High Court of Ireland Decisions

1. This case arises out of alleged negligence in the treatment of the Plaintiff at the Mullingar General Hospital in the month of May, 1989. The Plaintiff was at the time a 32 year old engineer. In the days prior to the 3rd May, 1989 he thinks he may have pricked his index finger on a thorn in a rose bush. it is also possible at that time, he thinks, he may have contaminated his finger with faeces or such material whilst lifting a manhole in the course of his work.

2. On the evening of the 2nd May, 1989, whilst playing indoor football the Plaintiff received an impact on his right index finger whilst playing in goal. When he returned home that evening his finger started to throb. He attempted with the aid of a needle which he had sterilised by putting into boiling water to ascertain whether or not there was a thorn in the finger. He did not find a thorn and the finer continued to throb. The following morning, 3rd May, 1989 the Plaintiff had to go to Dublin but prior to going presented himself at Mullingar General Hospital complaining of the condition of his finger. This was before 8 a.m. It was indicated to him that it was desirable that an X-ray would be taken but the X-ray department was not open until 9.30 a.m. He decided to go to Dublin and indicated that he would come in that evening to the hospital on his way back.

3. In accordance with the agreement the Plaintiff presented himself at the hospital on the evening of the 3rd May. He was now complaining of pain and swelling in his hand and redness up to his elbow. He was put on anti-biotics and admitted to hospital. He had acute pulp space infection and lymphangitis. Lymphangitis extended up to the forearm and arm. He was placed on anti-biotics and retained in hospital. His finger was operated on by Mr. Mina. The anti-biotics continued and a culture was taken and sent for analysis. The culture was found to be sterile and on the 7th May, 1989 the Plaintiff was discharged from hospital with his finger in a satisfactory condition. He was again seen on the 9th and told to return on the 16th. The Plaintiff returned to hospital on the 16th where it was found that he was suffering from a severe pulp space infection of the right index finger. It was decided that he would be retained in hospital and that he would be operated on for a debridement of the finger.

4. This was done on the 17th May, 1989 by Mr. Mina who removed the tissue from the distal phalanx, took a swab and sent it for culturing.

5. Mr. Mina at this stage decided not to give the Plaintiff any anti-biotics.

6. He was continued to be treated in hospital. It appears in the hospital notes that the result of the culturing of the swab did not return until the 20th May. It does not appear to have been seen by Mr. Mina until 22nd May, when anti-biotics were eventually prescribed, and these anti-biotics were not given to the Plaintiff until the 23rd May.

7. On the 24th May, the Plaintiff was once again admitted to have his finger treated by Mr. Mina. This time the notes indicate that the tendon was intact but the tip of the index finger was necrotic and in the course of the debridement. Mr. Mina removed 2 millimetres of bone and the debridement continued.

8. It happens that Mr. Mina was at this time going on holidays so he decided that he would transfer the care of the patient to Surgeon O'Riain who was in Dublin and by letter the 26th May, 1989 Mr. Mina wrote to Surgeon O'Riain in the following terms:-

9. This letter is of interest for two reasons:-

10. It appears that the Plaintiff was seen by Surgeon O'Riain on the 27th May, 1989 and after examination by Surgeon O'Riain and an X-ray taken he was diagnosed. Surgeon O'Riain indicated that he had considered the situation and that osteomyelitis had set in and he amputated the distal phalanx of the right index finger. As the result of this the Plaintiff is left with a deformed sensitive finger, which has caused him a great deal of distress and trouble particularly in cold weather, exercising, playing golf or in using a computer.

11. During the case it was interesting to note that in the Defendants witnesses there appeared to be some dispute regarding the fact as to whether, or not it was necessary for Surgeon O'Riain to have amputated the distal phalanx of the finger at all, but the essence of the case as made by the Plaintiff against the Defendants has now resolved into the failure of Surgeon Mina to administer anti-biotics to the Plaintiff on admission on the 16th or 17th, certainly at the latest on the 19th May, 1989.

