Walsh v Family Planning Services Ltd

• Jurisdiction: Ireland
• Judge: FINLAY C.J.,McCarthy J.,O'FLAHERTY J.,EGAN J.
• Judgment Date: 09 April 1992
• Neutral Citation: [1992] IESC 3
• Court: Supreme Court
• Docket Number: [1987 No. 1053P]
• Date: 09 April 1992

[1992] IESC 3

THE SUPREME COURT

Finlay C.J.

Hederman J.

McCarthy J.

O'Flaherty J.

Egan J.

276/90 & 283/90

WALSH v. FAMILY PLANNING SERVICES LTD

JAMES WALSH

Plaintiff/

Respondent

and

FAMILY PLANNING SERVICES LIMITED, EITHNE DEBORAH ORR ANDTHOMAS FELIM KELLY

Defendants/

Appellants

Citations:

DUNNE V NATIONAL MATERNITY HOSPITAL 1989 IR 91

O'DONOVAN V CORK CO COUNCIL 1967 IR 173

DANIELS & ANOR V HESKIN 1954 IR 73

MCMAHON & BINCHY IRISH LAW OF TORTS 2ED 268

SIDAWAY V GOVERNORS OF BEHTLEM ROYAL HOSPITAL 1985 AC 900

REIBL V HUGHES 1980 2 SCR 880

SCHLOENDORFF V SOCIETY OF NEW YORK HOSPITAL 1914 211 NY 125

GERBER V PINES 1979 SJ 13

Synopsis:

PRACTICE

Pleadings

Negligence - Addition - Assault - Patient - Operation - Consent - Operator aided by assistant - Allegation that assistant unauthorised - Patient's secondary claim to damages for assault - Secondary claim unsuitable - (276, 283/90 - Supreme Court - 9/4/92)

|Walsh v. Family Planning Services Ltd.|

NEGLIGENCE

Medical practitioner

Vasectomy - Procedure - Consequences - Warning - Adequacy - Rare sequela - Assistant doctor - Plaintiff's consent to operation - Additional unsuitable claim to damages for assault - (276,283/90 - Supreme Court - 9/4/92) - [1992] 1 I.R. 496

|Walsh v. Family Planning Services Ltd.|

1 JUDGMENT delivered on the 9th day of April 1992by FINLAY C.J.

2 The Plaintiff instituted proceedings against the Defendants, claiming damages for negligence and for assault arising out of an operation for vasectomy carried out by the second-named Defendant and the third-named Defendant on the Plaintiff as agents of the first-named Defendant, on the 3rd May 1984.

3 By order dated the 17th July 1989, made by MacKenzie J. in the High Court, the court

4 (a) found that the Defendants were not negligent,

5 (b) found that there was a technical assault and battery on the Plaintiff in that he did not consent to Dr. Kelly's participation in the operation, and assessed damages for the Plaintiff in a total sum of£42,500, directing that he recover that sum from theDefendants.

6 The Defendants appealed against the order awarding to the Plaintiff the sum of £42,500 damages and sought in lieu thereof an order dismissing the Plaintiff's action or, alternatively an order for a re-trial of the said action.

7 The Plaintiff entered a cross-appeal against the said order,appealing

8 (1) Against the award of damages on the basis that it wasinsufficient,

9 (2) Against the dismissal of the claim for negligence, and

10 (3) Against the finding that a warning of the likely or possible consequences of the operation was given to the Plaintiff/Respondent by the Defendants/Appellants and that such warning was sufficient.

11 I have read the judgment which is about to be delivered by O'Flaherty J., and in which the facts of this case and considerable details of the evidence given are comprehensively and, I am satisfied, accurately set out, and it is unnecessary for me to repeat them in this judgment.

The issues

12 The issues which arose at the hearing of the appeal and cross-appeal are as follows.

13 1. Whether the finding by the learned trial judge that the Plaintiff had failed to prove negligence in the carrying out of the operation of vasectomy was supportedby the evidence before him.

14 2. Whether the Plaintiff was entitled to a finding on the evidence of negligence against the Defendants arising from the failure of the Defendants sufficiently to warn him of the possible consequences of the operation of vasectomy which was carried out on him.

15 3. Whether the finding by the learned trial judge that the Defendants had been guilty of a "technical assault" on the Plaintiff by reason of their failure to inform him that the third-named Defendant would participate in the carrying out of the operation was supported by the evidence and correct in law.

