Winston v O'Leary

JurisdictionIreland
JudgeMr. Justice John MacMenamin
Judgment Date19 December 2006
Neutral Citation[2006] IEHC 440
Docket Number[1992/4080 P.]
CourtHigh Court
Date19 December 2006

[2006] IEHC 440

THE HIGH COURT

[1992/4080 P.]
WINSTON v O'LEARY

BETWEEN

JOHN WINSTON
PLAINTIFF

AND

NIALL O'LEARY
DEFENDANT

SCHMIDT SPERMATIC GRANULOMA AN OFTEN PAINFUL LESION FERTILITY & STERILITY 1979 31 2 178-181

SELIKOWITZ & SCHNED LATE POST VASECTOMY SYNDROME JOURNAL OF UROLOGY 1985 134 494-497

GEOGHEGAN v HARRIS 2000 IR 536

WALSH v FAMILY PLANNING SERVICES LTD & ORS 1992 1 IR 496

DUNNE v NATIONAL MATERNITY HOSPITAL 1989 IR 91

CHESTER v AFSHAR 2005 1 AC 134THOMPSON v BRADFORD 2005 EWCA CIV 1439

NEGLIGENCE:

Medical negligence

Informed consent - Pain following vasectomy - Whether question of risk of pain was dealt with prior to procedure - Adequacy of warning as to residual pain -Whether defendant followed normal practice - Causation - Elective surgery - Duty to warn - Objective test - Whether residual pain was known complication of vasectomy -Geoghegan v Harris [2000] 3 IR 537, Dunnev National Maternity Hospital [1989] IR 91 and Walsh v Family Planning Services [1992]1 IR 496 followed - Claim dismissed(1992/4080P - MacMenamin J - 19/12/2006) [2006] IEHC 440 Winston v O'Leary

the defendant had performed a vasectomy on the plaintiff. The plaintiff instituted proceedings seeking damages for pain and suffering caused thereby. He alleged that he had not been fully informed of all of the risks associated therewith and had, accordingly, not given a full, free and informed consent to the operation. There was a difference in recollection of evidence but the defendant had relied on contemporaneous notes when proffering his evidence.

Held by Mr Justice MacMenamin in dismissing the claim that:

1. in the absence of close, supporting evidence, the court had to look at all the surrounding circumstances, in particular anything contemporaneous, particularly written records, to ascertain which version tendered to the court was the more likely.

2. That it was more likely that the plaintiff’s memory was fallible on the issue in dispute and that the contemporaneous written records in relation thereto were inconsistent therewith.

3. That it was more probable that the question of risk of pain was dealt with as described by the defendant.

4. That the duty to disclose any risk which carried the possibility of grave consequences for a patient was confined to such consequences as may be foreseeable or predictable.

5. That, when deciding what a reasonable person properly informed would have done in the plaintiff’s position, should be done in the context of the plaintiff’s age, pre-existing health, family and financial circumstances, the nature of the surgery and any other factor that could be objectively assessed, although personal to the plaintiff.

Reporter: P.C.

Mr. Justice John MacMenamin
1

On a number of occasions in recent years it has been pointed out that the task of determining what probably occurred after a long elapse of time poses particular challenges to a court. The process is rendered more difficult when important aspects of a case are reliant, entirely, on human memory. At the hearing the assessment of oral evidence is of course one aspect of a court's function. In fact - finding a court will consider the recollection of each witness. Testimony may be affected by the passage of time itself. Perhaps there may be particular factors which may affect memory, or where witnesses to events may seek to rationalise their actions or decisions on the basis of what they believe happened, as opposed to what actually occurred. In the absence of memory, a witness may be entirely reliant on contemporaneous records. On occasion the importance or uniqueness of an event may lead to certain recollected words or deeds becoming fixed in the mind of one participant but not others. Here context and the totality of what occurred is essential. In the absence of clear corroborative evidence, a court may seek to identify whether there are “islands of fact” which may assist in the process of testing accuracy of recollection. In the absence of strong cogent corroborative evidence one must look to all the surrounding known facts and records in order to ascertain which narrative, or version of events, is the more likely or probable, and ultimately whether respective parties have discharged a burden of proof. If there is a conflict of evidence, such conflict may only be resolved by weighing all the surrounding circumstances in order to identify which version of events is the more probable. One factor is whether, in the light of clear evidence established objectively, or ascertainable facts, the credibility of bare assertions made and denied may, in the absence of corroboration, be resolved on the basis of whether the general testimony of a witness otherwise bears scrutiny, having regard to their account of such other verifiable and objectively ascertainable facts. How a witness testifies on issues which can be otherwise established may be a helpful guide if it is the word of that witness against another person.

