Supreme Court of Ireland Decisions

1. This is an action for damages for negligence and breach of duty brought against the first named defendant, who is an obstetrician, (hereafter “Dr. O’Connor”), the second named defendant who is a paediatrician (hereafter “Dr. Denham”) and the third named defendant, who is a nominee of the owners of

2. Mount Carmel Hospital where the plaintiff was born on the 11th July 1980. During the course of the hearing in the High Court before Kinlen J, the claim against Dr. O’Connor was struck out by consent. In a reserved judgment. the learned High Court judge dismissed the claim against Dr. Denham and Mr. Dowling.

3. The plaintiff is the fourth of five children born to the mother and next friend and her husband. The third child, Garrett, who was born on the 17th February 1979, suffered from an extremely disabling form of the condition known as spina bifida and died within a few weeks of his birth. As a result of that tragic event, the mother joined the Spina Bifida Association of which she is still a member. She and her husband were also naturally concerned as to whether they should have any more children. They decided that they would like to have at least one more child and, when Mrs. Lynch became pregnant. she attended Dr. O’Connor as a private patient and decided to have the baby in Mount Carmel Hospital, also as a private patient.

4. The plaintiff was born late on the evening of the 11th July 1980 and her mother was told by Dr. O’Connor that “you have a lovely little girl, a perfect little girl”. He added that she had a “skin tag” on the back of her neck. Mrs. Lynch expressed her concern as to whether that had anything to do with spina bifida: she said in evidence that she was assured by Dr. O’Connor that it had

5. Dr. Denham. who was the paediatrician on duty the following morning, examined each of the babies who had been delivered in the previous 24 hours and were in the neonatal nursery, including the plaintiff. The hospital chart, which recorded the fact that Mrs. Lynch’s third child had been born with spina bifida and had died within a few weeks, also included the results of Dr. Denham’s examination. The latter included the words “large tag midline neck, ligation”.

6. Following his examination of the plaintiff, Dr. Denham had a conversation with Mrs. Lynch in respect of which there was a conflict of evidence at the trial. It is not in dispute that Dr. Denham did in fact carry out the ligation procedure. The skin tag in question, it would seem, resembled a raisin with a very small stalk and the procedure carried out by Dr. Denham consisting of the tying of a very fine ethenyl suture around the base of the stalk. The effect of this was that the tag shrivelled up over the next few days and then fell off.

7. When the plaintiff was six weeks old, Mrs. Lynch brought her to her local clinic in Ballybrack for a check up, as she had done with her other children. The baby was examined by a paediatrician and a nurse who were told by Mrs. Lynch of the skin tag which had fallen off Neither the doctor nor the

8. The plaintiff started going to school for the first time in September 1984 when she was four years and three months old. When she had been there about six months, the teacher asked to see Mrs. Lynch and told her that she thought her daughter was unusually awkward in handling pencils and crayons and suggested that Mrs. Lynch might get some advice about it. Mrs Lynch then saw her general practitioner, Dr. Michael Flynn, who decided to refer the plaintiff to Professor Niall O’Donoghue, a paediatric neurologist at Crumlin Hospital. He diagnosed the plaintiff as suffering from spina bifida, but was also of the view that its manifestation in her case was at the moderate end of the range of that condition. He arranged for further investigations by x-rays (the MRI procedure was not available at that time) and they disclosed no abnormality. He also considered prescribing occupational therapy for the plaintiff.

9. Mrs. Lynch was naturally very distressed by this diagnosis, in the light of what had happened to her third baby. She arranged for the plaintiff to have occupational therapy through the Spina Bifida Association, but the plaintiff did not react well to this, since she was now over 5 years of age and resented the fact that she seemed to be unable to perform the sort of tasks set by the

10. The plaintiff at the date of the trial in the High Court was still having difficulty with a number of ordinary movements of the hands and fingers: she cannot use a knife and fork in the normal way and finds it difficult to button and zip up her clothes. Fortunately, it was agreed at the hearing in the High Court that in all other respects the plaintiff has developed perfectly normally and is now an intelligent and attractive young woman, obviously not least due to the admirable upbringing she has been given by her parents.

11. I should conclude this brief resume of the background to the case by pointing out that Mr. and Mrs. Lynch had a fifth child, Jonathan, who was born two years later, also in Mount Carmel, Dr. O’Connor being the obstetrician and Dr. Denham being the paediatrician concerned.

