Geoghegan v Harris

• Jurisdiction: Ireland
• Judge: Mr Justice Kearns,Mr. Justice Kearns,Mr.Justice Kearns
• Judgment Date: 21 June 2000
• Neutral Citation: [2000] IEHC 129
• Date: 21 June 2000
• Docket Number: [1995 No. 2264 P]
• Court: High Court

[2000] IEHC 129

The High Court

GEOGHEGAN v. HARRIS

BETWEEN

PETER GEOGHEGAN

PLAINTIFF

AND

DAVID HARRIS

DEFENDANT

Citations:

WALSH V FAMILY PLANNING SERVICES LTD 1992 1 IR 496

DUNNE (AN INFANT) V NATIONAL MATERNITY HOSPITAL 1989 IR 91

REIBL V HUGHES 1980 114 DLR 3d 1

WHITE MEDICAL NEGLIGENCE ACTIONS 190

CANTERBURY V SPENCE 150 US APP DC 263, 1972 464 F 2d 772

BOLTON V BLACKROCK CLINIC UNREP SUPREME 23.1.1997 1997/1/170

JONES MEDICAL NEGLIGENCE 2ED 121

HEALY MEDICAL NEGLIGENCE: COMMON LAW PERSPECTIVES (1999) 71

ROCHE V PEILOW 1986 ILRM 189

O'DONOVAN V CORK CO COUNCIL 1967 IR 173

ELLIS V WALLSEND DISTRICT HOSPITAL 1989 17 NSWLR 553

BUSTOS V HAIR TRANSPLANT PTY LTD UNREP NEW SOUTH WALES COURT OF APPEAL 15.4.1997

O'BRIEN V WHEELER UNREP NEW SOUTH WALES COURT OF APPEAL 23.5.1997

GOVER V SOUTH AUSTRALIA 1985 39 SASR 543

MANDERSON "FOLLOWING DOCTORS ORDERS: INFORMED CONSENT IN AUSTRALIA 1988 62 ALJ 430

ROBERTSON "INFORMED CONSENT TO MEDICAL TREATMENT" 1981 97 LQR 102

CHATTERTON V GERSON 1981 1 QB 432

HILLS V POTTER 1984 1 WLR 641

SMITH V BARKING 1994 5 MED LR 285

SIDAWAY V BETHLEM ROYAL HOSPITAL GOVERNORS 1985 1 AER 643

JACKSON & POWELL PROFESSIONAL NEGLIGENCE 3ED PARA 6.128

BOLAM V FRIERN HOSPITAL MANAGEMENT COMMITTEE 1957 2 AER 872

Synopsis

Medical Negligence

Medical practitioner's duty of disclosure of risks attending operative procedures; whether risk was a known or reasonably foreseeable consequence of the operative procedure; whether there was a requirement to warn, regardless of the remoteness of the risk and the views of medical experts that a warning was not required; if the appropriate warning had been given would the patient have elected to undergo the procedure; whether the test of causation is objective or subjective; whether the plaintiff was in the category of "inquisitive patient" to whom a special duty was owed.

Held: The risk was a "known complication" and as a result a warning was required; the test of causation is generally objective; however, where there is clear and convincing evidence as to what the particular patient would have elected to do the Court should take a subjective approach; there is no category of "inquisitive patient" in Irish law because of the onerous obligations already imposed on practitioners.

Geoghegan v. Harris - High Court: Kearns J. - 21/06/2000 - [2000] 3 IR 536

JUDGMENT of Mr Justice Kearnsdelivered the 21st day of June, 2000.

The Plaintiff in this case is a married man and business man who lives in County Kildare. He was born on the 27th November, 1944.

He is suing the Defendant for alleged negligence in the carrying out of a dental implant procedure on the 1st July, 1992. As a result of a bone graft which was taken from his chin in the course of the procedure, the Plaintiff suffered damage to the incisive nerve at the front of his chin which, from the time of the procedure, has left him with a condition of severe pain at the mid line of his chin known as chronic neuropathic pain. It is this aspect of the procedure, namely, the bone graft, rather than the insertion of the actual dental implants themselves, which is accountable for the Plaintiff's symptoms.

The Plaintiff has also sued the Defendant for failing to disclose to him in advance of the operation the risk that chronic neuropathic pain might eventuate as a consequence of this procedure. This was, in fact, his initial complaint against the Defendant.

The hearing before this Court, largely because of the highly technical evidence involved, lasted some twenty days. Two days were taken up with legal submissions oninformed consent/duty of disclosure. With a view to shortening the trial and for the purpose of complying with the recently enunciated requirement of the Supreme Court that, even in relation to fact, submissions should be made at the conclusion of the evidence, the parties were invited to make such submissions in writing and the same have been received by the Court prior to the delivery of this part of the judgment.

