Griffin v Patton & Tyndale

CourtSupreme Court
JudgeMr. Justice Geoghegan
Judgment Date27 July 2004
Neutral Citation[2004] IESC 46
Date27 July 2004

[2004] IESC 46


Murray C.J.

McGuinness J.

Hardiman J.

Geoghegan J.

Fennelly J.



First-named Defendant/Appellant


Second-named Defendant








Tort - Medical negligence - Appeal - Liability - Surgical procedure - Factual issue decided by trial judge

Facts: This was an appeal on liability only from a judgment of the High Court awarding damages and costs to the plaintiff against the defendant who was a consultant obstetrician and gynaecologist for negligence in the carrying out of a surgical procedure. The action against the hospital was dismissed. When the plaintiff had undergone a procedure to remove a dead foetus, a piece of bone 5.5cms in length and probably a lower limb of the foetus had been left behind in her uterus.

Held by the Supreme Court (Murray CJ, McGuinness, Hardiman, Geoghegan and Fennelly JJ) in dismissing the appeal that the issue which the trial judge had to decide was essentially a factual issue. It was common case among all the medical experts that a gynaecologist carrying out the procedure which the defendant carried out had to take all correct steps to ensure as far as possible that the uterus was properly evacuated. It was for the trial judge to decide on the issue of fact as to whether the defendant did that or not in this case.

Reporter: R.W.

Mr. Justice Geoghegan
delivered the 27th day of July 2004

This is an appeal on liability only from a judgment of the High Court (O'Donovan J.) awarding €100,000 damages and costs to the respondent against the appellant who is a consultant obstetrician and gynaecologist for negligence in the carrying out of a surgical procedure. This procedure was carried out in the Bon Secours Hospital in Cork and the second-named defendant was the nominated representative of that hospital which was also sued in negligence arising out of the same procedure. The action against the second-named defendant in the High Court was dismissed and there is no appeal against that order.


Although there were a large number of formal grounds of negligence in the statement of claim it can broadly be stated that essentially the allegations were twofold. The first was that in a situation where there were a number of possible ways of dealing with the respondent's medical problem the appellant negligently chose the wrong option. The second was that having chosen that option which was a surgical procedure, she negligently failed properly to check that the procedure had been completed. As I will explain in due course this second heading of negligence had itself a twofold aspect.


The learned trial judge has explained in some detail in his judgment the relevant facts relating to the first of these allegations of negligence and having done so, he found in favour of the respondent. The learned trial judge then went on to find the appellant liable under the second heading of negligence to which I have referred and in both its aspects. The appellant has appealed that finding to this court. There is no cross-appeal against the finding in favour of the appellant on the other heading of negligence.


As considerable space will be necessarily taken up in dealing with the matters which are relevant to this appeal, I do not intend even for the purpose of putting the matter in context to detail the facts relevant to the first heading of negligence. If it is ever thought desirable to refer to them for the purposes of context they are to be found in the judgment of O'Donovan J.


It is sufficient for the purposes of this appeal to give the following outline of facts.


When the respondent was into her seventeenth week of pregnancy the unborn baby died. It is common case that this happened through no fault of anyone. When it was discovered that that had happened it was hoped that the dead foetus could be evacuated from the uterus as soon as possible. For this purpose the respondent was prescribed dosages of prostaglandins which have a propensity for inducing a termination of pregnancy. Unfortunately, in the respondent's case they did not work. The appellant then decided on a surgical procedure involving the evacuation of the uterus through the vagina. There was difference of medical opinion at the trial as to whether this procedure should properly be called D and E (dilation and evacuation) or E.R.P.C. (evacuation of retained products of conception) but nothing turns on this terminology issue. What is however relevant is that unsurprisingly all the doctors who gave evidence agreed that it is incumbent on the doctor carrying out this surgical procedure to satisfy himself or herself that all parts of the foetus are removed. It is common case also among the medical experts who gave evidence that without negligence, small pieces of soft tissue can be accidentally left behind. That normally presents no problem because within days they are passed out of the body in the normal way. What was in issue between the medical experts however was whether a piece of bone 5.5 centimetres in length and probably a lower limb of the baby could be accidentally left behind in the uterus without there being negligence on the part of the surgeon. This is in fact what happened in this case and that being so, the question arose not only whether it could ever happen without negligence but also whether even if it could, the respondent was in fact guilty of negligence on this occasion.


