Reeves v Carthy

• Jurisdiction: Ireland
• Judge: GRIFFIN J.,O'HIGGINS C.J.
• Judgment Date: 01 January 1984
• Neutral Citation: 1982 WJSC-SC 1398
• Docket Number: [S.C. No. 161 of 1981],(161-1981)
• Court: Supreme Court
• Date: 01 January 1984

1982 WJSC-SC 1398

THE SUPREME COURT

O'Higgins C.J.

Griffin J.

Hederman J.

(161-1981)

REEVES v. CARTHY AND O'KELLY

REEVES

v.

CARTHY and 0'KELLY

1 JUDGMENT delivered on the 28th day of April 1982by O'HIGGINS C.J. [Hederman J. concurring]

2 These proceedings have been brought by the Plaintiff against the two Defendants who are general medical practitioners, because of a serious and incapacitating stroke which he suffered on the 9th June 1977. The two Defendants are members of a medical service known as "Doctor on Call" and each, on separate occasions on that date, answered a sick call made by the Plaintiff's wife to a designated doctor who was unable to attend. The Plaintiff alleges that each Defendant, in his attendance upon and treatment of him, was guilty of negligence and breach of duty and that as a result he, later that day, suffered a stroke which has seriously and permanently incapacitated him. The Plaintiff's claim was tried over several days in the High Court before Mr. Justice Gannon and a jury. At the conclusion of all the evidence in the case the learned trial Judgeacceded to an application made on behalf of both Defendants that the case should be withdrawn from the jury. He did so on the grounds advanced on behalf of the Defendants that even if there was evidence of negligence or breach of duty against the Defendants or either of them, the occurrence of a stroke was not reasonably foreseeable and accordingly liability could not be established. Against this decision this appeal has been brought by the Plaintiff.

3 As indicated, the trial which is required to be reviewed by this appeal lasted a number of days. The evidence and submissions cover six books of transcript. It would not be possible or desirable in this judgment to refer to this large amount of evidence in any great detail. I propose, therefore, to set out what I conceive to be the case made by the Plaintiff against each Defendant and to consider the salient features of the evidence upon which this case is claimed to rest. Having dealt with the question of negligence in relation to each Defendant I propose then to deal with therelevance of foreseeability in a case such as this and with the legal principles which, in my view, apply.

4 As against the first Defendant (Dr. Carthy) the Plaintiff makes two allegations of negligence and breach of duty. He alleges that although he was obviously ill and in pain, Dr. Carthy proceeded to diagnose his condition and to treat him without carrying out any physical or medical examination. As a result, the Plaintiff complains, the real nature of his illness was not discovered or diagnosed nor was he removed to hospital until it was too late. In the second place, the Plaintiff alleges that Dr. Carthy's treatment was contrary to accepted practice in that, without such examination, he injected the Plaintiff with two doses of a drug containing morphine which masked and concealed the Plaintiff's symptoms and the critical nature of his illness. The Plaintiff's case is that, were it not for these acts of negligence on the part of Dr. Carthy, the serious nature of his illness would have been discovered earlier and as a consequence he would not have sufferedthe stroke which he suffered later that day.

5 The evidence in support of this case was that given by the Plaintiff's wife, Mrs. Reeves, and also the expert opinions of medical witnesses as to the nature of the Plaintiff's illness and as to what was required of Dr. Carthy in the circumstances. Mrs. Reeves said that her husband had had a long history of gastric and stomach upsets which had been treated by the family's usual medical attendant, Dr. McNiff, and later by a Dr. Fenton. He had been referred earlier that year to Dr. Steven's Hospital for X-Ray with a negative result. Later, following another attack, he had been sent by Dr. Fenton to St. James's Hospital for tests. Again, apart from a report that he suffered constipation and bowel irregularity, the result was unenlightening. At some time after 8 o'clock on the evening of the 8th June 1977, while being driven home by his wife, the Plaintiff got a sudden and severe gastric or stomach upset. He was doubled up in pain and vomited. His wife got him home and to bed. His pain and distress continued in betweenperiods of dozing. Having tried to summon other medical assistance Mrs. Reeves eventually was put in contact with "Doctor on Call". As a result, at 3 a.m. on the 9th June Dr. Carthy arrived. She apologised for calling him at such a late hour. He said that it was quite all right as he had been at a party. She told him of the events of the previous evening and how her husband had been up to then. She also gave him full details of her husband's previous medical history. In the bedroom her husband said he was constipated and asked for something to kill the pain. Dr. Carthy said "You are a great man, you seem to know what is wrong with you, turn over and I will give you an injection". He then gave the Plaintiff the first injection. When some time later the Plaintiff said the pain was still there, Dr. Carthy gave him a second injection. She was positive that Dr. Carthy did not carry out a physical examination of the Plaintiff and said that he left, leaving two tablets behind, and telling her "I don't think you'll need to call us again". Under cross-examination shecould not recall Dr. Carthy taking her husband's blood pressure or temperature or pulse but conceded these might have been taken without her noticing. She was in no doubt about Dr. Carthy's failure to carry out a medical examination of her husband and despite suggestions to the contrary she repeated many times that he had not done so. She also stated positively that she had told Dr. Carthy of her husband's vomiting the previous evening.

