O'Leary v Health Service Executive (HSE) et Al-Safi
| Jurisdiction | Ireland |
| Judge | Mr. Justice John Quirke |
| Judgment Date | 20 May 2010 |
| Neutral Citation | [2010] IEHC 211 |
| Court | High Court |
| Date | 20 May 2010 |
[2010] IEHC 211
THE HIGH COURT
BETWEEN
AND
AND
MEDICAL PRACTITIONERS ACT 2007 (COMMENCEMENT) ORDER 2009 SI 40/2009
DUNNE (AN INFANT) v NATIONAL MATERNITY HOSPITAL & JACKSON 1989 IR 91 1989 ILRM 735 1989/1/165
NEGLIGENCE
Medical negligence
Informed consent - Duty of disclosure - Warning of facts, risks and alternatives associated with surgery - Extent of warning to be given - Evidence of qualification - Registration as specialist - General and approved medical practice - Whether plaintiff advised of all known facts and risks associated with surgery - Whether surgery appropriate or necessary - Whether defendant sufficiently qualified and experienced to adequately manage and medically treat plaintiff - Whether defendant followed course which no medical practitioner of like specialisation and skill would have followed - Dunne v National Maternity Hospital [1989] IR 91 followed - Medical Practitioners Act 2007 (No 25) - Medical Practitioners Act 2007 (Commencement Order) 2009 (SI 40/2009) - Claim dismissed (2008/3328P - Quirke J - 20/5/2010) [2010] IEHC 211
O'Leary v HSE
JUDGMENT of Mr. Justice John Quirke delivered on the 20th day of May 2010
The plaintiff is a forty-five year old single man who lives in Knocknaheeney, in County Cork.
In these proceedings he claims damages from the defendants to compensate him for personal injuries suffered as a result of alleged negligence and breach of duty by the defendants.
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 the Mercy University Hospital in Cork (hereafter "the hospital"), and the provision of urological and related treatment, care and services to patients, (including the plaintiff), who attend the hospital.
The second named defendant, Mr. Al-Safi, is a consultant urological surgeon who, at all times material to these proceedings, was employed by the first defendant as a locum consultant urological surgeon.
The plaintiff's claim is threefold. He claims (1) that as a result of the defendants' negligence his left kidney deteriorated and became non-functioning between 22 nd January, 2002, and 8 th August, 2002, whilst he was undergoing anti-tuberculosis therapy, (2) that an augmentation cystoplasty was performed upon him unlawfully and without his informed consent because Mr Al-Safi failed to disclose to him all of the known facts, risks and alternatives associated with that surgery and (3) that, because he was insufficiently qualified and insufficiently experienced to adequately manage and medically treat his symptoms and condition, Mr Al-Safi negligently subjected him an inappropriate and unnecessary augmentation cystoplasty on the 16 th of May 2006.
He claims that, in consequence, he has suffered significant and unnecessary pain, suffering, distress loss and damage.
The plaintiff presented to the hospital on the 2 nd of January 2002 complaining of painless haematuria and other symptoms.
Although a CT scan, undertaken on 31 st January, 2002 and intra-venous pyelograms, (IVPs), carried out in the hospital on the 3 rd of January 2002 and the 8 th of May 2002 had shown little, (if any), appreciable function within the plaintiff's left kidney, a DMSA isotope renogram, undertaken on the 22 nd of February 2002, demonstrated significant function (approximately 31%) within that kidney.
The plaintiff was correctly diagnosed with genitourinary tuberculosis and was, quite properly, referred to a consultant physician in infectious diseases (Dr Horgan) in April 2002. Dr Horgan treated him successfully over a nine month period.
Mr. C.M. Bishop, who is a consultant in urological surgery, and who testified in support of the plaintiff, was of the opinion, (in June 2008), that, before referring him to Dr Horgan, the hospital's consultant urologist, Mr. Eamon Rogers should have inserted a stent between the plaintiff's kidney and his bladder, temporarily whilst he was undergoing his anti-tuberculosis treatment.
He took the view that, in the light of the DMSA result, it might have been possible to preserve significant function within the plaintiff's left kidney during and after his anti-tuberculosis therapy by appropriate stenting at the relevant location.
He concluded that the plaintiff had received sub-standard treatment at the Mercy Hospital because that course of action was not followed by Mr Rogers.
