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Cite as: [1988] IEHC 12

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HIGH COURT

BERNICE BARRETT

Plaintiff

SOUTHERN HEALTH BOARD

Defendants

JUDGMENT DELIVERED BY MR. JUSTICE BLAYNEY ON 5TH DECEMBER, 1988.

The Plaintiff's claim is for damages for personal injuries alleged to have been suffered through the negligence of Mr. Aidan Francis Lynch, an Orthopedic Surgeon, formerly the Senior Registrar in St. Mary's Orthopedic Hospital in Cork.

Most of the facts giving. rise to the claim are not in dispute. In October, 1979 the Plaintiff suffered fractures of the radius and ulna of tier right arm. The fracture of the radius was compound and comminuted. Both fractures required open rectification and had to be fixed with plates. The Orthopedic Surgeon who carried out the operation was Mr. Curtin.

In October, 1983 the Plaintiff was asked to come back into hospital to have the plates removed. She had been told by Mr. Curtin some years before that this would be necessary. The operation of removing the plates was performed by Mr. Lynch. The Plaintiff had thought that Mr. Curtin would do it as she had been under his care. Mr. Lynch was at the time the Senior Registrar in St. Mary's. He had qualified as a doctor in U.C.C. in 1973; became a member of the R.C.S.I. in 1977, and a member of the R.C.S.E. the following year. He began his training in orthopedics at two hospitals in Oxford in 1978. In 1980 he entered the training programme of the Irish Orthopedic Association, and worked in Merlin Park, Cappagh and Temple Street before being appointed to St.Mary's and the Regional Hospital in Cork in January, 1983.

After the operation for the removal of the plates, the Plaintiff was discharged home on the 15th October, 1983. She said her arm at the time was swollen and very sore. Six days later, on the 21st October, 1983, late at night, as she was coming out of the bathroom, she noticed a lot of blood on her cardigan. She became very weak and was carried across to the North Infirmary which was very near where she lived. A tourniquet was applied to control the bleeding and she was operated on by Mr. Frank Creedon at 2.30 a.m. Mr.Creedon found that the radial artery was bleeding. He said there was a bite out of the side of it and the bleeding was through a hole in the middle of the bite. He cut the artery and tied it at both ends. He said the Plaintiff was never in a life-threatening situation but that if the operation had not been carried out her condition would have been fatal. All the medical witnesses agreed that the Plaintiff would not be in any way adversely affected by the artery being tied off.

While Mr. Lynch was not prepared to concede that what caused the hole in the artery was some damage sustained in the course of the operation he carried out, both Professor Sherrard who gave evidence on behalf of the Plaintiff, and Mr. George Mullan, an Orthopedic Consultant who gave evidence on behalf of the Defendant, were of this opinion, and I am satisfied that their opinion is correct.

Apart from the damage to the radial artery, the Plaintiff also suffered damage to a branch of the radial nerve and I am satisfied that this damage also was sustained in the course of the same operation. Its effect has been to cause numbness at the base of the thumb. This has improved since it occurred originally so that now only a small area between the base of the thumb and the wrist is affected.

For the Plaintiff to succeed in her claim it is not sufficient to prove that the artery and nerve were damaged in the course of the operation carried out by Mr. Lynch; she must also prove that the damage was caused by negligence on the part of Mr. Lynch. The nature of the duty owed by a doctor to his patient was described as follows by Mr. Justice Kingsmill More in Daniels v Heskin 1954 Irish Reports 73, page 86.

This passage was cited with approval by Chief Justice O'Higgins in Reeves v Carthy 1984 Irish Reports 348 and 357. It lays down three separate headings under which a medical specialist might be held to be in breach of his duty to his patient:

1. In failing to have the particular skill and knowledge he holds himself out to possess.

2. In failing to use such skill and knowledge to form an honest and considered judgment as to what course, what action, what treatment, is in the best interest of his patient.

3. In failing to display proper care and attention in treating, or in arranging suitable treatment for his patient.

The question I have to consider is whether Mr. Lynch failed in his duty to the Plaintiff in any of these respects. In order to establish negligence the Plaintiff relied on the expert evidence of Professor Sherrard, an Orthopedic Surgeon and Professor of Orthopedics at Sheffield University. It is not necessary to set out his evidence in full, particularly as I have already held that the damage .to the artery and the nerve were caused in the course of the operation and part of his evidence dealt with this.

In his direct evidence Professor Sherrard said that the usual procedure in the type of operation Mr. Lynch was performing was to start off by looking for the radial nerve, and having tracked it down, to release it so that it could be held out of harm's way. If the artery is involved in the scar, one has dissect it away. This might result in the artery being cut, it was no harm if the artery was cut. He said he would have thought neither damage to the artery without necessarily being able to prevent it.

