Fitzpatrick v White

• Jurisdiction: Ireland
• Judge: Mr. Justice Kearns
• Judgment Date: 15 November 2007
• Neutral Citation: [2007] IESC 51
• Court: Supreme Court
• Docket Number: [S.C. No. 331 of 2005]
• Date: 15 November 2007

[2007] IESC 51

THE SUPREME COURT

Kearns J.

Macken J.

Finnegan J.

[331/05]

Fitzpatrick v Royal Victoria Eye & Ear Hospital (White)

BETWEEN

PAUL FITZPATRICK

PLAINTIFF/APPELLANT

AND

AIDA WHITE AS THE NOMINEE OF ROYAL VICTORIA EYE & EAR HOSPITAL

DEFENDANT/RESPONDENT

FITZPATRICK v WHITE AS NOMINEE OF ROYAL VICTORIA EYE & EAR HOSPITAL UNREP WHITE 3.6.2005 2005 IEHC 479

HAY v O'GRADY 1992 1 IR 210

WALSH v FAMILY PLANNING SERVICES LTD & ORS 1992 1 IR 496

DUNNE v NATIONAL MATERNITY HOSPITAL 1989 IR 91

GEOGHEGAN v HARRIS 2000 3 IR 536

BOLAM v FRIERN HOSPITAL MANAGEMENT COMMITTEE 1957 2 AER 118

SIDAWAY v BOARD OF GOVERNORS OF BETHLEM ROYAL HOSPITAL & MAUDSLEY HOSPITAL 1985 AC 871

PEARCE v BRISTOL HEALTHCARE NHS TRUST 1999 48 BMLR 118

CHESTER v AFSHAR 2005 1 AC 134

ROGERS v WHITAKER 1992 175 CLR 479

REIBL v HUGHES 1980 2 SCR 880

CANTERBURY v SPENCE 1972 464 F 2D 772

ROSENBERG v PERCIVAL 2001 HCA 18

1 JUDGMENT of Mr. Justice Kearnsdelivered the 15th day of November, 2007

2 This case raises interesting issues about the requirement on medical practitioners to warn patients of the risks and dangers associated with medical procedures. In the instant case the plaintiff contended at trial that he had never been warned in any way about a particular risk inherent in a proposed operation to his left eye in March, 1994 which said risk unfortunately later eventuated. Although the trial judge found against the plaintiff, holding that a proper warning had been given, the plaintiff nonetheless contends that the warning in this case, which was given to him on the day of his operation, was ineffective because it had been given 'at the last minute' when the plaintiff had committed himself to the operation and was soon to be brought to theatre. He further contended at trial that had he been properly warned he would have declined the operation in question.

Background

3 The plaintiff is a professional musician from Dublin who was born on 29th November, 1967. From birth he had a convergent squint in his left eye which was turned in. After unsuccessful treatment at Sir Patrick Dun's hospital involving the use of patches, he had an operation in 1974 when he was seven years old in the Royal Victoria Eye & Ear Hospital to correct the squint. He was in hospital for three days after that operation. Thereafter he was left with what was described as a small squint which was not a disabling problem for him. However, in November, 1993 he decided for cosmetic reasons to explore the possibility of correcting the squint. With that in mind he attended the Eye & Ear Hospital in November 1993 where he met, firstly, a Ms. Nano Fitzsimons, an orthoptist whose specialty was squints, and who fully tested and evaluated the state of the plaintiff's vision. She found some slight limitation of movement of adduction of the left eye. Her function at that time was to make an assessment as to whether or not an adjustment to reduce the squint by means of an operation was appropriate. Ms Fitzsimons arranged for the plaintiff to meet Mr Paul Moriarty, ophthalmic surgeon, in December, 1993 for a follow-up consultation. Her report was available to Mr Moriarty at this point. A third consultation took place on 9th February, 1994, following which Mr. Moriarty apparently decided the plaintiff was suitable for surgery. The plaintiff then got a letter telling him to come in for his operation on 10th March, 1994.

4 On the day he presented, the plaintiff, who was a public patient, learned that his operation would not be performed by Mr Moriarty but by Mr Martin Goggin, who was a registrar working with Mr Moriarty but who was amply qualified to carry out the proposed surgery. Mr Goggin had the notes of earlier examinations and also the orthoptic report of Ms. Fitzsimons. In the course of her report Ms Fitzsimons had raised various points for the surgeon's consideration, including not only the possibility of surgery for the squint in the left eye, but also the possibility of a single right medial rectus recession in the 'good' eye. In highlighting different options, she was not of course telling the surgeon what should be done, and her evidence at trial was to the effect that any decision as to the course adopted together with the responsibility for warning the patient of any risks associated therewith, remained matters for the operating surgeon. The plaintiff met with Mr. Goggin approximately 30 minutes before he was due to undergo surgery. At that stage the plaintiff was in a gown and was sitting or lying on a bed in a ward of the hospital. He does not appear to have been sedated as part of his premed for the operation.