Because of the complex and technical nature of the evidence, the parties have agreed that the Court should be free to deliver its judgment in successive parts. The issue of quantum, should it arise, has by agreement been deferred to a later time. The first part of the Judgment deals with the allegation that the Defendant failed to disclose a material risk.

The second part of the judgment, which does not overlap with the first, addresses the central question of fact upon which the claim of negligence is brought: Did Dr Harris, in the course of harvesting a bone graft from the Plaintiff's chin on the 1st July, 1992, take the bone graft at a point on the chin too close to the apices of the Plaintiff's lower incisor teeth? The evidence in the case clearly establishes that general and approved practice in the medical profession is that one should respect a 5 mm zone between the apices of the teeth and the upper margin of any bone graft. The crucial factual issue to be determined therefore, is whether or not Dr Harris transgressed this barrier. Dr. Harris denies that he did. In this regard, the Court has to consider not only Dr Harris's own evidence, but the entire subsequent history of the lower incisor teeth, a detailed anatomical study of the chin and its nervous system, and also the significance and interpretation of a number of X-rays taken in the aftermath of the particular procedure. The evidence in relation to the X-rays alone consumed many days of the hearing and is highly complex. Part of the difficulty arises because the Defendant and his experts challenge the reliability of X-rays, including Dr Harris's own X-rays, when it comes to the accurate measurement of fine distance between two objects orpoints of reference given that X-rays are two dimensional representations of three dimensional reality.

It is therefore my intention to deal separately with the factual issue upon which the claim in negligence is based, and separately also, if necessary or appropriate, with the legal consequences of a finding of fact (if such be the case) that Dr Harris transgressed the 5 mm barrier when taking the bone graft on the 1st July, 1992.

Accordingly, in the present section of the judgment, only those facts which are germane to the issue of disclosure will be addressed in detail. All issues addressed by the technical evidence, together with evidence as to the execution of the procedure and the expert views in relation thereto, will be dealt with in the second part of the judgment to be delivered at a later date. No Order will be drawn up until those issues, and their consequences, have been dealt with.

However, even this section of the judgment cannot commence without a brief explanation of the history and function of dental implants. In essence a dental implant is a pillar which is inserted into the jaw bone to constitute a post over which an artificial crown or bridge attachment can be fitted. For hundreds, if not thousands, of years crude efforts at dental implantology were carried out, usually with very badresults.

However, some 30 years ago in Sweden Professor Branemark made a most important discovery. He discovered that a titanium implant which had been inserted into a rabbit's bone marrow could not later be taken out. The titanium had integrated with the bone in a process which he characterised as osseointegration.

The implications for dental science were immediately apparent, because titanium fixtures in the jaw clearly offered a more secure and more predictable support for any tooth replacements to be inserted in the mouth. Dental implants, based on Branemark's discovery and published work, became available from 1982 onwards.

The treatment is divided into three main stages. Firstly, the implants are placed in the jaw bone in an operation usually carried out in hospital under a general, or local anaesthetic, depending on patient preference and the number of implants to be inserted. Post-operatively, patients usually report only minimal discomfort of a type no more than that associated with tooth removal. Usually, any complaints of pain or discomfort clear away within days or within a maximum period of twoweeks.

The second stage six months later involves a minor procedure carried out under local anaesthesia in which special titanium pillars (abutments) are attached to the implants on to which the tooth replacements are thenfixed.

The construction of the tooth replacements can usually be completed and fitted within six-seven weeks and while this is being carried out, patients may wear their own denture, specially modified, as a temporarymeasure.

Following completion of the work, a dental hygienist shows the patient how to correctly clean around the fixtures. The procedure has a very high success rate and is associated with many benefits for the patient which are detailed later in this judgment.

The Defendant is a highly qualified oral surgeon. He became a fellow in dental surgery of the Royal College of Surgeons in England in 1968. He later received his fellowship of the Faculty of Dentistry from the Royal College of Surgeons in Ireland. He is on the specialist all surgery registry in the UK and Denmark. He has been certified by the Irish Dental Council as having fulfilled criteria for specialist registration in the EU. He has been in private practice in oral surgery since 1973. He moved to the Blackrock Clinic in 1983/4 where he presently conducts his private practice. Most of his work is in implants. He also does private work in London. He is senior lecturer in implant dentistry in Trinity College since 1997. He is also involved in a significant way in major international bodies with a special interest in implanttechnology.

The Plaintiff was referred to the Defendant by Mr John O'Grady in April, 1992. This arose out of some dental treatment which the Plaintiff had received from Mr O'Grady. The Plaintiff had neglected his dentition for...