O'Mahony v Tyndale

• Jurisdiction: Ireland
• Judge: Keane C.J.
• Judgment Date: 13 July 2001
• Neutral Citation: [2001] IESC 62
• Court: Supreme Court
• Docket Number: [S.C. No. 156 of 2000]
• Date: 13 July 2001

O'MAHONY v. TYNDALE & CORK

BETWEEN:

IAN O'MAHONY (an Infant) SUING BY HIS MOTHER AND NEXT FRIEND ANN O'MAHONY

Plaintiff/Appellant

and

TIMOTHY TYNDALE AND DAVID CORR

Defendants/Respondents

[2001] IESC 62

KEANE C.J.

MURPHY J.

HARDIMAN J.

156/2000

THE SUPREME COURT

Synopsis

TORT

Medical negligence

Professional negligence - Personal injuries - Liability - Causation - Hospital procedures - Evidence - Absence of written records - Findings of fact - Whether post or ante-natal care deficient - Whether failure to correctly diagnose signs of foetal distress - Whether appropriate medical procedures and practices followed - Whether failure to disclose evidence (156/2000 - Supreme Court - 13/7/01)

O" Mahony v Tyndale - [2002] 4 IR 101

The plaintiff had been born both physically and mentally disabled and was suffering from cerebral palsy. The plaintiff instituted proceedings claiming damages by reason of the alleged negligence of both the defendant medical practitioner and the defendant hospital. The plaintiff claimed, inter alia, that the defendants had failed to detect and adequately treat the condition of hypoglycaemia which the plaintiff had developed and that this had resulted in the plaintiff's present condition. The defendants denied the allegations of the plaintiff. Quirke J held that the plaintiff had not made out any case of negligence against the attendant medical practitioner and the case in this respect was dismissed. On the evidence adduced the system in use by the hospital for the recording of clinical symptoms was in accordance with general and approved practice. While some deficiencies had been highlighted the evidence in general had failed to establish that the system as operated by the hospital had caused or contributed to the present disability of the plaintiff and accordingly the plaintiff's claim failed. On appeal in the Supreme Court, the Chief Justice, Mr. Justice Keane held that it had not been shown that there was no evidence relating to the plaintiff's care which could be said to be missing. No want of care had been made out and the system in place in the hospital for caring for infants was reasonable. The appeal would be dismissed.

Citations:

DUNNE V NATIONAL MATERNITY HOSPITAL 1989 IR 91

NORTHERN BANK FINANCE V CHARLETON 1979 IR 149

HALSBURYS LAWS OF ENGLAND 4ED VOL 17 PARA 120

LEWIS V LEWIS CAS TEMP FINCH 471

WILLIAMSON V ROVER CYCLE CO 1901 2 IR 615

THE OPHELIA 1916 2 AC 206

1 JUDGMENT delivered the 13th day of July 2001 by Keane C.J.[nem diss]

2 The plaintiff in these proceedings was born on the 11th May 1987 in the Bons Secours Hospital, Cork. The first named defendant is the nominee of the trustees, owners and managers of the hospital. It was not in dispute at the time of the hearing in the High Court that the plaintiff - who at that time was aged 12 - was suffering from a serious degree of mental handicap, manifesting itself in severe intellectual, linguistic and behavioural retardation and a significant epileptic disorder. It was also not in dispute that this condition is static and that the plaintiff has a life expectancy of approximately 50 years of age.

3 The second named defendant is a consultant obstetrician attached to the hospital. In the proceedings, the plaintiff, suing by his mother and next friend Ann O'Mahony (hereafter "Mrs. O'Mahony"), claims damages for the negligence and breach of duty of the defendants in the care of the plaintiff and Mrs. O'Mahony during the period beginning with her admission to the hospital on the 8th May 1987 and ending with her discharge from the hospital on 15th May. After a hearing lasting 46 days in the High Court, the plaintiff's claim against both defendants was dismissed by Quirke J. in a written judgment delivered on the 7th April 2000. From that judgment and order, the plaintiff now appeals to this court.

4 At the outset, the sequence of events preceding Mrs. O'Mahony's admission to the hospital and during her stay in the hospital, insofar as they are not in controversy, should be set out. Her pregnancy - which was her first - was uneventful until the last few weeks prior to delivery, where there was an indication of excessive gain of weight and of oedema or retention of fluid. Neither of these, of themselves and unaccompanied by any other symptoms, would be a cause for concern. However, on the 8th May, which was around the time of her expected delivery, Mrs. O'Mahony attended her general practitioner, who ascertained that her blood pressure had risen and that protein was present in her urine. These were indications of the development of a condition unique to pregnancy called pre-eclampsia, which is particularly prevalent in first pregnancies. It is a serious condition which can lead to the end stage of eclampsia, a condition manifested by convulsions which can seriously damage the mother and the baby.

