CLINICAL NEGLIGENCE ACTIONS 2013 Dr Ciaran Craven Barrister at Law

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Introduction

This paper reviews the major cases in clinical negligence in 2013. Suffice it to say at the outset, no major themes emerge and there is no particular philosophical engagement with underlying principles. In fact, only two of the cases even

mention Dunne v National Maternity Hospital & anor.1 Even there, the familiar principles seem to be recited in a mantra-like fashion. There is no further articulation of the re-casting of the duty discussed at our Conference in February 2013 that we saw in the judgment of

the Supreme Court in Kearney v McQuillan & anor.2 although the deference to evidence-based practice as a test of the appropriate standard of care (in contradistinction to opinion-

based evidence) is particularly strong in two judgments of Irvine J that we shall be discussing.3 As such, this might be considered to represent a (welcome) variation on the theme that emerged from HM v HSE.4 In addition, whereas an issue of vindicatory damages might have been considered in relation to the partner’s claim in a failed sterilisation case,5 the court was content to hold that there was no legal basis for the claim. This is a matter that will necessarily have to be re-visited by our courts, in any event, more particularly

considering the decision of the Supreme Court in Grant v Roche Products(Ireland) Ltd.,6 and will fall to be re-assessed having regard to the re-casting of the nature of the duty owed by doctors in Kearney v McQuillan & anor.7 Finally, we consider an important decision on how the costs of a partly successful plaintiff will fall to be assessed, in complex clinical negligence litigation and the cautions and injunctions expressed (frequently anti-plaintiff) in that regard.8

Catastrophic Birth Injuries In Dunne v Coombe Women and Infants University Hospital [2013] IEHC 58 (01 February 2013) the essence of the negligence alleged against the defendant hospital was that delayed resuscitation of the newborn infant plaintiff resulted in a near total acute hypoxic ischaemia with consequential severe dyskinetic cerebral palsy and total dependency. The defence went

through a number of iterations as the trial progressed (in two tranches). For the first 20 days, the defence was the injuries were caused by an hypoxic ischaemic or some other event which occurred in the hours or days before delivery that caused the brain damage, despite the delivery of competent and timely resuscitation – in other words, there was no delay in his resuscitation. In the second tranche (23 days) of evidence – which was taken after an adjournment because the plaintiff became acutely ill and suffered an episode of rhabdomyolysis which, it was maintained, necessitated assessment as to the extent to which it might be relevant to his then current condition – it was maintained that the plaintiff’s

injuries were not caused by a hypoxic ischaemic event, but rather by an undiagnosed, underlying mitochondrial, metabolic or genetic disorder.9 This mutated, as the evidence

1 Wright v HSE & anor [2013] IEHC 273.

2 [2012] IESC 43, and as discussed at previous conferences.

3 Dunne v Coombe Women and Infants University Hospital [2013] IEHC 58 and Wright v HSE & anor

[2013] IEHC 273. 4 [2011] IEHC 339.

5 Hurley Ahern & anor v Moore & anor [2013] IEHC 72.

6 [2008] IESC 35, [2008] 4 IR 679.

7 [2012] IESC 43.

8 Wright v HSE & anor [2013] IEHC 363.

9 As Irvine J stated (at para 39), the shift by the defendant in its causation defence “was somewhat

over enthusiastically described in the following manner, namely: “The defendant initially defended this action based upon pre-delivery hypoxia after which it moved to a number of specified mitochondrial

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unfolded, to a defence that while the infant had suffered a hypoxic ischaemic event, he did not, because of such a disorder, or a muscular or neuromuscular disorder, or some other type of complex genetic defect or genetic disorder, respond normally to timely resuscitative

efforts. Having been born in slightly worse condition than had been anticipated (with an Apgar score

of 5 at 1 minute) – attributed to the stresses in the last phase of delivery – his Apgar score fell to 1 at 5 minutes, likely to have been caused, in the plaintiff’s experts’ opinions, by ineffective bag and mask ventilation, itself a difficult task, by the attending midwife. It was

then alleged that there was a delay in the arrival of an paediatric registrar, who intubated the infant. Although he had to reintubate him some minutes later – and there was no

criticism made in that context – the allegation was that it took 17 minutes to establish adequate ventilation and some 23 minutes before the heart rate picked up. The plaintiff’s experts’ evidence, from which they were not shaken, was that this was a case of neonatal

hypoxic ischaemic injury which occurred at and immediately after his birth and that his condition at birth was such that he ought to have responded promptly to positive pressure bag and mask ventilation if it had been delivered effectively.

Following a detailed analysis of the expert evidence, which was canvassed over some 94 paragraphs, Irvine J rejected each of the propositions put forward by the defendants’

experts on causation, relying on the medical literature produced10 or the fact that there was no supporting literature.11 She observed that the causation opinions expressed were premised on an understanding of the infant’s condition at birth – which she considered to be factually incorrect. She was “not satisfied as a matter of fact that [his] condition at birth was anything as poor as projected by the defendant’s experts stated”.12 In addition, she was

“marginally influenced”13 by the fact that none of the doctors caring from the infant ever considered that his development or clinical course to be anything other than entirely in keeping with that to be expected in dyskinetc cerebral palsy, secondary to a near total

asphyxiating event. In this context, there is an implied cautionary tale for experts – all aspects of an particular case must be considered and, in this case, the fact that his Apgar scores had fallen over the first 5 minutes of his life seems to have eluded (all but one of) the

defendant’s experts’ attention. The defendant nevertheless submitted that the Court should draw adverse inferences from the failure on the part of the plaintiff to call as witnesses certain medical practitioners who

disorders; then a primary mitochondrial respiratory chain disorder; then a genetic recessive mutation; then ultimately, as the basis for any of those suppositions diminished to vanishing point, a genetically derived metabolic disorder which was so unprecedented as never yet to be known, recorded or explained by the world wide scientific community””. Having regard to the evidence as recited in the judgment, this is not an obviously unfair characterisation. 10

Para 121. 11

Paras 88, 90 and 134. At para 153 she stated: “While the onus of proof is on the plaintiff to establish the cause of [the infant’s] injuries, it is of significant import that the defendant has not been in a position to point to any literature or case study to show that any baby born with any of the types of disorder contended for by its experts did not breathe spontaneously at birth, failed to respond to effectively delivered positive pressure ventilation or experienced hypoxic ischaemic injury as a result of such a condition”. The call to what the international medical literature says clearly flags a deference to evidence-based, as distinct from opinion-based, medicine, on which the Dunne principles are, essentially, predicated. See, in this context, too, the decision of Charlton J in HM v HSE [2011] IEHC 339. 12

Para 72. 13

Para 149.

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had treated the infant in his recent hospital admission.14 not finding the submission persuasive, she rejected it on four grounds: (i) their evidence would not have been of assistance, given the expert opinions being furnished. (ii) the defendant’s experts, having

access to the same material, could furnish their own opinions on causation, (iii) there was no evidence of prejudice from not calling them and (iv) the defendant had admitted the plaintiff’s notes without proof when it could have required them to be proved and the

plaintiff’s doctors to be cross-examined. It was further submitted that the court was prejudiced in its ability to determine the

causation issue as it could not rule out or even adequately adjudicate upon the defendant’s various hypotheses advanced as to the cause of the plaintiff’s injuries in the absence of the

testing advised by its experts. Irvine J was satisfied, on the evidence, that the plaintiff’s mother had cooperated with all necessary testing advised by the infant’s treating clinicians, in his best interests, and irrespective of the potential outcome in the proceedings. In

addition, all tests for mitochondrial disorders had proved negative. In this context, a specific allegation was made that consent for a muscle biopsy (the evidential value of which even on some of the defendant’s experts’ evidence was questionable) had been deliberately

withheld, possibly for reasons to do with the proceedings, this being the test most likely to determine whether or not he had such any such condition. The evidence was that this could only be carried out under general anaesthetic, with a significant risk of mortality for a

patient such as the plaintiff. Having stated the general proposition, that “because the burden of proof remains on the plaintiff . . . there is clearly no onus upon the defendant to prove that [he] was born with any of the underlying disorders for which it contends . . . .”15 she continued:

“In my view, for a defendant to suggest that an adverse inference should be drawn from the fact that a plaintiff did not, having regard to such risk and the lack of any therapeutic benefit therefrom, undertake such a procedure to

disprove a hypothesis advanced by the defendant as to the presence of an extremely rare condition, is unsustainable.”16

14

Based on Wisniewski v. Central Manchester Health Authority [1998] Lloyd’s Rep Med 223. 15

Para 156. 16

Para 159. It is accepted that there may be circumstances where the examination that is required is of such a nature that a person ought not ordinarily, and certainly not for forensic reasons, be required to undergo it. In In re a Ward of Court (No. 2) [1996] 2 IR 100 Denham J (as she then was) considered dignity to be at the centre of the requirement to obtain consent to medical interventions. The question is not confined to an invasive or potentially dangerous investigation as might be required as part of the overall examination, e.g. the taking of a biopsy, as in the instant case. Considerably less invasive assessments might also be involved. In the nullity context, there is no obligation on a party to undergo a procedure or investigation that the court-appointed assessor might consider appropriate (JS v CS (orse CT) (Nullity) [1997] 2 IR 506 at 521 (Budd J)). In Kennedy (a minor) v O’Sullivan & Mid-Western Health Board (unreported, High Court (Morris J) 18/10/1995) Morris J refused to stay proceedings where the plaintiff refused to undergo MRI of his brain. He stated: “The courts have habitually taken the stand in applications of this nature that the plaintiff should not be required to undergo any tests which were by their nature invasive or painful or would subject the plaintiff to undue hardship. On the basis that an adverse reaction to an anaesthetic means that the plaintiff would be grievously distressed notwithstanding the fact that the chances of such an adverse effect are only 1%, I do not consider that it is proper to require the plaintiff to submit to this test as a condition precedent to exercising her constitutional right to access to the courts in view of the fact that it is far from certain that the scan will yield helpful information. In each case the court must exercise its judgment on the reasonableness of the application to submit to medical examination. I do not consider that it is reasonable to ask any litigant to undergo a test which carries with it a serious even if remote risk where the benefit to the defendant is far from clear . . . .” In addition, in McCarthy v South Infirmary-Victoria Hospital Ltd & anor [2004] IEHC 429 (Abbott J) which involved an application to dismiss the

