O'Leary v Mercy University Hospital Cork Ltd

• Jurisdiction: Ireland
• Judge: MR JUSTICE MICHAEL PEART
• Judgment Date: 12 March 2018
• Neutral Citation: [2018] IECA 94
• Date: 12 March 2018
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2018] IECA 94 Record Number: 2014 195

BETWEEN:

DENIS O'LEARY

PLAINTIFF/APPELLANT

- AND -

MERCY UNIVERSITY HOSPITAL CORK LIMITED,

AND

KHALID M. ALI CHIAD AL-SAFI

DEFENDANTS/RESPONDENTS

[2018] IECA 94

Neutral Citation Number: [2018] IECA 94

Record Number: 2014 195

THE COURT OF APPEAL

Tort – Negligence – Personal injury – Medical treatment – Augmentation cystoplasty – Whether treatment appropriate and informed consent given

Facts: The appellant had been admitted to hospital in relation to treatment for his bladder and kidneys. He contended the augmentation cystoplasty surgery he underwent was not appropriate, and further he had not given full informed consent as he was not informed of the risks. The High Court had dismissed his claim, and he now sought to appeal.

Held by Peart J, the other Justices concurring, that the appeal would be dismissed. The appellant had failed to make out any of his grounds of appeal on which he criticised the trial judge's findings, and on that basis the claim would fail.

JUDGMENT OF MR JUSTICE MICHAEL PEART DELIVERED ON THE 12TH DAY OF MARCH 2018

1 This is an appeal from the judgment and order of the High Court (Quirke J.) dated the 20th May 2010 dismissing the plaintiff's claim in negligence against the defendants for damages arising from treatment that he received at the Mercy University Hospital in Cork, firstly in January/February 2002, and some years later in April/May 2006, after a hearing that lasted some twenty two days.

2 There is no appeal against the findings of the trial judge in relation to the treatment received in early 2002. However, a finding of fact made in relation to that treatment is that by January 2002 there was no recoverable function in the plaintiff's left kidney. That finding, which is not appealed, has some relevance to the plaintiff's claim that the treatment he received in April/May 2006, and in particular the augmentation cystoplasty that was performed on him by Mr Al-Safi on the 16th May 2006 in order to increase the capacity of his bladder, was not an appropriate procedure for the plaintiff, given his particular condition, and that it was negligent to have carried it out.

3 In addition the plaintiff maintains that he did not give a proper fully informed consent to augmentation cystoplasty since he was not informed of all of the known facts and risks associated with augmentation cystoplasty before agreeing to undergo this surgery, and in particular that thereafter he would have an increased risk of cancer, stone formation and mucus production, and would have to self-catheterise for the rest of his life.

4 It was contended also that he should have been fully apprised of two alternative treatments for his condition, namely a substitution cystoplasty, and urinary diversion by ilial conduit (often referred to as 'the bag').

5 In addition the plaintiff complained that prior to the surgery Mr Al-Safi had assured him that the surgery would be 100% successful, whereas as matters have turned out he feels that he is in a far worse position than he was before the surgery.

6 The plaintiff maintained that if he had been warned of all the risks he has subsequently been made aware of, which are associated with augmentation cystoplasty, and what it would involve for the future, and if he had been told of the possible alternatives open to him, and had not been assured that the surgery would be 100% successful, he would not have given his consent to the augmentation cystoplasty carried out by Mr Al-Safi on the 16th May 2006.

7 Another element of the plaintiff's claim in negligence is that Mr Al-Safi was not appropriately qualified or experienced to properly manage and medically treat the plaintiff's condition, and in particular to carry out this particular form of surgery. While the plaintiff's experts supported this criticism of Mr Al-Safi's qualifications and experience, the trial judge noted that 'all the experts who gave evidence had acknowledged that the surgery was carried out by him competently, efficiently and carefully and that the technique and skill level demonstrated by Mr Al-Safi was fully in accordance with general and approved medical practice in this jurisdiction in 2006'.

