Schuit v Mylotte and Others

• Jurisdiction: Ireland
• Judge: O'Donnell, J.
• Judgment Date: 18 November 2010
• Neutral Citation: [2010] IESC 56
• Court: Supreme Court
• Date: 18 November 2010

[2010] IESC 56

THE SUPREME COURT

Denham, J.

Finnegan, J.

O'Donnell, J.

118/06

Schuit v Mylotte & Ors

Between:

Julia Schuit

Plaintiff/ Appellant

-and-

Michael Mylotte

First Defendant

-and-

David O'Keefe

Second Defendant

-and-

John Winters

Third Defendant/Respondent

-and-

Western Health Board

Fourth Defendant/Respondent

HETHERINGTON v ULTRA TYRES SERVICES 1993 2 IR 535

O'TOOLE v HEAVEY 1993 2 IR 544

CIVIL LIABILITY ACT 1961 S32

DUNNE (AN INFANT) v NATIONAL MATERNITY HOSPITAL & JACKSON 1989 IR 91

HANAFIN v MIN FOR ENVIRONMENT 1996 2 IR 321

HAY v O'GRADY 1992 1 IR 210

Abstract:

Tort law - Medical negligence - Failure to act - Causation - Cancer - Loss or damage- Whether plaintiff had established loss

Facts: In 1996 the plaintiff had a radical and invasive hysterectomy but a biopsy later carried out showed that the plaintiff did not have cancer. The plaintiff then commenced proceedings and proceedings turned on whether the negligence alleged had resulted in any loss or damage to the plaintiff. The question had also arisen as to whether the defendants had been negligent in failing to act on smear test results which were abnormal and standard and conservative medical practices in 1996.

Held by the Supreme Court per O' Donnell J. (Denham, Finnegan JJ. Concurring), that it was apparent that the Court had concluded as a matter of deduction that since the plaintiff was making the case against the doctor that he should have adopted the conservative approach in 1996, that any failure to do so at an earlier stage was irrelevant. This was the wrong approach or at least an incomplete approach. This reasoning did not address the circumstances which in fact transpired, where the Court found the conduct of the first Defendant was unreasonable. In the circumstances, the appeal had to be allowed.

Reporter: E.F.

1 Judgment delivered by O'Donnell, J. on the 18th day of November 2010.

2 Judgment delivered by O'Donnell, J. [nem diss]

3 In 1996, the Plaintiff then aged 38, underwent a Wertheim-Meigs hysterectomy conducted by the first named Defendant. This operation is a radical and invasive procedure which involved the removal of her uterus, one of her ovaries, a portion of her vagina and her pelvic lymph glands. This procedure is the appropriate treatment in cases where it is considered the patient is suffering from cervical cancer. After the operation, a biopsy was carried out which showed that the Plaintiff did not have cancer. The first named Defendant told the Plaintiff this and added that had he known this prior to the operation he would not have carried out the hysterectomy. Whether on the information available to him, the first named Defendant was entitled to come to the view that a Wertheim-Meigs hysterectomy was necessary, was a central issue in the High Court. Initially, the Plaintiff, who had a good relationship with the first named Defendant, had expressed her gratitude that the operation had been carried out. When she investigated the matter further however the Plaintiff came to the view that the operation should never have been carried out and that a number of parties were at fault.

4 The Plaintiff commenced proceedings against the first named Defendant (her surgeon), the second named Defendant (the radiographer responsible for a CT scan performed shortly before the surgery), the third named Defendant (her GP who had received reports of smear tests in 1991 and 1993), and the fourth Defendant (the health board which maintained the laboratory which had been responsible for those tests and two earlier smear tests carried out on the Plaintiff in 1986 and 1987). These smear tests were central to the case made by the Plaintiff against the Third and Fourth named Defendants. For the purposes of this appeal it was accepted that while none of the smear tests up to 1994 had shown the presence of cancer, all were abnormal. It was also accepted there was evidence that in the light of such results, proper practice would have been to inform the patient and then follow up on the report by performing a colposcopy, which is a specialised examination of the uterus. The Plaintiff was not informed of the results of any of the tests between 1986 and 1994. Accordingly, no treatment was afforded to her until the 1996 operation.