12. These proceedings were issued on the 28th November 1988. In the statement of claim, a number of allegations of negligence and breach of duty were made against Dr. Denham, but ultimately the case against him in the High Court consisted of an allegation that, although the previous family history of spina bifida and the presence of the stalk should have alerted him to the

13. In her evidence in the High Court, Mrs. Lynch said that Dr. O’Connor had told her that there was a small skin tag on the back of the plaintiffs neck. She said that, once it had nothing to do with spina bifida, she was happy. He said that it had not but that he would have the paediatrician check it out the

14. In cross-examination, at Q.175 she was asked as follows:

15. She was also questioned as follows at Q. 190:-

16. In his evidence, Dr. Denham said that he had told Mrs. Lynch that the plaintiff did not have spina bifida, but that she did have a large tag in the mid line on the back of her neck and that there were occult lesions, or hidden lesions, which could not be detected by any clinical examination and which could only be detected by x-rays, sometimes much later. (It should be observed at this stage that Dr. Denham in his evidence expressed his strong disagreement

17. Dr. Denham said that about one quarter to one third of parents chose not to bring their children back to the hospital for the six weeks review, because they preferred to go to their family doctor or, as in Mrs. Lynch’s case, to a local health centre.

18. Dr. Denham’s evidence was that, after the discharge of the plaintiff he wrote letters to the plaintiff’s general practitioner, Dr. Flynn and the obstetrician, Dr. O’Connor, reporting on the health of the plaintiff. The letter, as received by Dr. O’Connor contained no reference to a further review of the baby. However, Dr. Denham’s evidence was that, while that while that letter was sent to Dr. O’Connor in error, he sent out a corrected version at the time to Dr. Flynn which ended with the sentence:

19. Dr. Flynn did not remember which letter he received and did not have them on his file.

20. A number of experts gave evidence at the trial on the question of whether, assuming that Mrs. Lynch’s evidence was to be preferred to that of Dr. Denham, his failure to ensure the further monitoring of the plaintiff’s condition resulted in her not having occupational therapy at an earlier age with the consequences to which I have already referred. Two occupational therapists, Ms. Rajnaratman and Ms. Breatnach, gave evidence that, in their opinion, had the plaintiff commenced attending occupational therapy in about the first year of her life, this would have made a significant difference to the difficulties she experienced. Professor O’Donoghue - who had been called as a witness on behalf of the plaintiff- said that, had he diagnosed her condition in 1980/1981, he would probably not have referred her on for occupational therapy: he added, however, that at that time Crumlin Hospital did not have an occupational therapist.

21. On behalf of the defendants, Dr. Owen Hensey, a paediatrician specialising in the physical rehabilitation of children, said in evidence that it was unlikely that earlier therapy would have made a significant difference to

22. A number of medical experts also gave evidence as to whether, assuming Dr. Denham’s evidence was to be preferred to that of Mrs. Lynch, he had taken the appropriate course in advising her to return in six weeks time so that, if it appeared desirable, an x-ray should be obtained: it was accepted by all who gave evidence that, in the light of his finding of the midline cervical lesion, it would have been unacceptable to take no action. On behalf of the plaintiff Mr. Thomas Fannin, a consultant neurosurgeon, and Professor McClure, a professor of neonatal medicine in Queen’s University, Belfast, were of the opinion that a paediatrician in 1980 in the situation of Dr. Denham should have referred the matter to a specialist with more specific expertise in the area, most probably a neurosurgeon. On behalf of the defendants, Mr. Fergus Donovan, a consultant neurosurgeon and Professor Matthews, a consultant paediatrician with a special interest in neonatology, were of the view that it would have been sufficient to keep the plaintiff under review and that it would not have been necessary to seek a more specialised opinion. There was also evidence to the effect that, whether or not the plaintiff was also seen by another expert such as a neurosurgeon, during the first year of her life, the imaging techniques then available to doctors would not have detected any abnormality and that, even if

23. In his judgment, the learned High Court judge said:

24. At a later stage in his judgment, having referred to the conflict of evidence as to whether occupational therapy would have been of benefit to the plaintiff if given at an earlier stage, he went on:

25. At an earlier stage in his judgment, the learned trial judge had dealt with the conflict of evidence between Mrs. Lynch and Dr. Denham as follows:

26. The learned trial judge accordingly dismissed the plaintiff’s claim. From that decision, the plaintiff now appeals to this court.

27. While it was accepted on behalf of the plaintiff that, in the light of the findings of the learned trial judge, this court could not substitute for the High Court order an order finding Dr. Denham liable and remitting the case to the High Court for the assessment of damages, it was urged that, having regard to the evidence given at the trial and the findings of the learned trial judge, a new trial should be ordered on the issue of liability and damages. It was submitted that the trial judge should have resolved the acute conflict of evidence between Mrs. Lynch and Dr. Denham and that this was of critical importance, since it was agreed by all the expert witnesses that it would have been unacceptable for a paediatrician to have done nothing, having regard to the earlier history of spina bifida in the family and the skin tag. It was submitted that the trial judge was in error in finding that Mrs. Lynch simply had no recollection of the conversation of which Dr. Denham gave evidence: her evidence unequivocally to the effect that no such conversation had ever taken place.