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In any event, consent for a muscle biopsy had, in fact, been given when the infant was undergoing a general anaesthetic for other, essential therapeutic purposes, but was not

carried out because it was contraindicated given one of the drugs he was then taking. She similarly refused to draw any adverse inferences from the fact that exome sequencing had not been carried out as no formal request had been made in advance of the proceedings, no

application had been made to the court either and its evidentiary value was not clear. Her conclusion on the issue of testing merits setting out. She stated:

“. . . the defendant in this case has not been able to point to a medical condition which is known to medical science and for which there is a test that, if carried out, would resolve the causation issue in these proceedings. Even if

[the plaintiff] was subjected to all of the testing advised by the defendant’s experts, and even if such testing pointed towards a certain medical condition, none of the defendant’s experts have been able to say how the presence of

such a condition would have had the effect of temporarily interfering with his ability to respond, like any other baby, be they brain damaged, paralysed or otherwise, to positive pressure ventilation and intubation if delivered in a

timely and effective manner. I do not accept as a matter of principle that a plaintiff must ensure that

prior to coming to court to pursue a claim for medical negligence that he has carried out all tests that the defendant may claim are necessary to rule out every hypothesis that might be advanced by that defendant as to the cause of

his injuries.17 The case, therefore, reduced to what happened in the first 30 minutes of the plaintiff’s life.

Finding that he was born in somewhat unexpectedly poorer condition than was anticipated (but without any underlying disorder as was contended for by the defendant) she concluded, on the evidence, that his initial resuscitation was ineffective and there was a

delay in the arrival of the paediatric registrar and his intubation and successful ventilation. It was accepted that the medical and nursing notes, in relation to timings, were inconsistent with each other, and, in some cases, contained multiple errors; in addition, nearly all of the hospital’s witnesses as to fact were not asked about what had occurred for 7-8 years after the events under inquiry. Be that as it may, the timings on the resuscitation drug chart (entered by reference to a clock time, rather than the infant’s purported age in minutes) seemed to have influenced the

Court most in respect of the relevant time-line, Irvine J concluding that it was likely that there was a “scribe free to make a note”18 the details of which were likely transcribed to the formal chart at a later stage (even if, as the evidence suggested, a contemporaneous note is

only ever made in approximately 50% of cases, given the number of personnel actually present at the infant’s resuscitation and that the nurse who seemed to have compiled the

plaintiff’s claim on the grounds of delay, there had been reluctance on the part of the plaintiff to submit herself to a physical examination on behalf of the defendant surgeon; she proposed that an ultrasound scan would be more appropriate (a question arising as to whether or not an ovary had been removed). There is nothing in the judgment of Abbot J to indicate that the delay that arose in arranging for an ultrasound scan was culpable, in all of the circumstances. See, also, Aspinall v Sterling Mansell Ltd [1981] 3 All ER 866 and Prescott v Bulldog Tools Ltd [1981] 3 All ER 869. 17

Paras 161-162. 18

See, para 176.

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note had not been called by the defendant to give evidence – nor had another doctor who could have given evidence in relation to timings and the arrival of the anaesthtetic registrar). She accepted the plaintiff’s experts’ evidence as to the importance of somebody keeping a

contemporaneous note: without it the safe delivery of drugs to vulnerable babies cannot be assured. In a passage that seems to impose a duty in this context, Irvine J continued:

“Further, I accept their evidence that the fact that an emergency was taking place was no excuse for a contemporaneous note not being made, subject to the presence of sufficient staff numbers, as the system is designed to operate

in an emergency and to afford the protection to the baby in the course of the emergency by reason of the fact that somebody is keeping a note of what is

happening as it happens. In the present case, on the defendant’s evidence, there were at least four nurses present at the time these drugs and infusions were administered, in addition to [the paediatric senior house officer] who

was not taking an active part in the resuscitation. There appears therefore to be no reason why [some nurse] would not have been making a contemporaneous note of the time at which the respective drugs were

administered.”19 Because of her findings, it was not necessary to engage the question of whether the court

was entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on a particular issue (specifically, the defendant’s failure to call one particular nurse as a witness).20 That said, with an identifiable hint of exasperation, the court continued:

“From as early as the fourth day in these proceedings which were at hearing for some forty three days, the centrality of the drug chart to the dispute between the parties as to the time at which [the paediatric registrar] arrived

to the resuscitation was blatantly obvious. That dispute is core to the liability issue in the proceedings. No other witness was able to give evidence as to whether the drug chart or any less formal record was kept noting the time at

which the various steps were taken during the resuscitation. [The nurse’s] testimony, had she been called, was clearly material to the court’s decision as to the weight it could attach to the timings on the drug chart and would also have been key to its conclusion as to . . . why [certain infusions] appeared in the incorrect order on the drug chart, a matter that the defendant sought to rely upon to undermine the timings on the chart. Of even more significance is the fact that while the defendant or one of its servants or agents authored the timings on the drug chart, it pursued its defence of these proceedings based

on a timeline which was strongly in the teeth of those timings and in circumstances where it had admitted this document into evidence without the necessity for formal proof. It is further relevant to note that no evidence was

led to explain [the nurse’s] absence as a witness, notwithstanding the fact that the defendant challenged each and every one of the plaintiff’s expert witnesses on the basis that the timings she had recorded in the drug chart

were incorrect”21.

19

Para 193. 20

Herrington v. British Railways Board [1972] AC 877 and Hawkes v St. Vincent’s Hospital & ors. [2006] IEHC 443. 21

Para 196.

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In addition, the parents’ evidence was “corroborated to a significant extent by the timings in the drug chart”22 and, having regard to all of the evidence adduced, the court concluded that it was probable that the paediatric registrar arrived when the plaintiff “was possibly

close enough to fourteen minutes of age” and that his heart started to pick up when he was approximately 23 or 24 minutes of age i.e. six to seven minutes after his first intubation”.23 As to why there was a delay in his arrival, Irvine J did not consider it necessary to explore

the various possibilities, being satisfied that “there [was] an unexplained and very significant gap in the defendant’s evidence in relation to the circumstances in which [the paediatric registrar] was called to this resuscitation”.24

Although the court was satisfied that the attending midwife did not manage to deliver

effective ventilation, such failure was not evidence of negligence on her part, because the process was technically difficult with the equipment then in use. Irvine J articulated the central liability issue as follows:

“ . . . because positive pressure ventilation is known to fail for a wide range of reasons . . . that a hospital such as that operated by the defendant must be in

a position to have a senior member of the paediatric staff who is capable of intubating a baby available within five minutes of birth . . . It follows that there was a mandatory obligation on the midwifery staff to be in a position to

identify an evolving emergency situation and to ensure that the call for assistance was made promptly and through the correct channels so as to ensure the arrival of the correct member of the paediatric staff within that period.”25.

As to the final liability finding, the court stated:

“ . . . the defendant was negligent in failing, having regard to [the infant’s]

condition at birth and over the first minute of his life, to have a senior member of its paediatric staff capable of carrying out an intubation of a newborn present and in attendance by the time [he] was five minutes of age

and that it was that delay that caused . . . all of the injuries which now afflict him.”26

Although the liability and causation findings were the subject of an appeal to the Supreme Court, the question of quantum proceeded with an order for the interim payment of €2.9m on 14 May 2013.

Symphysiotomy as a Complication, not a Treatment At last year’s conference, we discussed the odyssey that was Kearney v McQuillan & anor27 and the decision of the Supreme Court which threw up some novel propositions as to the

22

Para 199. 23

Para 206. 24

Para 208. Irvine J noted, at para 214: “What may be relevant here is the fact that although an extremely high number of babies are delivered in the hospital – about 8,000 per annum – there was only one paediatric registrar on duty”, but is it is far from clear if she was engaging a resource allocation issue If she were, further discussion or analysis were elided. 25

Para 210. 26

Para 215. 27

[2012] IESC 43.

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nature of professional duties. These need not be repeated for present purposes. However, the question of symphysiotomy, this time as a consequence of negligence, as distinct from purported “treatment” also arose in Nelson v McQuillan & ors [2013] IEHC 152 (08 March 2013)(O’Neill J) where it was alleged that the damage to the symphysis pubis was caused by the negligent management of the plaintiff’s labour and delivery of her son. The gravamen of the case was that there was a failure to diagnose that she was suffering from symphysis-

pubis dysfunction (SPD) - an expansion of the symphysis-pubis joint beyond what would be considered normal (occurring in approximately 1 in 30 pregnancies), causing pain and discomfort, which if it progresses, results in a diasthesis and if beyond 10mms, because of

the inherent non-elasticity of the connecting tissue in the joint, results in symphysiotomy. Spontaneous symphysiotomy in pregnancy or labour, however, is extremely rare (I in

20,000 to 1 in 30,000 pregnancies). Here, the plaintiff’s evidence was that, from approximately 20 weeks of pregnancy, she

suffered severe pain in the pubic area that was frequently disabling and rendered her housebound and that she complained about this on every general practitioner and hospital visit. O’Neill J, having considered the contents of the records of what he found were 24 visits

to either her general practitioners or the defendant’s antenatal clinic, concluded:

“ . . . these records are wholly inconsistent with the plaintiff’s evidence of

having, on all of these occasions, and indeed on others unrecorded complained of very severe pain in her pelvic/pubic area which afflicted her every day and at times immobilised her. I do not accept the plaintiff’s evidence in this regard. I find it wholly incredible that complaints of the nature and extent of which the plaintiff gave evidence would have been ignored

completely by approximately six different doctors between the general practice and the antenatal clinic in the hospital. I accept [the general practitioner’s] evidence that no such complaints were made to him in the

several attendances that he had on the plaintiff and I also accept that if complaints of this kind had been made to him, or indeed any other general practitioner or hospital doctor, that it is highly probable that these complaints

would have been recorded and dealt with.”28 He accepted, however, that the recollections of the plaintiff and her witnesses were merely faulty, mainly because of the time that had elapsed between the events complained of, and trial (some 13 years). Be that as it may, the plaintiff presented to hospital at 37 weeks of pregnancy, with severe lower abdominal pain that compromised her mobility; the pain had been present from the

previous week. She was not in labour and did not have a urinary tract infection, and was discharged the next following day, when he pain had eased, following rest. The plaintiff’s and defendant’s experts agreed that, with the presentation history, the cause of her pain

should have been inquired into and that the symphysis pubis should have been palpated, the omission to do which seemed to O’Neill J to be “very surprising”29 as it would have revealed SPD, if present. He accepted the plaintiff’s expert’s evidence that it was probably

the source of her pain and found that:

“ . . . the complete failure . . . to consider, at all, SPD as a potential cause of the plaintiff’s pain . . . and to have carried out the necessary clinical test . . .

