Healy (A Minor) v Health Service Executive (HSE) & Fitzsimons

• Jurisdiction: Ireland
• Judge: Mr. Justice John Quirke
• Judgment Date: 08 May 2009
• Neutral Citation: [2009] IEHC 221
• Docket Number: [No. 6479 P/2004]
• Court: High Court
• Date: 08 May 2009

[2009] IEHC 221

THE HIGH COURT

[No. 6479 P/2004]

Healy (A Minor) v Health Service Executive (HSE) & Fitzsimons

BETWEEN

PAUL HEALY (A MINOR) SUING BY HIS MOTHER AND NEXT FRIEND, MICHELLE HEALY

PLAINTIFF

AND

THE HEALTH SERVICE EXECUTIVE AND ROBERT FITZSIMONS

DEFENDANTS

CONOLE v REDBANK OYSTER CO 1976 IR 191

CROWLEY (AN INFANT) v AIB 1987 IR 282 1988 ILRM 225 1987/5/1442

HAYES v MIN FOR FINANCE 2007 3 IR 190 2007/28/5805 2007 IESC 8

MCMAHON & BINCHY IRISH LAW OF TORTS 3ED 2000 77

TORT

Medical negligence

Failure to recognise and treat symptoms - Inadequacy of standard of observation - Plaintiff discharged without treatment - Acute bowel obstruction - Medical evidence - Failure to investigate concerns of mother - Failure to record incidents adequately - Whether negligence of paediatrician caused or contributed to injury - Whether negligence of hospital caused or contributed to injury - Whether negligence of hospital amounted to novus actus interveniens - Joint and several liability - Claims for contribution and indemnity - Apportioning of liability between hospital and paediatrician - Conole v Redbank Oyster Co [1976] IR 191; Crowley (an infant) v Allied Irish Banks Ltd [1987] IR 282 and Hayes v Minister for Finance [2007] 3 IR 190 distinguished - Finding that hospital entitled to 75% contribution of liability from paediatrician (2004/6479P - Quirke J - 8/5/2009) [2009] IEHC 221

Healy (a minor) v Health Service Executive

Facts: The plaintiff suing through his mother claimed damages for serious personal injuries suffered by reason of the alleged negligence and breach of duty on the part of the defendants. The plaintiff was born with a malrotation and required extensive medical care and treatment since birth. On the ninth day of trial, the defendants acknowledged that the injures suffered were as a result of the negligence and breach of duty of the doctor and hospital. The issue arose as to causation and the apportionment of liability as between the defendant parties.

Held by Quirke J. that by failing to refer the plaintiff for surgical opinion or x-ray, the defendant doctor was negligent and in breach of his duty owed. The failure of the hospital to apply minimum standards of observation to the plaintiff rendered the defendant negligent. The nursing staff of the hospital had failed to direct the plaintiff to hospital and had failed to apply general and approved medical practice. Both defendants were jointly and severally liable for the injuries of the plaintiff and both were required to compensate him. If the plaintiff had received the standard of care and treatment that he was entitled to, he would not have been discharged from hospital and his mother would not have been given inappropriate advice. The hospital was entitled to a contribution of 75% of liability to the plaintiff from the doctor.

Reporter: E.F.

JUDGMENT of

Mr. Justice John Quirke

delivered on the 8th day of May, 2009

1 The plaintiff, Paul Healy, was born on 14^th February, 2000, in Tralee General Hospital in County Kerry.

2 In these proceedings, it was claimed on his behalf that he suffered serious personal injuries a short time after his birth by reason of negligence and breach of duty on the part of the defendants. He sought damages from the defendants to compensate him for the injuries which he suffered and for the loss and damage which he has sustained and will sustain as a result of those injuries.

3 The first named defendant is the Health Service Executive which is the corporate body established by law with responsibility for the provision of health services within the State. Its responsibilities include the management, control and administration of Tralee General Hospital (hereafter "the hospital"), and the provision of paediatric, antenatal and post-natal care and services to patients, (including the plaintiff), who attend the hospital.

4 The second named defendant, Dr. Robert Fitzsimons, is a consultant paediatrician who, at all times material to these proceedings, practised his profession at the hospital and provided paediatric care to the plaintiff before, during and after his birth.