6 While it is not necessary to examine or consider Dr. Carthy's evidence in so far as it contradicts that of Mrs. Reeves, it is only right to say that he was adamant that he must have examined the Plaintiff. He based this not on a recollection of his having done so but on his clinical notes recorded immediately after his visit. These notes recorded as his clinical findings "epigastric pain ++, no vomiting or diarrhoea". He said that he could not have recorded epigastric pain without putting his hand and examining the Plaintiff's stomach. He did not deny that Mrs. Reeves could have told him ofthe vomiting but was not asked to explain his entry in this respect. He did not regard the Plaintiff's condition as serious and diagnosed a peptic ulcer. He agreed that he gave an injection of cyclomorph (a drug containing morphine).

7 Before dealing with the visit of the second-named Defendant (Dr. O'Kelly) it is necessary now, in relation to the case against Dr. Carthy, to deal with the Plaintiff's admission to hospital and his condition at that time. In dealing with the case against Dr. O'Kelly I must, of course, return to what happened after Dr. Carthy left and before this admission.

8 At some time after 12 noon the Plaintiff struggled from his bed shouting for his wife and collapsed at the bannisters outside his bedroom. He was then unable to speak. His wife in great distress summoned an ambulance and she travelled with the Plaintiff in the ambulance to St. James's Hospital. On arrival he was given immediate emergency medical aid as his life was obviously indanger. It was recognised that he had suffered a right-sided hemiplegia or stroke and an acute abdominal catastrophe which meant that there had been an extensive perforation of fluid into his abdomen. As this perforation required surgery, he was prepared for such and was operated on that night. As a result of the operation it was discovered that the Plaintiff suffered from a condition known as Crohn's Disease, which is an inflammation of the bowel, and that this had led to the perforation and abdominal catastrophe. The evidence established that Crohn's Disease was a chronic condition which was extremely difficult, if not impossible, to diagnose without operation. It might cause only mild trouble and might disappear. Or it could suddenly become acute and cause a perforation as it did in this case.

9 Apart from indicating the nature and cause of the Plaintiff's condition on admission to hospital, the medical evidence called on his behalf established other matters which appear to be relevant in considering thecase against Dr. Carthy. This evidence is also relevant in considering the case against Dr. 0'Kelly with which I will deal later. This evidence was to the following effect.

10 A perforation of the abdomen may commence as a small leak through any part of the abdominal wall. As it develops it affects the circulation of the blood as fluid accumulates in the abdominal cavity. This is called hypotension or a condition of low blood pressure and is extremely dangerous. If the perforation and resulting hypotension condition continue to exist without relief a condition of shock may set in. When this happens the arms and legs get very cold because the body shuts off their supply of blood in order to maintain a blood supply to the vital organs, the brain, the kidneys and the heart. If this condition continues without relief a stroke may result because of the death of a portion of the brain. A stroke does not usually occur to a person as young as the Plaintiff. However, having Crohn's Disease, he had a mild predisposition to astroke. Apart from Crohn's Disease, and even in the case of a young person, a prolonged period of hypotension can lead to a stroke. The Plaintiff's stroke could have been averted had he been admitted to hospital earlier than 11.30 a.m. and the acute abdominal catastrophe prevented had he been admitted around 4 a.m. on the same day.

11 There was also other medical evidence to the effect that any doctor should regard a night call as serious and that in the circumstances of this case a failure to...