Dunne (an Infant) v National Maternity Hospital

Judgment Date14 April 1989
Neutral Citation1989 WJSC-SC 165
Docket Number286, 290 & 291/88,[1985 No. 2015P]
CourtSupreme Court
Date14 April 1989





1989 WJSC-SC 165

Finlay C.J.

Criffin J.

Hederman J.

286, 290 & 291/88





Childbirth - Obstetrician - Duty of care - Standard - General and approved practice - Principles applicable - Review of authorities - Conflicting evidence - Jury trial - Misdirection - Retrial - Twin pregnancy - Single live birth - Brain damage - Foetus deprived of oxygen - Spastic quadriplegic - General damages - Plaintiff unaware of his condition - On becoming pregnant, the plaintiff's mother consulted the second defendant, a consultant obstetrician, and was accepted by him as a patient - On 10/3/82 they became aware that there was a twin pregnancy - Labour commenced at 9 a.m. on 20/3 and the plaintiff's mother was admitted to a labour ward in the defendant hospital at 11.15 a.m. on that day - The consultant had been in the hospital before the plaintiff's mother arrived there but had left before her arrival - At 12.10 p.m. the consultant was informed by telephone that the membranes had been punctured, that grade 1 meconium had been discovered, that a foetal heart had been found by auscultation and that the dilatation of the cervix was three centimetres - The consultant was aware that it was standard practice at the defendant hospital for the staff to seek to identify only one foetal heart in the event of a known twin pregnancy; he did not direct any alteration of that practice - At 1.40 p.m. the mother experienced tumultuous foetal movements lasting about fifteen minutes. At 2 p.m. the consultant was informed by telephone that the progress of the labour was very slow and that the dilatation remained at three centimetres - The consultant directed that, to expedite the labour, the mother should walk up and down the corridor - At 4 p.m. he was informed that, despite that exercise, there was no further progress and he directed that the mother be put on an oxytocin drip and examined by the assistant master at the hospital - That treatment was applied at 4.15 p.m. but was discontinued after five minutes - The assistant master carried out a foetal blood test on the scalp of the plaintiff, who was the leading twin, and it proved to be normal; thereafter a continuous electronic monitor was attached to the plaintiff's scalp - The plaintiff was born naturally at 5.15 pm and the other twin was born dead and macerated fifteen minutes later - The plaintiff was born with severe brain damage; he was a spastic quadriplegic and was completely dependent on others for all his needs - He was unaware of his condition - The plaintiff claimed damages from the defendants in the High Court and alleged that his condition had been caused by their negligence during the course of his mother's labour - The trial of the action, before a judge and jury, lasted for fifteen days - The jury found that the defendants had been negligent and awarded the plaintiff #1,039,334 damages of which the sum of #467,OOO was awarded as general damages - The defendants appealed against the order of the High Court - At the hearing of the appeal, some of the main issues were whether or not there was evidence to support (1) the jury's finding that the plaintiff had suffered brain damage as a result of being deprived of oxygen for a period of hours during his mother's labour; (2) the jury's finding that the injury to the plaintiff's brain did not occur until after 1.30 p.m. on the day when he was born and (3) the jury's finding that the plaintiff's serious foetal distress would have been discovered if an electronic monitor had been attached to the foetus before that time. At the trial the evidence of competent medical witnesses in support of those findings was controverted strongly by the similar witnesses called by the defendants - Another issue considered by the appellate court was whether or not the jury, if properly directed on the relevant legal principles, could have found that the defendants were negligent in failing to attempt to identify a second foetal heartbeat. At the trial there had been conflicting evidence by medical experts on that issue also - The defendants contended that the evidence adduced on their behalf at the trial was such that the jury's findings on those issues were perverse and unreasonable - Held, in allowing the defendants" appeal, that the Court must decide whether the expert medical evidence adduced on behalf of the plaintiff was capable of supporting the challenged findings of the jury - Held that a trial judge should withdraw an issue of fact from the jury if the evidence given to establish that fact was incapable of belief in the light of the totality of the evidence before the court - Held that the evidence adduced at the trial on behalf of the plaintiff supported the challenged findings and that the issues resolved by those findings had been properly left to the decision of the jury by the trial judge despite the strong conflicting evidence adduced on behalf of the defendants; ~Northern Bank v. Charlton~ [1979] I.R. and ~McGreene v. Hibernian Taxi Co.~ [1931] I.R. considered - Held likewise that, if properly directed, the jury could have found that the failure to attempt to discover a second foetal heartbeat amounted to negligence as they were entitled to accept the evidence to that effect adduced on behalf of the plaintiff in preference to the conflicting evidence adduced by the defendants on that issue - Held, accordingly, that no question arose in regard to a jury finding made against the weight of the evidence adduced at the trial: ~McGreene v. Hibernian Taxi Co.~ [1931] I.R. considered - Held that the trial judge's charge to the jury on the subject of a search for a second foetal heartbeat was incomplete since the judge had failed to instruct the jury fully in regard to their function in regard to a finding on the issue of such a search - Held that the trial judge had failed to instruct the jury that, if they concluded that there was a general and approved practice in medical circles to monitor two foetal hearts in such circumstances, they should not find the defendants negligent on the ground of a failure to attempt to discover a second heartbeat unless the jury also concluded from the evidence that no hospital medical administrator or consultant obstetrician would have omitted to make such attempt if exercising appropriate ordinary care - Held, further, that the trial judge had failed to instruct the jury that, if they concluded that the monitoring of a single heart in such circumstances was in accordance with general and approved practice in medical circles, they should not find the defendants negligent unless the jury also concluded from the evidence that such practice was inherently and obviously defective: ~O'Donovan v. Cork County Council~ [1967] I.R.; ~Reeves v. McCarthy~ [1984] I.R. and ~Roche v. Pielow~ [1985] I.R. considered - Held that there had been a misdirection in relation to an essential issue and that there should be a retrial on the issue of liability - Held that the evidence relating to the use of an oxytocin drip for five minutes should have been ignored since there was conclusive evidence that such limited use could have had no effect on the plaintiff - Held that the award of #467,00O as general damages was excessive to an unreasonable degree having regard to the ratio between that sum and the total damages awarded by the jury, and having regard to the plaintiff's lack of awareness of his condition: ~Foley v. Thermocement Products Ltd.~ 90 I.L.T.R.; ~Doherty v. Bowater Ltd.~ [1968] I.R.; ~Reddy v. Bates~ [1983] I.R.; ~Cooke v. Walsh~ [1984] ILRM and ~Sinnott v. Quinnsworth~ [1984] ILRM considered - Semble. The appropriate range of general damages was from #5O,000 to #100,000 - (286, 290 & 291/88 - Supreme Court - 14/4/89) [1989] ILRM 735 [1989] IR 91

