McNicholas v Hermann
| Jurisdiction | Ireland |
| Judge | Ms. Justice Irvine |
| Judgment Date | 28 February 2017 |
| Neutral Citation | [2017] IECA 67 |
| Date | 28 February 2017 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Neutral Citation Number: [2017] IECA 67 Appeal No. 2015/532 |
[2017] IECA 67
THE COURT OF APPEAL
Irvine J.
Peart J.
Irvine J.
Hogan J.
Neutral Citation Number: [2017] IECA 67
Appeal No. 2015/532
Medical negligence – Personal injuries – Res ipsa loquitur – Appellant seeking damages for personal injuries in medical negligence proceedings – Whether trial judge failed to adjudicate on important issues
Facts: The plaintiff/appellant, Ms McNicholas, brought proceedings in respect of personal injuries sustained by her as a result of the alleged negligence on the part of the defendant/respondent, Dr Hermann, a consultant obstetrician and gynaecologist, who carried 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 an adjudication on two important issues which she had raised. She asserted that she was entitled to have those issues decided, relying on the decision of Clarke J in Doyle v Banville [2012] IESC 25. Ms McNicholas submitted that the trial judge had impermissibly ignored the case advanced that the pressure which damaged the femoral nerve had been caused either by the negligent placement of the self-retaining retractor on the psoas muscle at the commencement of surgery or alternatively by the failure on the part of Dr Hermann to periodically check the position of the retractor in the course of surgery so as to make sure that it did not slip onto the psoas muscle. Ms McNicholas submitted that the trial judge failed to adjudicate upon the claim advanced based upon the doctrine of res ipsa loquitur. Ms McNicholas submitted that Dr Hermann could not be stated to have discharged the burden of proving that the injury had occurred notwithstanding due care on her part in performing the surgery. Ms McNicholas submitted that the trial judge impermissibly failed to resolve a number of evidential issues which she maintained were critical to his analysis of the liability issue. Ms McNicholas submitted that the result of the trial judge’s failure to engage with the aforementioned issues was that she did not receive a fair or satisfactory trial and that in such circumstances the Court should direct a re-trial.
Held by Irvine J that the trial judge directed his attention to all of the issues that he was required to decide for the purpose of affording the plaintiff a fair and just trial having regard to the manner in which the claim was pursued both in evidence and in submission. Irvine J was satisfied that the plaintiff had no grounds upon which she might legitimately seek a new trial by reason of the failure on the part of the High Court judge to address her claim in the context of the doctrine of res ipsa loquitur. Likewise, the criticism of the trial judge’s approach to certain evidential disputes alleged to be material to the credibility of Dr Hermann’s evidence was held to provide no permissible basis upon which the plaintiff might seek to disturb the findings of the High Court judge.
Irvine J held that she would dismiss the appeal.
Appeal dismissed.
This is the appeal of the plaintiff, Mary McNicholas (‘Ms. McNicholas’), against the judgment and order of the High Court (Barr J.), (dated respectively the 7th and 24th July, 2015), made by him in medical negligence proceedings: see McNicholas v. Hermann [2015] IEHC 435. Those proceedings were brought by Ms. McNicholas in respect of personal injuries sustained by her as a result of the alleged negligence on the part of the defendant (‘Dr. Hermann’), a consultant obstetrician and gynaecologist, who carried out a total abdominal hysterectomy on her on the 20th October, 2005. The High Court judge dismissed Ms. McNicholas's claim and it is her appeal against that decision which forms the subject matter of this judgment.
Before embarking upon a consideration of the substantive submissions on the appeal it is necessary, in my view, to set out the relevant background facts.