In cross-examination Professor Sherrard said in regard to the artery that the bleeding was probably caused by some superficial damage to the artery during the operation, but the Surgeon would have no way of knowing that such damage had occurred. He said this damage this damage could not be regarded as totally avoidable. It was possible for it to happen with all the care in the world. The damage may have been due to negligence. Equally it may not have been. When the manner in which Mr. Lynch had performed the operation was to put to him, he disagreed in one respect only. He considered that the artery and nerve, having been identified ans isolated at the beginning of the operation, should then have been dissected from the scar tissue. He said that damage could be caused by their being retracted in the scar tissue. At the same time he said he was not saying what Mr. Lynch did was an error or judgment on his part.

In regard to the damage to the nerve, he said it was not a satisfactory standard of surgery. In some way Mr. Lynch should have been taking more care. He said the operation could have been dealt with in such a way as not to damage the nerve; you have to do the tedious job of excising the nerves from the scar tissue. He said some lack of skill must have been present.

The Defendant applied for a non-suit at the close of the Plaintiff's case. I refused it because I considered there was some evidence from which it might be inferred that the damage to the nerve had been caused by negligence. I was satisfied the evidence would not support any finding of negligence in regard to the damage to the artery.

The witnesses called on behalf of the Defendant were Mr. Lynch and two Orthopedic Consultants, Mr. George Mullan, from St. Mary's Orthopedic Hospital, Cork, and Mr. Glynn Thomas from England. Mr. Lynch described how he performed the operation. He said he had hoped to obtain exposure of the artery and nerve but because they were completely surrounded by scar tissue he considered it would be unsafe to isolate either of them on its own. He considered any effort to isolate them would be very hazardous - because it would have been very easy to injure either the nerve or the artery - particularly the nerve. Once he had satisfied himself of the position of the nerve and the artery, he gradually moved all the scar tissue and nerve and artery to one side, moving the healthy tissue and muscles to the other side. As he worked, his assistant held the gap open with retractors. Both Mr. Mullan and Mr. Glynn Thomas agreed that he had made the correct decision in not trying to expose the nerve and artery from the scar tissue.

In cross-examination Mr. Lynch agreed that it was possible that the damage to the nerve and the artery was caused during the operation. He said the injury would have occurred when he was opening up the gap between the scar tissue and the healthy muscle. He also said it was possible that the edge of a retractor could have injured the nerve within the scar tissue - that it was possible that it was due to excessive pressure of the retractor. He also said the retractor might have caused weakening of the wall of the artery.

Mr. Mullan said that in the course of the removal of the plate a branch of the radial nerve could inadvertently have been damaged. Pressure could have been put on it at retraction. The nerve could have been contused or cut. He said it was an accepted fact that there is a considerable instance of damage to the radial nerve when the operative's approach is from the inside of the arm. The percentage for virgin operations is accepted as being 7% and the risk is greatly increased in a second operation because of the mass of fibrous tissue which makes it extremely difficult to find a branch of a nerve. He said he had no doubt from Mr. Lynch's description of the operation that he took every reasonable precaution not to damage a nerve. He said the operation was a very high risk procedure.

In cross-examination he said he thought the damage was to a branch of the nerve- not to the trunk. In this he disagreed with Professor Sherrard, but he did not think it mattered which it was. He said that in the process of dissection it was quite likely the wall of the artery was weakened and a branch of the radial nerve damaged. There was no way of knowing whether the damage was done together or not. It would be due to the amount of pressure applied on the retractor to keep the skin apart. He agreed that if it were done properly damage would not happen. There would have to be an excessive traction to cause this type of damage.

Mr. Glynn Thomas said that in his opinion the damage to the artery and nerve were not totally avoidable. He said the damage to the artery may not have involved any negligence. As regards the damage to the nerve, any estimate as to how it happened had to be speculation. It might have occurred during the splitting away of the fibrous tissue to expose the plate, or by use of the retractors.. He did not agree there was any failure in skill. That was to set too high a standard. There are circumstances where no-matter how careful you are you can cause damage.

In cross-examination he said it was very difficult to know when the damage took place. It was a matter of pure speculation. He said it was relatively easy to deal with the nerve and artery in a virgin situation. In a second operation one had to use one's judgment. He believed that to have dissected tire nerve and artery from the tissue could have led to yet more damage.

My findings on this evidence are as follows:

1. It has not been proved when or how the artery and nerve were damaged in the course of the operation.

2. The injury to each may have been caused at the same time or at different times.

3. It may have been caused when the scar tissue was being dissected from the healthy muscle, or by the retractors.

4. If caused by the retractors it was due to excessive force being used.

5. There is a 7% risk of damage to a nerve in a virgin operation of this type, and the risk is greatly increased in a second operation.

6. Mr. Lynch cannot be faulted for the decision he took not to separate the artery and nerve from the scar tissue. This is clear in my opinion from the following passage from the Judgment of Lord President Clyde in Hunter v Stanley, 1955 Scottish Courts 200 which was quoted with approval by Lavery J. in O'Donovan v Cork County Council, 1967, I.R. 173 at page184 (read).