12. Mr. Ward, an expert on behalf of the Plaintiff, indicated that we had a situation on the 16th and 17th May of quite clearly an acute infection, which on the balance of probabilities was a recurrence of the earlier infection, and the correct treatment would have been to treat that with broad spectrum anti-biotics, probably the ones that succeeded in dealing with the infection on the 3rd, 4th and 5th of May, and this regime should be maintained until such time as a swab was taken and cultured, which would identify precisely the nature of the infection, which would enable a more specialised anti-biotic to be used. In his vie, he said on the balance of probabilities this would have led to a situation whereby the finger need not have been amputated though on the balance of probabilities, he felt it would always have been weak, that it would have not have effected to the degree it does at present either cosmetically or functionally.

13. In contrast to this, Surgeon Mina gave evidence and indicated that he took a decision that the correct way to deal with the case was by not administrating anti-biotics initially on the 16th and 17th, but by debridement the removal of the dead tissue by allowing nature take its course, until such time as the swab had been cultured and the specific anti-biotic which ought to be used identified. He was of view that it would have made no difference to the final outcome in any event.

14. Mr. Varian gave evidence that it was a perfectly legitimate thing for Mr. Mina to have done, that is to say not giving anti-biotics on a general spectrum or a broad spectrum immediately. He did say that in his view the most probable cause of the infection was the recurrence of the original infection and so gave evidence that if it was his patient he would probably have administered anti-biotics immediately, though he did point out that in many cases the puss in these wounds proved to be sterile on analysis. However, Mr. Varian was of opinion that he delay until the 23rd May for giving anti-biotics was not reasonable. Mr. O'Riain who performed the operation finally did agree that the delay from the 17th to the 23rd from the taking of the swab to the administrating of anti-biotics was not reasonable nor acceptable practice and he gave evidence that the swab and culture should have been back by the 19th May.

15. Therefore, the situation in the case appears to be as follows:-

16. Surgeon Mina decided not to apply broad spectrum anti-biotics on the 17th may and that this would appear to be a practise which would have the support of Mr. Varian and I think Surgeon O'Riain.

17. But not of Dr. Ward and under those circumstances one cannot say that the failure to apply the broad spectrum anti-biotics immediately was negligent. However, it is clear from the evidence that the swab taken by Mr. Mina on the 17th May was said to have been cultured in the laboratory, that it ought to have been returned on the 19th May, no enquiries to have been made regarding it, that it was returned on the 20th May, that no steps were taken to act on it until the 22nd May and the steps were not actually taken until 23rd May. It is accepted by everyone that this was not acceptable. Therefore, the first question I have to ask is:-

18. Dr. Mina or not acted upon until the 23rd May.

19. The answer, in my view, to that is yes.

20. And in this regard I accept the evidence of Dr. Ward, that on the balance of probabilities that there would have been an improvement in the final result in the Plaintiff's condition had he been given anti-biotics at a time, namely by the 19th May, which all the doctors indicate he ought to have been.

21. In this regard, where a Surgeon or a hospital, in my view, adopts the course of not applying broad spectrum anti-biotics immediately that this increases the onus ensuring the swift culturing of the swab and the application of the specific anti-biotics, as soon as is possible to ensure that the benefits to be derived therefrom will be given the maximum opportunity of taking effect. I am satisfied on the evidence of Dr. Ward that had the anti-biotics been applied on the 19th as they ought to have been, the finger though still defective would have been better than it now is and that on the balance of probabilities an amputation would not have been necessary. I will therefore award the Plaintiff a sum of £20,000 general damages for injury to his finger.

22. And I reiterate the fact that it is essential where a course is adopted by the Defendant namely not to apply broad spectrum anti-biotics is put in place, it is necessary that (a) a report be delivered regarding the culture of the swab as soon as is practicable to the treating doctor (b) that it is brought to his attention and (c) that he is therefore enabled to act upon it as soon as possible.