|Dunne v. National Maternity Hospital|



Personal injuries - Quadriplegic - Condition - Awareness - Absence - General damages - Award of #427,000 set aside - ~See~ Negligence, hospital - (286, 290 & 291/88 - Supreme Court - 14/4/89) [1989] ILRM 735 [1989] IR 91

|Dunne v. National Maternity Hospital|







ROCHE V PEILOW 1986 ILRM 189, 1985 IR 232




COOKE V WALSH 1984 ILRM 208, 1984 IR 710, 1983 ILRM 429



JUDGMENT delivered on the 14th day of April 1989 by FINLAY C.J. [Nem Diss]


These are two appeals brought by the Defendants against a judgment and order of the High Court dated the 2nd day of August 1988 whereby after a trial held by a judge with a jury the Plaintiff was awarded the sum of £1,039,334 damages for negligence against the two Defendants. The Plaintiff's claim is that whilst in his mother's womb he suffered extensive brain injury due to the negligence of the first-named Defendant ("the hospital") its servants and agents in the management of his mother's labour and of his birth, and also by reason of the negligence of the second-named Defendant ("the doctor") who was the Consultant Obstetrician attending his mother in respect of her labour and his birth.

The facts

The facts out of which this claim arose may thus be briefly summarised. The Plaintiff was born on the 20th March 1982 and is the second child of Mr. and Mrs. William Dunne who reside in Bray, Co. Wicklow. In respect of the birth of her first child who is approximately two years older than the Plaintiff, Mrs. Dunne...

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