McCormack v Timlin
| Jurisdiction | Ireland |
| Judge | Mr. Justice Cross |
| Judgment Date | 18 January 2019 |
| Neutral Citation | [2019] IEHC 31 |
| Docket Number | [2012 No. 2336 P.] |
| Court | High Court |
| Date | 18 January 2019 |
[2019] IEHC 31
THE HIGH COURT
Cross J.
[2012 No. 2336 P.]
AND
Damages – Liability – Causation – Plaintiff seeking damages – Whether the plaintiff had established any inherent defect in the defendant’s conduct
Facts: The plaintiff, Mr McCormack, claimed damages as against the first defendant, Mr Timlin, as a result of complications following surgery on 10th March, 2010. The plaintiff also brought an action against the hospital in relation to a specific incident post-surgery and in respect of the plaintiff’s claim against the second and third defendants, Mater Private Hospital and Mater Private Healthcare, the same was prior to the commencement of this case settled and the proceedings against those defendants were struck out with an order for the plaintiff’s costs. This was a complex case both in terms of liability and causation. The High Court was faced with two radically different interpretations of the events by the plaintiff’s and defendants’ expert witnesses.
Held by Cross J that, in relation to the MRI scan, the defendant had established in accordance with the third principle in Dunne v National Maternity Hospital [1989] I.R. 91 that his conduct was as a matter of fact approved by his colleagues of similar speciality and skill and the plaintiff had not established any inherent defect in this conduct. In relation to the decision not to operate until the 19th March, 2010, Cross J found that Mr Timlin acted in accordance with a reasonable and approved practice and the plaintiff had not demonstrated that that practice had any inherent defects.
Cross J held that, in those circumstances, the plaintiff must fail in his case against the defendant and the proceedings must be dismissed.
Proceedings dismissed.
The plaintiff was born on 18th September, 1959 and claims damages as against the first named defendant as a result of complications following surgery on 10th March, 2010. The plaintiff also, in these proceedings, brought an action against the hospital in relation to a specific incident post-surgery (which will be referred to later) and in respect of the plaintiff's claim against the second and third named defendant, the same was prior to the commencement of this case settled and the proceedings against these defendants were struck out with an order for the plaintiff's costs.
As stated by the defendants in their submissions, this is a complex case both in terms of liability and causation. The court is faced with two radically different interpretations of the events by the plaintiff's and defendants” expert witnesses. However, notwithstanding the complex nature of this case due to the efficiency of the legal advisors for both the plaintiff and the defendants, the case was fully heard and the issues ventilated over a period of only twelve days and I also had the benefit of learned submissions delivered in writing by counsel both of the plaintiff and the defendants. These submissions were of great assistance.
The plaintiff left school at the age of fifteen and he commenced work as a butcher, having been an apprentice for some four years, he then went to Australia, married and returned to Ireland at the age of 26. He commenced the business as a butcher in Mullingar and was very successful. He opened another shop in Longford in 1988 and went on to build an abattoir and diversified into a ‘ farm shop’ which consisted of selling food stuffs and including meat. He had up to twelve people working for him.
Following the acquisition of new accountants, who advised that he should engage in ‘ tax planning’, he bought a number of section 23 properties and went into building and developing properties at the commencement of the century. He also built properties in Mullingar and Multyfarnham.
The plaintiff was also very interested in outdoor pursuit and loved horse riding and hunting.
The plaintiff has three children now all adult. The plaintiff's wife worked as a teacher and subsequently as a school principal. After the indexed incident, the plaintiff's wife gave up her job as a principal which she loved and became a fulltime carer of the plaintiff.
The plaintiff had a significant past medical history. In 1995, he underwent a vasectomy in Clane Hospital and subsequently due to pain an orchiectomy was carried out in St. James Hospital and pain in his inguinal area continued for some three years thereafter. The plaintiff's first complaints of back pain were in 1998 and in 1999, he also complained of lack of sleep and some depressive symptoms. The back pain at this stage does not seem to be significant but in the years 2004 to 2005, the back pain seems to have returned and he was prescribed diazepam. In May 2006, he had a CT scan which showed a large disc bulge impinging on his nerve and the back pain radiated down his right legs.
The plaintiff came under the care of Dr. D'S, Consultant Orthopaedic Surgeon, who recommended nerve block injections and epidurals which were performed in March 2007 and in April 2007, the plaintiff's first operation, a discectomy at L5/S1 was performed by Mr. D'S and subsequently in May 2007, there was a revision of this discectomy, the plaintiff's second operation on his back.
The plaintiff lived what might poetically be described as a ‘ hard riding country man's’ lifestyle but he was functioning well at this stage and his businesses were thriving. Notwithstanding the operation and the revision, however, the back pain returned and he was referred by Mr. D'S to Mr. O'N for a second opinion and in October 2008, a left sided L5/S1 decompression and micro discectomy was performed. This was the plaintiff's third operation on his back and it gave some relief but back pain recurred and in February 2009, the plaintiff was referred to an MRI and subsequently was referred to the first named defendant in April 2009 with his back problems as bad as ever. In April 2009, the plaintiff described chronic low back pain with pain in his buttocks, legs which required medication. He had difficulty in working at this stage. He described himself to his doctors as being ‘ incapacitated’ but I accept the plaintiff's evidence that, in fact, he was working though with limitations.
The first named defendant advised that the plaintiff was a candidate for revision, decompression at L5/S1 and posterior fusion in order to reduce back pain. The plaintiff agrees that he was given an 80% chance that symptoms would improve with a 20% chance that they would either stay the same or dis-improve.
On 15th May, 2009, the first named defendant performed his first surgery on the plaintiff's back which was, in fact, the plaintiff's fourth operation on his back. Subsequent to this operation, the plaintiff did improve and he went for painkilling injections but later in 2009, he became depressed and stressed and his physical pain returned.
In February 2010, the first named defendant reviewed the plaintiff and indicated his leg symptoms were doing well after the fusion of L5/S1 but that he had ongoing back pain and there was no fusion of L4/L5 identified due to loosening of screws and further surgery was proposed.
On 11th March, 2010, revision, decompression and posterior lumber interbody fusion of the L4/L5 was performed by Mr. Timlin. It is the consequences of this, Mr. Timlin's second and the plaintiff's fifth surgeries, that the complaint is made in relation to the plaintiff's care between 11th March, 2010 and 19th March, 2010. The plaintiff alleges that he developed a Cauda Equina Syndrome (CES) which was not addressed until 19th March, and that as a consequence of the failure to address it in time, he has suffered significant personal injuries.
The cauda equina nerves spray out from the bottom of the spine leading into the lower limbs and if pressure is brought to bear on the cauda equina, a patient can develop CES which can, if it completely develops result in total loss of function of the lower limbs or if the CES does not completely develop, it can still cause significant injury and incapacity.
The issues in this case are whether after 11th March, 2010, surgery, the plaintiff developed CES which was not appropriately treated by the defendants and if so whether the defendants” conduct was negligent and if so, what if any damages resulted.
I accept that my function in this case is to first make findings of fact on the evidence and secondly, applying the legal principles decide whether on those facts negligence ought to be inferred.
The law in relation to liability in medical negligence is set out in the judgment of the Supreme Court in Dunne v. National Maternity Hospital [1989] I.R. 91 as follows:-
‘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.
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.
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...
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