5 Mrs. O'Mahony's general practitioner told her that she should go straight to the hospital, which she did. This was on a Friday. At the hospital her blood pressure and urine was monitored and she was informed that the monitoring would continue over the weekend and that the delivery would be induced on the Monday. It was not in controversy that in the light of the condition of pre-eclampsia, it was essential that the baby should be delivered without delay.

6 Mrs. O'Mahony's labour was, accordingly, induced on the morning of the 11th May and continued uneventfully until what can be loosely described as the final period of the labour when the plaintiff developed a severe bradycardia, i.e. a significant fall in the beating rate of the foetal heart. The second named defendant (hereafter "Dr. Corr"), who was Mrs. O'Mahony's consultant obstetrician, arrived sometime after the bradycardia had developed and effected the delivery of the plaintiff by forceps. He was then taken to a unit called the 24 hour observation nursery where he spent the next 19 hours. He was brought back to Mrs. O'Mahony in the postnatal ward on May 12th and, as already noted, mother and baby were discharged on the 15th May.

7 During the early months of the plaintiff's life at home, Mrs. O'Mahony and her husband were concerned by the fact that he appeared to be irritable and unsettled and they brought him to a number of doctors in the hope of finding out what was wrong and how it could be dealt with. He was admitted to the hospital in September 1987 and had a lumbar puncture but it was not until February 1988, i.e. when he was nine months old, that he was diagnosed by Dr. Rosemary Manning, a general practitioner with paediatric training, as suffering from what she described as "cerebral palsy". (The implications of that description will be referred to at a later stage.) Mrs. O'Mahony and her husband then obtained further medical advice as to what might have caused the plaintiff's condition and ultimately these proceedings were instituted on the 9th May, 1990, the plaintiff then being aged 3. In the statement of claim, delivered on the 9th July, 1992, when the plaintiff was aged 5, it was alleged that the severe condition of mental and physical retardation from which the plaintiff was then suffering had been caused by the negligence of the hospital and Dr. Corr. Defences denying any such negligence having been delivered on behalf of the hospital and Dr. Corr, the case came on for hearing in October 1999.

8 The claim in the pleadings as originally delivered and the case as opened by counsel on behalf of the plaintiff at the beginning of the trial against the hospital was that in the light of the condition of pre-eclampsia from which Mrs. O'Mahony was suffering a consultant obstetrician or registrar should have been in attendance to effect the speedy delivery of the plaintiff when the condition of bradycardia developed and, as it was said, an emergency arose as a result. In the event, it was said, Dr. Corr was not present until a significant period of time had elapsed from the onset of the emergency. During this period, it was said, the plaintiff suffered irreversible brain damage in the final stage of the labour because of an inadequate supply of oxygen, a condition known as hypoxia. The claim against the hospital was that, because of the system employed in the hospital a consultant obstetrician or registrar was not available to effect the delivery when the emergency began and that, in the result, the plaintiff suffered irreversible brain damage before he was actually delivered.

9 The claim against Dr. Corr was that he had

10 (a) failed to detect signs of intra-uterine hypoxia and to deliver the plaintiff immediately signs of foetal distress were discernible; and

11 (b) actively participated in a hospital system which he knew or ought reasonably to have known was defective and unsuitable for the plaintiff and for Mrs. O'Mahony in that it did not make any adequate provision for the availability of trained or qualified obstetric staff for the emergency delivery of the plaintiff, a risk which was reasonably foreseeable having regard to the condition of pre-eclampsia which had led to the admission of Mrs. O'Mahony to the hospital.

12 Some features of the system in operation at the hospital at that time should be mentioned at this point. The foetal heart rate of the plaintiff was measured by an instrument called a cardiotocograph (CTG) which provided an electronic recording on paper of the heart rate of the foetus and the uterine contractions, recorded by way of an electrode attached to the foetal scan internally or by an external microphone on the maternal abdomen. The heart rate, recorded in beats per minute (bpm), should normally be between 160 and 120 bpm. The condition of bradycardia is said to develop when the rate falls below 120 bpm. In the present case, the plaintiff's heart rate, as so recorded, dropped from about 140 bpm to 100 bpm and, approximately seven minutes...