O Gorman v Jermyn and Others
| Jurisdiction | Ireland |
| Judge | Honourable Mr. Justice Lavan |
| Judgment Date | 05 December 2006 |
| Neutral Citation | [2006] IEHC 398 |
| Judgment citation (vLex) | [2006] 12 JIC 0504 |
| Docket Number | No. 7267 P/2003 |
| Court | High Court |
| Date | 05 December 2006 |
[2006] IEHC 398
THE HIGH COURT
AND
HETHERINGTON v ULTRA TYRE SERVICE LTD 1993 2 IR 535
O'TOOLE v HEAVEY 1993 2 IR 544
CRANNY v KELLY & MOTOR INSURERS BUREAU OF IRELAND (MIBI) 1998 1 IR 54 1998 14 5094
DUNNE v NATIONAL MATERNITY HOSPITAL 1989 IR 91
CONOLE v REDBANK OYSTER CO 1976 IR 191
CONNOLLY v SOUTH OF IRELAND ASPHALT CO LTD 1977 IR 99
CIVIL LIABILITY ACT 1961 S21
CIVIL LIABILITY ACT 1961 S27
RSC O.16 r12
ALLUM & ORS GUIDELINES FOR THE MANAGEMENT OF OESOPHAGEAL & GASTRIC CANCER GUT(BMJ) 2002 50 VI-V23
NEGLIGENCE:
Medical negligence
Duty of care - Causation - Wrongful diagnosis of cancer - Chain of events leading to diagnosis - Whether surgeon liable - Dunne v National Maternity Hospital [1989] IR 91 and Conole v Redbank Oyster Company [1976] IR 191 considered - Claim for indemnity against seventh defendant dismissed (2003/7267P - Lavan J -5/12/2006) [2006] IEHC 398 O'Gorman v Jermyn
On 14th February, 2002, the plaintiff was admitted through the accident and emergency department of St. Vincent's University Hospital and was operated on for a suspected appendicitis on the 15th February, 2002, by a senior registrar in surgery, Ms. Bridget Egan. During the course of the operation Ms. Egan took a biopsy from an area in or near the stomach and sent the sample to the hospital's pathology lab for a frozen section analysis. During the course of preparing the biopsy for frozen section analysis, the tissue sample of the plaintiff was mixed up with tissue sample of another patient whose tissue sample was sent down to the lab from another operating theatre at about the same time. That other patient was subsequently diagnosed with cancer. Because of the mix-up, the plaintiff was diagnosed as having the other patient's cancer by the sixth-named defendant, consultant histopathologist Daniel K. Sheahan. Based on that mistaken diagnosis, the plaintiff eventually underwent an unnecessary total gastrectomy operation, which was performed by the seventh-named defendant, consultant surgeon Mr. Justin Geoghegan on 19th March, 2002. Analysis of the removed stomach, which showed no cancer, led to an investigation that discovered the error.
In the proceedings, the plaintiff brought actions against all of the named defendants, alleging negligence and breach of duty against all of them. Also in the proceedings the first to fifth named defendants claimed an indemnity and/or contribution against the sixth and seventh named defendants, alleging negligence and breach of duty against each. Before trial, the claim by the first to fifth named defendants against the sixth named defendant was withdrawn.
During the course of the trial, the parties agreed the plaintiff's damages at €450,000.00, subject to findings being made on the issues of liability. On the fourth day of the trial, after discussions between counsel for the plaintiff and for the sixth-named and seventh-named defendants, the Court dismissed the plaintiff's claim against the sixth-named defendant. On the fifth day of trial, after discussions between counsel for the plaintiff and for the sixth-named and seventh-named defendants, the Court dismissed the plaintiffs claim against the seventh-named defendant. The Court ruled that the first to fifth named defendants could rely on the evidence of the plaintiff and witnesses called on his behalf, in its claim for indemnity and contribution against the seventh-named defendant. Consequently, the plaintiffs claim against the sixth and seventh-named defendants now stand dismissed and the issues that remain for the determination of the Court are the plaintiffs claim against the hospital defendants, the claim of the hospital defendants for contribution or indemnity against Mr. Geoghegan and the claim by Mr. Geoghegan for contribution or indemnity against the hospital defendants.