Ms. McNicholas is a married lady and the mother of two children who for many years prior to 2005 suffered from prolonged and heavy menstrual bleeding which impacted on her life for anything between fifteen and twenty days each month. Her condition was complicated by the presence of endometriosis (a condition in which tissue that normally grows inside the uterus grows outside it). She had, in addition, uterine fibroids which caused her uterus to be of a size equivalent to that to be expected in a pregnancy of eighteen weeks gestation. Her enlarged uterus was, in turn, causing her to experience some degree of urinary incontinence. To further complicate matters, any intended surgery would have to take account of the fact that Ms. McNicholas had earlier undergone prior abdominal surgery. Finally, of relevance to her medical condition at the time she first attended Dr. Hermann is the fact that a Mirena coil, which had been inserted with a view to controlling her heavy and protracted bleeding, had proved unsuccessful.
Because of her relatively poor quality of life, Ms. McNicholas was referred by her G.P., Dr. Kenneth Keane, to Dr. Maebh Ní Bhuinneáin, consultant obstetrician and gynaecologist, at Mayo General Hospital, for her opinion. At the time she weighed 107 kg. A total abdominal hysterectomy was advised but a date for surgery was not fixed. Ms. McNicholas was advised to reduce her weight to 84 kg and was prescribed medication for pain, excessive menstrual bleeding and a drug designed to reduce the size of her fibroids. She was to return for review in eight weeks. Dr. Ní Bhuinneáin's treatment plan for Ms. McNicholas was outlined in a two paragraph letter dated 10th May, 2005, signed by Dr. Padmanabhan, who may have been a registrar or senior house officer. Because this letter is of some controversy I will set it out in full:-
‘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 says she has lost 4kgs 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 Ponston and Tranexamic Acid. Decapeptyl will be give[n] 8 weeks preoperatively. 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’
Unhappy with the proposed regime advised in the aforementioned letter, principally because of her concerns about the side effects of Decapeptyl, a drug which she understood might trigger menopause, she asked Dr. Keane to refer her for a second opinion. Accordingly, on 25th August, 2005, Dr. Keane wrote to Dr. Hermann, who was then practicing in the Galway Clinic, asking that she review his patient. He enclosed the letter from Dr. Ní Bhuinneáin for her attention.
Following her consultation with Ms. McNicholas, Dr. Hermann booked her in for a total abdominal hysterectomy on the 20th October, 2005. She also wrote to Dr. Keane on 30th August, 2005, summarising her consultation with the patient.
It is common case that in the course of the surgery which took place on 20th October, 2005, Ms. McNicholas sustained permanent damage to the left femoral nerve. Post operatively she developed numbness in her leg and other symptoms consistent with such an injury. It is not necessary, for the purposes of this judgment, to detail the consequences to Ms. McNicholas of this injury, save to note that it is accepted by all that she has been left significantly disabled in a number of respects and that her disabilities will regrettably be life long.
The within claim was commenced on 4th October, 2007, and the pleadings closed on the 19th May, 2014. From the pleadings and the particulars delivered on her behalf Ms. McNicholas's claim can be stated to fall into two parts, the first being preoperative negligence and the second being perioperative negligence.
Insofar as preoperative negligence is concerned, two principal complaints were made against Dr. Hermann. First, that she did not advise Ms. McNicholas to lose weight and postpone surgery to allow this to occur. Second, that she failed to advise Ms. McNicholas that her weight would increase her risk of an adverse surgical outcome.
Insofar as perioperative negligence is concerned, Dr. Hermann's care of her patient was challenged in two respects. First, that Dr. Hermann had failed periodically to release the self retaining retractors which she had deployed in the course of surgery with the result that the structures pulled back by the retractors damaged the femoral nerve through unrelieved pressure. Second, a claim was advanced that the retractors might have been mis-positioned on insertion such that they engaged a muscle known as the psoas muscle such that its retraction caused damage to the femoral nerve.
To place this judgment in context, it is necessary to provide a brief and, what I hope, is a non-contentious anatomical roadmap to the hysterectomy carried out by Dr. Hermann which is in keeping with the detailed description of the procedure described by the trial judge in his judgment. The operation commences with a transverse incision of the abdomen. When the...
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