28. If the trial judge had resolved that conflict of evidence in favour of Mrs. Lynch, it was accepted on behalf of Dr. Denham that this would have amounted

29. It was also submitted that, if the trial judge had accepted Dr. Denham s evidence, he would then have had to resolve the further issue, i.e. as to whether the particular practice adopted by him of simply telling Mrs. Lynch that she should bring the plaintiff back in six weeks time was one which, even if approved by his colleagues of similar specialisation and skill at that time, had inherent defects which ought to have been obvious to him had he given the matter due consideration, citing the decision of this court in Dunne (An Infant) v. National Maternity Hospital [1989] 1R 91. That issue had not been resolved by the trial judge and on this ground also, it was submitted, there should be a retrial on the issues of liabilities and damages.

30. I have no doubt that it would have been preferable for the conflict of evidence between Mrs. Lynch and Dr. Denham to have been resolved by the trial judge. Since it was not, this court must approach the appeal on the basis

31. The uncontradicted evidence was that the plaintiff was examined at the Ballybrack Clinic at intervals of six weeks and 9 months respectively after her birth by a paediatrician and a nurse. They were aware of the skin tag and the fact that it had been ligated by Dr. Denham. It must be assumed that no abnormality was detected on those two examinations, since none was reported to the plaintiff There was also evidence that, had Dr. Denham continued to monitor the plaintiff thereafter, the degree of neurological deficit from which she was suffering would not have been detected at a stage significantly earlier than when it was in fact first noticed i.e. when she was four years and three months old. While it is right to say that Mrs. Lynch in evidence said that her mother said, when the plaintiff was nearly three years old, that she was not holding her spoon properly and feeding herself, this lady did not give evidence. In contrast, the evidence of Dr. Hensey (Transcript, Vol. 12 p.64) was:

32. The evidence of Professor Matthews (Transcript, Vol. 11 p.99) was broadly to the same effect:

33. A somewhat different emphasis was given by Dr. Mary King, a paediatric neurologist, who also gave evidence on behalf of the defendants and who said (Transcript, Vol. 13 Q. 165):-

34. The trial judge was undoubtedly entitled to find, as he did, that, having regard to the fact that no evidence of any deficit was apparent to the qualified persons who saw the plaintiff in the Ballybrack Clinic, it was unlikely that Dr. Denham would have come to any different conclusion had he carried out those examinations in the first year of the plaintiff’s life. The case, accordingly, made on behalf of the plaintiff on this appeal essentially rested on the proposition that Dr. Denham would have remained under a continuing duty to monitor the progress of the plaintiff for some indefinite period thereafter, even though there had been no indications of any abnormality. But even assuming that to be so, it is clear that the trial judge approached this aspect of the case on the basis that the probabilities were that the deficit would not have become apparent significantly earlier than the period at which it in fact first manifested itself i.e. when she was four years and three months old. Had the trial judge been of the view that, in the light of the evidence, the probabilities were that a continuous monitoring beyond the first year of her life would have identified the deficit at a significantly earlier age, he would have felt obliged to resolve the undoubted conflict of evidence as to whether occupational therapy at an earlier stage would have made any difference, having regard to the case being made on behalf of the plaintiff that Dr. Denham was under a continuing obligation to monitor the plaintiff even after her first year. As it was, the trial

35. The same considerations apply to the submission that the trial judge should have resolved the issue as to whether the procedure which Dr. Denham adopted contained inherent defects which should have been obvious to a reasonable person. Even if one were to assume that it was such - a relatively large assumption - the same considerations would apply i.e. that a specialist review of the plaintiff, whether carried out by Dr. Denham or an expert in another discipline, would not have detected the underlying problem which emerged when she went to school.

36. Finally, it should be pointed out that, even if every assumption was made in favour of the plaintiff - that Mrs. Lynch was not told that the plaintiff should be reviewed in six weeks time because of the possibility of an underlying condition, that the deficit would have become apparent if she had reviewed into the second and third year of her life and that occupational therapy would have been of benefit if given at an earlier stage - the fact remains she was in fact reviewed by qualified experts in the Ballybrack Clinic at both the six weeks and the nine months stage. She was, accordingly, at that stage no longer under Dr. Denham’s care and the responsibility for ensuring that any further monitoring took place rested on them, to the extent that it rested on any one. It must be emphasised, of course, in conclusion that all of the assumptions

37. I would dismiss the appeal.