Mr K.K Sethia, Mr H.B.Y Gana and Ms Helen Parkhouse, all of whom are consultants in urological surgery who testified in support of the plaintiff's claim, agreed with Mr Bishop on this issue in reports written between July 2009 and November 2009. All relied upon the DMSA result of 22 nd February 2002 (indicating 31% function in the plaintiff's left kidney) in support of their conclusions.
In fact, it has now been agreed by all of the expert witnesses who testified in this case, (including Messrs Bishop, Sethia and Gana and Ms Parkhouse), that the DMSA isotope study undertaken on 22nd February 2002 was, in the words of one witness, "largely useless" because incorrect software was applied to the study and, consequently, its findings were entirely erroneous.
On 12 th August, 2002, an isotope study known as a DTPA renogram (with Lasix) of the plaintiffs left kidney was undertaken. The result of that scan indicated that there was no useful function present within the plaintiff's left kidney. That result was consistent with the results of the earlier tests including the CT scan undertaken on the 31 st January 2002 and the IVPs of the kidney, carried out on the 3 rd of January 2002 and the 8 th of May 2002.
Mr. D. Lanigan and Mr. J. Drumm, consultants in urological surgery who testified in support of the defendants were firm in their conclusions that there was no recoverable function within the plaintiff's left kidney in February 2002 and thereafter.
They were of the opinion that stenting between the plaintiff's bladder and his left kidney was neither necessary nor desirable for the plaintiff whilst he was undergoing the anti-tuberculosis treatment in 2002 and 2003. Mr. Eamon Rogers and Mr. Al-Safi agreed.
Messrs Bishop, Sethia and Gana and Ms Parkhouse argued that, Mr Rogers ought to have inserted a stent or stents between the plaintiff's left kidney and his bladder in case recoverable function was present and because the DMSA of the 3 rdFebruary suggested significant function.
However, Messrs Sethia and Gana and Ms Parkhouse, agreed in retrospect that, whilst it was possible that there might have been some function within the kidney in February 2002, it was unlikely that recoverable function was present at that time.
Mr Bishop said that, in retrospective, he simply did not know whether or not there was recoverable function within the Plaintiff's left kidney in February 2002.
On that particular issue the evidence adduced on behalf of the defendants was not inconsistent with the evidence adduced by the four urological surgeons called to testify in support of the plaintiff's claim.
I am satisfied, on the evidence, that as a matter of probability, there was no recoverable function within the plaintiff's left kidney when he attended the Mercy Hospital in Cork on 2 nd January, 2002.
Accordingly, whilst the application of incorrect software to the DMSA isotope renogram comprised negligence by the Hospital, the plaintiff has not established on the evidence and on the balance of probabilities, that he has suffered any consequent injury loss or damage.
There has been conflicting expert evidence adduced on behalf of the parties in relation to;
a (a), the nature and level of investigation which was required and undertaken by Mr. Rogers in early 2002, particularly in relation to appropriate urodynamic investigation and a cystoscopy.
b (b), whether Mr. Rogers, ought to have inserted a stent between the plaintiff's kidney and bladder in February 2002 (and in particular after the DMSA isotope renogram on the 22 nd of February 2002) and
c (c), an alleged absence of a systematic approach in 2002 to the investigation and treatment of the plaintiff's urinary problems, (with particular reference to the recoverable function within his left kidney).
Having regard to the finding which I have now made, I believe that it is unnecessary for me to make any findings on those matters.
It is claimed on behalf of the plaintiff that, before commencing augmentation cystoplasty Mr. Al-Safi had a duty to disclose to the plaintiff of all of the known facts, risks and alternatives which are associated with that particular surgery.
It is contended that Mr Al-Safi did not disclose to the plaintiff all of the relevant facts, risks and alternatives and that, if he had done so the plaintiff would not have undergone the surgery and would not have suffered the injury alleged.
Mr. Bishop stated that before performing an augmentation cystoplasty prospective patients should be warned that the surgery can have troublesome side effects which adversely affect quality of life. He said that these complications include recurrent infections, stone formation, mucus production, blood electrolyte abnormalities and bowel dysfunction, (including chronic diarrhoea).
He said that patients should also be warned that there is a significant risk that the surgery may fail to relieve frequency, urgency and pain,...
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O'Leary v Mercy University Hospital Cork Ltd
...in a 21-day hearing. In a judgment delivered in the High Court by Quirke J. on the 20th May, 2010, the proceedings were dismissed ( [2010] IEHC 211). Mr. O'Leary appealed this decision. Subsequent to the High Court case, the appellant was furnished with the respondents' bill of costs. He c......