Supreme Court of Ireland Decisions

1. I am in complete agreement with the judgment of Lynch J. on this appeal. I wish to add a few observations.

2. The appeal in this case was dismissed on 23rd June, 1999 after oral submissions had been made. In view of certain matters which concerned the Court it was decided that a written judgment would be given at a later stage.

3. The professions provide a service to the public and appropriate information should be given and made available at all times. This may cast a heavier onus on a professional in certain situations as the person receiving the professional care may be in a vulnerable, situation and may be unable, because of illness, trauma or stress, to absorb information offered. It is often necessary to repeat and explain information more than once.

4. There is no suggestion that the Appellant was other than a truthful witness. It is accepted that she suffered symptoms. The Learned Trial Judge held at page 12:

5. Many of the symptoms of which the Appellant complained when the Statement of Claim was delivered in 1994 were not proceeded with in the High Court. The sole issue in the High Court and on this appeal was the suturing of four of the stitches in the episiotomy. Whilst this is an important matter it is less important than some of the matters set out in the Statement of Claim and which were not proceeded with.

6. It is unfortunate that the Appellant was not in a position to take appropriate medical action previously. The Learned Trial Judge stated at page 14:

7. Communication between hospitals and patients aid and protect the public. Such communication should be maintained and information should be given and available to patients and not excluded for unreasonable reasons founded on commercial considerations. There are a wide variety of reasons why professionals, hospitals or insurance companies may be reluctant to provide information. However, it is in the public interest that information be provided to patients and not impeded.

8. Counsel for the Respondents submitted that this case was run on a wing and a prayer. He informed this Court that he had brought to the attention of the Learned High Court Judge the statement of Barr J. in Reidy v. The National Maternity Hospital, unreported judgment delivered on 31st July, 1997, where he stated at page 15:

9. He pointed out that this had been endorsed by Kelly J. in Connolly v. James A. Casey and Laura Murphy (Trading under the style and title of Casey and Murphy) and Michael Fitzgibbon , unreported, High Court, Kelly J., 12th June, 1998. That was an action where the Defendants, who were solicitors, were sued for damages for professional negligence. Kelly J. stated at page 19:

10. While bearing in mind the important right of access to the Courts I am satisfied that these statements of law are correct. To issue proceedings alleging professional negligence puts an individual in a situation where for professional or practice reasons to have the case proceed in open Court may be perceived and feared by that professional as being detrimental to his professional reputation and practice. This fear should not be utilized by unprofessional conduct.

11. The claim against the second named Defendant in the case was dismissed by the Leamed High Court Judge during the hearing of the action. He stated in his judgment at page 5:

12. Yet, the second named Defendant’s name remained in the appeal and on the appeal papers. It was in oral submissions in Reply that Counsel for the Appellant said that it was through inadvertence that Dr. Neary’s name was still on the heading of the appeal and he apologised to Dr. Neary. This approach to legal proceedings, which challenge the professional competence upon which a defendant’s reputation and career is based, is, to say the least, inappropriate.

13. Lynch J. in his judgment sets out the circumstances in this case where shortly before the case commenced the Appellant’s solicitor introduced the Appellant to his personal medical advisor. This doctor, a General Practitioner, then agreed to become the medical witness for the Appellant in this case.

14. There may be difficulties in obtaining professional evidence; for example, a siege mentality may be encountered, which is inappropriate professional behaviour. The need for evidence should be met by appropriate professionals who are willing to give evidence of standards of care, whether the witness be from this jurisdiction or elsewhere.

15. The event giving rise to the action occurred in 1990. Legal proceedings were commenced in 1993, the Statement of Claim was delivered on 4th May, 1994, the defence for the first named Defendant was delivered on 9th September, 1994 and for the second named Defendant on 19th July, 1994. The Notice of Trial was dated 23rd September, 1994. The trial was held in the High Court on 8th and 9th July, 1998 and judgment given on 10th July, 1998. A Notice of Appeal was dated 6th August, 1998 and a Notice to Dismiss for Want of Prosecution was filed dated 16th November, 1998. Whatever the reasons for the delay in this case it has served no one; not the Appellant and certainly not the Respondents. Whilst professional negligence cases are often complex, modern case management procedures would help to eliminate delays, identify issues, confirm parties and promote justice. Similar problems have evoked responses in other jurisdictions. In England and Wales Lord Woolf, Master of the Rolls, advised the Lord Chancellor on practices and procedures in relation to medical negligence cases and made twelve specific recommendations. (“Access to Justice, Final Report” by The Right Honourable The Lord Woolf, Master of the Rolls, London, 1996, Chapter 15 at pp. 195-196)

16. There has been a move in this jurisdiction towards developing modern practices as to reports of expert witnesses. However, this case illustrates the need to consider developing a modern case management process for professional negligence cases.