8 The trial judge found that a 20 minute conversation which took place between Mr Al-Safi and the plaintiff on the evening of the 15th May 2006 prior to the surgery on the 16th May 2006 was a sufficient amount of time for Mr Al-Safi to have imparted to the plaintiff the information which he says that he imparted during that period to enable him to give a fully informed consent. There is no doubt that there is a difference of opinion between the experts called by the plaintiff and the defendants' experts as to what the plaintiff was entitled to be told before giving his consent. If the plaintiff's evidence was accepted it is clear not only that the information given to him by Mr Al-Safi fell short of what his experts said ought to have been given, but also fell short of what the defendants' experts regarded as the appropriate level of disclosure. But the trial judge, having heard Mr Al-Safi's evidence as to what he told the plaintiff, and having heard all the experts on both sides, concluded that he was not satisfied that the plaintiff had established on the balance of probabilities that Mr Al-Safi had failed to advise him of all the known facts and risks associated with augmentation cystoplasty.

9 It is important to note also that in reaching these conclusions, the trial judge stated that he did not find the plaintiff to be a reliable or credible witness. On the other hand he stated he found Mr Al-Safi to be a conscientious witness, and he believed that his account of the warnings that he gave to the plaintiff in respect of the risks associated with augmentation cystoplasty 'is probably an accurate and correct account'. He went on to state:

'It follows that I am satisfied on the evidence and on the balance of probabilities:

(a) that he explained to the plaintiff in full the nature and extent of the surgery which he was recommending and the need for a cystoscopy and biopsy in order to rule out any possible cancerous condition,

(b) that he warned the plaintiff that self-catheterisation might be a consequence of the surgery and might be permanent and lifelong,

(c) that he explained to the plaintiff that he might need re-exploration if there were bowel obstructions or complications resulting from the surgery, and

(d) that he also warned the plaintiff of the risk of nocturnal wetness, infection, stones and the presence of mucus within his bladder.

It is also probable that Mr Al-Safi warned the plaintiff of the risk of cancer resulting from the surgery, but told him that it was a very small risk and might need to be investigated between 10 and 15 years after the surgery and that he could not guarantee the success of the treatment, but was hopeful that it would relieve the plaintiff's symptoms and protect his left kidney.

In particular I do not believe that it is likely or probable that Mr Al-Safi told the plaintiff that his chances of successful surgery were 100%.'

10 As for the alleged failure by Mr Al-Safi to inform the plaintiff, as part of the consenting process, of the two alternative procedures referred to, namely substitution cystoplasty and diversion by ileal conduit, both Mr Al-Safi and his expert witnesses said in evidence that they did not consider it necessary to inform the plaintiff of procedures that they would not consider appropriate to his condition, and therefore that they would not be in favour of doing so. The trial judge found that Mr Al-Safi, and the experts, Mr Lanigan, Mr Drumm and Mr Rogers, all were of the same view, namely that the successful treatment of the plaintiff's symptoms and condition could best be achieved by augmentation cystoplasty. The trial judge noted that Mr Al-Safi had stated in evidence that there were significant risks to the plaintiff's health and well-being with the two alternatives referred to, and that it was not in his best interests to be subjected to either of them.

11 In this regard the trial judge concluded:

'Mr Al-Safi was under a duty to explain to the plaintiff the nature and extent of the augmentation cystoplasty which he was recommending and to further explain to him that the decision as to whether or not this surgery should be undertaken was for the plaintiff to make and not for Mr Al-Safi. I am satisfied that he did so.

The plaintiff was quite entitled to choose not to undergo the surgery and, indeed, was entitled to choose not to accept any treatment.

I do not, however, accept that Mr Al-Safi was under a duty to offer the plaintiff any surgical procedure which he was not recommending and which he did not consider was an appropriate treatment for the plaintiff's symptoms and medical condition.

I accept the evidence of Mr Lanigan and of Mr Drumm that the warnings given by Mr Al-Safi to the plaintiff in respect of the augmentation cystoplasty were the appropriate warnings which should be given to patients in respect of the relevant urological surgery in 2006.

It follows from what I have just found, that the plaintiff has not established on the evidence and on the balance of probabilities that Mr Al-Safi failed to disclose to him all of the known facts and risks associated with the augmentation iliocystoplasty performed by him upon the plaintiff on the 16th May, 2006.'

12 As for the allegation that Mr Al-Safi lacked the necessary qualifications and experience to have performed this surgery on the plaintiff, the trial judge was satisfied on the evidence that he heard that Mr Al-Safi 'had all the qualifications which were required for the management and treatment of the plaintiff's condition at the time when he did so'. He went on:

'It is not the function of this court to assess or review [whether] the level of qualification required for particular professional medical appointments made...