It has not been established that the course adopted by Mr. Lynch was one which no professional man of ordinary skill would have taken 1f `ia had been acting with ordinary care. On the contrary Professor Sherrard said it was not even an error of judgment and Mr. liullan and fir. Glynn Thomas said it was the correct course. So in my opinion it is clear that in adopting that course Mr. Lynch was not negligent. On the basis of these findings, has it been established as a matter of probability that Mr. Lynch was negligent? In my opinion it is not. To refer back to the duty owed by a medical practitioner to his patient as enumerated by Mr. Justice Kingsmill Moore in Heskin v Daniels, I think it is quite clear that Mr. Lynch did not fail in either of the first two aspects of the duty. He had this skill and knowledge which he held himself out to possess and he did not fail to use such skill and knowledge to form an honest and considered judgment as to what course was in the best interest of the patient. His honest and considered judgment was that he could not attempt to dissect the nerve and artery from the scar tissue and, as I have already indicated, he cannot be faulted for having taken this course. There remains the final aspect of the duty, whether Mr. Lynch failed to display proper care and attention in treating the Plaintiff, that is to say, in carrying out the operation.

The onus was on the Plaintiff to show as a matter of probability that there had been such a failure on the part of Mr. Lynch. This involved proving some negligent act or omission on the part of Mr. Lynch, and that such act or omission caused the damage. Such proof has not been forthcoming. Insofar as the damage to the artery is concerned, Professor Sherrard said it could happen with all the care in the world, and as to how it happened he said that damage can be caused by the nerve and artery being retracted in the scar tissue, and that this appears to have resulted in some damage, but he did not suggest it was negligent of Mr. Lynch to have retracted the nerve and artery in the scar tissue. He said it was not even an error of judgment. As regards the nerve, Professor Sherrard did not make any specific allegation of negligence. His criticism was very general. He said that the fact that there was damage to the nerve showed there was not a satisfactory standard of surgery; in some way Mr. Lynch should have 'been taking more care; the problem should have been dealt with in such a way as not to damage the nerve. This amounts to saying, there must have been negligence because there was damage, res ipsa loquitur. This doctrine has no application in the context of an operation which necessarily involved risk and where the evidence is that in more than 7% of the cases some nerve damage is sustained. there such damage could occur without any negligence on the part of the surgeon, the mere fact that there was damage is not evidence of negligence. Mr. Nugent relied on confirmatory evidence of Mr. Lynch and Mr. Mullan under cross-examination as supporting a finding of negligence. Mr. Lynch said it was possible that the edge of the retractor could have injured the nerve within the scar tissue, this was the most likely explanation, and this may have been due to excessive pressure on the retractor. Mr. Mullan said that it was quite likely that in the process of Mr. Lynch's dissection the wall of the artery was weakened and a branch of the radial nerve damaged. There was no way of knowing whether the damage was done together or not. It would be due to the amount of pressure applied on the retractor to keep the skin apart. It was then put to Mr. Mullan that this should not have happened if it was done properly, and he agreed. Mr. Nugent submits that this is clear evidence of negligence.

What is in issue here is the degree of pressure put on the retractor. Clearly it was correct procedure to use a retractor and clearly in using it some pressure had to be used. The question is whether using more pressure than was necessary constituted negligence. The amount of pressure to be used was a matter of judgment. So if more pressure was used than might have been, that was an error- of judgment. Such an error may or may not be negligence. In Whitehouse v Jordan, 1981, 1 All English Reports 267, Lord Frazer of Tully said in his Judgment at page 281 "Merely to describe something as an error of judgment .........." (read). Into which category does the error here come? This question has given me great difficulty, and the only way in which I can answer it is not very satisfactory. It seems to me that in order to find that this error of judgment was negligent I would need to have had evidence to support that conclusion. In other words I would need to have had evidence that this was an error of judgment which would not

made by a reasonably competent professional man have the standard and type of skill that Mr. Lynch out as having. In the absence of such evidence, and there is none, I would be speculating if I were to find this error of judgment was negligent. To express it in another way, as Lord Frazer said at the beginning of the passage I read, to describe something as an error of judgment tells us nothing about whether it is negligent or not, so in proving something which is merely

an error of judgment and going no further the Plaintiff has not discharged the onus of proving negligence.

Having come to the conclusion that negligence has not been proved I must dismiss the action. I do so with some regret as the Plaintiff had a frightening experience when her artery bled, and clearly she went through a trying period for some months afterwards, but fortunately the extent to which she is permanently affected is slight.

MR. McGRATH: I ask for Judgment and costs for the Defendants.

MR. FINLAY: My Friend is entitled to that. I ask for a stay in the event of appeal on the Order for Costs.

JUDGE: Judgment for Defendants and stay on the Order for costs.

THE HEARING CONCLUDED