Hill v Health Service Executive
 IEHC 746
THE HIGH COURT
[2001 No. 10826 P.]
Tort – Damages & Restitution – Medical negligence – Failure to detect rupture in ureter – Multiple procedures – Physical and psychological injuries – Quantum of damages – Duty of physician
Facts: The plaintiff sought damages for physical injuries and impairment of quality of life as a result of a stone extraction procedure. The plaintiff claimed that during that procedure, a tear in left ureter occurred which was left unheeded and in order to repair that tear, the plaintiff had to undergo multiple procedures. The plaintiff stated that he did not consent for any of those procedures. The defendant claimed that the plaintiff was duly informed about the possible consequences of each procedure and hence the consent was freely given. The defendant pointed out that the present condition of the plaintiff was due to back pain for which degenerative changes were responsible and those symptoms had not ensued from the performance of multiple procedures.
Mr. Justice Cross granted an award of special damages, for loss of earnings to date, loss of earnings into the future and general damages to the plaintiff. The Court held that the plaintiff had duly consented to the procedures underwent. The Court found that the urologist who had performed the said procedure did not have any experience of dealing with a ruptured ureter and thus he could not be fixed with the responsibility of having been aware of the same. The Court, however, found that the plaintiff's life had been affected by the pain that he still suffered and due to which he was unable to work. The Court noted that if the tear had been noticed promptly, the plaintiff would have benefited instantly by insertion of a stent and saved himself from the agony of undergoing multiple procedures. The Court thus held that the defendant was in breach of duty and negligent in relation to re-examination.
The plaintiff was born on 21st December, 1958 and is a married man with children residing in the midlands. Up to the incident complained of, the plaintiff worked all his life after leaving school at 18 and provided for his family. This was important to the plaintiff. Generally, his health was good, he had a previous kidney stone which passed naturally in 1989.
In September 1998, the plaintiff began to experience pain in his lower left back, stomach and indeed groin. In point of fact, the plaintiff had been suffering from pain in his testicle area for some weeks prior to this event but had not raised this pain with his doctor due to embarrassment.
The plaintiff's GP referred him on 29th September, 1998, to the Emergency Department of the defendant's hospital in Portlaoise.
The appropriate tests were undertaken and revealed a 'high grade obstruction to his left ureter secondary to a stone at the left PUJ'. The plaintiff was initially managed conservatively in the hopes that the stone would pass but on 5th October, 1998, x-rays revealed that the stone had progressed towards the left vesico-ureteric junction but was trapped there and he came under the care of Mr. C, a consultant surgeon with a special interest in urology. The x-rays revealed a stone some 5 × 4.5mm and as this stone had not progressed, Mr. C. performed an operation to extract the stone which he calculated as being 7 × 8mm, which was removed intact with what is known as a 'dormia basket'. The procedure was carried out under direct vision by Mr. C. via an ureteroscope. After this operation, though the notes do not state this, Mr. C. said, and I accept, that he re-entered the plaintiff's ureter with his ureteroscope in order to check that there was not a second stone, that the stone had not fragmented and that no damage had been caused in the original procedure.
The next day, the plaintiff was discharged home on oral analgesia but on the night of 7th October/early morning of 8th October, he was readmitted as an emergency with left abdominal pain associated with a fever. His creatinine was elevated at 128 and his white cell count was elevated at 11,700, consistent with infection.
Over the next few days, renal ultrasound was performed and following this a intravenous pyelogram was performed with a contrast which revealed a perforation of his distal left ureter post stone extraction.
The plaintiff was then transferred to the specialist urology unit at the Adelaide and Meath Hospital (Tallaght) under the care of Mr. T, Consultant Urologist.
A stent was inserted by Mr. T on 22nd October, 1998 and a nepehrostomy tube was clamped on 23rd October and removed on 25th October. This tube was then reinserted on 26th October, due to probable pain and it was found that the left ureter was completely obstructed but a stent was replaced and he was discharged home.
