Doherty v Reynolds and St. James Hospital Board

• Jurisdiction: Ireland
• Judge: Keane C.J.
• Judgment Date: 15 July 2004
• Neutral Citation: [2004] IESC 42
• Court: Supreme Court
• Date: 15 July 2004

[2004] IESC 42

THE SUPREME COURT

Keane C.J.

Murray J.

Fennelly J.

86/04

DOHERTY v. REYNOLDS & ST JAMES HOSPITAL BOARD

BETWEEN

CHRISTOPHER DOHERTY

PLAINTIFF

AND

JOHN REYNOLDS AND ST. JAMES'S HOSPITAL BOARD

DEFENDANTS

Citations:

LINDSAY (MINOR) V MID WESTERN HEALTH BOARD 1993 2 IR 147

DELANEY V SOUTHMEAD HEALTH AUTHORITY 1995 6 MED LR 355

RATCLIFFE V PLYMOUTH & TORBAY HA 1998 LLOYDS 162

SCOTT V LONDON & ST CATHERINE DOCKS CO 1865 3 HNC 596

GIRARD V ROYAL COLUMBIAN HOSPITAL ET AL 1976 66 DLR (3D) 676

Abstract:

Medical negligence - Liability - Appeal - Personal Injury - Negligence -Res Ipsa Loquitur - Whether the plaintiff suffered from a traction injury or a brachial neuritis - Whether the maxim res ipsa loquitur properly applied.

Facts: The matter came before the Supreme Court by way of an appeal from a decision of Mr Justice O’Donovan in the High Court, which found the second named defendant (hospital) liable in negligence to the plaintiff. The action against the first named defendant (surgeon) was dismissed. In 1996 the plaintiff was admitted to St James’s Hospital in order to undergo an operation known as Nissen Fundoplication. The plaintiff subsequently claimed that as a result of the negligence of the surgeon and/or hospital he sustained a traction injury to a neurostructure called the brachial plexus and that that resulted in a permanent disability in his right shoulder and right arm. Following the plaintiff’s discharge from hospital he attended two general practitioners complaining of pain in his right shoulder, arm, and wrist. Subsequently, the plaintiff was admitted to Beaumont Hospital on 13 January, 1997 and he was found to be suffering from significant pain and limitation of movement in the shoulder area. Two consultant neurologists provided conflicting evidence. Specifically, Dr. Harvey gave evidence that the plaintiff’s condition was the result of him having suffered a traction injury to the brachial plexus during the peri-operative period. However, Dr. Hutchinson submitted that the plaintiff’s symptoms were due to a syndrome called brachial neuritis. The plaintiff stated in evidence that he suffered considerable pain following the operation and he complained of that fact to the staff at the hospital prior to being discharged. Eight nurses gave evidence on behalf of the hospital, however they had no specific recollection of the plaintiff’s operation or stay in the hospital. Dr. Harvey was of the view that the plaintiff’ s injury was most probably caused by the plaintiff’s arm falling off the table at some time while he was under anaesthesia and that there must have been some flailing or rotating of the arm. The witnesses on behalf of the defendants gave evidence as to the procedure that would normally be followed in an operation of this nature and they stated that they had no reason to suppose that that procedure was not followed in relation to the plaintiff.

The trial judge was satisfied that the evidence of the plaintiff, his wife and his friend Father Flanagan as to what transpired when the plaintiff was being discharged from hospital was truthful and that the plaintiff experienced a weakness in his arm in the immediate post-operative period. The trial judge identified as a crucial issue whether the plaintiff’s problems were attributable to a traction injury or a brachial neuritis. The trial judge preferred the evidence of Dr. Harvey and concluded that as a matter of probability the plaintiff did not suffer a brachial neuritis and, therefore, as the only alternative diagnosis canvassed was a traction injury, on the balance of probability, the plaintiff was suffering from that. The trial judge went on to state that in his view this was a case in which the doctrine of res ipsa loquitur applied. The trial judge concluded that the defendants had not excluded the likelihood on the balance of probabilities that the injury suffered by the plaintiff was occasioned by sub-standard care on their part. Accordingly, he held that the plaintiff was entitled to succeed in his claim against the hospital. The defendants appealed that decision.