28

Para. 18. 29

Para. 38.

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fell beneath a standard of professional practice and care to be expected of doctors, albeit non-consultant hospital doctors practising obstetrics in a maternity unit.”30

The plaintiff was then admitted at term for induction of labour but went into spontaneous labour overnight. O’Neill J, in examining her presentation noted that had appropriate

examination been carried out at 37 weeks of pregnancy, on the earlier admission:

“ . . . it is probable that her complaints made . . . when she presented [at

term], would have been seen in a different light and as reinforcing a diagnosis of SPD. In this respect, it is telling that when admitted . . . a midwife who

palpated for the baby’s head . . . elicited tenderness near her scar area which was low down in the abdomen. One wonders if the diagnosis of SPD had, by then, been noted, would this finding have been interpreted differently.”31

He was

“ . . . satisfied that as the plaintiff entered into labour . . . there should have been a diagnosis of SPD noted at that stage, which would have affected how her labour and delivery were to be managed thereafter”.32

After delivery, she complained of groin pain, worsened by mobilising and two days post-delivery the symphysiotomy was diagnosed. Although the various experts differed as to the relationship between SPD and symphysiotomy, while accepting that it can occur spontaneously, O’Neill J was satisfied that where there is a history of SPD “it can and does,

in rare cases, advance, probably in the rigours of labour and delivery to sympysiotomy . . .”33 He continued:

“ . . . it necessarily follows, therefore, that where SPD is diagnosed late in the pregnancy, . . . there is a real risk of the condition advancing to sympysiotomy and it further follows that the doctors or midwives managing the labour and

delivery should cater for that risk”.34 Catering for the risk primarily involved, on the evidence, avoiding movement of the legs other than as a unit and avoiding abduction at the hips. The evidence disclosed that the plaintiff’s legs had been placed in stirrups for no good reason and it was concluded that at the very end of the labour, probably in delivery, “because of the uncontrolled outward movement of her hips, she ruptured her symphysis pubis joint . . .”.35 O’Neill J was satisfied that had proper care been taken, in this regard, the symphysiotomy would probably have

been avoided. The negligence established was sequential: the failure to diagnose SPD at 37 weeks of pregnancy led to a failure to take steps to avoid the risk of SPD progressing to symphysiotomy, which occurred.

The plaintiff failed to respond to conservative treatment measures, became an alcoholic and her relationship broke up. Although not causally ascribed to what had happened to her,

O’Neill J acknowledged the contribution that it must have made to those problems. She also

30

Para 39. 31

Para 81. 32

Para 82. 33

Para 83. 34

Para 84. 35

Para 89.

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developed fibromyalgia which the court was satisfied was attributable to the stress of the plaintiff’s pain. Fusion surgery was carried out approximately 4 years later and, despite a subsequent setback, it was found to have ameliorated the worst features of her condition,

particularly immobility, as her pelvis was stabilised. Her pain, which was neuropathic in origin, did not abate until the successful implantation of a spinal cord stimulator in 2007 which, at the time of trial, was likely to need replacement as the plaintiff was experiencing

pain “leakage”. In addition, and unsurprisingly, she also suffered a significant depression, which required treatment. O’Neill J had “no doubt that the primary cause of the destruction of her happy and positive experience of life was the sympysiotomy and the terrible

consequences of it” and he awarded her €150,000 for pain and suffering to date and €100,000 for the future (taking an intervening assault and the need for further treatment

into account). Past loss of earnings (including interest) were assessed at €66,297, with €200,000 into the future and €15,000 for future house care assistance. Including €60,000 for further pain relieving aids, total damages amounted to €591,297.

Failed Sterilisation – Re-visiting a vexed topic

In Hurley Ahern & anor v Moore & anor [2013] IEHC 72 (01 February 2013) (Ryan J) a variation on a theme last encountered in a written High Court judgment in Byne v Ryan36 arose.37 In summary, the first named plaintiff suffered from Factor V Leiden deficiency and, because of the increased risk of clotting in pregnancy, elected to undergo an elective tubal ligation. No issue on consent arose (or in relation to the warning that it might fail). However, following a laparoscopic procedure in which clips were purportedly fixed to the fallopian tubes, she became pregnant. Although upset, she and her husband accepted the

fact of pregnancy and their son subsequently delivered at 34 weeks gestation by emergency caesarean section unfortunately suffered serious congenital abnormalities (which were not specified) and he died at six months of age, never having left hospital in Dublin. Damages

were claimed for a painful and difficult pregnancy and post-natal recovery and for the damage caused by having to keep watch by the baby’s bedside while also caring for two other children at home. At issue was the entitlement to recover damages for any established

negligence, a fortiori in the case of the second named Plaintiff, the father of the child, and whether or not he had any standing. At the caesarean section, a tubal ligation with bilateral partial salpingectomy was carried out by the operator. The operation note read, insofar as relevant, “Normal ovaries. Filshie clips x 2 on each tube - migration thru to broad ligament”. The liability question was: were the Filshie clips placed on the fallopian tubes or alternatively were they placed in a proper manner? The evidence of the operator, a first year specialist registrar in obstetrics, was that

if she had had any suspicion that the four clips had been originally applied to the broad ligament, she would have documented where they were and informed the relevant consultant that the procedure had been incorrectly performed in the first place; she

conceded that the main areas of misapplication are the round ligament and the broad ligament. She did not recall examining the Filshie clips or whether the fallopian tubes were transacted and could not remember how the clips were being held on the broad ligament.

The plaintiffs’ expert evidence was to the effect that although it was unusual to seek to place two clips on each tube, that was acceptable, but that it would be practically

36

[2009] 4 IR 542. 37

See: C Craven: Byrne v Ryan: Pregnancy and Children and Limitations on Recoverability for Actionable Wrongs (2007) 2(3) QRTL 1 and C Craven: Recoverability of Damages for Pregnancy and Children: Variations on the Theme of Byrne v Ryan (2008) 3(1) QRTL 8.

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unthinkable to have a situation where two properly applied clips on each side would have permitted a subsequent pregnancy. Re-canalisation was considered unlikely, with which the defendant’s expert agreed. The question of there having been a tubal fistula seemed merely

theoretical (and proposed as an explanation for the pregnancy in the event that the clips had been properly placed). The respective experts also agreed the risk of failure of a sterilisation procedure at 0.5% (attributable to clinical error and natural causes). While

critical of the operator’s note of the post-section description before salpingectomy, and suggesting that it was deliberately misleading (which Ryan J did not accept) the plaintiffs’ expert concluded that the first defendant negligently applied the clips to a structure other

than the fallopian tubes (its being equally unacceptable of they were applied to the broad ligament where they were found post-section). Accepting that it was possible for a clip to

migrate, the likelihood that all four clips left their original correct position within a matter of months, in his view, was extremely low.

Accepting that the operator’s evidence was based wholly on her note and not on any independent memory of the procedure, and that her motivation was not investigative at the time but directed to treatment, Ryan J concluded that the note:

“ . . . [was] not and could not be an accurate description of what she

observed; the fact that she refers to the Filshie clips having migrated

necessarily implies that they were not in their original position, wherever that was. There was no recorded evidence to justify the inference that they were correctly located prior to their migration. There is no evidence to show where the clips were before they migrated.

I think the doctor assumed that [the first defendant] did his operation

properly and did not set out to establish whether that was actually the case. I accept that if she had indeed noticed something obviously wrong, she would have reported it, which means that she did not notice anything amiss.

However, she was not alive to the issue of the failed sterilisation and was not looking out for evidence.”

That is anodyne enough, but what Ryan J next went on to state merits noting:

“A general obligation to report evidence of malpractice or error, which I accept [the operator] would have observed, together with failure to make any such report do not, in the circumstances of this case, constitute evidence of sufficient weight or specificity to refute the plaintiff’s case.”

Accordingly, he accepts the existence of such a duty, without exploring its nature, origin or

parameters. Thus, for example, on whom does the obligation fall? On the original operator, the discoverer of the wrong or anyone else who becomes aware of it and the fact that it has not been disclosed? To whom is there an obligation to report: to the operator’s superiors,

the original operator, the patient? What is the scope of the duty? What must be reported and how is the standard of reporting to be assessed? What remedies lie for a breach of that duty? However appealing this is conceptually, it is worth reminding ourselves that the legacy

of our Superior Courts on the issue is not impressive. Notwithstanding the (now) antiquity of the decision of the former Supreme Court in Daniels & anor v Heskin38 and, in particular, the judgment of Kingsmill-Moore J39 and the paternalistic socio-political milieu of which it is an

38

[1954] IR 73. 39

[1964] IR 73 at 81.

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exemplar, more recently the High Court in Mordaunt v Gallagher40 did not demur from the general proposition expressed there that there was no abstract duty to tell patients that a “surgical mishap” had occurred. That said, Kelly J, in Byrne v Ryan41 was also clear about such a duty, even if he appeared somewhat lenient in respect of his criticism of its breach. Other Common Law jurisdictions are, however, less indulgent.42 Be that as it may, although a matter not adverted to by Ryan J, it also merits noting that the National Standards for

Better Safer Health Care published in June 2012 now require disclosure of errors that have arisen in the course of treatment.