16 4. Whether the Plaintiff was on the evidence entitled to a finding of assault arising from the failure of the Defendants adequately to warn him against the possible consequences of the operation of vasectomy.

17 5. Whether, if the Plaintiff was entitled to a finding of assault against the Defendants, he was entitled by way of damages therefor to the entireconsequences of the carrying out of the operation on him, whether flowing from the fact of assault or not, and

18 6. Whether if the Plaintiff was entitled to damages on the basis of an assault for the entire consequences of the carrying out of the operation on him, or for negligence consisting of failing to warn him of the possible consequences of the operation, the sum of £42,500awarded by the learned trial judge was sufficient.

The decision

19 With regard to these issues, I have come to the followingdecisions.

1. Negligence in the carrying out of the operation

20 The evidence before the learned trial judge, which he apparently accepted, as appears from his judgment, was that the complication which the Plaintiff suffered as a result of this operation was a condition of orchialgia which is a rare condition the cause of which is not yet known to medical science but which has beenestablished as following up on an operation for vasectomy in an infinitesimal proportion of cases, though the causative link between the operation and the condition has not yet been established. No evidence was submitted to the trial judge to the effect that any particular want of care in the carrying out of the operation could be or was associated with the onset of this condition of orchialgia.

21 Medical witnesses called on behalf of the Plaintiff were unable to point, under cross-examination, to any act of negligence arising in the carrying out of the operation, the evidence of which had been given before the court.

22 In these circumstances, I am satisfied that the learned trial judge was clearly entitled to reach a conclusion, as he did, that there was no negligence in the carrying out of the operation and, indeed, it appears to me that a finding to the contary effect would be difficult to support on the evidence which appears from the transcript.

2. Negligence in failing to give a sufficient warning of the possible consequences of the operation

23 I am satisfied that there is, of course, where it is possible to do so, a clear obligation on a medical practitioner carrying out or arranging for the carrying out of an operation, to inform the patient of any possible harmful consequence arising from the operation, so as to permit the patient to give an informed consent to subjecting himself to the operation concerned.

24 I am also satisfied that the extent of this obligation must, as a matter of common sense, vary with what might be described as the elective nature of the surgery concerned.

25 Quite obviously, and apart even from cases of emergency surgery which has to be carried out to persons who are unconscious or incapable of giving or refusing consent, or to young children, there may be instances where as a matter of medical knowledge, notwithstanding substantial risks of harmful consequence, the carryingout of a particular surgical procedure is so necessary to maintain the life or health of the patient and the consequences of failing to carry it out are so clearly disadvantageous that limited discussion or warning concerning possible harmful side-effects may be appropriate and proper. On other hand, the obligation to give warning of the possible harmful consequences of a surgical procedure which could be said to be at the other end of the scale of the extent to which it is elective, such, undoubtedly, as would be the operation of vasectomy, may be more stringent and more onerous.

26 I am satisfied, however, that the standard of care to be exercised by a medical practitioner in the giving of the warning of the consequences of proposed surgical procedures is not in principle any different from the standard of care to be exercised by medical practitioners in the giving of treatment or advice, and that there are not good grounds for suggesting that the issue of negligence arising under this heading isoutsidethe general principles which have been enunciated by this Court in previous cases concerning the standards of care and the methods of ascertaining them arising in medical negligence cases which were summarised in Dunne (an Infant) v. The National MaternityHospital 1989 IR, which summary has been set out in the judgment about to be delivered by McCarthy J.

27 It is, I am satisfied, true, however, that if a medical practitioner charged with negligence consisting of a failure to give sufficient warning of the possible consequences of an operation, defends his conduct by establishing that he followed a practice which was general, that it may be, certainly in relation to very clearly elective surgery, that the Court might more readily reach a conclusion that the extent of warning given or omitted contained inherent defects which ought to have been obvious to any person giving the matter due consideration than it could do in a case of complicated medical or surgical procedures, and an allegation that,although generally adopted they were inherently unsafe.

28 The learned trial judge in his judgment in this case accepted the evidence of Dr. Sheehy-Skeffington, who acted as a director of the first-named Defendants, that in the course of an interview had with the Plaintiff prior to his consenting to undergo the operation of vasectomy, that she informed him that "very rarely, for no known reason, some patients experience pain for some years after the operation" and that such pain was ongoing indefinitely, but that that occurrence was very rare.

29 I am satisfied that this was an adequate and sufficient warning of the existence of the possible consequence of orchialgia to which I have already referred in this judgment. That consequence, for no known reason, occurred in very rare cases, to the knowledge of the medical...