5 At trial, the plaintiff gave evidence that Mr. Goggin spent about ten minutes with him, that he had a clipboard and was taking some notes. According to the plaintiff, he enquired of Mr. Goggin if there was a good chance that the eye would be straight following the operation. According to the plaintiff, Mr. Goggin replied "it won't be 100 percent straight. There is a good chance there will be a good cosmetic improvement. The only thing is that when you go into your 40's the muscles might start to drop back a little bit and you might want to get it corrected again". On the plaintiff's account, Mr. Goggin did not mention any complications, side-effects or adverse consequences that might ensue. The plaintiff acknowledged that he signed what was then a standard consent form to undergo the operation. This consent form did not specify any risks associated with the proposed procedure. In cross-examination the plaintiff stated that had he been told by Mr Goggin about the risk of muscle loss or slippage resulting in double vision he would have remembered it and "walked straight out of the hospital". In other words, he would have foregone the operation.

6 Mr. Goggin for his part gave evidence that on the date in question he conducted both a heart examination and various other examinations of the plaintiff to assess his fitness to go ahead with the procedure. He had available to him the orthoptic report prepared by Ms. Fitzsimons. He told the court that he could not specifically recall meeting the plaintiff on the date in question. However, he gave evidence of his general practice. He told the court that he would have advised the plaintiff of the details of the proposed procedure. In this case he would have told the plaintiff that he planned to move the muscle on the back of his left eye in order to reposition the eye. He proposed using the "adjustable suture technique" whereby the surgeon recesses the muscle but does not definitely tie off the sutures until the following day. On the day following the operation, a patient undergoes a further small procedure to readjust the position of the eye when he is awake. He identified the common complications that could arise as including an under-correction or over-correction anatomically, in other words, positioning the eye too far or too little beyond that which had been planned. An over-correction could lead to diplopia, i.e. double-vision, and it was his standard practice to warn patients of that complication. He told the court he would also have warned of rare complications, such as the loss or slippage of a muscle, in this case the medial rectus muscle - which could also lead to double vision - and the further remote possibility of a perforation of the eye during the procedure.

7 Mr. Goggin accepted that he was giving the warning in this particular case to a patient who had already committed himself to having the surgery and who up to that point had no prior knowledge of any of the risks associated with the procedure he was about to undergo. Mr Goggin accepted that the ten minute conversation took place only half an hour before the operation. However, he emphasised that this was the norm at that time for day case patients.

8 It is important to stress that the subsequent operation was carried out properly and there was no suggestion at trial of any negligence whatsoever on the part of Mr Goggin in connection therewith. On the day following the operation, Mr. Goggin performed an adjustment of the suture to maximise the improvement in the alignment of the left eye.

9 In the months that followed, there was - unfortunately - what is noted in the medical records of the hospital as a gradual slippage of the medial rectus muscle behind the left eye. In this regard, the hospital records are to some degree at variance with the plaintiff's own recollection, because in evidence the plaintiff told the court that, when trying to do prescribed exercises in June, 1995 he felt something "snap" in his left eye which then turned totally outwards, effectively leaving him at that point in a worse position than he was before the operation.

10 It seems clear from the evidence at trial that the rare complication mentioned by Mr. Goggin, namely the loss or slippage of the medial rectus muscle, occurred in the case of this particular patient. Professor Peter Eustace, consultant ophthalmologist, told the trial court that muscle slippage, of the sort that occurred in the present case, was "extremely unusual". He further gave evidence that "in clinical practice over a lifetime, he never saw such a case". It was "unique".

11 In similar vein, Mr. Michael O'Keefe, consultant eye surgeon, told the court that muscle slippage was a "rare complication" and the risk of it happening "is less than 1 percent".

12 The consequence for the plaintiff was that he had some ongoing double vision and headaches as well as a poor cosmetic result, given that his eye had slewed outwards. In January, 1995 he underwent a further operation which on this occasion was carried out by Mr Martin O'Connor. This operation cured the outward slant of the left eye and produced a...