Returning from this aside, Ryan J, in any event, was clearly not satisfied that any inferences to be drawn were sufficient to displace the relevant facts, viz. the causes of failure are extremely rare and operator error is one of recognised causes of failure. The available evidence from the later caesarean section, in his view, did not confirm the correct application of the clips and it followed that the probability was that they were incorrectly

placed, there being no question of recanalisation with two clips placed bilaterally and no reasonable probable explanation for the pregnancy if the sterilisation was carried out properly. This, however, is virtually an expression of res ipsa loquitur. Liability having thus been established, what then of damages? The evidence was that this, the first plaintiff’s third pregnancy, was difficult and quite different from her previous

pregnancies: she suffered seizures, was in hospital more often, suffered acute morning sickness and migraine. Her marriage plans were disrupted, she was shocked, she was facing another caesarean section and would require more anticoagulant injections (because of her Factor V Leiden deficiency), she was worried because her pregnancy had progressed that for months without anticoagulant treatment. Although the baby was not due until November

2002, she was admitted to hospital in late September with toxaemia, blood pressure and bleeding and it was during that admission that emergency intervention was precipitated. She remained in hospital for two weeks after delivery and spent a protracted time travelling to

Dublin to see her ill infant. During one such visit, her mother had a stroke while she was minding her other children. Life sustaining treatment, following a massive cardiac insult, was withdrawn and the infant died in her arms.

Ryan J noted that in Byrne v Ryan the question of the recoverability of damages for pain and suffering associated with pregnancy had been expressly conceded although the House of Lords in McFarlane v Tayside NHS Trust43, while holding that, as a matter of legal policy damages for the costs of bringing up a healthy child were not recoverable, did allow compensation for the pain and discomfort of the unwarranted pregnancy and childbirth. The issues that arose in the judgment of the Court of Appeal in Parkinson v St James and Seacroft University Hospital NHS Trust44 and the House of Lords in Rees v Darlington Memorial Hospital NHS Trust45 (other than insofar as the latter re-affirmed the view of the Law Lords in McFarlane) did not really arise for consideration. However, in this case, the defendant challenged the limited basis of award adopted in McFarlane.

40

Unreported, High Court (Laffoy J) 11/07/1997. 41

[2009] 4 IR 542. 42

See, for example: Stamos v Davies (1985), 52 O.R. (2d) 10, 21 D.L.R. (4th) 507 (H.C.) and Gerber v Pines (79 Sol Jo 13). 43

[2000] 2 AC 59. 44

[2002] 1 QB 249. 45

[2003] UKHL 52; [2004] 1 AC 309.

12

Having considered the various speeches in McFarlane, and the authorities referred to46 and the opinion of Lord Hope that the claim is not limited to the moment of birth and no longer, the principle being remoteness of damage not timescale,47 he concluded:

“Like [Kelly J in Byrne], I think that the approach of the House of Lords in McFarlane is to be preferred and I adopt the conclusions of their [L]ordships in that case. It is of course correct to say that the speeches do not follow the same lines of reasoning but that does not detract from the status of the case as an authority representing mainstream thought on this topic in the common

law world. In this jurisdiction, there is also as Kelly J points out, a Constitutional dimension that supports the central conclusion . . . there is

nothing in the circumstances that would justify invoking a principle or policy to deny recovery”

Two brief observations might be made at this point. Firstly, applying a test of remoteness, rather than timescale is difficult to reconcile with the policy exclusion in McFarlane, which commended itself to the High Court. observations might. Secondly, and also in this context,

any reference to the judgment of the High Court of Australia in Cattanach v Melchior48 and the reasoning applied there was elided, such that the status of McFarlane as authority representative of “mainstream thought” on the topic is perhaps open to debate, more

particularly having regard to the robustness of the dissents in Rees and notwithstanding the commentary of Kelly J in Byrne, in context. However, the issues at the heart of the concerns in those cases – the cost of upbringing to the age of majority – did not really arise in the instant case.

That said, applying a “test of remoteness”, Ryan J considered that the period of the infant’s life had to be included in his assessment of damages. He continued:

“Obviously, the dreadful trauma of [his] illness and death would not have happened absent the defendants’ negligence but I do not think that is sufficient. If I am wrong in that, no issue arises. It is arguable that such

period is to be taken into account on the ground of foreseeability. But tragic events like that do happen with pregnancies . . . I think it would be difficult to justify a rule that cut off recovery in respect of tragic and affecting circumstances that framed and exacerbated the recoverable pain, suffering and inconvenience. The experiences that followed and resulted from the negligence in this case were a continuum. That might not arise in other circumstances; no two cases are the same as a review of the permutations of

46

See, Udale v Bloomsbury Area Health Authority [1983] 1 WLR 1098 at 1104 (Jupp J), Thake v. Maurice [1986] QB 644, Allen v Bloomsbury Health Authority [1993] 1 All ER 651, Allan v. Greater Glasgow Health Board (1998) SLT. 580, Kealey v Berezowski 136 DLR (4th) 708, 742 where the point was either conceded or damages allowed. 47

He stated: “I should however like to emphasise that I do not think that it would be right to regard the mother's claims for solatium and for any financial loss attributable to the pregnancy as terminating at the precise moment of the child's birth. The pleadings do not suggest that a claim is being made in this case for any discomfort, pain or distress after the delivery or for any loss of income during the period when the second named pursuer was recovering from it. But it is not difficult to imagine that there may be cases where the mother experiences physical or emotional problems after the birth or sustains loss of income during that period which is attributable to the effects upon her of the pregnancy. I would prefer to limit the scope for the recovery of damages under this head by applying the normal rules as to the remoteness of damage rather than subjecting the claim to a strict and, as I see it, unreasonable and unrealistic timetable”. 48

[2003] HCA 38; (2003) 215 CLR 1.

13

facts in the cases reveals. The defendants were negligent. The plaintiffs suffered injury, loss and damage as a result. It would be illogical as well as unjust to deny recovery of any damages or indeed of any significant part of

the damages. The traumatic experiences and losses are in principle recoverable and there is no countervailing consideration in this case. The injury, pain, suffering, inconvenience, disappointment, nuisance and mental

distress must together be taken into account. They arise from the defendants’ wrong and amount to or are intimately associated with the compensatable injuries and furnish the context of the suffering that resulted.”

Acknowledging that it was a matter for the plaintiffs as to the reason why they wished to

have the first named plaintiff sterilised, he considered that “the case is arguably stronger because sterilisation was medically warranted and was actually the reason for deciding on it.” This begs the question as to whether or not any negligent infringement of a right to

decide how to plan one’s family is actionable. The issue of its being “arguably stronger” in some cases may be difficult to reconcile with a general principle and one might ask how an “arguably stronger” case affects the determination: on liability (which is difficult to

contemplate) or on quantum? Having regard to all of the evidence, Ryan J assessed general damages in the amount of

€100,000. As to the second named plaintiff, the first plaintiff’s husband/partner (who, by the time of trial, had separated from her) Ryan J concluded that, although he had undoubtedly suffered “some of the detriments and distresses” of the first named plaintiff, he was not entitled to

damages. He stated:

“I do not consider that the law permits recovery of compensation in his case.

He undoubtedly suffered severe distress and emotional anguish. But the law sets a barrier to the right to compensation for such painful experiences. It requires proof that the claimant suffered a defined psychiatric injury. I do not

underestimate the trauma that [he] experienced. However, there is no legal rule that would permit me to award him damages. The height of the case as advanced on his behalf is a passing comment by Baroness Hale in Parkinson49 which is obiter and conditional. It would be necessary to invent a new head of

49

Parkinson v St James & Seacroft University Hospital NHS Trust [2002] 1 QB 294 where she stated as follows: “Finally, I must say something about fathers. Most children still live in two-parent households in which the father plays an important part in their lives. Even when they live apart, we attach a great deal of importance to trying to preserve as good and as close a relationship as possible between the child and the parent with whom he is not living. We also expect a financial contribution from that parent. But this is not a debate in which the differences between the sexes can be ignored. The primary invasion of bodily integrity and autonomy is suffered by the mother. If the object of the operation was to prevent that particular mother becoming pregnant, the proximity between her and the defendant is as close as it can be. Even if the object of the operation (and later advice) was to render the father infertile, the proximity between his partner and the defendant is quite close. In both cases the nature of the harm to her is entirely clear and predictable, although it may vary in degree. Of the two types of harm, one can only be suffered by her. The other in my view is properly conceptualised as the obligation to care for and bring up the child. That too is, in the great majority of cases, primarily born by her. However, there are cases where it is shared, more or less equally, or where the primary carer is the father. My tentative view is, however, that, if there is a sufficient relationship of proximity between the tortfeasor and the father who not only has but meets his parental responsibility to care for the child, then the father too should have a claim. However, the issue does not arise in this case, and so it is unnecessary to express a concluded view.”

14

claim to compensate [him]. Any monetary expenses laid out by him come into the category of pure economic loss unassociated with injury and are also incapable of being recovered.”

Having regard to patterns of child-rearing being urged socially, and proposed changes to the availability of maternity leave to fathers too, this is perhaps more resonant of a view of

fathers reflective of State (Nicolaou) v An Bord Uchtala.50 The imposition of a control device in respect of non-physical injury, as distinct from addressing the true nature of the underlying wrong, which is a tortious interference with highly personalised relationships, or

a relational wrong, is, perhaps, unfortunate but consistent with the approach in Hosford v Murphy.51 Surgical Delays

In Wright v Health Service Executive & anor [2013] IEHC 273 (07/06/2013) (Irvine J) a classical clinical pitfall fell to be explored: missed cauda equina syndrome. The Plaintiff’s claim was that Sligo General Hospital failed to diagnose that she had suffered cauda equina syndrome, following a fall from her husband’s stationary motorcycle 13 days prior to her admission, and on a later admission. She had suffered a large herniated central disc

prolapsed at L4/5. When eventually transferred to the Mater Misericordiae University Hospital following a third admission, she alleged (i) delay in decompressing her disc and (ii) that the surgical approach used (wide laminectomy rather than the less radical hemilaminectomy), and the manner in which it was carried out, were was substandard in that the entirety of the disc was not removed and a further decompression was

subsequently required. Further negligence was alleged against Sligo General Hospital in relation to her re-presentation there, with further signs of cauda equina syndrome post-operatively. The plaintiff’s injuries related principally to bladder and bowel dysfunction, and

problems with pain and mobility and depression. Liability, causation and damage were all in issue. The plaintiff had a prior history of L4/5 discectomy, stress incontinence and depression.