On 25th November, 1998, the plaintiff was readmitted to the Midland Regional Hospital in Portlaoise with left loin pain and when good discharged was discharged home. The procedure for the removal of the stent had been cancelled on a number of occasions but the plaintiff was symptomatic and he was sent urgently in the end of January 1999 to Tallaght for its removal.
On 27th January, 1999, the plaintiff was readmitted to Tallaght in pain and as the stent procedure had not worked, his obstructed ureter was re-implanted into a bladder flap (known as a Boari flap) which procedure was performed on 2nd February, 1999. The plaintiff was discharged on 25th February, 1999.
This Boari flap procedure, in effect, bypasses the ureter which was non-functioning and is permanent.
The plaintiff has been complaining of regular significant pain colic, testicular pain and a significant psychological upset since the operation.
The plaintiff claims that the defendants in their care of the plaintiff in Portlaoise were negligent in:-
(a) Not affording the plaintiff proper or adequate or any consent to the procedure undertaken.
(b) Rupturing or piercing his ureter in the course of the removal of the stone on 5th October, 1998 without being aware that this rupture had occurred.
(c) When immediately after the removal, Mr. C. re-entered the ureter to check that there was no other stone and that the stone had not been damaged in its removal and that no damage had occurred to the plaintiff's ureter that he failed to notice the fact that the ureter had been pierced in the operation.
(d) On the plaintiff's representation to the defendant's hospital on 8th October, 1998, for failing to anticipate that the plaintiff's symptoms were consistent with a ruptured ureter and failing to take the appropriate studies and films to establish that point.
The plaintiff contends that had the tear been discovered either on the original procedure or in the checking on the day of the operation or even had it been discovered when the plaintiff re-presented on 8th October in pain, or in the next few days after 8th October, that the problem could have been dealt with by a simple application of a stent which would have allowed the ureter to heal naturally and the plaintiff would not have had to have the procedure in Tallaght of the Boari flap inserted and that this operation which involves operating close to a nerve caused damage to this nerve and as a result, the plaintiff was in fairly constant pain in his side and testicles and as a result of this the plaintiff has not been able to work, has been in a psychologically low mood and that his life has been significantly ruptured.
It is conceded on behalf of the plaintiff that the last number of years, the plaintiff has also developed coincidental back pain radiating down his leg which has required treatment.
The defendant denies each of the allegations of negligence.
(a) they contend that the appropriate consents were given;
(b) they contend that the surgeon, Mr. C. could not have reasonably known that a tear had occurred in his operation;
(c) they contend that, first of all, there was no obligation on Mr. C. to follow up his initial procedure with a check but that if he did check the ureter after removing the stone that it was not unreasonable for him to fail to notice a tear which might have been a very small one; and
(d) they also contend that when the plaintiff re-presented himself to the hospital in Portlaoise that it was not reasonable to expect that a tear had occurred and that other than in the light of hindsight could such a unlikely event have been anticipated.
In relation to the issue of damages:
(a) The defendants further contend that even if the plaintiff had been diagnosed with the tear in Portlaoise on his re-presentation that he would have been too late to make any difference as over 24 hours had elapsed since the initial tear.
(b) The defendant further contends that the plaintiff had for some weeks prior to his initial presentation to hospital, pain in his testicle from a unknown origin, known as Orchalgia and that it was this Orchalgia (which is merely a name for pain in the testicles) which had 'taken a back seat' during the operation reappeared and has persisted and is unrelated to the incident.
(c) It is also contended on behalf of the defendant when the plaintiff went to the pain management clinic in Tallaght and was given injections in respect of the nerve damage which they diagnosed as being related to the Boari flap procedure, that this was a misdiagnosis and that the plaintiff was, at all times, suffering from an unrelated back problem.
(A) The Consent
The plaintiff stated that before the procedure an anaesthetist sat down beside the plaintiff asked him a couple of questions about his general health and smoking and he signed a form. The plaintiff stated that 'he told me that I was going down...
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