Hurley Ahern & Ahern v Moore & Southern Health Board

• Jurisdiction: Ireland
• Judge: Mr Justice Ryan
• Judgment Date: 01 February 2013
• Neutral Citation: [2013] IEHC 72
• Date: 01 February 2013
• Court: High Court
• Docket Number: [2003 No. 10829 P]

[2013] IEHC 72

THE HIGH COURT

[10829P/2003]

Hurley Ahern & Ahern v Moore & Southern Health Board

BETWEEN

KAREN HURLEY AHERN AND GARRETT AHERN

PLAINTIFFS

AND

VICTOR MOORE AND THE SOUTHERN HEALTH BOARD

DEFENDANTS

BYRNE v RYAN 2009 4 IR 542 2007 IEHC 207

MCFARLANE v TAYSIDE HEALTH BOARD 1999 4 AER 961 1999 3 WLR 1301 2000 2 AC 59 2000 SLT 154 2000 1 FCR 102 2000 PIQR Q101 2000 LLOYDS REP MED 1 2000 52 BMLR 1 1999 149 NLJ 1868

PARKINSON v ST JAMES & SEACROFT UNIVERSITY HOSPITAL NHS TRUST 2001 3 AER 97 2001 3 WLR 376 2001 EWCA CIV 530 2002 QB 266 2002 2 FCR 65 2001 2 FLR 401 2001 FAM LAW 592 2001 AER (D) 125 (APR)

REES v DARLINGTON MEMORIAL HOSPITAL NHS TRUST 2003 4 AER 987 2003 3 WLR 1091 2004 1 AC 309 2003 UKHL 52 2003 3 FCR 289 2004 1 FLR 234 2004 FAM LAW 22 2003 NLJR 1599 2004 4 LRC 102 2003 AER (D) 271 (OCT)

UDALE v BLOOMSBURY AREA HEALTH AUTHORITY 1983 2 AER 522 1983 1 WLR 1098

THAKE v MAURICE 1986 1 AER 479 1986 2 WLR 337 1986 QB 644 1986 83 LSG 123 1986 136 NLJ 92

ALLAN v GREATER GLASGOW HEALTH BOARD 1998 SLT 580 1993 17 BMLR 135

Medical law – Personal injuries – Negligence – Damages – Sterilisation operation – Expert evidence – Whether plaintiff entitled to damages due to pregnancy arising from failed sterilisation procedure – Whether operation carried out in proper and effective manner.

Facts The first-named plaintiff had become pregnant despite undergoing a sterilisation procedure. The plaintiff had a painful and difficulty pregnancy and post-natal recovery. The baby was born with severe physical defects and died shortly afterwards. The baby"s condition was not related to the ineffective sterilisation operation. The plaintiffs claim that the doctor who had carried out the procedure had done so negligently and sought damages. The defendants denied the claims and any entitlement to compensation. It was also contended that even if negligence was established, it was not conceded that the plaintiffs were entitled to compensation. The plaintiffs were separated and it was submitted that the second-named plaintiff did not have the necessary legal standing to make a claim. Evidence was given as to the emotional trauma that the plaintiffs had suffered.

Held by Ryan J in awarding damages: The court was satisfied that the probability was that the sterilisation operation had not been carried out correctly. There was no reasonable explanation for the pregnancy if the sterilisation procedure had been carried out properly. It was clear that a plaintiff should be allowed a measure of general damages for the failed sterilisation, pregnancy, delivery and the extra operation arising from the defendants" negligence. The period that the infant survived (six months) would also be included as well. The first plaintiff was entitled to a substantial award of general damages, which the court would assess in the amount of €100,000. Although the second-named plaintiff had undoubtedly suffered some of the distresses that the first plaintiff had suffered, the law did not permit recovery of compensation in his case.

1 JUDGMENT of Mr Justice Ryan delivered the 1st February 2013

Introduction

2 Following a failed sterilisation procedure carried out by the first defendant, Dr Moore, the first plaintiff Ms Karen Hurley Ahern became pregnant and gave birth by emergency caesarian section to a baby boy. Samuel was born with severe physical defects and he died at six months of age. The baby's unfortunate condition and his fatal illness were not caused by the ineffective sterilisation operation. The plaintiff had a painful and difficulty pregnancy and post-natal recovery. Samuel was transferred shortly after birth from Limerick to Our Lady's Hospital, Crumlin where he remained for the rest of his short life. His parents were distraught trying to keep watch by their baby's bedside while also caring for their two little girls at home. The whole experience has left lasting scars.

3 The plaintiffs claim that Dr Moore was negligent in performing the failed laparoscopic sterilisation. The operation involved affixing surgical clips to occlude Ms Hurley Ahern's fallopian tubes. The specific question is whether Dr Moore applied the clips to the fallopian tubes or to some other abdominal structure. Dr Moore is seriously ill and was unable to attend court. The evidence on the factual issue is that of Dr Cathy Burke, who as a specialist registrar delivered Samuel and did the re-sterilisation operation.