In respect of the plaintiff’s first two periods of hospitalisation in Sligo, her experts were not sufficiently ad idem such that the Court could reasonably conclude that the standard of care afforded to her fell below that which was acceptable. In respect of her third admission, the Court was satisfied, on the evidence, that her management had not been substandard. Irvine J rejected the submission that the plaintiff should have been treated as if she had incomplete cauda equina syndrome until such a time as this was disproved by MRI scan and/or specialist review. She continued:

“On this issue, I prefer the defendant’s evidence to the effect that it would simply be impossible to operate a medical system if every patient with

symptoms and findings akin to those of the plaintiff . . . had to be treated as if they had CESI mandating the procurement of an emergency MRI scan and/or immediate specialist review. I am satisfied that the defendant

followed what was a generally approved practice at the time of ensuring that the patient, who by now was a likely candidate for surgery, would have a relatively prompt MRI scan followed by specialist review”.52

50

[1966] IR 567. 51

[1988] ILRM 300. 52

Para 46.

15

Insofar as it was alleged that there had been a delay in her proceeding to surgery when she eventually arrived in the Mater Hospital, the Court was satisfied that there had been no

culpable delay: when her condition deteriorated, she was operated on, with due urgency. As to the surgery that was, in fact, carried out, Irvine J was of the view that,

notwithstanding the difference in expert opinion as to the correct approach, it was:

“ . . . impossible in the light of [published literature] when taken with the

defendant’s expert evidence as to their own practice to contend that [the] surgical approach by hemilaminectomy constituted a departure from an

accepted and approved practice or was otherwise neglectful of [the] obligations to the plaintiff.”

- a classic application of the second Dunne principle. In respect of the manner in which the surgery was actually carried out, on the evidence, the

Court concluded that the surgeon had removed the entirety of the large central disc and decompressed the epidural space and that the plaintiff was, unfortunately, one of the small percentage of patients who proceeded to have a relapse (with further disc material

prolapsing into the spinal canal through the hole in the annulus fibrosus). It was this, rather than any negligence in the carrying out of the surgery, that caused the plaintiff’s acute symptoms four days after her discharge from the Mater Hospital following her spinal surgery.

In this context, the plaintiff re-presented acutely to Sligo General Hospital, suffering bladder and bowel symptoms and pins and needles with a loss of sensation over her left buttock and left leg with objective neurological signs. MR imaging carried out 4 days later demonstrated

that the cauda equina was compromised by disc material at the L4/5 level; by that time, she was suffering significant urinary difficulties with voiding, dysuria, retention and incontinence and increased bowel incontinence and numbness in the perineal area. The cauda equina

was decompressed the following day, with removal of the disc material. Despite this, she suffered a neurogenic bladder. The defendant’s experts disagreed as to the significance of the symptoms with which the plaintiff had re-presented but, Irvine J was satisfied, on the evidence of the plaintiff’s and defendants’ experts, that the advice furnished at the time, was negligent on the application of the first Dunne principle. What had happened was that a telephone consultation took place between registrars in Sligo General Hospital and the Mater Hospital following the

plaintiff’s re-admission to the former and bed rest followed by elective specialist review 2 days later was advised. Spinal imaging in the intervening period was not advised. Irvine J, on the evidence, considered that such imaging was urgently required and that obtaining the

imaging was, in fact, addressed in a wholly non-urgent manner. Insofar as one of the defendants’ experts was of a more robust view, to the effect that

imaging was not necessary until painless retention was established, this was expressly rejected by the Court, having regard to all of the other evidence, an application of the third Dunne principle (insofar as it was necessary, considering the basis of the primary finding), in this context, albeit in a deferral to the other expert evidence. She concluded that the defendants’ failure to ensure that the plaintiff underwent emergency MR imaging following her re-admission Sligo Hospital ultimately resulted in her definitive surgery being delayed by approximately 48 hours (being satisfied on the evidence that, in light of what actually

16

happened, imaging, referral and surgery would all have been carried out earlier). However, she accepted that the defendants, even if using all reasonable care, could not have been expected to have had the plaintiff to surgery within the 48 hour period “recommended by

the plaintiff’s experts and validated in the medical literature” which, in turn, went to causation and damage. The medical literature and expert evidence referred to was clearly to the effect that most clinicians would advise that surgery, in incomplete cauda equina syndrome or cauda equina syndrome with retention, should be carried out within 48 hours of presentation; in the case of the former, the greater consensus was for early intervention.

In assessing the damage evidence, Irvine J was “not satisfied that the evidence was sufficient to establish the validity of many of [the plaintiff’s] complaints . . . of those which

do exist, [there is] real difficulty in connecting many of them to cauda equina syndrome].53 Insofar as her urinary symptoms were concerned, however, she was of the view that the plaintiff did suffer an atonic bladder, despite suggestions to the contrary but that, even if

that was not the case, and its function subsequently deteriorated because of her failure to comply intermittent self-catheterisation, it should not be treated as a failure to mitigate a loss: this was on the basis of expert evidence that many patients, particularly those

suffering from psychological problems, find self catheterisation difficult and challenging and that the plaintiff’s response could not be considered out of the ordinary. Accordingly, she rejected the submission that any injury sustained by the failure to self catheterise should,

from a legal prospective, be treated in the same manner as that of a claimant who sustained additional injuries caused by not taking prescribed medication. She noted:

“To my mind, catheterisation is a demanding task which requires both physical skill and significant mental fortitude on the part of the participant. It is an

exercise which brings with it psychological and physical challenges which are relatively unique and it in no way comparable to what is required of a patient who is advised to comply with a straightforward drug regime. In the case of

self catheterisation . . . the plaintiff’s response to the need to self catheterise was to be anticipated unlike the position of a patient advised to take medication where their failure to engage with that medication is clearly not to

be anticipated.”54 Thus, contributory negligence, which is very difficult to sustain in a professional negligence action, did not arise, although it is clearly flagged that it might, under certain circumstances which appear to be governed by foreseeability.55 Having reviewed the medical literature relied upon by the various expert witnesses, and recognising that (a) the plaintiff could not, given the circumstances of her presentation,

have been operated upon within the 24-48 hour window recommended by expert advice (it was considered that the earliest would have been 80 hours after the onset of retention) and (b) even if she had, she fell into a category of patients (those with retention) where the

outcome was, in any event, worse. Irvine J was:

“. . . nonetheless satisfied that the delay in carrying out the decompression of

the plaintiff’s spine . . . probably led to the damage to the plaintiff’s bladder being more severe and her recovery less successful than would otherwise

53

Para 120. 54

Para 134. 55

See, for example, the approach of the Supreme Court to contributory negligence in a solicitor’s negligence context, involving a lender, discussed later in this paper, in BCM Hanby Wallace (a Firm) [2013] IESC 32 (25 June 2013) (Fennelly J, O'Donnell J & McKechnie JJ conc.).

17

have been the case had she been operated upon [earlier]. I cannot accept the defendants’ evidence to the effect that the further delay of approximately 48 hours made no difference to the plaintiff’s outcome as . . . she was sensate as

regards her bladder when seen at the outpatients’ department of the Mater, even if she was in retention and at that point she still had normal anal tone. By contrast on [admission 2 days later], the plaintiff was noted to have been

complaining of difficulty voiding, dysuria, retention and incontinence and also reported “increased incontinence – four times” and numbness in the perianal area, the latter condition apparently being confirmed on testing. Accordingly,

there appears to have been something of deterioration in the plaintiff’s overall condition over the period [of 5 days between presentation to Sligo General

Hospital and surgery in the Mater Hospital].”56 That said, the Court was also satisfied that even in the absence of any negligence it was

highly likely that the plaintiff would not have recovered full bladder function. It was not satisfied that any problems with bowel function or genital sensation were attributable to any culpable delay in treatment (noting that no evidence was led as to condition, causation or

prognosis in respect of the plaintiff’s bowel function and the only evidence, from the defendant’s colo-rectal surgeon, attributed any such difficulties, to her medication regime). In summary, Irvine J considered that even if the plaintiff had received optimum care she

would in any event, because her surgery would have been significantly delayed, have sustained permanent neurological damage to her bladder, with some degree of urgency, necessitating the wearing of a protective pad and intermittent self-catheterisation. Nevertheless, she was now obliged to self-catheterise twice daily for the rest of her life which would impact on her already vulnerable psychological condition and, accordingly, she

was awarded the sum of €120,000 by way of general damages. Notwithstanding that many of the plaintiff’s complaints were dismissed and multiple

allegations of negligence had failed, no section 26 issue seems to have arisen. That said, given that Particulars in respect of the negligence ultimately found had only been delivered some relatively short time before trial, it was inevitable that a Costs issue would arise.

Negligent (non) Advice It is, of course, the case that actions may simply fail on the facts: the evidentiary threshold may just not be reached. Such was the case in Leo v Health Service Executive.57 Here, the plaintiff underwent C5/6 and C6/7 anterior discectomy and fusion in Beaumont Hospital in early November 2005 and, subsequently, in Merlin Park Hospital, Galway, in late November 2005, he suffered extensive bilateral pulmonary emboli and a deep vein thrombosis.

