Hegarty v Mercy University Hospital Cork

JurisdictionIreland
JudgeMs. Justice Irvine
Judgment Date25 November 2011
Neutral Citation[2011] IEHC 435
Docket Number[No. 698 P./2009]
CourtHigh Court
Date25 November 2011

[2011] IEHC 435

THE HIGH COURT

[No. 698 P./2009]
Hegarty v Mercy University Hospital Cork

BETWEEN

PAUL HEGARTY
PLAINTIFF

AND

MERCY UNIVERSITY HOSPITAL CORK
DEFENDANT

KELLY v HENNESSY 1995 3 IR 253

LARKIN v DUBLIN CITY COUNCIL 2008 1 IR 391

NEGLIGENCE

Medical negligence

Personal injuries - Psychiatric damage - Medical treatment - Duty to inform - Whether defendant failed to properly appraise plaintiff of surgical findings - Whether defendant failed to adequately advise plaintiff of significance of positive MRSA finding - Whether defendant misled plaintiff into belief of MRSA infection - Whether duty on hospital to furnish patient with accurate information regarding condition - Whether duty on hospital to appraise patient of all significant developments - Whether defendant liable for misinterpretation of plaintiff of information provided - Whether obligation on hospital to convey to patient results of all tests carried out during course of treatment - Whether obligation on hospital to advise patient that MRSA finding based only on single positive result - Whether obligation on hospital to inform patient that drug regimen capable of clearing MRSA infection - Causation - Whether defendant's acts or omissions capable of causing injury - Whether plaintiff suffered compensatable injury - Whether evidence of any recognisable psychiatric injury - Kelly v Hennessy [1995] 3 IR 253 and Larkin v Dublin City Council [2007] IEHC 416, [2008] 1 IR 391 considered - Case dismissed (2009/689P - Irvine J - 25/11/2011) [2011] IEHC 435

Hegarty v Mercy University Hospital Cork

Facts The plaintiff had been diagnosed with ulcerative colitis, a type of inflammatory bowel disease. Owing to deterioration in the plaintiff's condition he was admitted to the defendant hospital and underwent surgery. The plaintiff claimed that the defendant was negligent in failing to properly inform the plaintiff of the findings made in the course of the second surgical procedure and failing to adequately advise the plaintiff of the significance, in a clinical setting, of the MRSA positive finding. There was a further issue as to whether or not the defendant; post a certain date misled the plaintiff, deliberately or otherwise, into falsely believing that he continued to have the MRSA infection.

Held by Irvine J in dismissing the case. The plaintiff was given all of the relevant factual and clinical information in relation to the complication which arose from his initial surgery and there was no effort on the part of the defendant to conceal same. At no stage did any of the medical staff give any information to the plaintiff from which it might reasonably have been considered that MRSA was of any major clinical significance to his condition. The plaintiff's actions following his discharge from hospital were inconsistent with the assertion that he continued to suffer from significant worries regarding MRSA infection. The plaintiff's claim as a matter of law was not sustainable.

Reporter: R.F.

Background Facts
1

1. The plaintiff in these proceedings is now 34 years of age and he resides with his partner in Glanmire, Co. Cork. The couple have one child who is 11 years of age.

2

2. The within proceedings concern the care that was afforded to the plaintiff between the 6 th February and the 5 th April, 2007, whilst under the care of the medical and nursing staff at the defendant hospital in respect of a very serious health condition, namely ulcerative colitis, a type of inflammatory bowel disease.

3

3. The plaintiff developed ulcerative colitis in 2001. Between 2001 and 2007 he was treated for ulceration of his large bowel by his general practitioner, Dr. Grufferty, and Mr. Buckley, consultant gastroenterologist. He was also hospitalised on a number of occasions. Matters came to a head on the 6 th February, 2007, when the plaintiff's condition deteriorated to the extent that he required emergency admission to the defendant hospital where he was admitted under the care of Mr. Buckley.

4

4. At the time the plaintiff was admitted to hospital it was hoped that conservative management might bring his condition under control. Regrettably, his health deterioratedto the point that on the 12 th February, 2007, he had no choice but to submit to an emergency subtotal colectomy as he had developed what is described as toxic megacolon. His bowel had become enormously dilated and this brought with it the risk of perforation and potentially fatal peritonitis.