A question arises as to whether the hospital was negligent. The plaintiffs claim that this should be resolved in accordance with the ordinary principles of the law of negligence and that it is not a case of "professional negligence". The Court is to consider whether the persons working in the hospitals pathology laboratory owed a duty of care to the plaintiff; if they did whether they were in breach of that duty; and finally whether that breach caused the plaintiffs injury and loss. It is submitted that in the circumstances of the present case, there is clearly a relationship of proximity between the parties, sufficient to give rise to a duty of care. There are furthermore, no conceivable considerations, which negative, reduce, or limit the scope of the duty. It is also submitted that that it is just and reasonable that the law should impose a duty of care on the hospitals employees.
It is submitted that the hospital and its employees did not exercise the requisite standard of care. The evidence establishes that hospital staff, in the course of dealing with the plaintiffs” tissue sample, made an error which was variously described as "elementary" or "fundamental". The hospital, it is contended, failed to ensure that operating procedures were in place in the pathology laboratory for the processing of frozen sections and thus it is submitted that negligence has been established as against the hospital.
With regard to the issue of causation, the hospital contends that the acts or omission of the surgeon, Mr. Geoghegan, breaks the chain of causation, so as to exonerate it from liability. It is submitted that regardless of the test applied, that the negligence of the hospitals employees, in mixing up the plaintiff's tissue sample with that of another patient, "caused" the plaintiffs injury, i.e., the unnecessary removal of his stomach. Under the "but for" test, it is clear that the plaintiffs injury would not have been caused "but for" the mix-up in tissue samples. The mix-up therefore "caused" the injury.
Under the "material contribution test", it is clear beyond reasonable doubt that the mix-up in tissues samples "materially contributed" to the removal of the plaintiff's stomach and therefore, in that sense "caused" the injury. It is submitted that causation has been established in this case irrespective of the test applied.
It is submitted that there was nonovus actus interveniens in the present case. The evidence indicates that Mr. Geoghegans reliance on the pathology report was intended or "as good as programmed" by the hospital; at the least, it was entirely foreseeable that Mr. Geoghegan would rely on it. Since Mr. Geoghegans reliance on the pathology report was, at least, foreseeable, then the question is whether his intervention, at that point, was criminal or reckless. It was, it is submitted, neither. It is submitted that even if a contribution is required from Mr. Geoghegan, that does not exonerate the hospital from its liability to the plaintiff, since Mr. Geoghegans intervention cannot, in law, amount to a novus actus interveniens.
The first-to-fifth named defendants (hereafter these defendants) have at all material times accepted the basic facts alleged by the plaintiff, namely, that a tissue sample of the plaintiff, sent for frozen section analysis during the course of the plaintiffs operation on 15th February, 2002, was mixed up with a tissue sample of another patient who was suffering from cancer, with the result that the plaintiff's frozen section biopsy indicated that the plaintiff was suffering from cancer, when this was not the case. These defendants did not and do not, contest the evidence tendered by or on behalf of the plaintiff. These defendants also accept the conclusions, reached by the report, into the circumstances of the mix-up commissioned by St. Vincent's Hospital. These defendants submit that it is a matter for the Court to decide whether the facts and circumstances of the tissue mix-up, as established by the evidence, constituted negligence and breach of duty of these defendants as alleged by the plaintiff. These defendants accept that the Court is entitled to take account of all of the evidence adduced at the hearing of the plaintiffs” claim, against these defendants, in making its determination on the causation issue. These defendants submit that on the basis of that evidence, the only determination that can be made, is that the party that caused the plaintiff's injury was the seventh named defendant. As these defendants did not cause the injury to the plaintiff, scope does not exist for a finding that their negligence and breach of duty (if there is a finding to such effect) was causative. It is, accordingly submitted that the plaintiffs claim against them should be dismissed. The plaintiff in consenting to the dismissal of his claim against the seventh name defendant did not exercise the option open to him to rely upon the expert evidence that was to be tendered on behalf of these defendants. SeeHetherington v. Ultra Tyre Services [1993] 2 IR 535, O'Toole v. Heavey [1993] 2 IR 544 and Cranny v. Kelly [1998] 1 IR 54.
These defendants contend that the causative negligence that resulted in the unnecessary removal of the plaintiffs stomach was that of the seventh-named defendant. It is submitted that if the seventh-named defendant had acted with ordinary care in the performance of his duties that the plaintiff would not have suffered any injury as a result of such prior actions or omissions of these defendants is as may be held to constitute negligence and breach of duty on their part. The plaintiff was only twenty-one years of age. Prof. Elder gave uncontested evidence that he had only come across one patient of that age with stomach...
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