5 The plaintiff was born by normal vaginal delivery. Although he appeared to be in excellent condition at birth, there had been a natural interference with the return of his foetal intestine from his physiological hernia to his abdominal cavity. During a normal process of orderly return, the intestine undergoes systematic rotation and fixation. There was an interference with that process for the plaintiff and he was born with a malrotation, which is the term used to denote such an interference.

6 It was not claimed that malrotation could or ought to have been detected at or immediately after birth in the absence of symptoms indicating its existence. 55% of malrotations present within the first week of life and 80% within the first month.

7 Although malrotation may exist undetected for significant periods, it is generally accepted that once the diagnosis of malrotation has been established, surgical correction should be carried out in order to avoid the occurrence of what is known as a volvulus.

8 A volvulus is a twist or twisting of the intestine because it is not or is inadequately secured to the abdominal wall. The resultant knotting or corkscrew twisting of the intestine develops over time and involves an obstruction to the path of nutrients through the intestinal tract. It also results in intestinal obstruction and ischaemia consequent upon interruption of the blood supply to the intestine.

9 Intestinal obstruction causes bile to pour into the intestine and this causes bile-stained vomit. Consequently, bile-stained vomit is known by experienced and competent practitioners to be a highly characteristic symptom of volvulus.

10 Ischemia is the consequence of deprivation of blood and oxygen to the intestine, which, consequently, results in necrosis of the affected part of the bowel which becomes gangrenous. The resulting condition is called necrotising enterocolitis.

11 In these proceedings, it was claimed on behalf of the plaintiff, that, whilst he was relying upon the medical care and treatment provided by the defendants during the first four days of his life, he exhibited the classic symptoms of malrotation which should have been treated by the defendants as a surgical emergency.

12 It was contended that the defendants failed to recognise those symptoms and discharged the plaintiff from the hospital in the early afternoon of 17^th February, 2000.

13 The plaintiff was brought back to the hospital by his parents and readmitted on the evening of 18^th February, 2000, where an acute bowel obstruction was diagnosed and he was transferred by ambulance to Our Lady's Hospital in Crumlin (hereafter "Crumlin"), in Dublin where surgery disclosed a malrotation and a small bowel volvulus. Thereafter the medical and nursing treatment which he received was exemplary.

14 The surgical and medical staff in Crumlin did not expect him to survive during the first three or four days after his admission, but he did so. He remained in Crumlin for more than seven months during which time he required repeated extensive and extremely serious surgical treatment including five surgical laparotomies. He had repeated small bowel resections. Less than 1% of his small bowel remains.

15 The consequences of his injury have been permanent and catastrophic. Upon returning to his home, he required constant intensive care, including intravenous feeding in a totally sterile environment artificially created within his home. His parents have both abandoned full time gainful employment in order to provide him with necessary care.

16 He is now nine years old. In evidence, his mother provided a harrowing, detailed and often nightmarish account of what he, (and his family), have had to endure constantly and continuously from the moment of his birth and throughout his childhood.

17 He will require ongoing medical care and treatment. The remainder of his life will be permanently blighted. He will suffer permanent distressing and embarrassing symptoms which will cause him to be socially isolated and will greatly diminish his capacity to obtain any kind of remunerative employment

18 All allegations of negligence and breach of duty were initially denied by the defendants and each defendant sought an indemnity or contribution from the other in respect of the plaintiff's claim for damages.

19 On the ninth day of the trial of these proceedings, the defendants expressly or implicitly acknowledged that the injuries, loss and damage which gave rise to these proceedings were caused by reason of the negligence and breach of duty of the defendants or one or other or both of them.

20 Accordingly, the plaintiff's claim against the defendants was compromised on terms which were acceptable to the plaintiff.

21 The issue which the court is now required to determine is whether the negligence of one or other or both of the defendants caused or contributed to the plaintiff's injuries, loss and damage and, if both defendants contributed, how liability should be apportioned between the defendants.

RELEVANT FACTUAL EVIDENCE

Mrs. Michelle Healy

22 The following relevant evidence was adduced by the plaintiff's mother and next friend, Michelle Healy:

23 1. The plaintiff (Paul) is the second of her four children. The family lives at Knockanish, Tralee, in County Kerry. At the time of Paul's birth, Mrs. Healy was thirty years old and had considerable experience caring for children. She had attended the births of many of her seven nieces and nephews and had nursed many of them during infancy. She was then the mother of one daughter, Rachel, who was three years old.

24 2. Her pregnancy with the plaintiff was uneventful and when she went into...