Flannery v Health Service Executive

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 13 March 2018
• Neutral Citation: [2018] IEHC 127
• Docket Number: [2015 No. 6867 P.]
• Court: High Court
• Date: 13 March 2018

[2018] IEHC 127

THE HIGH COURT

Barr J.

[2015 No. 6867 P.]

BETWEEN

ANN-MARIE FLANNERY

PLAINTIFF

AND

HEALTH SERVICE EXECUTIVE

DEFENDANT

Tort – Personal injuries – Medical negligence – Health – Physical and psychiatric injuries – Damages & restitution – Assessment of damages

Facts: The key issue in the present case was related to the assessment of damages. The plaintiff sought damages for the physical and psychiatric injuries suffered by the plaintiff due to the medical negligence of the defendant during ventuse delivery with an episiotomy. The plaintiff contended that she had suffered sharp pain in lower back and foul smell due to vaginal infection caused by the swab that was left in the vaginal area of the plaintiff during the delivery. The plaintiff also contended that she had developed a psychiatric illness after the birth of her son as she was undergoing unpleasant circumstances. The defendant contended that although the plaintiff had been subjected to unpleasant experience due to the negligence of the defendant but the reaction of the plaintiff had been within normal range, she had not developed psychiatric illness.

Mr. Justice Barr awarded the plaintiff a certain sum for general damages together with the agreed special damages. The Court found that the plaintiff had suffered an emotional reaction due to the distressing circumstances of the incidents giving rise to the claim that were superimposed upon the very difficult circumstances surrounding the health of her son, but that emotional reaction of distress was within normal limits, rather than mood disorder or psychiatric illness. In reaching the assessment level of general damages, the Court had been assisted by the guidelines set down in the cases of Nolan v. Wirenski[2016] IECA 56, and Shannon v. O'Sullivan [2016] IECA 93.

JUDGMENT of Mr. Justice Barr delivered on the 13th day of March, 2018

Introduction

1 This action is concerned only with the assessment of damages arising out of the fact that a swab was left in the plaintiff's vaginal area after the ventuse delivery with an episiotomy, of the plaintiff's second son on 30th August, 2013. The swab remained in situ, until it was removed by a consultant in the course of an internal examination carried out on 8th September, 2013. It is the plaintiff's case that as a result of that sequence of events, she has been caused to suffer physical and psychiatric injuries.

The Evidence

2 The plaintiff is 40 years of age having been born on 19th April, 1977. She is a married lady and lives with her husband in Co. Cavan. Her first son was born in 2008. In 2012, she became pregnant with her second son. She described how her contractions started on 29th August, 2013. That night she went to Cavan General Hospital. On the following day, she went into the second stage of labour. As the baby's head was turned the wrong way around for delivery, she was told that she would require an episitomy for a ventuse delivery. This was done and her son was born at 15:40hrs that day.

3 The plaintiff recalled that the consultant gave the assisting registrar instructions to stem the bleeding and suture the site of the episiotomy. The doctor found it difficult to stem the bleeding. He sent for the consultant and the midwife came back with two other doctors. They were able to stitch the area and inserted a vaginal pack and catheter. These were removed after 24 hours and the plaintiff was discharged home on 1st September, 2013.

4 The plaintiff stated that on 2nd September, 2013, she began to experience low back pain. She thought that that had been due to the fact that her legs had been held in stirrups during labour and due to the fact that stitches had been inserted. When reviewed by the public health nurse that day, she complained of lower back pain, together with soreness and tenderness in the vaginal area. The nurse advised her to take analgesics and to bathe regularly. The plaintiff did as advised.

5 On 3rd September, 2013, her pain increased. She had difficulty moving, difficulty going to the toilet and a lot of stinging in the vaginal area when passing urine. She would experience a sharp shooting pain from the lower back into her vaginal area. This occurred whenever she did any movement. At that time, she also began to notice a foul smell when she went to the toilet. As she found it difficult to go to the toilet, her husband was assisting her movements and he too noticed the foul smell.

6 The plaintiff stated that she felt that this state of affairs was due to the fact that she was doing something wrong, e.g. not bathing properly. She used cushions on the chair to ease the pain and also applied ice packs to her vagina, but neither of these helped.