2

The judgment which follows seeks to summarise the testimony and submissions of this seven day hearing, consider the evidence, apply the principles of assessment outlined, and finally to analyse such evidence in the light of the legal principles which arise on this aspect of law. The primary question for determination is whether, on the evidence, the plaintiff has established negligence in the part of the defendant medical doctor. A secondary issue, that of causation, also arises.

3

In June of 1989 the plaintiff, a married man with seven children, was minded to undergo a vasectomy procedure. His wife had recently given birth to their youngest child. The couple managed a family run newsagency in Finglas. This business was a full-time undertaking. It required the whole attention of the plaintiff and his wife. The birth of the couple's second last child had been difficult. On the birth in May of that year of their last child the Winstons considered their family was complete.

4

On the 26th June, 1989, the plaintiff went to his general practitioner Dr. O'Gorman. He said he wished to have a vasectomy. Dr. O'Gorman, who practised in Finglas, indicated that he was not expert in this area. He referred the plaintiff to Dr. Niall O'Leary, the defendant herein, who had a particular interest in this field and who had carried out a substantial number of such procedures. Dr. O'Gorman did not counsel the plaintiff beforehand except in general terms. He testified he was aware that the plaintiff would receive specific and detailed counselling before the procedure.

5

The Winstons married in 1981. Mrs. Winston was pregnant for a significant amount of time in the marriage. During the eight years period to 1989 as well as giving birth to the seven healthy children in the family she unfortunately also had a miscarriage.

6

After the birth of the second last child, the Winstons decided "to take a break" and during that two year period Mr. Winston used male contraception. After the interval Mrs. Winston again became pregnant. The question of a vasectomy arose when the Winstons were leaving the Rotunda Hospital after the birth of their last child in May 1989. They were then given a family planning brochure which included vasectomy as one of the contraception options available to those who might so choose.

7

The plaintiff is now in his late forties. He presented as being an extremely anxious and at times, over-wrought witness. He described the decision to avail of this procedure as having been a very quick one. He was referred to Dr. O'Leary having been told about his experience and that he had actually lectured on the subject. The Winstons were not well informed about vasectomy. The plaintiff understood it to be a very small operation.

8

As a preface to the evidence now summarised, it should be noted that Dr. O'Leary had no recollection of the plaintiff or his wife, the advice he gave, the procedure or any subsequent meeting. The last meeting between the plaintiff and the respondent was 1st August, 1989, seventeen years prior to the hearing of the case. No motion or point on the issue of prejudice was raised at, or prior to the hearing of the case. Despite the serious concerns felt afterwards by the plaintiff, there is no evidence that, any time after the post operative consultation of 1st August 1989, he ever returned to the defendant to discuss these concerns in detail. Nor is there any evidence that any of the doctors who then saw the plaintiff ever consulted the defendant. For his views this is unfortunate for a number of reasons discussed later.

9

On the evening of the 29th June, 1989, the couple went to the defendant's surgery. The plaintiff said that he had decided on having a vasectomy. They outlined their family circumstances. The plaintiff says the defendant said that vasectomy was a very simple procedure and that there had been millions of them done around the world.

10

The plaintiff says he asked the defendant whether there were any potential problems with vasectomy and was told that "there were no problems whatsoever". He testified at one point: "I wasnever told of any risk of pain". Dr. O'Leary outlined the procedure. This firstly involved anaesthetic injections in the scrotal area. The plaintiff says he asked "will I feel any pain at all?" to which he said the defendant responded, "no you won't feel anything". When he enquired whether it would be sore he testifies that the defendant responded not generally, but that when the effect of the anaesthetic wore off, there would probably be some soreness and discomfort. Mrs. Winston (who testified) says that Dr. O'Leary did not indicate for how long such discomfort or soreness might last but that it might be alleviated with Panadol or other painkillers.

11

The Winstons say that in the course of the counselling interview the defendant...

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