Because of concern that he also had an antiphospholipid syndrome, was treated with the anticoagulant, warfarin, the plan being that he should continue for life. In February 2006, he suffered an extensive extradural haemorrhage at the site of surgery in circumstances where,

he alleged, he was taking a non-steroidal inflammatory agent (diclofenac) on an as required basis for intermittent, but regular attacks of gout, of longstanding – and which drug, it was agreed by (nearly) all of the experts, interacts with warfarin and increases the risk of

bleeding episodes and was the probable cause of the cervical haemorrhage. Despite surgical evacuation and treatment, and subsequent rehabilitation, he was left with very significant disability, was incapable of returning to work, his activities of daily living were greatly reduced and restricted and his quality of life was seriously diminished. The essence of his

56

Para 140. 57

[2013] IEHC 429 (Ryan J 25 July 2013).

18

claim was that he had not been given any or any proper advice or warning or information about the drug either during his admission when it was first prescribed, or at a subsequent outpatient attendance in mid-January 2006. The expert evidence was unanimous that the

plaintiff should have been warned not to take diclofenac or other non-steroidal anti-inflammatory drugs at the same time and that a failure to do so would constituted substandard care. It was noted that it was possible, but unusual, for a person taking

warfarin to experience bleeding. Although the diagnosis of antiphospholipid syndrome was criticised, insofar as it was not based on a second, confirmatory test – and it was contended by the defendant that the diagnosis was a provisional one only, subject to such confirmation

– it was not considered relevant, overall, as there was no criticism of the level of anticoagulation actually recommended for the plaintiff.

As to the question of warnings, there were stark conflicts of evidence between the plaintiff and his treating doctors in the defendant’s hospital. Having considered those conflicts, Ryan

J considered that the difficulties facing the plaintiff in his account were “formidable”, noting that there was “an inherent improbability” in his contentions. As to the conduct he ascribed to the registrar whom he saw at his outpatient appointment, he observed: “It is impossible

to understand any rational basis for the conduct that [he] ascribes . . . On the plaintiff’s case, this doctor’s note of the consultation at the Outpatients’ Department must represent a flagrant breach of medical ethics and constitute serious wrongdoing towards his patient

insofar as the suggestion is that the doctor has invented a meeting with the consultant that simply did not take place. He did not have any identifiable interest in doing so. But it is even more difficult to see why [he] would actually have recorded that [the plaintiff] was using Difene and underlined it or that he would have made such a thorough note of his examination. In other words, why would he record the Difene if there was no warning about

it or no mention of it or no meeting with the consultant in respect of that? I do not believe that the doctors made up a story about the consultant’s meeting with the plaintiff and what she said to him. I accept their evidence as being truthful and coherent.”

There being “no sufficient basis for rejecting the clear evidence” of the treating doctors, given that the plaintiff’s case was “a mixture of assertions and allegations . . . that are flatly

contradicted by the evidence . . . ; there are inconsistencies and absences and gaps in [his] recollection that are not easy to understand; there are illogicalities in what he says – incoherent elements that simply do not fit together; there are features in his evidence that actually tend to corroborate a case of the defendant . . . None of this makes sense . . . .” it was “irresistible that the doctors’ evidence” was preferable. The liability issue in respect of the alleged failure to give warnings having been disposed of, on the facts, that must have been the end of the matter. However, Ryan J went on, in

addition, to consider the question of factual (as distinct from legal) causation. Thus, the plaintiff could not actually recall taking diclofenac in the period immediately prior to his haemorrhage but maintained that he probably did so based on the pattern of the attacks of

gout he had suffered. He was unable to provide any information other than an average account of his episodes of gout which were of longstanding. However, the argument advanced was simple: if he was, as he indicated, suffering attacks of gout on average two to

three times per month and lasting for three to four days, then it followed that if that pattern was established in the relevant period (approximately 4 days prior to his bleed) it may well be a matter of deduction that he was taking diclofenac at the material time. Having considered the absence of any attacks of gout in the preceding months when he was actually in hospital, Ryan J was “left wondering whether even assuming everything else in his favour it is possible to come to that conclusion”. The fact that the plaintiff was unable to provide any information about the onset and duration of his attacks of gout and simply

19

claimed that they occurred on average did “not assist his proof. An average is an analysis of separate pieces of information and it is indeed strange that [the plaintiff] could give no assistance on the range of his experience of the episodes”. Taking into account his

incapacity to say whether he had actually taken the drug at a time proximate to his bleed, and noting the scepticism of one of the defendant’s experts about the influence of the drug was justified, the Court could not ignore also that the bleed happened at the site of the

plaintiff’s previous surgery. Accordingly, on this question, the evidence failed to meet the probability threshold and the claim was dismissed.

What might be observed, in this context, is that the risks of anticoagulation, in particular following spinal surgery, do not seem to have been addressed but, given the case advanced,

it must be questionable if any such case would have had any effect on the outcome. Unnecessary Surgery

In O’Neill v Rawluk,58 the plaintiff was considerably more successful in a somewhat complex action. Here, the plaintiff had suffered recent-onset problems with manual dexterity, a

tremor and general weakness in his left arm, and in left-hand grip, with some earlier neck stiffness. Nerve conduction studies disclosed that he had upper motor neurone pathology involving his left arm. MR imaging demonstrated degenerative change at C5/6 and a large

central and left sided disc herniation compressing the left C6 nerve root, and CT imaging of his brain was normal. He was referred to the defendant neurosurgeon for further assessment and surgery (C5/6 discectomy) was advised; having reflected, the plaintiff elected to proceed. The essence of his claim against the defendant was that the surgery was unnecessary. It was not alleged that the procedure was negligently carried out and no

particular case was advanced in relation to consent. The plaintiff subsequently suffered neck pain (which had not been a feature pre-operatively), which was also caused by neck rotation and caused sleep disturbance, a “clicking” sensation in his neck and persistence of

symptoms affecting his left hand; this was complicated by (unrelated) early onset Parkinson’s disease, some two years later, which resulted in his retirement from work in his 40’s. In retrospect, the plaintiff’s presenting symptoms were attributable to Parkinson’s

disease, but no allegation of failure to diagnose this condition was advanced. The defendant, for his part, asserted that the plaintiff was advised that cervical discectomy was an option, in light of the assessment of the MR imaging, that he had been adequately apprised of the risk that the surgery might not be successful in alleviating his symptoms, that the interpretation of the imaging was accurate, the MRI showing evidence of indentation and compression of the spinal cord, that all appropriate investigations had been carried out pre-operatively and that the probable cause of the plaintiff’s symptoms had been

similarly identified as cervical disc herniation by the plaintiff’s consultant neurologist. As to the facts, although there were differences as to whether the plaintiff had been fully

advised as to the risks of the surgery carried out, and the case did not proceed on that basis, the Court accepted that surgery was offered to the plaintiff as an option, although not specifically advised, but also that the defendant had indicated a reasonable expectation of

significant improvement. In this context, Moriarty J observed:

“The unique experience of the plaintiff is likely to be more indelible than the recollection of one of many procedures undertaken by a busy neurological surgeon, with a clinical case load exceeding, on the defendant’s own evidence, 350 patients

58

[2013] IEHC 461 (Moriarty J 31 July 2013).

20

per year. However, the defendant’s practice of maintaining handwritten notes also gives a more reliable picture”.

Having heard conflicting expert evidence, from neurosurgeons, neuroradiologists, a neurologist (who had previously been a defendant in the case, it had been discontinued against him) and the defendant, essentially as to whether the plaintiff’s imaging explained

his presenting symptoms and, therefore, the clinical presentation and/or imaging warranted surgery by reference to ordinary professional standards, he noted:59

“ . . . much of the defendant's evidence seemed to me to involve a recasting of events with a level of detail and particularity far in excess of that typically

operating in day-to-day practice at the time of the surgery. It seems clear to me that . . . I should primarily have regard on the defendant's side to all the relevant information that was assembled and made available to him at the

time, whether from medical colleagues or his consultation with the plaintiff, before proceeding to perform the surgery. Reconstructions and hypotheses devised long subsequent to the events in issue, of particularity and detail far

in excess of the defendant's notes, described . . . as “limited, to say the least”, fall to be considered, but lack the cogency of what was disclosed to the defendant at the material time”.

He was also cautious about the frequent reiteration by the defendant’s experts of the “the unusual and atypical manner” of the plaintiff’s clinical presentation and found the plaintiff’s experts’ evidence “of greater assistance in assessing what was apparent to the defendant when he offered surgery to the plaintiff, from the available clinical, radiological and other

data, rather than on the basis of inordinately conjectural assessments undertaken with significantly more particularity than may have been expected at the time”.

As to liability, accordingly, the Court applied the first Dunne principle, and was satisfied that the surgery was offered to the plaintiff without due regard to the absence of clinical symptoms or signs supporting a diagnosis of nerve root compression.

Insofar as damages were concerned, Moriarty J noted that “[c]ounsel for the plaintiff inferred at the conclusion of the hearing that this issue might be viewed as subsidiary to the matters of principle involved in determining liability . . . .” However, in his view, the liability finding necessarily imported an entitlement to not inconsiderable relief: the plaintiff had been subjected to a serious and invasive neurosurgical procedure that was unnecessary and inappropriate, exposed to admittedly reasonably remote risks of a catastrophic outcome, and more realistic hazards of lesser adverse effects, with no tangible benefit, and had

suffered pain and scarring. Given the confounding impact of the plaintiff’s later onset of Parkinson’s disease, having

derived little assistance from either McGregor on Damages or the PIAB Book of Quantum, the Court made an award of general damages of in the amount of €100,000, the preponderance being considered, if necessary, as damages for past pain and suffering.

Again, consideration of the Book of Quantum might be considered somewhat unusual in a medical negligence context, notwithstanding the requirement of section 22 of the Civil Liability and Courts Act 2004. Iatrogenic injuries are not, generally, of the kind usually associated with slips, trips, falls and collisions – traumatic injuries, properly so-called, with

59

Para 43.