Held by the Supreme Court (Keane C.J., Murray, Fennelly JJ) in allowing the appeal, setting aside the order of the High Court and ordering a new trial:

1. That in practical terms the doctrine of res ipsa loquitur amounts to no more than saying that a plaintiff who is unable to prove a specific act or omission amounting to negligence against the defendant may, at the conclusion of his case, have established that he was injured as a result of the impact on him of a state of affairs under the control of the defendant - be it a premises, a surgical procedure or something else - in circumstances where he would not have suffered the injury if the defendant had used proper care. Where that much has been established there will be a prima facie case for the defendant to answer.

2. That this was not a clear case for the application of the doctrine of res ipsa loquitur as the plaintiff’s case depended on expert evidence as to the nature of the injury sustained by him, which was challenged on behalf of the hospital. However, it was accepted by the hospital that if the trial judge concluded that the plaintiff had suffered a traction injury, the maxim res ipsa loquitur applied.

3. That the trial judge was correct in treating the issue as to whether the plaintiff suffered from a traction injury or a brachial neuritis as of crucial importance. However, that was not a wholly discrete issue and should not have been resolved simply by considering the evidence of the two consultant neurologists. Accordingly, the trial judge erred in failing to take into account in resolving that issue the evidence adduced on behalf of the hospital as to the procedures normally adopted by them during the peri-operative period. The issue as to whether the plaintiff suffered a traction injury depended on whether, as a matter of probability, an event happened during the peri-operative procedure which caused such an injury.

4. That the trial judge erred in adopting the view that as the hospital staff were unable to recall the specific details of what transpired during the operation itself or the peri-operative period, they were unable to discharge the burden of proof resting on them of establishing that there was no negligence on their part. The trial judge, in adopting that approach imposed a burden of proof on the defendants which was unfair and unreasonable.

5. That the trial judge erred in attaching the weight that he did to the fact that some members of the staff who were present at various stages did not give evidence. The trial judge misdirected himself in law as to the approach he should adopt in determining whether the plaintiff had established negligence on the part of the hospital.

Reporter: L.O’S.

Keane C.J.

1 This is an appeal from a judgment of the High Court (O'Donovan J.) in proceedings in which the second named defendants (hereafter "the hospital") were found liable in negligence to the plaintiff. The action against the first named defendant (hereafter "the surgeon") was dismissed. The assessment of the damages, if any, to which the plaintiff was entitled had been left over until after the issue of liability had been resolved.

2 The factual background, insofar as it is not in dispute, is as follows. The plaintiff is a married man who lives with his wife and three children in Ballinasloe, Co. Galway and, at the time of the events which gave rise to these proceedings, was an electrician and service engineer. In the year 1991, when he was approximately 32 years of age, he began to suffer from gastric problems, taking the form of acid reflux and heartburn. It was ultimately established that this was due to a loose valve at the end of the oesophagus and that the appropriate treatment was an operation known as a Nissen fundoplication. The objective of this procedure was to tighten the valve and stop the reflux. The plaintiff was admitted to St. James's Hospital on the 12^th December, 1996 for the purpose of having this operation carried out by the surgeon.

3 The plaintiff's claim in these proceedings was that as a result of the negligence of the surgeon and / or the hospital he sustained a traction injury to a neurostructure called the brachial plexus which is situated in the shoulder / neck area of the body. This resulted, it was claimed on his behalf, in a permanent disability in his right shoulder and right arm.

4 Initially, the operation on the 13^th December took the form of laparoscopic surgery, involving the making of a number of small incisions rather than one larger incision with, as it was hoped, a shorter stay in hospital and a quicker recovery. As it proceeded, however, the surgeon decided that he would have to change to open surgery.

5 While there was considerable controversy as to the extent to which the plaintiff was suffering from pain and limitation of movement in his shoulder and neck area immediately following the operation and prior to his discharge from the hospital on the 18^th December, it is not in dispute that, having been seen by two general practitioners shortly afterwards, he was ultimately admitted to Beaumont Hospital on the 13^th January, 1997, where he had a number of tests. The plaintiff was found to be suffering from inter aliasignificant pain and limitation of movement in the shoulder area (effectively a "frozen shoulder") and it is not in dispute that this condition did not respond to any treatment until ultimately in December 2002 and February 2003 procedures were carried out in London which significantly reduced the pain.

6 Evidence was given on behalf of the plaintiff by Dr. Peter Harvey, a consultant neurologist, that the plaintiff's condition was the result of his having suffered a traction injury to the brachial plexus. He disagreed with the view of another...