Mary Healy v Brendan Buckley and the Bon Secours Hospital and the Bon Secours Health System

JurisdictionIreland
Judgment Date17 November 2015
Neutral Citation[2015] IECA 251
Date17 November 2015
CourtCourt of Appeal (Ireland)
Mary Healy v Brendan Buckley & Ors.

BETWEEN

MARY HEALY
APPELLANT

AND

BRENDAN BUCKLEY AND THE BON SECOURS HOSPITAL, BON SECOURS SYSTEM
RESPONDENTS

[2015] IECA 251

The President

Kelly J.

Finlay Geoghegan J.

[Appeal No 108/2014 Article 64 Transfer]

THE COURT OF APPEAL

Negligence – Medical practitioner – Informed consent – Appellant seeking damages for negligence – Whether trial judge was entitled to find that the respondent was not negligent in regard to consent

Facts: The appellant, Ms Healy, was diagnosed as having a pituitary tumour in 1982 and underwent surgery. In 1995, her GP referred her to the first respondent, Dr Buckley, a consultant endocrinologist. He admitted her to the second respondent”s hospital, the Bon Secours Hospital, and also arranged for an MRI scan in Dublin. Dr Buckley continued to treat Ms Healy over the subsequent years and decided in mid-2000 to admit her to the second respondent”s hospital for tests to assess the status of the tumour. In August 2000, the plaintiff underwent an MRI scan at Cork University Hospital. All the witnesses accepted that the August 2000 MRI scan did not show any significant change compared with the one in 1995. Following her discharge from hospital, in September 2005, Dr Buckley phoned Ms Healy at home. The appellant had the mistaken belief that the great bulk of the tumour was removed in the 1982 surgery. Thus, it came as a great shock to her that she had a tumour of the size disclosed in the MRI scan. She took from that the incorrect information that the tumour had begun to grow again and was progressing rapidly. Dr Buckley recommended the drug Sandostatin LAR which had relatively recently become available and which was effective in reducing excess growth hormone levels and he hoped it would also reduce the size of the tumour. Ms Healy agreed to take the drug and the doctor sent her a prescription. By the end of December 2000, the appellant had become very ill and was referred to hospital by her GP and admitted to the Bon Secours in January 2001. During Ms Healy”s period in hospital on this occasion, it was noted that she was suffering from hypothyroidism and it appeared that this was the reason for her deterioration in health. It was not then appreciated, but is now known, that hypothyroidism is a side-effect of this form of the drug. The plaintiff attended at the Cork clinic in February 2001, when she saw Dr Buckley. Thereafter, she decided to discontinue being treated by Dr Buckley and her GP referred her to another endocrinologist. The High Court dismissed her claim for negligence against the respondents and she appealed to the Court of Appeal against that judgment. The appellant claimed that Dr Buckley knew that Ms Healy believed that only a small remnant of her tumour remained after the surgery of 1982 and he failed to tell her that the tumour was stable and had not changed for some 18 years. She claimed that the doctor thereby conveyed to the patient the impression that her condition had deteriorated alarmingly, as a result of which Ms Healy agreed to the proposed drug therapy. She claimed that the doctor also failed to convey other relevant factual material to the plaintiff about her condition and about the prospects of successfully using the drug. She alleged errors in law and fact in the findings of the trial judge concerning the recommendation by Dr Buckley of Sandostatin LAR. She complained that the judge was not entitled on the evidence to hold that Dr Buckley was justified in prescribing this treatment having regard to the presenting condition and that he followed the manufacturer”s recommendations. The respondents” position was that the findings made by the trial judge were grounded in the evidence given at the trial, that the judge had carefully considered all the elements of fact and law in the case and that his conclusions were unimpeachable.

Held by Ryan P that there was no basis for criticising the findings of the trial judge on the aspect of the case dealing with the prescription by Dr Buckley of Sandostatin LAR; the judge”s findings were based on the evidence and were justified by reference to the expert testimony and by rational analysis. Ryan P held that the trial judge was entitled to find that the doctor was not negligent in regard to consent, referring to Geoghegan v Harris [2000] 3 IR 536 and Fitzpatrick v White [2008] 3 IR 551.

Ryan P held that the appeal should be dismissed.

Appeal dismissed.

Introduction
1

1. This is an appeal by the plaintiff, Ms. Healy, against the dismissal by the High Court of her claim for negligence against the defendants. The first defendant is a consultant endocrinologist who treated Ms. Healy between 1995 and 2001, during which period she received treatment in the second defendant's hospital.

