M v Health Service Executive

• Jurisdiction: Ireland
• Judge: Mr. Justice Charleton
• Judgment Date: 20 July 2011
• Neutral Citation: [2011] IEHC 339
• Court: High Court
• Date: 20 July 2011

[2011] IEHC 339

THE HIGH COURT

4355P/[2008]

M (H) v Health Service Executive (HSE) - North Eastern Area

BETWEEN

H.M.

PLAINTIFF

AND

HEALTH SERVICE EXECUTIVE - NORTH EASTERN AREA

DEFENDANT

DUNNE (AN INFANT) v NATIONAL MATERNITY HOSPITAL & JACKSON 1989 IR 91 1989 ILRM 735 1989/1/165

JAMES ELLIOTT CONSTRUCTION LTD v IRISH ASPHALT LTD UNREP CHARLETON 25.5.2011 2011 IEHC 269

STATUTE OF LIMITATIONS 1957 S2(1)

STATUTE OF LIMITATIONS 1957 S11(2)(B)

STATUTE OF LIMITATIONS (AMDT) ACT 1991 S3(2)

STATUTE OF LIMITATIONS (AMDT) ACT 1991 S3(1)

CIVIL LIABILITY & COURTS ACT 2004 S7

STATUTE OF LIMITATIONS (AMDT) ACT 1991 S5A

CIVIL LIABILITY & COURTS ACT 2004 (COMMENCEMENT) ORDER 2004 SI 544/2004

STATUTE OF LIMITATIONS (AMDT) ACT 1991 S2

GOUGH v NEARY & CRONIN 2003 3 IR 92 2004 1 ILRM 35 2003/24/5584

FORTUNE v MCLOUGHLIN 2004 1 IR 526 2004/18/4099 2004 IESC 34

NAESSENS v JERMYN & O'HIGGINS UNREP DUNNE 26.3.2010 2010/39/9884 2010 IEHC 102

SPARGO v NORTH ESSEX DISTRICT HEALTH AUTHORITY 1997 PIQR P235 1997 8 MED LR 125 37 BMLR 99

HALFORD v BROOKES (NO 1) 1991 1 WLR 428 1991 3 AER 559

NEGLIGENCE

Medical negligence

Standard of care - Management of labour - Lack of ordinary care - Rushed labour - Instrumental birth - Obligation to be kept reasonably up to date on medical developments - Guidelines regarding commonly occurring injury - Date of knowledge - Whether lack of ordinary care - Whether procedures in place to deal with injuries - Whether fault in hospital management - Whether hospital required to have procedures in place - Whether proceedings commenced in time - Dunne v National Maternity Hospital [1989] IR 91; Elliott Construction Ltd v Irish Asphalt Ltd [2011] IEHC 269, (Unrep, HC, Charleton J, 25/5/2011); Gough v Neary [2003] 3 IR 92; Fortune v McLoughlin [2004] IESC 34, [2004]1 IR 526; Naessens v Jermyn [2010] IEHC 102, (Unrep, HC, Dunne J, 26/3/2010); Spargo v North Essex Health Authority [1997] 8 Med LR 125 and Halford v Brookes [1991] 1 WLR 428 considered - Statute of Limitations Act 1957 (No 6), s 2(1) - Statute of Limitations (Amendment) Act 1991 (No 18), ss 3 and 5 - Civil Liability and Courts Act 2004 (No 31), s 7 - Damages awarded (2008/4355P - Charleton J - 20/7/2011) [2011] IEHC 339

M(H) v Health Service Executive

1 JUDGMENT of Mr. Justice Charleton delivered on 20th July 2011

2 1. H.M. is a young lady of thirty-three years of age. Ten years ago, on the 1 ^st October 2001, she gave birth to her first child, a boy called James, in Our Lady of Lourdes Hospital in Drogheda. That delivery was not an easy one. It required intervention by forceps because a risk of hypoxia to the baby emerged, thus necessitating a swift delivery. Unfortunately, during the birth she suffered a third degree tear of her anal sphincter. This injury is frequently associated with a forceps delivery. She argues that intervention by forceps would never have been necessary, and thus the anal tear would have been avoided, had the labour been allowed to progress to a non-instrumental birth. She complains of a lack of ordinary care in the management of the delivery of James. It is argued on her behalf that her labour was rushed by the administration of the drug oxytocin, which has the effect of speeding up the process, and that this was not discontinued at the right time. It is also said on her behalf that the anal sphincter tear arose because an episiotomy cut was made at the wrong angle, one that was too close to the midline. A want of ordinary care is also pleaded in the diagnosis and repair of that anal sphincter injury, whether or not in the first instance it occurred through a want of care. All of these issues, testified to in evidence by expert witnesses on behalf of the plaintiff, are disputed by the defendant on behalf of the hospital and its staff.