5

5. The emergency surgery was carried out by Mr. Maylone, locum consultant surgeon, and this involved the removal of the major part of the plaintiff's large bowel and the closing off of the rectal stump which was left in situ. An ileostomy was then fashioned from the small bowel and the plaintiff was left with a stoma in the abdomen supporting a colostomy bag.

6

6. The plaintiff, who initially appeared to be progressing well following surgery on the 12 th February, 2007, developed an oozing wound and became quite ill by the 18 th February, 2007. On the 20 th February the plaintiff was taken back to theatre for an exploration under general anaesthesia and, on the defendant's account of events, for such other surgery as might then be deemed necessary. That surgery was carried out by Mr. McGreal, consultant general and vascular surgeon. In the course of that operation, the plaintiff was found to have developed one of the rare but well established complications of this type of surgery, namely a leak from the rectal stump which caused a pelvic abscess and this infection in turn had caused the plaintiff's wound to breakdown. It seems that the suturing to the rectal stump broke down due to the fact that the plaintiff had been taking steroids on an ongoing basis and the use of steroids in this manner adversely affects the body's ability to heal. The surgery was extensive and involved the repair of the rectal stump and the repositioning of the ileostomy such that the stoma was placed higher in the abdomen than had originally been the case. Further, a drain was brought outthrough the original stoma site and a drainage bag attached. Accordingly, when the plaintiff woke up, to him it seemed as if he had two stomas and two colostomy bags. In the course of the surgery, what is described as a wittmann patch was inserted. This is a Velcro-like device where each side of the Velcro is sewn to the skin. The device is used where multiple further operations are planned and it serves as a temporary method of opening and closing the abdomen without suturing. Because of the infection in the plaintiff's abdomen, it was clear that the abdomen would have to be opened on many occasions to allow it to be washed out as part of the process of eradicating infection. Such a procedure was carried out on approximately twelve further occasions.

7

7. As a result of what was described as the "rectal blow out" and pelvic abscess, the plaintiff was prescribed a wide range of antibiotics to deal with coliforms and enterococci identified in the course of microbiological examination. One such antibiotic was linezolid, a drug considered appropriate for the control of the plaintiff's infection. This was introduced on the 26 th February, 2007.

8

8. The plaintiff made steady progress following the second surgical procedure of the 20 th February, 2007. However, a pelvic swab taken on the 27 th February, 2007, was reported positive for MRSA on the 1 st March, 2007. As a result, the plaintiff was moved to an isolation unit where family visiting him had to wear gowns and gloves. As he was already taking linezolid, to which MRSA is considered to be sensitive, his medication did not require any alteration by reason of this finding.

9

9. There is a dispute between the parties as to the information furnished to the plaintiff regarding the results of ongoing tests carried out to monitor his MRSA status. However, it is accepted by the plaintiff that some seven to ten days prior to his dischargefrom hospital he was aware that he had had at least one negative MRSA test result and that he had been earlier advised that he required three negative results before it could be definitively stated that he did not have MRSA. It is also agreed that as of the 5 th April, 2007, the date when plaintiff was discharged from hospital, he had had three negative MRSA test results and that this fact had been communicated to him with a reassurance that he was no longer at any risk in respect of MRSA.

The Liability Issues
10

10. Towards the end of the evidence in the proceedings, counsel on behalf of the plaintiff, Dr. John White, S.C., told the Court that there were really only two issues which the court was required to consider in respect of liability and these he stated were as follows:-

(1) whether or not the defendant, its servants or agents, were negligent in failing to properly appraise the plaintiff of the findings made in the course of the second surgical procedure, namely a leakage of the rectal stump which caused a pelvic abscess and wound infection; and/or

(2) whether the defendant, its servants or agents, were negligent in failing to adequately advise the plaintiff of the significance, in a clinical setting, of the MRSA positive finding from the pelvic swab reported on the 1 st March, 2007, having regard to the fact that:-

(i) only one such positive test result was available; and

(ii) the plaintiff at the relevant time had been taking linezolid since the 26 th February, 2007, a drug known to be capable, in certain cases,of bringing MRSA infection under control in as a short duration as two days.

Allied to this issue was the further question as to whether or not the defendant, post 1 st March, 2007, misled the plaintiff, deliberately or otherwise, into falsely believing that he continued to have MRSA infection until the date of his...

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