Eugene McCormack v Marcus Timlin, Mater Private Hospital and Mater Private Healthcare

• Jurisdiction: Ireland
• Judge: Mr Justice Maurice Collins
• Judgment Date: 26 March 2021
• Neutral Citation: [2021] IECA 96
• Court: Court of Appeal (Ireland)
• Docket Number: Court of Appeal Record Nos 2019/141 & 147

Between

Eugene McCormack

Plaintiff/Appellant

and

Marcus Timlin, Mater Private Hospital and Mater Private Healthcare

Defendants/Respondents

[2021] IECA 96

Whelan J.

Faherty J

Collins J.

Court of Appeal Record Nos 2019/141 & 147

THE COURT OF APPEAL

CIVIL

Medical negligence – Evidence – Costs – Plaintiff appealing from the judgment and order dismissing his action for medical negligence – Whether the judge failed to explain adequately why he had proceeded to find against the plaintiff on the negligence issue

Facts: The plaintiff, Mr McCormack, appealed to the Court of Appeal from the judgment given on 18 January 2019 and the order dated 15 February 2019 of the High Court (Cross J) dismissing his action for medical negligence against the first defendant, Mr Timlin. Mr McCormack pointed to the failure to notice the signs of developing Cauda Equina Syndrome (CES) in the MRI of 16 March 2010, in view of his neurological complaints. He submitted that in circumstances where, on 16 March 2010, Mr Timlin had identified “caudal compression” as a differential diagnosis, it was incumbent on him to review “the whole of the records” including the physiotherapy notes. Mr Timlin cross-appealed, saying that the evidence clearly established that Mr McCormack had normal bladder function and that, in itself, was “fatal” to his claim that he had suffered from developing CES. Mr Timlin also challenged the Judge’s findings regarding the correct interpretation of the MRI scan of 16 March 2010.

Held by Collins J that the findings made by the Judge to the effect that Mr Timlin was not negligent must be set aside. Collins J held that, having found that Mr McCormack was suffering from developing CES as of 16 March 2010 and that it was “there to be interpreted” on the MRI scan as Mr McCormack’s experts had contended (thereby necessarily preferring their evidence over the evidence of Mr Timlin and his expert witnesses), the Judge failed to explain adequately why he had proceeded to find against Mr McCormack on the negligence issue and that failure was significantly compounded by his failure to address adequately the question of clinical “red flags”. Collins J held that if Mr McCormack and his experts failed to appreciate the significance of the physiotherapy notes, they – not Mr Timlin and not the Judge –bore the responsibility for that; the trial proceeded as it did, without any objection from the plaintiff, and he was not entitled to seek a rerun of it merely because the Judge subsequently appeared to take a different view as to the significance of the physiotherapy notes. Given the centrality of the issue for the proper determination of the proceedings, in Collins J’s view the Judge’s finding of developing CES could not be allowed to stand. Collins J held that the other aspect of Mr Timlin’s cross-appeal highlighted a significant problem with the Judge’s findings regarding the interpretation of the MRI scan; the very fact that there was such a conflict of evidence as to the proper interpretation of the MRI scan obliged the Judge to explain to why he had preferred the evidence of Mr McCormack’s experts over the evidence of Mr Timlin and his experts. In Collins J’s view, that aspect of Mr Timlin’s cross-appeal should succeed to the extent that the Judge’s findings must be set aside.

Collins J set aside the judgment and order of the High Court and directed a retrial. Collins J proposed that Mr McCormack should recover 75% of his costs. It appeared to Collins J to be appropriate to set aside the costs order made by the High Court (which gave Mr Timlin 50% of his costs). The costs order was the subject of a separate appeal by Mr Timlin which was, by agreement, left over to await the determination of the substantive appeal and cross-appeal. That appeal was moot and it seemed appropriate to Collins J that it should be struck out without any order as to costs. As to the costs of the first hearing in the High Court, it appeared to Collins J appropriate that such costs should be reserved to the judge who hears the retrial. If either party wished to contend for a different costs order, Collins J held that they would have liberty to apply to the Court of Appeal Office within 28 days for a brief supplemental hearing on the issue of costs.

Appeal allowed. Cross-appeal allowed in part.

Unapproved

No redactions required

JUDGMENT of Mr Justice Maurice Collins delivered on 26 March 2020

INTRODUCTION

1 The Plaintiff (“ Mr McCormack”), appeals from the Judgment and Order of the High Court (Cross J) dismissing his action for medical negligence against the First Defendant ( “Mr Timlin”). The Judgment of the High Court was given on 18 January 2019, followed by an Order dated 15 February 2019.

