McNicholas v Herman

CourtHigh Court
JudgeMr. Justice Barr
Judgment Date07 July 2015
Neutral Citation[2015] IEHC 435
Docket Number[2007 No. 7326 P.]

[2015] IEHC 435


Barr J.

[2007 No. 7326 P.]


Tort – Damages & Restitution – Medical negligence – Breach of duty of care – Standard of care

Facts: The plaintiff sought an order of damages against the defendant for negligence while performing the total abdominal hysterectomy wherein the plaintiff suffered damage to the femoral nerve. The plaintiff alleged that the course adopted by the defendant in the manner of using the self-retaining retractor led to compression of the psoas muscle against the pelvic wall, thereby causing the femoral nerve compression.

Mr. Justice Barr dismissed the claim of the plaintiff. The Court held that the test to determine liability of a medical practitioner was to see whether the course adopted by her was the one adopted by the equal specialist of general status and skill. The Court observed that if the medical practitioner established that he followed the general and approved course of action but the plaintiff established defects in that practice, the practitioner could not escape liability. The Court held that it was not its function to ascertain which course of treatment the defendant should follow. The Court opined that the defendant knowing very well the medical history of the plaintiff, who was suffering from endometriosis, carefully used the self-retaining retractor and the manner of its use was approved within the medical society.

JUDGMENT of Mr. Justice Barr delivered on the 7th day of July 2015

This case can be very briefly summarised in the following terms. The plaintiff is a married lady. The defendant is a medical doctor who was at the time of the matters complained of a consultant obstetrician and gynaecologist in the Galway Clinic. The plaintiff suffered from prolonged and heavy menstrual bleeding and stress incontinence. She consulted with the defendant in relation to this problem in August 2005. A decision was made that the plaintiff would undergo a total abdominal hysterectomy to be carried out by the defendant in October 2005.


After the operation, the plaintiff suffered numbness, pain and loss of power in her left leg. Damage had been done to the femoral nerve in the course of the operation. The plaintiff has two areas of complaint in relation to the care given to her by the defendant. First, she alleges that the pre-operative care given by the defendant was deficient. In particular, the defendant did not advise her to lose weight. If this had been done, the plaintiff alleges that the operation would have been of shorter duration. In such circumstances, the damage to the femoral nerve may not have occurred.


The second area of complaint is in relation to the way in which the operation was carried out by the defendant. The plaintiff's case is that the blade of a self-retaining retractor, which was used by the defendant to hold back the abdominal wall and other organs so as to give her a clear vision of the operative field, was caused or allowed to compress the psoas muscle against the pelvic wall, such that injury was caused to the femoral nerve which was compressed between the psoas muscle and the pelvic wall. The plaintiff alleges that the defendant should have released the pressure on the self-retaining retractor a number of times during the operation so as to ensure that the femoral nerve was not being compressed or deprived of blood supply. She alleges that if this had been done, the injury would not have occurred.


The defendant denies that her pre-operative care of the plaintiff was deficient. She denies that in not releasing the self-retraining retractor in the course of the operation, she departed from a standard of care which could reasonably be expected of her.


The plaintiff had problems caused by extensive menstrual bleeding. The bleeding was large in quantity. It required the plaintiff to wear protective pads between her underclothes. She would bleed for fifteen to twenty days each month. On one occasion, the bleeding was so severe that her mattress was soaked with blood. She also suffered from urinary stress incontinence.


In 1996, she was diagnosed as having endometriosis in the area of the uterus. Prof. Bonnar, who gave evidence on behalf of the plaintiff, stated that the plaintiff had ectopic endometrium. It is endometrium which is the lining of the womb having cells grafted onto areas around the ovaries mainly and behind the uterus. It is a benign condition.


In March 2004, the plaintiff had a Mirena coil fitted. The coil has a slow release of progesterone in the uterine cavity. This hormone tends to reduce menstrual bleeding. It causes an atrophic partum to develop in the endometrium.


An ultrasound carried out at that time showed that the plaintiff had intramural uterine fibroids, measuring 4 × 3cm. Fibroids also cause heavy bleeding. Prof. Bonnar explained that fibroids are properly called fibromyoma. This is a whorling of the uterine muscle fibres with fibrous fibres. They form in the uterus. There is a whorling in that it starts off as a small seedling, which grows to become the size of a hazelnut; it then grows into the size of a walnut and keeps on growing. It is affected by estrogen, which is the growth stimulus for the fibroid.


Prof. Bonnar thought that it was the presence of the fibroids which was the reason why the Mirena coil ceased to function for the plaintiff. At this time, the plaintiff had been under the care of Dr. Maebh Ní Bhuinneáin in Mayo General Hospital in Castlebar.