21

which the Book of Quantum is most concerned and, in addition, are generally at the more serious end of the scale, and often complex. However, as we saw at the February Conference, HM v HSE60 Charlton J did have regard to it, in a distressing birth injury case, again with an endorsement redolent of what he stated in O’Brien v Derwin & anor.61 New Exploration: Costs in Clinical Negligence Actions

Following the judgment in Wright v HSE & anor62 Irvine J went on to consider the question of costs,63 given that the plaintiff had failed to establish negligence in all but one aspect of

her claim. Although the courts have previously considered the issue of how costs should be awarded to the successful party in complex commercial litigation64 this was the first occasion

on which it was specifically addressed in a professional negligence action and throws up a number matters that merit careful attention.

In summary, the plaintiff argued, the case was one of simple negligence and she had succeeded; the fact that the Court had rejected the plaintiff’s expert opinion on certain aspects of the case was not a ground which would justify departing from the normal rule

that that costs follow the event, only meritorious grounds, supported by expert evidence had been advanced (even if subsequently rejected) and all aspects of the plaintiff’s care, even in relation to the periods in respect of which she was unsuccessful, would, in any event, have

had to be examined. In other words, “. . . it was not a balancing exercise as to who won the most points in the match but rather who won the game”, the onus was on the defendant to satisfy the Court that it should depart from the normal rule and while the Court had a discretion this should only be exercised in a special case, which this was not.

The defendants, for their part, contended that as the supplemental particulars making the allegations on which the plaintiff ultimately succeeded had only been delivered in February 2012, they were entitled to the costs of preparing the defence up to that date. In addition, it

was argued, the litigation was of a complex variety that would merit the Court scrutinising the proceedings in some detail to determine the type of costs order that should be made, the case involved a number of discrete issues and as the plaintiff had only been successful

in respect of one leg of her claim this ought to be reflected in the costs awarded. The time spent in considering evidence in relation to allegations that were not substantiated, it was proposed, would justify the Court departing from the usual approach to costs and the exercise of a discretion to reduce the plaintiff’s costs to reflect the time wasted. The defendants emphasised that very damning allegations had been made against the plaintiff’s treating consultant orthopaedic surgeon which were not substantiated and that a plaintiff should not be entitled to the costs of having pursued such allegations - there had to be some sanction, reflected in costs, for doing so.

Having considered the facts and arguments, Irvine J made a general observation: that it was “undoubtedly the case that in recent years, clinical negligence litigation has become more

complex. Cases are taking longer than ever . . . ” In this, she identified two principal reasons:

60

[2011] IEHC 339 61

[2009] IEHC 2 62

[2013] IEHC 273. 63

[2013] IEHC 363. 64

e.g. Veolia Water UK Plc v Fingal County Council [2006] IEHC 240 [2007] 2 IR 81, Fairfield Sentry Limited & Anor v. Citco Bank Nedeerland NV & Ors [2012] IEHC 462.

22

• the “greater use” of discovery leading to the introduction and reliance on increased numbers of medical records, which then has to be referred to by many witnesses, both expert and non expert; in this context, she noted that in some cases a vast amount of court time is wasted by witnesses “trying to decipher swathes of handwritten notes which the solicitors concerned have not taken the trouble to have typed up and agreed for ease of reference”, and

• the greater numbers of expert witnesses being retained to deal with liability and causation, the court “often overwhelmed” with the amount of expert evidence

called.65 The Court noted that, in other jurisdictions, parties are confined to calling one expert

witness to deal with any particular issue unless there are special circumstances in which case a second expert may be called with permission. Irvine J continued:

“The effect of such rules is that in those jurisdictions cases of this nature are dealt with far more expeditiously and in a less costly manner. Hopefully new procedural

rules to this effect will soon be introduced in this jurisdiction and these will bring to end unnecessarily lengthy and costly clinical negligence litigation. At the present time this type of litigation has a stranglehold on the courts’ limited resources and

while every litigant has a right of access to the court, that right is not unlimited. What a plaintiff is entitled to is proportionate and reasonable access to the court’s time having regard to the rights of other litigants in a setting of limited resources.”

The first observation, however, merits some comment. To proceed with a professional

negligence action, not having accessed and considered all relevant contemporaneous records and imaging might be considered professionally negligent and may be liable to surprise litigants at trial.66 Secondly, a criticism of the amount of discovery now sought,

frequently by defendants, is difficult to reconcile with the decision of the Supreme Court in McGrory v ESB.67

That said, noting that much of the relevant case law in respect of costs in complex litigation emanated from the Commercial Court or from decisions of the High Court in Non-Jury cases, Irvine J could see no reason68 why that jurisprudence should not “in certain circumstances

apply to orders for costs at the conclusion of personal injuries actions and in particular clinical negligence proceedings”. She identified the following principles from the available

authorities:69 (i) The costs of proceedings in any court are ultimately a matter for the discretion of

the trial judge. (ii) In non-complex litigation a successful plaintiff will usually be entitled to an order for

the reasonable costs of bringing their case to court to secure their rights. Similarly,

a successful defendant will normally be entitled to an order providing for their reasonable costs of defending the action.

(iii) In complex litigation, where there are several events or relatively discrete issues

which have not all been resolved in favour of the party who may be considered to

65

See, in this context, the comments of O’Sullivan J, writing extra-judicially in: “A Hot Tub for Expert Witnesses” Judicial Studies Institute Journal [2004] 1. 66

See, for example, Coughlan v Whelton & anor Unreported, High Court (Lavan J) 22 January 1993.

67 [2003] 3 IR 407.

68 Para 16.

69 Para 17.

23

have been the successful party in the overall sense, the court should look with greater scrutiny as to how the costs should be treated.

(iv) Where in complex litigation it can be concluded with some degree of certainty that

the trial of any discrete issue of law and/or fact which was not resolved in favour of the successful party had the effect of increasing the costs of the proceedings by extending the duration of the hearing then the court should reflect this fact in its

order for costs. (v) Where in complex litigation the party who is in the overall sense considered to have

been the successful party has unsuccessfully litigated an issue requiring evidence to

be heard from witnesses directed solely towards that issue, the court should disallow the costs of that party’s witnesses and should consider making an order

that the party who was successful on the issue be paid their costs which should then be set off against any order for costs made against them.

(vi) In complex litigation the court should seek to fashion an order for costs that will do

more than award the costs to the winning side so as to discourage parties from raising additional unmeritorious issues.

To these, in her view, an additional principle arose for consideration, when a court is asked to scrutinise costs in personal injuries litigation, particularly those cases in which a plaintiff only recovers a fraction of the damages claimed and has thereby significantly increased the

costs of the litigation. Irvine J noted observed70 that the court “should in such circumstances factor into its decision the extent to which procedural protections were available to the defendant which could have been utilised in order to dissuade the plaintiff from embarking upon a grossly inflated or otherwise unsustainable claim”.71

Having said that, the Court also noted that, in the instant case, there were no such protections available to the defendants and, in addition:

“The fact that a claimant may win on some issues and lose on others is not normally a reason for depriving the successful claimant in a personal injuries action of an order providing that their costs be paid in full. However, depending on the

facts of the case, if the overall successful party has failed on certain issues . . . such failure [may constitute] good reason for the court to modify the costs order in their favour”.72

70

Para 22. 71

In this, the Court was influenced by consideration of the provisions of the Civil Procedure Rules in England and Wales and, in particular, rule 44.2, which sets out the general principles relevant to the court’s discretion on the costs of any proceedings, and the relevant case law in that regard. Essentially, the “winning party” having been identified, all aspects of the proceedings and the court’s own findings fall to be scrutinised to decide if the costs order should be modified in some particular way. Irvine J noted (at para 20) that, in that jurisdiction, defendants’ applications for penalties in respect of costs were relatively unsuccessful where the complaint was that there were multiple heads of claim relating to quantum that were not, ultimately, recovered, or recovered only in small part. Generally, in such cases, a defendant had available to it a range of procedural mechanisms (lodgement, tender, Calderbank letter) etc. to dissuade the making of an inflated claim and, if these had not been invoked, there were “poor grounds” for asking the court to exercise its discretion and penalise on costs. To these procedural mechanisms, might be added, here, section 17 offers and the potentially chilling effect of section 26 72

She also noted that she could identify no judgment in a personal injuries or professional negligence action in which an overall successful plaintiff was directed to pay the defendant’s costs of any issue on which they were unsuccessful: the court usually confining itself to the imposition of a penalty on the overall winner by directing a percentage reduction in costs (at para 19).

24

To these general matters, the Court added73 that, at the conclusion of any proceedings, whether complex or straightforward, it always has a discretion “to take into account a wide range of matters beyond the court’s findings on any particular issue or issues”. Examples

include a failure by a plaintiff’s solicitor to prepare proper books of clinical records, or an unduly protracted examination of witnesses, which unnecessarily increased the costs of a trial. Irvine J, considering the English authorities, noted74 “ . . . in dealing with certain types

of personal injury litigation, particularly when there is something unusual about the outcome having regard to the claim made, the court should look with greater scrutiny to see if there are reasons to modify the costs order that would otherwise normally follow the event”.

Applying the identified principles to the facts of the instant case, the first matter to be

addressed was whether or not the proceedings could be classified as “complex such as to warrant the Court adopting a greater degree of scrutiny” when dealing with the issue of costs. What the Court had to say merits noting:

“ . . . the vast majority of personal injury cases do not fall into such a category as they usually involve a consideration by the Court of a particular event. That event

might be a road traffic accident, an accident in the workplace or an assault . . . . Invariably in cases of this nature the same event will give rise to a number of different pleas of negligence and the fact that a plaintiff who is ultimately

successful may have included a number of pleas of negligence upon which they were unsuccessful will normally not have added to the duration of the trial or required the attendance of additional witnesses. Such cases must be regarded as non-complex and the fact that the plaintiff does not establish every plea of negligence should not, save in special circumstances, affect their entitlement to

recover their costs in full once they establish liability”.75 The Court’s analysis proceeded as follows:

Was this a “complex case”?

