Gottstein v Maguire

• Jurisdiction: Ireland
• Judge: Mr. Justice Johnson
• Judgment Date: 21 December 2004
• Neutral Citation: [2004] IEHC 416
• Docket Number: [2004] IEHC 416,[1995 No. 761 P]
• Court: High Court
• Date: 21 December 2004

[2004] IEHC 416

THE HIGH COURT

[2004] IEHC 416

1995 761P

GOTTSTEIN v. MAGUIRE & WALSH

BETWEEN

UNA GOTTSTEIN

PLAINTIFF

and

SHEILA MAGUIRE AND MICHAEL WALSH

DEFENDANTS

Synopsis:

NEGLIGENCE

Medical negligence

Medical practices - Whether practice inherently defective - Frequency and risk of displacement of tracheostomy tubes considered - Whether lack of training of personnel in the replacement of tracheostomy tubes, when caring for patient at risk of requiring that procedure, inherently defective - Responsibility of consultant for post-operative care in intensive care unit considered - O'Donovan v. Cork County Council [1967] I.R. 173 applied - Plaintiff awarded damages (1995/761P - Johnson J - 21/12/2004) [2004] IEHC 416

Gottstein v Maguire

The plaintiff's husband died following an operation performed by the second named defendant. After the operation at the direction of the anaesthetist, the plaintiff's husband was taken to the I.C.U. unit of the hospital for initial care. Subsequently, Mr Gottstein's tracheostomy tube became dislodged and due to a failure to replace it in time he sustained brain damage and died. The plaintiff submitted that the defendants were negligent because there was no ENT specifically trained doctor in the hospital at the relevant time nor was there any person in the I.C.U. specifically trained for the purposes of replacing a tracheostomy tube and accordingly there was no one to deal with the deceased's difficulty when it arose.

Held by Johnson J. in favour of the plaintiff:

That the failure to have in the I.C.U. a person, nurse or doctor, skilled in the replacement of a tracheostomy tube under the circumstances of the present case was an inherent defect in what appeared to be the practice which ought to have been obvious to any person giving the matter due consideration. Accordingly, the first and second named defendants were guilty of negligence.

Jeremiah o'Donovan v. the Cork County Council & Ors [1967]

I.R. 173 followed.

Reporter: L.O'S.

1 Mr. Justice Johnsonon the 21thday of December, 2004.

2 The plaintiff in this case is the widow of the deceased, Alfred Gottstein. For some months prior to September of 1992 Mr. Gottstein had been suffering from a throat affliction which transpired to be carcinoma of the throat.

3 The plaintiff, who is originally from Germany, lived in Kerry where he kept substantial holdings and carried on business there. He was admitted to hospital in Beaumont under the second named defendant, Professor Walsh, for an operation on his throat to remove the cancerousgrowth.

4 The effect of this operation was to grossly distort the access to the lungs which was covered by a flap for the purposes of healing after the operation. A tracheostomy was inserted to enable the deceased to breathe. The tracheostomy is a pipe inserted into the trachea which enables the air to flow directly into the throat and lungs without having to go through the mouth and in this particular situation it is particularly to be noted that the airways were blocked because of the operation and the steps taken were to ensure it was going to besuccessful.

5 The operation appears to have gone well and there is no criticism of Professor Walsh or the staff regarding the execution of theoperation.

6 After the operation at the direction of the anaesthetist, Mr. Gottstein was taken to the I.C.U unit of the hospital for initial care.

7 The following evening, that is the evening of 8 ^th September, 1992 at approximately 10.00 pm Mr. Gottstein developed some discomfort in his chest, communicated this to Nurse Armstrong who was his special nurse and beside him and she contacted Dr. Ward who was actually at the next bed and he indicated that morphine should be administered to Mr. Gottstein. This was done. A short time later Mr. Gottstein again drew the attention of the Nurse Harrington to his situation and she approached him for the purposes of ensuring that his airways were clear and she ambu-bagged him. This is a device whereby air is blown through the tracheostomy tube to ensure that there is a free and fullairflow.