4 The defendants deny the claims and any entitlement to compensation. Even if negligence is established, they do not concede that the plaintiffs or either of them is entitled to recover damages. If the plaintiffs succeed, their claim for damages gives rise to disputed legal issues, including in particular whether the second plaintiff has any legal standing to claim compensation.

Chronology

5 The first plaintiff was born in 1971 and she is married to the second defendant but they have been separated since 2005. The plaintiffs have two surviving children, Abigail and Zoe, who were born in 1998 and 2000 respectively. They are also the parents of Samuel, who was born on the 10 ^th October, 2002 and who died died aged six months on the 6th March 2003 from severe congenital abnormalities.

6 The plaintiffs live in Co. Limerick. The first plaintiff has a genetic blood clotting condition known as Factor V Leiden mutation which predisposes her to blood clot formation. It can cause a deep vein thrombosis or a pulmonary embolism and the risk in pregnancy for a person with Factor V Leiden mutation is much greater than for the general population. The condition makes pregnancy perilous but clots can occur in other circumstances. The plaintiff had blood clots in 1991 and 1997 when she was not pregnant.

7 The plaintiff's two successful pregnancies with Abigail in 1998 and Zoe in 2000 were delivered by Caesarean section. During those pregnancies, she had injections to prevent thrombosis and thereafter the drug Warfarin was prescribed for her for some time.

8 Ms Hurley Ahern discussed her condition with regard to future pregnancies with her General Practitioner Dr Margaret Murphy in 2000, following Zoe's birth. She was not able to use contraceptive pills because of her genetic condition. The doctor was of the view and Ms Hurley Ahern concurred that sterilisation would be appropriate. She and Mr Ahern had two girls who were healthy and the first plaintiff was happy with that family size in all the circumstances. The plaintiffs and Dr Murphy considered the situation and came to the conclusion that the best course to adopt was for Karen to have a sterilisation. The other plaintiff Garrett Ahern was himself willing to undergo sterilisation but the parties with the help of Dr Murphy came to the conclusion that such a step would not be appropriate.

9 In late 2000, Dr Murphy referred Ms Hurley Ahern to the first defendant, Dr Victor Moore, Consultant Obstetrician/Gynaecologist, at Tralee General Hospital with a view to her having a sterilisation. Her letter of 23 ^rd August gave relevant information to the specialist: "She has a history of Factor V Leiden mutation and has had recurrent thrombosis. She has had three pregnancies with one early miscarriage and two live births both by C-section. She was treated with prophylactic Heparin during both the pregnancies and is currently on Warfarin 6mgs daily. She is 5 months postpartum." The letter also said that the patient was unable to use any hormonal contraception or the coil.

10 The operation was scheduled for the 11 ^th January, 2001, but it did not take place because the plaintiff had a head cold. The procedure was rescheduled for the 8 ^th February, 2001, when it was performed by Dr Moore.

11 Appropriate consent forms were presented to Ms Hurly Ahern and she signed them and no issue arises in that regard. Neither is there any issue in regard to information about the procedure or that there were certain risks involved that the procedure might not actually work. A point that is in dispute, however, is whether the first defendant's Registrar, Dr Vincent Malelekwa, now himself a Consultant Obstetrician/Gynaecologist, advised the plaintiffs that they should not have unprotected sex for a period of a year following the procedure. The first plaintiff gave evidence that the doctor did advise to that effect but he denies that and says that it would be contrary to medical science and to his own practice. Having regard to the cases made by the parties, the evidence and the issues that arise, the resolution of this question is of little importance in the decision.

12 Dr Moore carried out the procedure on the 11 ^th January 2001, by way of laparoscopic (keyhole) surgery. The standard procedure is to apply clips to close the patient's fallopian tubes, through which eggs travel from the ovaries to the uterus. Dr Moore's operation note is as follows:-

13 Routine transabdominal pneumo peritoneum verres needle

14 suprapubically

15 Two Filshie clips to each tube

16 Omental adhesion to dome of bladder

17 obscured left tube so was divided by using laparoscopic scissors. Gas

18 released

19 instruments and 2.0 Catgut to puncture sites.

20 Dr Moore is unfortunately very ill at present and was unable as a result to give evidence. The court did have the evidence of his registrar, Dr Malelekwa but he was not in attendance at the operation that was performed by Dr Moore.

21 The plaintiffs testified that they had obeyed what Ms Hurley Ahern said was the instruction that Dr Malelekwa had given her in that they used condoms for the rest of 2001 or almost all of that period. They began having unprotected sex at the end of 2001.

22 In April 2002 the first plaintiff discovered that she was pregnant. This came as a great shock to her and her husband and they were upset about it....