2 Mr McCormack's claim relates to his post-operative care following spinal surgery he underwent on 11 March 2010. That surgery was carried out in the Mater Private Hospital by Mr Timlin, who is a consultant orthopaedic and spinal surgeon. Mr McCormack was a patient in the Mater Private until his subsequent discharge on 26 March 2010, following further surgery, also carried out by Mr Timlin, on 19 March 2010. No complaint is now made by Mr McCormack as to how either surgery was performed by Mr Timlin (though that was not always the case). Rather, his complaint is that, following the first surgery on 11 March 2010 he began to develop Cauda Equina Syndrome which was not diagnosed and treated as quickly as it ought to have been and which, he says, has caused him significant and permanent injury and incapacity.

3 The cauda equina is a bundle of nerve roots at the lower end of the spine. 1 These nerve roots control important motor and sensory functions including bladder and bowel function, sexual function and lower limb motor movement. Cauda Equina Syndrome (CES) occurs when these nerve roots are compressed. It can lead to incontinence and permanent paralysis. Even where it does not develop completely, it may cause significant injury and incapacity. It is a very serious condition which, if diagnosed or suspected, warrants urgent surgical intervention in order to relieve the cause of compression.

4 It was not suggested by Mr McCormack that he developed full-blown CES. His case was that, following his surgery on 11 March 2010 he began to develop CES and suffered significant injury as a result of delay in diagnosis on the part of Mr Timlin. Mr Timlin re-operated on Mr McCormack on 19 March and, while that relieved the caudal compression that had been developing, it is Mr McCormack's case that this intervention should have taken place sooner.

5 As the title of these proceedings indicates, Mr McCormack sued the Mater Private Hospital Mater Private Healthcare in addition to Mr Timlin. It is apparent from the Personal Injuries Summons that these entities were sued on the basis that one or other of them was owner, occupier and operator of the Mater Private and employer of the medical and nursing staff at the hospital and vicariously liable for their negligent acts and omissions. However, on the opening day of the trial in the High Court, the Court was informed that Mr McCormack's action against the Mater Hospital Defendants had been settled and it was struck out with costs to Mr McCormack. As a result, the action proceeded against Mr Timlin only and the Judgement and Order of the High Court was concerned only with the claim against him.

6 The Judge found that, in the aftermath of the 11 March surgery, Mr McCormack was suffering from a “ developing CES” 2 In his view, that developing CES was “ there to be interpreted on the films” of an MRI of Mr McCormack's spine taken on 16 March 2010. 3 The Judge also found that had the revision surgery carried out on 19 March been undertaken on 16 or 17 March, or possibly even on 18 March, that developing CES would have been dealt with at an earlier stage “ and without, at least, a considerable amount of the resulting symptoms”. 4 Had the intervention occurred earlier, Mr McCormack would not have developed post-operative CES and other symptoms and sequelae he complained of. 5 All of these findings are disputed by Mr Timlin and are the subject of a cross-appeal by him. However, notwithstanding those findings in favour of Mr McCormack, the Judge went on to dismiss his claim. He did so on the basis of his view that Mr Timlin could not be faulted for his interpretation of the MRI scan and the course of action he took following from that interpretation. On the basis of the information actually available to him (and, as I will explain, the Judge was of the view that there was other information which, if known to Mr Timlin, would have prompted him to act sooner) the Judge considered that Mr Timlin could not be faulted for continuing with conservative management until 19 March 2010. Applying the principles set out by the Supreme Court in Dunne v National Maternity Hospital [1989] IR 91, the Judge concluded that he had not been negligent in his treatment of Mr McCormack.

7 For the reasons set out in this judgment, I would set aside the Judgment and Order of the High Court and direct a retrial of Mr McCormack's claim.

BACKGROUND

8 Mr McCormack had a significant history of back problems. A CT scan in May 2006 disclosed a large disc bulge which led to a discectomy being carried out in April 2007, followed by a revision in May 2007. In October 2008, he underwent a left sided L5/S1 decompression and micro discectomy. Unfortunately for him, these procedures (none carried out by Mr Timlin) did not provide any lasting relief. In April 2009 he was referred to Mr Timlin complaining of chronic lower back pain and in May 2009 Mr Timlin carried out a revision, decompression at L5/S1 and posterior fusion. While Mr McCormack's condition improved in the immediate aftermath of that procedure, later in 2009 his pain returned and he became depressed. He was reviewed by Mr Timlin in...