The plaintiff failed in her allegations relating to her first period of care in Sligo General Hospital; had she been successful in this aspect of her claim, and in order for her to succeed, she did not have to pursue any claims she decided to litigate in respect of her subsequent care. Similarly, she failed in her allegations relating to that subsequent care in the Mater University Hospital, and while the experts retained in relation to this period were the same, the allegations were separate and distinct and could have been litigated independently such

that, in this sense, they could reasonably be described as discrete. However, although the Court would, in any event, have had to have heard evidence in respect of her earlier treatment by way of background “this would not have involved . . . days upon days of a

forensic hour by hour analysis of what had happened, as in fact occurred”. As to the third tranche of allegations, on which the plaintiff also failed, in respect of how her

discectomy had been performed, they were “relatively standalone [in] nature” and also constituted a discrete issue, and could have been litigated on their own and were not

73

Para 23. 74

Para 23. 75

Para 22 (second).

25

dependent on the earlier allegations being pursued; in addition, to succeed in yher aspect of her claim in which she was successful, canvassing these allegations were not necessary.

Whereas the plaintiff succeeded on the fourth leg of her claim, while her prior medical history were relevant by way of background material, had this only been litigated, the case would have taken a fraction of the time it actually took.

Accordingly, the proceedings could “comfortably be described as complex and fall into the category of case that ought to be subjected to greater scrutiny” by the Court when dealing

with its final order for costs.

She continued:76

“The fact that all of the expert witnesses dealt with all of the negligence issues

before the Court does not mean that the proceedings were of the straightforward variety such that once the plaintiff succeeded on one issue she should be awarded the costs of the entire proceedings. The action involved a number of relatively

discre[te] issues in respect of which the plaintiff failed and in light of the Court’s findings I believe it behoves the Court to fashion a costs order that will do justice between the parties having regard to those findings”.

Who was the “overall winner”? As to who, then, was the “overall winner” for legal purposes, the Court was satisfied that irrespective of the fact that the plaintiff only succeeded on the last leg of her claim, she had

to be “treated as the successful party overall. She established a right to damages in respect of a liability which the defendant denied and had to come to Court to achieve that end”.

The Cautions However, Irvine J could

“see no justice in an order that would direct the defendants to pay the plaintiff all of her costs of pursuing allegations of professional incompetence in respect of which she was unsuccessful, particularly when those issues were not integral to that aspect of her claim in respect of which she was successful. Even though, by its denial of liability in any proceedings a defendant denies a plaintiff the prize to which they may be entitled and ultimately win, I do not believe that the plaintiff should enjoy absolute immunity in respect of the costs of their pursuit of allegations of negligence

in respect of which they are unsuccessful if by pursuing the same they have significantly lengthened the trial or otherwise increased the costs of the proceedings by making their opponent retain additional witnesses in respect of those issues”.77

The cautionary injunction merits noting in extenso. Irvine J stated:

“Just because a plaintiff has one good point they should not, to my mind, be permitted to litigate a myriad of others and have the court make an order requiring the successful defendant on such issues to pay for that luxury. There must be some sanction in terms of costs should this occur. Further, in clinical negligence litigation,

76

Para 31. 77

Para 33.

26

the career and reputation of the clinician is inevitably attacked and if there be no penalty for making allegations of negligence which fail, unless the plaintiff loses on every point, it seems to me that plaintiffs may be encouraged to pursue any point

upon which they can garner even the most modest support and expect the defendant to cover their costs of having done so. It is not beyond the realms of possibility that an unscrupulous solicitor might use the potential costs of litigation as

a type of battering ram to achieve a settlement in a case that a defendant might otherwise contest were it not for the exorbitant costs of defending the action”.78

A more specific cautionary injunction followed, in respect of multiple pleas in clinical negligence cases: she continued:

“I am convinced that, particularly in medical negligence litigation, there are many instances in which the court ought to consider carrying out a slightly more intensive

assessment in relation to its final costs order. These might include, for example, a case in which a claimant sues in respect of negligence relating to a particular procedure and in addition also maintains a claim that they did not give their informed

consent to the procedure. Clearly a claimant can contend for negligence in relation to their surgical management without seeking to make any case in respect of the issue of informed consent. Even though the informed consent issue may be dealt with by

the same witnesses as those who give evidence in relation to the surgical aspect of the case, I see no reason why, if the trial is substantially extended by the unsuccessful pursuit of an informed consent plea, the costs should not reflect that fact regardless of the fact that the claimant, if successful in establishing negligence in respect of their surgery, must be considered to have been the overall winner. After

all, the defendant in such circumstances ended up justifying its refusal to concede liability on that ground. I do not believe it is beyond the competence of a judge when exercising his or her discretion as to costs to assess the time given up to the

issue of informed consent and then to either award the costs of that issue to the defendant or disallow some portion of the plaintiff’s costs to reflect the fact that the defendant succeeded on this separate issue”.79

This raises two significant issues, theoretical and procedural. Thus, as a matter of principle, a claim for damages for negligent non-disclosure of a peri-operative risk is, per se, inconsistent with a claim for the negligent performing of the procedure in question.80 As a matter of process, a penalty, it seems, may then be imposed, distinct from matters referable to Cooke v Cronin & Neary,81 Reidy v National Maternity Hospital82 and Connolly v Casey & Murphy (t/a Casey & Murphy) & Fitzgibbon.83

As to the argument that the plaintiff should not be penalised for pursuing allegations which failed on the grounds that she had only pursued those which her experts had advised were sustainable, the Court held

78

Para 32. In this, the Court was clearly influenced by the involvement of six expert witnesses spending a considerable number of days exploring the surgical approaches that might legitimately have been adopted and “extreme manner in which the surgeon’s competence was challenged” (at para 29). 79

Para 34. 80

However, no such point was taken, or, it seems considered, in the leading case on point, Geoghegan v Harris [2000] 3 IR 536. 81

Unreported, Supreme Court 14 July 1999 (Denham, Keane and Lynch JJ). 82

Unreported, High Court 31 July 31 (Barr J). 83

Unreported, High Court 12 June 12 1998 (Kelly J).

27

“If this submission was valid, a court would always have to award a plaintiff the entirety of their costs even if they only succeeded on one point because invariably

the case advanced is based upon the existence of some expert opinion in support of each issue pursued. I also think that this submission holds less weight than might have been the case prior to the introduction of Rules of the Superior Courts (No. 6)

(Disclosure of Reports and Statements) 1998 (S.I. No. 391 of 1998) which gives each party sight of the expert reports of their opponents in advance of trial. A plaintiff now knows the substance of the evidence that will be led by the defendant on every

allegation which they make, in advance of the hearing. This gives a plaintiff the opportunity of withdrawing or abandoning any aspect of their claim having

considered the weight of the defendant’s intended evidence thus reducing their exposure to some penalty in terms of costs should they proceed and lose some particular issue”.84

Having regard to how late, as a matter of practicality, Disclosure often occurs, the limited time left for consultation with expert witnesses, and that views may well be entrenched, at a

late pre-trial stage, and the innumerable other considerations that enter into the formation of expert opinion, the advised approach, although sensible, might be somewhat aspirational. The message, however, is clear.

The Court concluded that (i) regardless of the fact that the plaintiff only succeeded on one of four separate legs of her claim, nevertheless, she was the “overall winner” where the defendants denied any liability and she a right to compensation she would not otherwise have been able to recover, (ii) the proceedings were of a complex variety and warranted the

application of a greater degree of scrutiny as to costs which, in normal circumstances, should follow the event, (iii) there were good grounds for departing from the usual order as the duration of the proceedings was significantly extended by the pursuit of allegations of

negligence that were not established and which greatly increased the costs of both parties. Finding that no more than 20% of the evidence centred upon the one leg of the case on which the plaintiff succeeded, this fell to be reflected in the Costs order. That said, as, as

had been argued, the plaintiff’s prior medical history and treatment were relevant to her successful claim, Irvine J was of the view85 that it would “be unduly harsh to confine her entitlement to costs to 20% or direct that she pay a substantial portion of the defendant’s costs” and, in the final analysis, awarded her 65% because of the “failure to establish any liability in respect of the allegations forming the basis of first three legs of her claim which had the effect of vastly increasing the duration and costs of the proceedings”.86 She did not consider it just to reduce costs below that level as she was the “overall winner” and given the context of the factual background to her medical condition which was a continuum.

However, a final warning also merits noting. Irvine J was “sorely tempted to take a less conciliatory view of the very discre[te] claim . . . that the surgery carried out . . . was

negligent . . . . Her failure to establish this serious aspect of her claim, which probably took up about three days of court time in terms of expert evidence, would I believe justify the Court in making some type of costs order in favour of the defendant and then setting that

off against the plaintiff’s costs”.87 Because this practice “has not to date been customary in this type of litigation” the Court did not do so and merely rolled the matter up in the final costs assessment just considered. The warning, however, is clear. Just because such an

84

Para 35. 85

Para 37. 86

Para 39. 87

Para 38.

28

order has not been made to date is no guarantee that either (a) it will not be made by a Court on its own motion in the future or (b) a defendant will not make such an application, and succeed.

This begs the question as to whether or not similar sanctions should also apply to the conduct of a defence of a clinical negligence action. We have already discussed the odyssey

that was Dunne v Coombe Women and Infants University Hospital,88 where a series of mutually inconsistent serial defences were attempted before and during trial. Can the additional costs incurred by a plaintiff, in such circumstances, be adequately met by an

ordinary costs order? More particularly, ought not some curial disincentive apply to approaching a defence in such a manner, perhaps by the awarding of indemnity costs,

should this occur? Ordinary litigation has an obvious anti-plaintiff thrust.89 Some of the anti-plaintiff provisions also apply to clinical negligence actions but restrictions are also imposed on defendants by the provisions of the Civil Liability and Courts Act 2004, too. Costs

sanctions, in any review, might also reasonably apply.

© Dr Ciaran Craven BL

December 2013

88

[2013] IEHC 58 (01 February 2013). 89

See, specifically, the provisions of Personal Injuries Assessment Board Acts 2003 and 2007 and the Civil Liability and Courts Act 2004 and the comments of Kearns J in O'Donnell v. McEntee & anor [2009] IEHC 563 and Lackey v Kavanagh [2012] IEHC 276 (at para 20).