I intend to review the relevant evidence in some detail but with a view to a proper understanding of its significance, I think it helpful to refer at this stage to some operative parts of the judgment of the learned High Court judge. Having referred to the evidence of Mr. Jarvis, one of the medical experts called on behalf of the appellant to the effect that it was possible "for someone exercising the criteria which Dr. Patton says that she observed" to miss an entire lower limb notwithstanding that he or she was doing the procedure competently and that this was because Dr. Patton was dealing with a"macerated foetus of at least three weeks standing", the judge then goes on to say the following:

"In the light of the foregoing, it is clear that, once again, the court was confronted with a marked difference of opinion between expert witnesses. Despite the fact that it was established beyond any doubt that the E.R.P.C. procedure which Dr. Patton carried out on the plaintiff on the 23rd day of January, 1998 was unsuccessful in the sense that she failed to remove the entire foetus from the plaintiff's uterus; leaving behind a piece of bone which I am satisfied by the evidence which I heard was 5.5 centimetres in length and in all probability comprised a lower limb and, despite the fact that, following that procedure, she failed to arrange for an ultra sound scan of the plaintiff's uterus to confirm that the entire foetus had been removed therefrom, both Dr. Turner and Mr. Jarvis were of the view that she had not fallen below the standard which one would expect of a gynaecologist of her training and experience, exercising ordinary care, whereas Mr. Clements and Dr. Griffiths took the contrary view. In this regard, once again, I had no reason to doubt the honesty of any of those witnesses and, accordingly in the light of the decision of the Supreme Court in the case of Dunne (an infant) v. The National Maternity Hospital and Reginald Jackson, to which I have already referred, it would seem that, legally speaking,I must conclude that Dr. Patton was not negligent in failing to remove all the bony structures from the plaintiff's uterus and/or in failing to confirm such removal with an ultra sound scan.

In my view, however, it is not as simple as that. While I cannot disregard the views of Dr. Turner and Mr. Jarvis and, as I have indicated, I do not doubt that those views are honestly held, their conclusions appear to me to be dependent upon; firstly, a total acceptance of Dr. Patton's evidence with regard to the conduct of the E.R.P.C. procedure which she carried out on the plaintiff at the material time, secondly, an assumption that the procedure was a routine one and, thirdly, an understanding that, at the material time, there was no reason why Dr. Patton's judgment might have been suspect. In my view, an analysis of the reasons for those conclusions suggests that they are not soundly based. In this connection, it was common case that a doctor, who undertakes an E.R.P.C. procedure should make sure that he/she finishes it and, in that regard, finishing the procedure means evacuating the uterus of major bony structures. Even Dr. Patton's most ardent critics accepted that to leave some soft tissue behind following the performance of an E.R.P.C. procedure is excusable. In this regard in the course of her evidence, Dr. Patton said that she had satisfied herself that she had removed the complete foetus from the uterus and that she had done so using three criteria to assist her in coming to that conclusion, namely; a consideration of the volume of the foetus which she had removed, a consideration of what the uterus felt like when she curetted it after, as she asserted, she had emptied it, and a consideration of what the uterus felt like on a bimanual examination following curetting. As it transpired, that judgment was wrong because the fact of the matter is that Dr. Patton had failed to remove a piece of bone some 5.5 centimetres in length from the uterus. It was implicit in Dr. Patton's evidence with regard to her consideration of the volume of foetus which she had removed and how she satisfied herself that it had been...

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