17. I agree that this appeal should be dismissed for the reasons set out in the judgment of Lynch J.

18. I also agree with the observations of Denham J. and Lynch J. as to the serious responsibility which rests on both branches of the legal profession in the institution and conduct of proceedings for negligence against professional persons. It is most regrettable that those standards were not met in the present case.

19. This is an appeal by the Plaintiff against an Order of the High Court (Quirke J) made on the 10th July 1998 dismissing her claim for damages for personal injuries allegedly due to the professional negligence of medical practitioners in Our Lady of Lourdes Hospital Drogheda, County Louth who are sued through their nominee, the first Defendant.

20. The Plaintiff was born on the 9th September 1967. She was admitted to the hospital on the 12th February 1990 then aged approximately twenty-two and a half years in the expectation of the imminent birth of her first child. A healthy child was born to the Plaintiff on the 13th February 1990 during the course of which an episiotomy cut was required. Following the birth, the episiotomy cut needed as usual to be stitched. Eight catgut soluble stitches were inserted in the internal muscular parts of the vagina and four nylon non-soluble.n stitches were inserted in the outer skin. One of the nylon stitches fell out on the fifth day after the

21. For the defence it was accepted that if the nylon stitches had been sewn too tightly and as a result thereof had fallen out and had caused to the Plaintiff the tenderness, discomfort and disability complained of, that would amount to actionable negligence. It was however vehemently denied that the stitches had been sewn in too tightly and further denied that the Plaintiff suffered the alleged tenderness, discomfort or lack of elasticity in the vagina.

22. The Plaintiff’s case was sought to be established by calling as witnesses only the Plaintiff herself and a general medical practitioner namely Dr Dermot Halpin. Dr Halpin was the Plaintiff’s solicitor’s own personal general practitioner. He was not the Plaintiffs general practitioner. He saw the Plaintiff for the first and only time on the 15th June 1998 and reported on the 16th June 1998 the case being then scheduled to commence on the 17th June 1998. It was explained on behalf of the Plaintiff that her usual general medical practitioner was unavailable because he was on holidays and hence the referral to Dr Halpin. However

23. The Plaintiff said that she was told by Dr Neary that the stitches fell out because they must have been sewn in too tightly. Dr Halpin said that the only reason why the stitches would have fallen out in the case of the Plaintiff was because they were sewn in too tightly in the first place.

24. Dr Pauline Morris who had done the stitching gave evidence on the 9th July 1998 as follows:

25. And again at questions 199 to 204:

26. Dr Neary gave evidence of being asked to examine the Plaintiff after the first stitch had fallen out and of doing so and he continued as follows:

27. Finally Dr Dermot MacDonald who was called on behalf of the Defendants as an independent medical expert gave evidence at page 121 and 122 of the transcript of the 9th July 1998 as follows:

28. I now turn to the judgment of the leamed trial Judge which is recorded in the transcript of the 10th July 1998 and I quote from page 9 and pages 11,12, 13 and 14:

29. The foregoing findings of the learned trial Judge are manifestly supported by the evidence in this case including the few brief extracts from the transcripts which I have quoted. Indeed if the learned trial Judge had found against the Defendants, the circumstances of this case and its manner of presentation, including quite unnecessarily interposing Dr Halpin before the Plaintiff had given any really relevant evidence, are such that I have no doubt that his decision would be reversed if appealed by the.Defendants to this Court in that event.

30. I regard this appeal as unstateable and I would emphatically dismiss it. In doing so I endorse Counsel for the Defendants criticisms of the manner in which medical evidence for the Plaintiff was procured in this case.

31. Whatever about suing the hospital there never was any conceivable basis for suing the second Defendant personally. He had nothing to do with the Plaintiffs ante-natal care, nor with her confinement or delivery or episiotomy, nor with the stitching. The first time he saw the Plaintiff was five days after the birth when he was asked by Dr Pauline Morris to examine the Plaintiff after the first stitch had fallen out. He was dismissed from the case by consent at the latter stages of the High Court trial and nevertheless the Notice of Appeal was directed to both Defendants. The joinder of the second Defendant as a personal defendant was at all times wholly unwarranted and his apparent inclusion as a Respondent to the appeal was

32. In all cases of alleged negligence on the part of a qualified professional person in carrying out his professional duties there should be some credible evidence to support the plaintiffs case before such an action is commenced.

33. As I have said I would dismiss this appeal.