7 By 5th September, 2013, she was unable to move at all, she could not lift her baby. She recalled that a neighbour called in with a gift for the baby, but she could only talk to the neighbour for a very short period of time and then asked them to leave, as she was afraid that they would notice the foul smell, which had become worse by that time, or would see her wince in pain and think that she was not able to cope with looking after her baby. She felt very bad that she had asked the neighbour to leave so quickly.

8 On 6th September, 2013, the plaintiff attended her G.P. complaining of an increase in lower back pain going into her vaginal area. Her vagina was swollen. The foul smell was worse. The doctor diagnosed an infection to the endometrial lining. She referred the plaintiff back to hospital.

9 The plaintiff attended at Cavan Hospital later that day. Examination revealed that her vagina was infected. A swab was taken which confirmed the presence of E. coli. The consultant, Dr. Syed, directed that she should be placed on intravenous antibiotics and be admitted to hospital. On the following morning, a different doctor did an external examination of her. That doctor directed that the antibiotic should be continued. The plaintiff stated that she was trying to keep mobile, but felt very weak at that stage.

10 On Sunday, 8th September, 2013, the same doctor returned. He stated that he wished to contact the consultant. He asked whether the plaintiff had signed the forms stating that she would go privately for treatment. The plaintiff stated that she had signed those forms on admission. The doctor said that he would ring the consultant. Later that day, at approximately 12:30hrs, Mr. Syed attended on the plaintiff. At that time, she was in a three bed ward with an elderly man and a woman in her sixties. Dr. Syed drew the curtains and proceeded to carry out an internal examination. The plaintiff stated that that involved him putting his entire hand into her vaginal area and poking around inside her. She found this very distressing. He retrieved an article from inside her vaginal area, which he later confirmed was a swab, which had been left in situ after the delivery of her son.

11 The plaintiff stated that on removal of the swab, she immediately felt much better. Her back pain eased and the foul smell ceased. She was continued on antibiotics and was allowed home on the following day.

12 On 10th September, 2013, she attended with her G.P., Dr. Jacqueline Ellis-Deering and stated that she was feeling much better. She had been prescribed oral antibiotics for one week.

13 Unfortunately, in the preceding days and in the days which followed, the plaintiff and her husband noticed that her son was exhibiting some worrying signs in relation to his general colour and breathing patterns. On 19th September, 2013, she returned to her G.P. due to her ongoing concerns about her baby. Having examined the baby, the G.P. advised that he should be taken to Cavan General Hospital. The plaintiff did this. Her baby was examined and the doctors made a decision that he should be transferred to Crumlin Hospital for Sick Children in Dublin. There he was diagnosed as having a hole in his heart. Fortunately, the doctors were of the view that it could be treated conservatively. Her son was monitored in hospital for a period and thereafter was allowed home, but had to be monitored carefully in relation to fluid intake and maintenance of weight. However, the hole in the heart went on to close spontaneously and he made a full recovery.

14 The plaintiff stated that her mood was affected by the incidents complained of. In particular, she tended to blame herself for the fact that in the days and weeks immediately after the birth of her son, she was unwell and accordingly, was not able to spot the signs of his distress, earlier than had been done. She blamed herself for not having been in a position to properly care for her baby immediately after his birth. She stated that this feeling of guilt and self blame stayed with her for a considerable period. In her evidence, she stated that she had depressive days, but these were not sustained.

15 It appears that the plaintiff re-attended with her G.P. on 26th September, 2013, to inform her about her son's condition and to tell her about his medication. The G.P. checked the plaintiff's blood pressure and pulse for reassurance and both were normal.

16 In cross examination, the plaintiff accepted that almost immediately after the removal of the swab by Dr. Syed on Sunday, 8th September, 2013, her lower back pain resolved and the foul smell disappeared. She confirmed that she had not returned to Dr. Syed's clinic on 20th September, 2013, due to the fact that her son was then in Crumlin Hospital. When questioned about her psychiatric symptoms, she stated that she had been back to her G.P. on a number of occasions when they had discussed whether she would take antidepressant medication. However, the plaintiff had declined to go down that route, as she was...