8 At the time Mr. Gottstein was on C.P.A.P., i.e. air was being pumped through the tracheostomy tube into the patient.

9 Nurse Harrington was specialising on the deceased that night. She had been trained in intensive care in Beaumont School of Nursing. Sister Connolly, her superior, allocated her to Mr. Gottstein.

10 The plaintiff had left the deceased's bedside at 9.45 pm and Nurse Harrington at approximately that time had begun to prepare the drugs which would be administered at 10.00 pm. Mr. Gottstein was at all times in Nurse Harrington's sight. The deceased beckoned Nurse Harrington and indicated he had a pain in his chest. Mr. Gottstein again indicated that he was suffering from pain on inhalation. Nurse Harrington then went to check the airway was clear again. She administered some more oxygen by using the ambu-bag. This meant disconnecting the deceased fromthe ventilator and using the ambu-bag to give him oxygen. She then attempted to suction the deceased, i.e that is clear the tracheostomy air tubes, which is done by way of a suction catheter. However once she got it 5 or 6 cm into the tracheostomy tube she discovered resistance. This alerted Nurse Harrington immediately to the fact that the deceased had a problem and she called assistance immediately. Nurse Connolly was attending the patient in the next bed and she came to the assistance of Nurse Harrington. It was explained to her what had happened and she then ambu-bagged again and set about introducing a saline solution down the tracheostomy tube to help loosen any secretions that might have been there. Sister Connolly took over. It was clear something had gone wrong because when they took out the inner tube to check it, it was completely clear. Then Sister Connelly set about deflating the cuff on the tracheostomy tube, then attempted to re-suction again. Sister Connolly having failed to relieve the situation with that immediately sent for the anaesthetist and Dr. Ward was paged. This all took some two minutes or so. Dr. Ward was upstairs, some four or five flights away and when he was paged he came as quickly as he could. Quite clearly Mr. Gottstein was now in distress. When Dr. Ward arrived the nurses assisted him but Dr. Ward ambu-bagged again, realised there was a problem and sent for Dr. O'Connor, the senior registrar available at the time. By this time it ought to have been clear that the tracheostomy had becomedisplaced.

11 Dr. Ward ambu-bagged again and when Dr. O'Connor arrived she ambu-bagged again. It was by now clear the tracheostomy had become displaced. Dr. O'Connor then decided to attempt to gain access orally for the patient. This required the giving of certain drugs, these drugs having already been prepared by Dr. Ward and it took two or three minutes for them to take effect and thereafter Dr. O'Connor achieved access on her second attempt orally.

12 It was whilst Dr. O'Connor was attempting to achieve access orally, Dr. Ward had at that point attempted to gain access through the trachea by cutting the stitches around the tracheostomy and attempted with his fingers to get an airway in. However he was unable so to do and by the time an airway was established by Dr. O'Connor, Mr. Gottstein had become brain dead. It was too late.

13 There was no ENT specifically trained doctor in the hospital on that night nor was there any person in the Intensive Care Unit specifically trained for the purposes of replacing a tracheostomy tube and this case now despite the length of time it took in court has boiled down to the fact that no one in the Intensive Care Unit or available was so trained and could deal effectively with the matter as arose, namely the replacement of a displaced tracheostomy.

14 The case against Professor Walsh is that he sent and allowed a patient of his be taken in the condition that he was after the operation to the Intensive Care Unit where he knew there was no one specifically trained to replace a tracheostomy tube.

15 The plaintiff's evidence from Mr. Stafford and Mr. Bradley made it quite clear that in their practices in England they have specific ENT wards to which they send their patients after surgery. They also swore, and I accept it, that there the nurses are specifically trained to replace tracheostomy tubes.

16 There was a great deal of evidence for the defence and I accept it, that in Ireland nurses are specifically not trained to change tracheostomies at all, specifically not the first change after an operation. I accept the evidence that this is the practice in Ireland, that nurses are not so trained and I don't think the plaintiff in reality at the end of the case were laying any specific criticism against the hospital for failing to train the nurses to do the tracheostomy change or the tracheostomyreplacement.

17 Therefore it is quite clear Mr. Gottstein had a successful operation, properly carried out, he was taken at the direction of the anaesthetist to the I.C.U unit where no nurse was trained to replace a tracheostomy in the event of it becoming...