5 The trial was at hearing for 14 days. The first and second named Defendant were represented by the same counsel. The third and fourth named Defendants were separately represented. There was no notice of indemnity or contribution between any of the Defendants. At the close of the Plaintiff's case on Day 7, counsel for the first and second named defendants indicated his intention to make an application for the dismissal of the claim against the second named Defendant accepting that there was a case to answer in respect of the first name Defendant. Counsel for the third and fourth named Defendants indicated that they intended to make the same application. In each case, as was required by the procedure identified in the leading cases of Hetherington v Ultra Tyres Services [1993] 2 IR 535, and O'Toole v Heavey [1993] 2 IR 544, each Defendant informed the Court that if the application was unsuccessful they intended to go into evidence. It is accepted that the issue for the Court in those circumstances was whether the Plaintiff had made out a prima facie case against each of the Defendants making the application. Furthermore, since this was multi party case, the procedure required the Defendants to indicate the line they proposed to take in evidence so as to avoid what Finlay, CJ described in O'Toole v Heavey as the manifest injustice of one defendant being dismissed from the action and the remaining defendant then seeking to avoid liability by making the case in evidence that the party against whom the claim had been dismissed was in truth, responsible for the accident.

6 At this point the case took an unusual turn. Counsel on behalf of the first and second named Defendants indicated that he would be opposing the application on behalf of the other Defendants on the basis that he contended that under s.32 of the Civil Liability Act 1961 he was entitled to present evidence against the other Defendants to show that they, and not the first or second Defendants, were negligent. He stated that:

"My experts will corroborate the evidence already given on behalf of the plaintiff by her experts that the ten year or nine year abnormal cytology without any follow up created an abnormal situation which put great pressure on Dr Mylotte which was listed by Dr Murphy as one of the factors which would have influenced Dr Mylotte."

7 The interrelationship between the cases made against the Defendants was already quite complex and this intervention made matters more difficult. In the end the trial judge, although clearly attracted by the application, declined to dismiss the Plaintiff's claim against any of the Defendants partly on the basis of the intervention made on behalf of the first and second named Defendants, and also on the basis that the Plaintiff's counsel had urged that it was at least possible that the testimony of the first named Defendant might well assist the Plaintiff as against all the remaining Defendants. Accordingly, the trial judge refused the application.

8 The first named Defendant then gave evidence. After he had given his evidence, but before the experts had been called (who it should be recalled, counsel for the first named Defendant had said would support the Plaintiff's case), counsel on behalf of the second and third named Defendants renewed their applications for a dismissal of the action against their clients. Counsel for the first named Defendant now indicated that he was no longer making any case against the third and fourth named Defendants. It was argued that the factors which had prevented the Court from granting a dismissal (the possibility the first named Defendant's evidence might assist against the second named Defendant and the indication that the first named Defendant wished to support the Plaintiff's case against the third and fourth named Defendants) were no longer present. After some further argument, the trial Judge acceded to the application and dismissed the Plaintiff's case against the second, third and fourth named Defendants.

9 The case then proceeded against the first named Defendant alone. The trial judge delivered a judgment on the 2 ^nd March 2006 dismissing the Plaintiff's claim against the first named Defendant. In a careful judgment, the trial judge applied the well known principles set out in Dunne (an infant) v. The National Maternity Hospital and Another [1989] IR 91, and concluded that while there was evidence on behalf of the Plaintiff on which the Court could conclude that the first named Defendant ought to have approached the matter in a more conservative fashion, it had not been demonstrated that "no obstetrician of like skill, acting with ordinary care, would have performed the operation carried out by the first named defendant". There were, in the trial judge's view, two bona fide schools of thought on the issue as to whether the first named Defendant acted appropriately in the circumstances presented to him. In the result, the case was dismissed and the Plaintiff ordered to pay the costs of all Defendants of what was a lengthy trial.

10 On this appeal, the Plaintiff does not contest the dismissal of the claim against the second named Defendant and furthermore, accepts that the trial judge's findings in respect of the first named Defendant were within the province of the trial court and could not realistically be disturbed on appeal. The Plaintiff's appeal is confined therefore to an appeal against the trial judge's decision dismissing the Plaintiff's...