Background Facts
2

2. The plaintiff was born in 1946 and is a married woman with three adult children. In September 1982, she was diagnosed as having a pituitary tumour. This misfortune was discovered following her admission to hospital in a distressed state with severe pain, headache and photophobia. Neurological examination revealed significant pathology and a CT scan showed an enlarged pituitary intra-sellar tumour extending to the left side with evidence of haemorrhage. A carotid angiogram showed a large central mass effect with distortion of the internal carotid and middle cerebral arteries.

3

3. On 29 th September 1982, a left frontal temporal craniotomy with biopsy of the pituitary tumour was performed. Because of the vascularity of the tumour, only a very limited biopsy was taken and this showed a small amount of infarcted tissue.

4

4. The plaintiff's condition improved. She was continued on the medication that had been prescribed for her prior to the surgery - Bromocryptine - and she was also put on a drug for temporal lobe seizures that had developed as a result of the pressure of the tumour.

5

5. Up until 1992, the plaintiff was under the care of her neurosurgeon, Mr. Feely, who had carried out the craniotomy and biopsy. Although Mr. Feely had removed only a very small sample of the tumour tissue for testing and had left the large, troubling growth otherwise unaffected, the plaintiff believed that the opposite was the case. She formed the impression that Mr. Feely had removed almost all of the pituitary tumour, leaving only a tiny amount behind. This is relevant to the state of mind of Ms. Healy at the time when she was under the care of the first defendant, Dr. Buckley, in the circumstances that give rise to the proceedings.

6

6. Mr. Feely left his post in 1992, and thereafter Ms. Healy came under the care of another neurosurgeon, Mr. Marks, and subsequently of Dr. Teresa Mitchell, consultant endocrinologist.

7

7. In 1994, the plaintiff underwent a radical course of radiation of the tumour. In 1995, she left the care of Dr. Mitchell and her General Practitioner referred her to the first defendant, Dr. Buckley, another consultant endocrinologist. He admitted her to the second defendant's hospital and also arranged for an MRI scan in Dublin. He reviewed her medications and continued her on existing therapy plus another medication. Dr. Buckley continued to treat Ms. Healy over the subsequent years and decided in mid-2000 to admit her to the second defendant's hospital for tests to assess the status of the tumour. She was admitted on 14 th August 2000.

8

8. On 15 th August 2000, the plaintiff underwent an MRI scan at Cork University Hospital. The radiologist did not have the 1995 scan, nor the report, and on this occasion concluded that the plaintiff had a very large enhancing pituitary mass involving the left cavernous sinus and that the appearances were consistent with recurrence of her tumour. In fact, all the witnesses accepted that the August 2000 MRI scan did not show any significant change compared with the one in 1995.

9

9. On 5 th September 2000, Dr. Buckley received the result of another test, IGF-1, that had been done during the plaintiff's admission. This was reported as reading 514 in a context where the normal range is 107 to 310.

10

10. Following her discharge from hospital on completion of the various tests, the plaintiff had been telephoning Dr. Buckley enquiring about the results. At around teatime on 5 th September 2005, in possession of the results, Dr. Buckley phoned Ms. Healy at home. The trial judge made a number of factual findings about this telephone conversation which he described as most unfortunate from the point of view of the professional relationship between the parties. He held that a very large part of the difficulties stemmed from the plaintiff's mistaken belief that Mr. Feely had removed the great bulk of the tumour, leaving only a very small part behind. Thus, it came as a great shock to her that she had a tumour of the size disclosed in the MRI scan. She took from that the incorrect information that the tumour had begun to grow again and was progressing rapidly. The judge was quite satisfied from the evidence that Dr. Buckley did not tell Ms. Healy that the tumour was progressing or growing, but he did tell her that it was very unsatisfactory. He also told her about the excess secretion of growth hormone, as revealed in the IGF-1 test. These two pieces of information were sufficient to cause the plaintiff to be alarmed about what she thought was a severe deterioration of her health.

11

11. In this conversation, Dr. Buckley positively recommended the drug Sandostatin LAR which had relatively recently become available and which was effective in reducing excess growth hormone levels and he hoped it would also reduce the size of the tumour. Dr. Buckley's view was that the IGF-1 test was the indication for the use of the drug. This was an opportunity of using active...

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