Green v Hardiman

• Jurisdiction: Ireland
• Judge: Mr. Justice Cross
• Judgment Date: 20 January 2017
• Neutral Citation: [2017] IEHC 17
• Court: High Court
• Docket Number: [2012 No. 7800 P.]
• Date: 20 January 2017

[2017] IEHC 17

THE HIGH COURT

Cross J.

[2012 No. 7800 P.]

BETWEEN

LEO GREEN

PLAINTIFF

AND

EILISH HARDIMAN

DEFENDANT

Health – Medical Negligence – Breach of Duty of Care – Personal Injury – Damages – Statute of Limitations – Cause of Action – Knowledge of Factual Situation.

Facts: The plaintiff commenced the legal action by personal injury summons alleging that the plaintiff suffered injury as a result of the defendant's negligence and breach of duty. The plaintiff contended that the defendant had failed to provide adequate treatment to the plaintiff as required in the standard situation. The plaintiff argued that the condition deteriorated as a result of the defendant's negligence and ommission of the established procedures. The plaintiff alleged that the plaintiff had been forced a prolonged stay at the hospital as a result of a wound infection. The defendant contended that the plaintiff had failed to comply with the provisions of the Statute of Limitations. The plaintiff argued that the plaintiff could not reasonably have formulated the allegations of negligence against the defendant in the absence of the medical records. The plaintiff stressed that had the defendant followed due course, probably, the condition would have been discovered and subsequent requirement would have been duly undertaken, thereby mitigating the future injury to the plaintiff's person.

Mr. Justice Cross held that the petition for damages would be granted. The Court held that the the plaintiff's action against the defendant would not be barred by virtue of the Statute of Limitations. The Court observed that the medical records were required in order to attribute the injuries of the plaintiff to the failure of the defendants to investigate the matter properly. The Court agreed that the defendant had negligently failed to detect the fact of a full tear by palpitation. The Court assessed and duly awarded the plaintiff's damages as being significant and higher than moderate but not, in any way, catastrophic.

JUDGMENT of Mr. Justice Cross delivered on the 20th day of January, 2017

1. Introduction

1.1 The plaintiff was born on 11th September, 1939, is a married man with four children. He is a retired sales manager with a company called Columbus Dixon and in his earlier life was an active rugby player and then referee and in more recent times before the indexed events was active and enthusiastic gardener and golf player. By the time this matter came to trial, it is true to say that his memory is probably not as good for dates as it would have been and he was not, at all times, a very accurate historian. There is no doubt, however, that he was a honest and truthful witness who though extremely angry at what occurred to him did in no way exaggerate his symptoms or deviate from the truth as he saw it.

2 History

2.1 In the period 2005 to 2007, the plaintiff was treated for elevated PSA levels giving rise to concerns about prostate problems which were out ruled and on 15th November, 2007, after a colonoscopy he was diagnosed with diverticular disease. A follow up CT scan confirmed that the plaintiff had a colovesical fistula which was causing problems with his colon and his bladder and treatment was recommended which entailed a repair by way of laparatomy which was undertaken by Prof. N., a widely respected expert surgeon in the defendant's hospital at Tallaght on 11th December, 2007.

2.2 During this surgery, an accidental tear was made in the plaintiff's small bowel.

2.3 Prof. N. subsequently identified this as a serosal tear, i.e. a superficial tear that did not go through the entirety of the bowel. Prof. N. believes that he physically palpated the small bowel and no evidence of escape of any gas or material was apparent and accordingly he concluded that the tear was superficial. Prof. K., the plaintiff's expert, is of opinion that what occurred in the operation was in fact a full tear of the small bowel which resulted in subsequent escape of matter into the plaintiff's body. Given the subsequent events and infections I find that the tear was in fact through the entirety of the bowel and not a serosal tear.

2.4 It is not submitted on behalf of the plaintiff that the fact of his tear in any way suggests negligence on the part of the defendant, as there is always a risk of some damage to the small bowel in the procedure because they can be adhesions in the area and tears to the bowel can and do occur without any fault on the part of the surgeon.

2.5 The surgery was performed and what Prof. N. understands to be an insignificant serosal tear was unrepaired and the plaintiff remained in Tallaght Hospital.

