three children, and he lives in Ballinasloe in Co. Galway. Prior to the events which have rise to this claim in December, 1996, he was a service engineer employed by Durkin Catering. Mr. Doherty told me that he was born and raised in Coventry of Irish parents, that he trained as an electrician in Coventry, that he met his wife in Coventry but that he came to Dublin to get married and, in the year 1982, he moved to Ballinasloe, where he has lived ever since. He has said that prior to the events which gave rise to this claim, he was in good health although he had suffered from chest pain associated with acid reflux and heartburn since about the year 1991. He said that, insofar as that condition was concerned, his general practitioner had referred him to the Portiuncla Hospital in Ballinasloe, which in turn, sent him to Galway for tests and, ultimately, he was sent to St. James Hospital in Dublin were he was advised that an operation would tighten a valve and stop the reflux. Apparently, his problem was a loose valve at the end of the oesophagus and the solution was an operation known as a nissen fundoplication. In that regard, the plaintiff gave evidence that he was told that the operation would take one of two forms; it could be done, laparoscopically involving five one inch incisions in the tummy area but without necessitating opening his chest, in which event he was told that he would be home on the same day because it was quite a simple operation. However, if that operation was unsuccessful or if, for whatever reason, it could not be performed, he would have to be subjected to an open operation, in which event he would be an in-patient for some days. In fact, that it was happened. In that regard, Mr. Doherty said that, in the month of March 1996 he had agreed to submit to one or other of those procedures and, for that purpose, he was admitted to hospital on 12^th December, 1996, which was a Thursday. As it happens, it seems that the plaintiff's medical advisors were so confident that they would be able to perform a laparoscopy on the plaintiff, thereby facilitating his discharge on the following day, that he was admitted to a five day ward, which closed on Saturdays and Sundays. Mr. Doherty described the circumstances of his admission to hospital; how the details of the operation to which he was about to submit was explained to him by a Dr. Guest and how he had signed an appropriate consent form. He said that it was expected that he would go down to the theatre early on the morning of Friday 13^thDecember, but the fact of the matter was that he was not taken to the theatre until about 1.00 pm on that day and, shortly before being taken into the theatre, itself, he was brought to an anti-room, where he recalled having a conversation with an anaesthetist and joking with him that it was as well that he, (the plaintiff) was not a superstitious person as it was then thirteen hours on Friday 13^th. Mr. Doherty said that that was his last recollection until he came too back in his ward very late in the evening of that day and the first thing that he remembers was seeing his brother in law, Mr. P.J. Madden, who immediately, rang the plaintiff's wife, Martina on his mobile phone. The plaintiff, recalled speaking to his wife, and telling her "I'm back, I'm, fine and I will talk to you tomorrow." He said that he thought that that was around 9.00 in the evening. He said that he had no other major memories of that day other than that he was quite sore and, when asked to locate the pain, he said "I was sore everywhere I just didn't know where I was the sorest." He said that he then realised, because Mr. Madden had told him so, that the operation to which he had been subjected had been converted from a laparoscopy into an open operation.

2 At this stage, I think it appropriate to refer to one of the many conflicts and inconsistencies which, throughout the trial of these proceedings, was manifest between; on the one hand, evidence led by the plaintiff and several witnesses called on his behalf and, on the other, the nursing and medical records relating to the period between 12^th December, 1996 and the 18^th December, 1996, inclusive, when the plaintiff was an inpatient at St. James Hospital and the evidence of several nurses and several doctors, who were called to give evidence on behalf of the defence with regard to events relative to the plaintiffs detention in hospital during that period of time. In this regard, the nursing notes relevant to the plaintiffs stay in St. James Hospital record that, following his operation, he returned to his ward at 6.00 pm and a nurse Evelyn Meaney gave evidence that she made an entry to that effect. However, a nurse Maloney, who gave evidence that she was the nurse in charge of the recovery room, being the room to which the plaintiff was transferred from the theatre in which his operation had been performed, said that there is a book in the recovery room which records the time at which the nurses in the recovery room contact the ward to which a patient is to be brought following an operation advising the ward that the patient is ready to be discharged from the recovery room and requesting that someone come from the ward to collect him/her. Insofar as the plaintiff was concerned, that book recorded that that request had been made at 6.00 pm on 13^thDecember, 1996. Furthermore a document entitled "surgical schedule" which, apparently, is an administrative form filled out by staff nurses and used for statistical purposes, records that the plaintiff was discharged from the recovery room at 18.20 hrs. Moreover, in the recovery room chart referable to the plaintiff, which is entitled "post operative assessment" Nurse Maloney gave evidence of having made entries relative to her observations of the plaintiff, the last such observations having been made at 6.20 pm on 13^thDecember, 1996. Nurse Maloney purported to explain these discrepancies by saying that, because experience has shown that there was very often a considerable delay between the time when a request is made to a ward to collect a patient from the recovery room and the actual time of collection, it very often happened that the request to the ward would be made well in advance of the time when the patient is actually ready to be transferred. However that does not explain why nurse Meaney recorded that the patient returned to the ward at 6.00 pm when nurse Maloney was still noting her observations of him at 6.20 pm nor does it explain the "surgical schedule" which records that he was discharged from the recovery room at 6.20 pm or the recovery room book which records that he was discharged from that room at the same time and to confuse matters further, Sister Linda Meyer, the Acting Clinical Nurse Manager, gave it as her recollection that the plaintiff left the recovery room at 6.50 p.m. When Nurse Meaney was asked to explain the discrepancy between her evidence and that of Nurse Maloney, her answer was that it would appear that the plaintiff did not, in fact, return to the ward at 6.00 pm but rather at 6.20 pm and what probably happened was that the phone call to the ward to collect the patient was made at 6.00 pm, as that was the time that stood out in her mind when she was making her nursing notes. However, while, perhaps, in the light of the evidence of nurses Maloney and Meaney, it is possible to understand some of the contradictions and inconsistencies in the hospital records with regard to the plaintiff's transfer from the recovery room to his ward, it is, in my view, impossible to reconcile those records with the evidence of the plaintiff's brother in law, Mr. Patrick Joseph Madden, who coincidently, was General Secretary of the Irish Nurses Organisation at the material time. In this regard, Mr. Madden gave evidence that, for some time prior to the events which gave rise to this claim, he had been aware that his brother in law, the plaintiff, was suffering from a gastric reflux problem which necessitated surgery and he was aware that that operation was to take place at St. James Hospital on Friday 13^thDecember, 1996. He gave evidence that, at approximately 5.45 pm on that day, he arrived at the hospital and asked at reception where he might find the plaintiff, in response to which request...