Lindsay v Mid Western Health Board

• Jurisdiction: Ireland
• Judge: O'Flaherty J.
• Judgment Date: 01 January 1993
• Neutral Citation: [1992] IESC 4
• Docket Number: [1982 No. 9395P]
• Court: Supreme Court
• Date: 01 January 1993

[1992] IESC 4

THE SUPREME COURT

Finlay C.J.

O'Flaherty J.

Egan J.

(214/233 - 91)

LINDSAY v. MID WESTERN HEALTH BOARD

BEATRICE LINDSAY, AN INFANT, SUING BY HER AUNT AND NEXT FRIEND NORA PHELAN

PLAINTIFF/RESPONDENT

AND

MID WESTERN HEALTH BOARD

DEFENDANTS/APPELLANTS

Citations:

SCOTT V LONDON DOCK CO 1865 3 H & L 596

MURRAY V GILMORE UNREP SUPREME 20.12.73

DOWD V KERRY CO COUNCIL 1970 IR 27

GIRARD V ROYAL COLUMBIAN HOSPITAL ET AL 1976 66 DLR 676

FLEMING LAW OF TORTS 7ED 291

DAVIS V BUNN 1936 56 CLR 246

PILLARS V RJ REYNOLDS TOBACCO CO 1918 117 MISS 490, 78 SO 365 SC

DONOGHUE V STEVENSON 1932 AC 562

Synopsis:

NEGLIGENCE

Hospital

Surgery - Anaesthetist - Surgeon - Appendectomy - Child - Epilepsy - Coma - Cause unknown - Burden of proof - ~Res ipsa loquitur~ - Defedndant's failure to provide explanation - Extent of evidential burden to be discharged by defendant - Whether such failure justified inference that defendant negligent - Hypoxia excluded by trial judge - (214/91 - Supreme Court - 18/12/92)

|Lindsay v. Mid-Western Health Board|

WORDS AND PHRASES

"Res ipsa loquitur"

Principle - Application - Defendant - Proof - Burden - Extent - Girl's coma after appendectomy - Failure of defendant to establish cause of coma - Whether inference of negligence justified - (214/92 - Supreme Court - 18/12/92) - [1993] 2 I.R. 177

|Lindsay v. Mid-Western Health Board|

V:F7

1 Judgment of O'Flaherty J. delivered the 18th day of December, 1992. [NEM DISS]

2 This is an appeal from the judgment and order of the High Court (Morris J.) of the 30th May, 1991, holding in favour of the plaintiff in an action for damages for personal injuries brought on her behalf for the alleged negligence of the defendants, their servants or agents in regard to matters surrounding a surgical procedure carried out at Limerick Regional Hospital on or about the 16th March, 1982. The judge assessed damages in the sum of £319,392.93. The defendants appeal against the finding of negligence and while, originally, the plaintiff sought to vary the judgment in regard to damages, in the course of the hearing of the appeal, that aspect of the case was not proceeded with further.

FACTS

3 The plaintiff, Beatrice Lindsay, then aged eight years was admitted to Limerick Regional Hospital on the 15th March, 1982 with stomach pains. She was diagnosed as having an acute appendicitis or, as an alternative, mesenteric adonitis. This latter condition is an inflammation of the lymph glands in the mesentery. The symptoms of this condition mimic the symptoms of an inflamed appendix and, indeed, that is what happened in this case because after the appendix was removed and was subsequently subjected to pathological examination it was found not to be the cause of the plaintiff's original troubles. No point is made on this as it is accepted that it was reasonable to operate to remove the appendix in the circumstances of this case.

4 After the decision to operate was made Dr. James McDermott, who was a consultant anaesthetist at the hospital since 1956, was sent for and he arrived from his home. In the interim, the nursing staff had prepared the patient for the operation. The anaesthetic was administered by Dr. McDermott with Dr. Pai, who was attached to the hospital as a senior officer in anaesthetics, also in attendance. The operation was carried out by Dr. Michael O'Riordan, then a senior house officer at the hospital under the supervision of Mr. Nur, a Fellow of the Royal College of Surgeons and surgical registrar at the hospital.

5 The evidence of the anaesthetists was to the effect that the relevant anaesthetic procedures were put in place and that nothing untoward happened in the course of the operation. The plaintiff was removed to the recovery room when she was described by Dr. McDermott as being absolutely normal. Although she appeared to be commencing to regain consciousness she did not do so and then she developed seizures which proved extremely difficult to control. She eventually became comatosed and unresponsive. This was at about 2 a.m. on the morning of the 16th March, the anaesthetic having been administered at about 12.35 a.m. Later, on neurological examination, a CT scan showed generalised brain oedema. EEG showed bilateral diffuse symmetrical slow activity, in keeping with a diffuse form of neuronal dysfunction. The plaintiff has irreversible brain damage, is in a coma and will not come out of it. At the date of the trial she had a life expectancy of about 15 years.

THE PLAINTIFF'S CASE.

6 No complaint is made about the actual surgical operation. The essential case made on behalf of the plaintiff is that she went to the hospital with a very common complaint, appearing to be an acute appendicitis, that she was then a normal, healthy girl; that she was put through a routine anaesthetic reducing her to a state of unconsciousness and that her situation is that she has never been brought back to a state of consciousness. It is, therefore, submitted that this prima facie shows that something irregular took place in the course of the administration of the anaesthetic and that it is, in those circumstances, for the defendants to disprove negligence: res ipsa loquitur.

THE DEFENCE CASE.

7 The defendants say that unless one can point to a negligent act, as opposed to an ususual occurrence, then res ipsa loquitur has no place. They say, in any event, that they proved that everything that could be done was done in this case; that nothing has been shown to have been done negligently but, on the contrary, that while this was regarded as a routine procedure the plaintiff was attended by two anaesthetists during the course of a significant but routine surgical procedure and that nothing untoward took place. That, in those circumstances, to repose liability on them would be to hold doctors responsible for pure accidents which can occur and for which no full explanation is forthcoming. That neither doctors nor hospitals can be guarantors of the success of every procedure that is undertaken and that provided they exercise reasonable care, carrying out procedures in accordance with what is established practise, that to repose liability on them in such circumstances would be to produce a very unjust result.

WHAT IS THE CORRECT APPROACH?

8 In my judgment, the submission that res ipsa loquitur does not apply in the circumstances of this case should be rejected. It is true that a precise circumstance of negligence cannot be pointed to - such as in the classical cases of bags of sugar falling on a passing pedestrian (1) or a motor car driven onto a footpath (2) - but it seems to me that if a person goes in for a routine medical procedure, is subject to an anaesthetic without any special features, and there is a failure to return the patient to consciousness to say that that does not call for an explanation from defendants would be in defiance of reason and justice. Equally, however, it seems to me that in this case the most that the defendants should be required to do is to show that they exercised all reasonable care; that they were not negligent and that they should not be required to take the further step of proving, on a balance of probabilities, what did cause the plaintiff's brain damage. The distinction between a negligent act and causation requires to be emphasised.

HYPOXIC INSULT?

9 I believe that in this case the plaintiff's advisers would have been perfectly entitled to set out the broad facts of the case and, without more, require the defendants to adduce...