2.6 Shortly thereafter, the plaintiff's bloods indicated a raised white cell and there were elevated CRP figures and by 14th December, the plaintiff's abdomen became very distended and uncomfortable and the possibility of a leak was raised and on 14th December, a procedure akin to an x-ray of the colon was performed which showed that the colon repair was intact. No scan, however, was undertaken of the plaintiff's small bowel at that time and accordingly, as far as the defendant was concerned there was no explanation from the plaintiff's elevated white cell count or elevated CRP. The 14th December was a Friday and over the weekend, the plaintiff does not appear to be examined medically.

2.7 On 17th December, which was a Monday, the plaintiff was referred to a cardiologist as he was developing hypertension and his white cell count had risen and his CRP was continuing to be significantly elevated.

2.8 Eventually on 19th December, a second operation was performed by way of laparotomy with a significant incisional entry through the abdomen and a loop ileostomy was carried out providing a stoma through the abdomen whereby his bowel discharged through the stoma inserted into his abdomen onto which a bag was fitted.

2.9 The plaintiff's recollection was that he was advised by medical personnel that the second operation was required because, as he understood it, a suture of the bowel had come away and there was leakage.

2.10 After the procedure on 19th December, the plaintiff was admitted to the Intensive Care Unit for it seems 48 hours and at that stage he was critically ill and he was retained in the hospital until 28th December when he was discharged.

2.11 At home, his condition deteriorated and on 25th January, 2008, he was admitted to South Tipperary Hospital in Clonmel near where he lives and transferred to the defendant's hospital in Tallaght on 6th February and at this stage, the loop ileostomy was closed and the bag was removed and the plaintiff recuperated in Tallaght until 13th February when he was discharged.

2.12 On 27th March, 2008, the plaintiff was seen for follow up review by Prof. N. and at this stage, he was developing a ventral hernia and Prof. N. indicated to the plaintiff that this could be treated in approximately six months afterwards when he had got better.

2.13 The plaintiff is very angry that despite this arrangement, no further follow up was put in place by the defendants. It seems there was some mix up between the appointments desk and the plaintiff in that no follow up appointment was given.

2.14 This was the last involvement of Prof. N. and was on 27th March, 2008.

2.15 The plaintiff's hernia developed and he was concerned about it, it was causing him difficulty in terms of movement and discomfort.

2.16 In particular the hernia affected his activities in gardening and playing golf which he was unable to continue to any real extent.

2.17 It should be stated that as a young man in his early 20s, the plaintiff developed an inguinal hernia which was treated by operation and a small scar in the pubic area resulted. This is not related to his present hernia. I have viewed his hernia and it bulges and stretches from the top of his stomach down towards his pubic area.

2.18 The hernia is reasonable faithfully represented in the photographs that were submitted though it is agreed that this has grown somewhat since then. It should be said that on his admission to the defendant's hospital initially, the plaintiff did have a small hernia above his umbilicus but it is not disputed in this case that the hernia which now presents itself was as a matter of probability caused by the wound infections from his leaking bowel and the procedures of the second operation.

2.19 In any event, the plaintiff who appears by this stage to have lost confidence in the defendant's hospital and also preferred local treatment was referred by his GP to Mr. M., Consultant in Tipperary Hospital who, in essence, advised against any further surgery for a number of reasons, to the effect, that the hernia would be difficult to repair and would involve the insertion of a mesh and the risk of further infection. The plaintiff accordingly did nothing about the problem and hoped that his condition would improve.

2.20 Mr. M. reported to the plaintiff's G.P. by letter dated the 14th January 2009 stating, inter alia:-

‘As you know he has divarication of rectus abdominis muscle on his abdominal wall given the impression of a long standing midline hernia. This is a very common condition but does not particularly improve from surgery because of the geometric outline of where the rectus muscles now lie. Essentially they pull away from the midline and resuturing them back in really only facilitates a tear of these muscles and they get an even greater type herniation.

Mr. Green's situation is compounded in that he has also actually developed a small incisional hernia component in the central part of his abdominal wall just below the umbilical area in keeping with a true incisional hernia at the site. However this would account for no more than 10% of the incisional herniation component …

I have outlined to him that this is...