Supreme Court of Ireland Decisions

McCann v. O'Reilly [2002] IESC 76 (18 December 2002)

THE SUPREME COURT

Denham J.

Murray J. No. 299/00

McGuinness J.

BETWEEN/

ORLA McCANN

Plaintiff/Appellant

and

THOMAS O'REILLY

Defendant/Respondent

Judgment delivered on the 18^th day of December, 2002 by Denham J. [Nem Diss.]

1. This is an appeal by Orla McCann, the plaintiff/appellant, hereinafter referred to as the plaintiff, against the order of the High Court (Lavan J.) made on the 25^th October, 2000 in which he dismissed the plaintiff's case. In this case the plaintiff alleges medical negligence on the part of Thomas O'Reilly, the defendant/respondent, hereinafter referred to as the defendant.

2. The case was at hearing for two days before the High Court. On the second day, the 25^th October, 2000, the learned High Court judge indicated that he did not require any further evidence and that he did not require to hear submissions from either party.

3. The plaintiff has appealed against the order of the High Court. The grounds of appeal, set out in the notice of appeal, were that the trial was unsatisfactory in that:

a) The learned trial judge failed to give the plaintiff a fair and proper hearing;

b) The learned trial judge made up his mind prematurely;

c) In particular, the learned trial judge made up his mind before the completion of the evidence;

d) The learned trial judge failed to attach any or any sufficient weight to the evidence of the plaintiff and her expert witness;

e) The learned trial judge placed too much reliance upon the evidence of the defendant;

f) The learned trial judge repeatedly interrupted senior counsel's cross-examination of the defendant and sought to limit same;

g) The learned trial judge decided the case before the defendant's evidence was completed;

h) The learned trial judge decided the case in the defendant's favour notwithstanding the fact that the plaintiff's evidence that the doctor who performed the procedure in question had failed to give her any or any adequate warning, was uncontradicted by the said doctor in the circumstances that the plaintiff's expert evidence, and indeed the defendant himself, gave evidence that such failure on the part of the said doctor was unacceptable and constituted negligence;

i) The learned trial judge failed adequately or at all to hear and assess the evidence which was proffered and the further evidence which ought to have been proffered, before deciding the case;

j) The trial judge failed to deliver a reasoned judgment.

4. Facts

The plaintiff is a lady in her twenties who was born with a pigmented mole growing on the skin of the lateral side of the lower third of her right thigh. In 1993 the plaintiff was referred by her general practitioner to the defendant who is a consultant plastic surgeon at the Blackrock Clinic. On the advice of the defendant the plaintiff agreed to have the mole excised and this was done on the 6^th September, 1993 under local anaesthetic. The plaintiff alleges that the defendant was negligent in his care of her in the excision of the mole.

5. The issue before the High Court was liability. Quantum was not an issue.

6. Submissions of the Plaintiff

Mr. de Blacam, S.C., counsel for the plaintiff, submitted that there were three legs to his case:

1) The plaintiff stated that she was told by the defendant that she would be left with a one inch scar in a thin white line.

2) The plaintiff should have been told on the date of the operation of the nature and purpose of the operation and that she should have given her consent again.

3) The manner in which the operation was performed was not in accordance with the proper techniques.

7. Submissions on behalf of the Defendant

Mr. Hanratty, S.C., counsel for the defendant, submitted that, in essence, there were two questions to be answered in the case. First, whether the Supreme Court should intervene in view of the evidence given in the High Court? Secondly, whether the Supreme Court should intervene because of the manner in which the trial was conducted? He submitted that the answer to both questions was in the negative.

The court was referred extensively by both counsel to the evidence given in this case over the two days at which it was at hearing before the High Court.

8. Decision

The plaintiff was born on the 31^st December, 1974. She had a pigmented mole on her upper right thigh. The mole had become itchy and discoloured. The plaintiff had seen a television programme regarding the nature of moles. When she was at her general practitioner she mentioned the mole, and he referred her to the defendant.

First, I shall consider the information given as to the nature of the scar which the plaintiff would incur. The plaintiff met the defendant on the 25^th November, 1993. The defendant wrote a letter to the plaintiff's general practitioner on the 25th November, 1993 in which he said:

"Many thanks for referring this lady to me. She presents with a small congenital compound naevus on the lateral aspect of her right thigh. The risk of malignancy in these lesions is very low but I feel that as a precaution it requires an excisional biopsy. I discussed the nature of scars and scarring with her and she is happy to proceed. I will be in touch with you in due course."

The plaintiff gave evidence that on the 25^th November, 1993 when she saw the defendant:

"Then I asked about the scar and he said it would take the form of a thin white line about an inch long. He said he would do it under local anaesthetic.

33. Q: Did he say anything else about the scarring that would result?

A. No.

34. Q: Can I just ask you specifically in relation to what is raised in the defence - this is the document coming to us from Mr. O'Reilly, where I understand that it will be in his evidence that he discussed with you the possibility of a sub-optimal scar greater in diameter to the lesion owing to its nature and location and the fact that the skin would stretch. Did he say that to you?

A. No.

35. Q: Did he say to you, as is outlined in his solicitor's letter, did he discuss with you the small risk of malignant transformation?