She attended again with Dr. Ní Bhuinneáin in April 2005 complaining of pressure in her lower abdomen and frequency of micturiction. By this time, the fibroids had grown further, such that the uterus had become enlarged and was palpable abdominally. At this time, she had a fibroid uterus which was pressing on the bladder, causing some incontinence. A repeat ultrasound showed that the fibroids had grown from 4 × 3 cm to 5.2 × 6.5cm.


Dr. Ní Bhuinneáin prescribed Ponstan and Tranexamic Acid. The latter drug is a very effective medication for heavy menstrual bleeding. It also reduces the bleeding from the fibroids. The Ponstan medication also helps reduce bleeding and is used for relieving uterine spasms that cause pain.


Dr. Ní Bhuinneáin discussed the various treatment options that were open to the plaintiff to deal with her problem of excessive bleeding. In the course of that consultation, the plaintiff opted to have a total abdominal hysterectomy.


In preparation for the operation, Dr. Ní Bhuinneáin advised the plaintiff to lose weight. At that time in May 2007, the plaintiff weighed approximately 107kg. She was advised to reduce her weight to 84kg.


Dr. Ní Bhuinneáin also advised that the plaintiff should use the drug Decapeptyl, for eight weeks prior to undergoing the total abdominal hysterectomy. This is an anti-estrogen medication that works at the level of the pituitary gland. It blocks the follicle stimulating hormone, which stimulates the ovary to produce estrogen. It would stop the endometriosis, reduce the size of the fibroids, and reduce the blood supply to the uterus. The drug is used to reduce the vascularity and size of the fibroids. There is an unfortunate side-effect of this medication, which is that it induces a premature menopause. However, this is a temporary phenomenon, which disappears once the plaintiff stops taking the drug.


Following the consultation in May 2005, Dr. Ní Bhuinneáin wrote to the plaintiff's GP informing him of the treatment plan which had been devised for the plaintiff in the following terms:-

‘Dear Dr. Keane

I reviewed Mary in the gynae clinic today. She has heavy and prolonged periods and also has a fibroid uterus. She has a Mirena in situ since March 2004. Pelvic ultrasound on 25th April, 2005, shows fundal fibroid 5.2 × 6.5cms and a small cyst in the right ovary. Her last cervical smear in April 2004 was NAD. Mary was requesting TAH. She said she has lost 4kg in one month.

I discussed Mary with Dr. Ní Bhuinneáin. She advised a weight reduction with a goal weight of 84kgs for a BMI of 30. She has also advised Tranexamic Acid for menorrhagia for the meantime. She was given a prescription for Ponstan and Tranexamic Acid. Decapeptyl will be given eight weeks pre-operatively. She was advised to attend the clinic in two months to review her progress. I have also sent a request for dietician review.

Yours sincerely

Dr. Anitha Padmanabhan Dr. Ní Bhuinneáin

SHO Consultant Obstetrician & Gynaecologist’


The plaintiff was not happy with the treatment regime suggested by Dr. Ní Bhuinneáin. In particular, she was worried about taking Decapeptyl as she thought that it gave rise to permanent side-effects; she was only 42 at the time and did not want to go into a premature menopause. She therefore asked her GP to refer her to the defendant for a second opinion.


Dr. Keane wrote to the defendant on 25th August, 2005 and asked her to see the plaintiff. He enclosed a copy of the documentation that had been received from Mayo General Hospital, including the letter from Dr. Ní Bhuinneáin of 10th May, 2005. The defendant stated that she received a copy of that letter, but that in the version supplied to her, only the first paragraph was present. This aspect will be dealt with in more detail later in the judgment.


The plaintiff attended with the defendant on 30th August, 2005. Having taken down her address, contact numbers and date of birth, the defendant's note of the consultation was in the following terms:-

‘42 year old lady, 11/04 started with heavy and prolonged periods. Mirena since 03/04 not really helpful, also weight gain.

LMP: 30.08.05 15 – 20/28D IMB +, PCB nil

CL Smear: 03/04 in NAD


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2 cases
  • McNicholas v Hermann
    • Ireland
    • Court of Appeal (Ireland)
    • 28 February 2017
    ...out a total abdominal hysterectomy on her on the 20th October, 2005. On the 7th July, 2015, the High Court (Barr J) dismissed the claim ([2015] IEHC 435). Ms McNicholas appealed to the Court of Appeal against that decision, submitting that the trial judge impermissibly failed to afford her ......
  • Dardis v Poplovka
    • Ireland
    • High Court
    • 1 March 2017
    ...with the exception of the sodium bicarbonate and sodium chloride to which I have already referred.’ 165 In McNicholas v. Herman [2015] IEHC 435, this Court was invited to draw an adverse inference in a medical negligence action, due to the decision by the defendant's legal team not to call ......

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