3 2. There are therefore two main issues: the management of labour; and the response to the tear of the anal sphincter. A brief chronology will be set out and then these two issues will be considered in turn. Firstly, I need to refer to the applicable law. Since this is well settled by existing written judgments only a note is necessary.

Ordinary Care

4 3. H.M., while being treated in Our Lady of Lourdes Hospital in Drogheda, was entitled to a standard of care commensurate with a careful and competent system of the medical management of childbirth. Attending her in the birth of her son James were a midwife, Tracey Cotter, and an obstetrician and gynaecologist at registrar level, Dr. Devannay Sengottaiyan Rajeswari. The plaintiff, as their patient, was entitled to expect a standard of care commensurate with that which could be given by a careful and competent midwife and a careful and competent obstetrician and gynaecologist. The hospital system within which these medical people operated is also required to be such that it supports the competence and level of professional expertise that attends a busy maternity unit. Those professionals attending women in childbirth are entitled to the support which proper hospital administration provides to the professionals working within that system. The relevant test is set out by the Supreme Court in Dunne v. National Maternity Hospital [1989] I.R. 91 at 109 to 110 where Finlay C.J. approved the test in previous decided cases and offered this definitive summary:-

"There was no argument submitted to us on the hearing of this appeal which constituted any form of challenge to the correctness of the statements of principle thus laid down, although there was controversy concerning their application to the facts of this case. The principles thus laid down related to the issues raised in this case can in this manner be summarised."

5 1. The true test for establishing negligence in diagnosis or treatment on the part of a medical practitioner is whether he has been proved to be guilty of such failure as no medical practitioner of equal specialist or general status and skill would be guilty of if acting with ordinary care.

6 2. If the allegation of negligence against a medical practitioner is based on proof that he deviated from a general and approved practice, that will not establish negligence unless it is also proved that the course he did take was one which no medical practitioner of like specialisation and skill would have followed had he been taking the ordinary care required from a person of his qualifications.

7 3. If a medical practitioner charged with negligence defends his conduct by establishing that he followed a practice which was general, and which was approved of by his colleagues of similar specialisation and skill, he cannot escape liability if in reply the plaintiff establishes that such practice has inherent defects which ought to be obvious to any person giving the matter due consideration.

8 4. An honest difference of opinion between doctors as to which is the better of two ways of treating a patient does not provide any ground for leaving a question to the jury as to whether a person who has followed one course rather than the other has been negligent.

9 5. It is not for a jury (or for a judge) to decide which of two alternative courses of treatment is in their (or his) opinion preferable, but their (or his) function is merely to decide whether the course of treatment followed, on the evidence, complied with the careful conduct of a medical practitioner of like specialisation and skill to that professed by the defendant.

10 6. If there is an issue of fact, the determination of which is necessary for the decision as to whether a particular medical practice is or is not general and approved within the meaning of these principles, that issue must in a trial held with a jury be left to the determination of the jury.

11 In order to make these general principles readily applicable to the facts of this case, with which I will later be dealing, it is necessary to state further conclusions not expressly referred to in the cases above mentioned. These are:

12 a "(a) General and approved practice" need not be universal but must be approved of and adhered to by a substantial number of reputable practitioners holding the relevant specialist or general qualifications.

13 (b) Though treatment only is referred to in some of these statements of principle, they must apply in identical fashion to questions of diagnosis

14 (c) In an action against a hospital, where allegations are made of negligence against the medical administrators on the basis of a claim that practices and procedures laid down by them for the carrying out of treatment or diagnosis by medical or nursing staff were defective, their conduct is to be tested in accordance with the legal principles which would apply if they had personally carried out such treatment or diagnosis in accordance with such practice or procedure.

15 … In developing these legal principles outlined and in applying them to the facts of each individual case, the courts must constantly seek to give equal regard to both of these considerations"

16 4. In any tort action the plaintiff bears the burden of proof. In Elliott Construction Limited v. Irish Asphalt Limited (Unreported High Court, Charleton J. 25 ^th May, 2011) this Court analysed the burden and standard of proof that applies in civil cases. The relevant passage occurs at paras. 15 to 22 of that judgment. I have nothing to add to that, save to say this standard is applicable in all civil cases, though it is not usually necessary to give the detailed analysis set out in that case.

17 5. In that case, as well, this Court set out its understanding of the approach which a court of trial should take to the assessment of expert evidence at paras. 10 to 14. The evidence in this instance consisted of testimony of fact from the plaintiff, from the obstetrician and...