A. Yes, but he said this was very slight.

36. Q: He offered you a scar revisional procedure; is that right?

A. Yes.

37. Q: His solicitors say to your solicitors that Mr. O'Reilly explained to you that a scar would result and that in this procedure and having regard to the nature of the lesion, the scar would be approximately twice the diameter of the lesion to be removed?

A. No.

38. Q: He did not say that?

A. No.

39. Q: If he had said anything like that to you would you have gone ahead with the removal of the mole?

A. No.

40. Q: You did go ahead with the removal of the mole; is that not right?

A. I did yes.

41. Q: I think it was removed on the 6^th December, 1993; is that right?

A. Yes, that is right."

On the 13^th December, two sutures were removed and the plaintiff was seen by the defendant. Five days later, on the 18^th December, the plaintiff saw her general practitioner and she was told to go to St. Vincent's Hospital. On the 20^th December the plaintiff went to St. Vincent's and the wound was found to be infected. On the 22^nd December the plaintiff went to hospital. On the 23^rd December, the plaintiff saw a doctor and the doctor noted the separation of the wound.

On the 23^rd December, 1993 the defendant wrote to the plaintiff's general practitioner:

"This lady was admitted under my care and had excision of a large congenital intradermal naevus on the lateral aspect of her right thigh. Unfortunately the primary repair was quite tight and the wound has dehisced over the distal half. However, it is clean and should heal by wound contraction over the coming weeks.

I will keep her under review."

On the 27^th January, 1994 the defendant wrote to the plaintiff's general practitioner:

"This ladys scar has healed. It has stretched slightly and may require revision in the future. I will review her again in six months time."

There was a conflict of evidence as to the warning and information given to the plaintiff about the type of scar she might have. While the plaintiff gave evidence that she was told that she would have a scar with a thin white line and that she got a result that she was not warned of, the evidence of the defendant was entirely different.

Mr. O'Reilly gave evidence as follows:

"107 Q: If she says that you said that it would be, approximately, one inch long she may be correct in that?

A. Yes, possibly, maybe a little bit longer than one inch yes. I cannot recall if I used inches or centimetres but I would always say, at least, two to two and a half times the diameter of the lesion to give an approximate length.

108. Q: She says you said, approximately, an inch long and she may well be right.

A. Yes.

109. Q: Could I put it to you that she is more likely to be right because she is the one patient against you with many patients?

A. Not necessarily so. I would have made it in my mind perfectly clear what the length of the scar would be like and, again, what this would be like down the line.

. . .

137. Q: Might it be, Mr. O'Reilly, that Ms. McCann came out with the impression and that you gave her the impression that she would be left with a scar that would not be significant?

A. She would have come out with the impression that she would have a significant scar following this procedure.

Mr. Justice Lavan: Would you like to put to this witness the height of your case Mr. Murphy?

Mr. Murphy: I'm doing that.

Mr. Justice Lavan: No, you are not. You are most unfair to the witness. The height of your case is Mr. Goldin's evidence that the scar is not far off what he, Mr. Goldin, would have expected.

Mr. Murphy: My Lord I am cross examining this witness and I will not be interrupted.

Mr. Justice Lavan: I have given seven opportunities and you have gone back on the same - that is the case that your expert has given me in sworn evidence. You may put that to the witness but you have not so far put it to him.

. . .

138. Q: Mr. O'Reilly, in relation to Mr. Goldin 's evidence,

Mr. Goldin's opinion is that you should have informed her that she would have a scar that would be likely to be larger than the lesion that was being removed?

A. I would, certainly, have informed her that she would have a wide scar in the area. As I said, it is impossible to predict. She, certainly, has a wide scar and of that there is no doubt. I would like to think that if the wound didn't burst open that the scar would be of a narrower dimension than it is now but I do not think there is any way that one could predict the final dimensions of the scar.

139. Q: Do you agree with Mr. Goldin that you ought to have told her that it was larger. That the resulting scar was likely to be larger than the lesion being removed?

A. I would, certainly, infer that she would end up with a wide scar. Now, I cannot recall whether I would have inferred that in relation to the size of the lesion that was to be removed."

Mr. Henry Goldin, consultant plastic surgeon gave evidence. He gave evidence on behalf of the plaintiff's case. He stated, inter alia:

"289. Q: If I understood your evidence I think you are seeking to suggest to the court that there could be another explanation, namely, that the tension on the stitching was too tight?

A. Yes.

290. Q: I have to suggest to you that that is not a probable explanation because if the tension in the wound was too tight that is something which would have been observed either by Dr. Murphy when he came to stitch it or even if he had missed it it would have been observed by Mr. O'Reilly on the 13^th December when he saw Ms. McCann one week later?

A. I would have expected the wound to be tight from the dimensions of the excision and from the fact that we have all accepted the wound gets a little larger when you make the incision so the wound was going to be tight right from the beginning. I think it is more likely than not that the stitches disrupted for some reason and the wound, therefore, broke down and that while infection is a possible explanation in my opinion it is more likely that the wound just broke down. The stitches did not hold, it was very tight and it broke down.

291. Q: What other reason, Mr. Goldin, are you suggesting to the court would cause the stitches to break down?

A. It's just the tension, that's all.

292. Q: There are stitches at two levels here, is that correct?

A. Yes.

293. Q: There are sutures deep down?

A. Yes.

294. Q: Subcutaneously, is the operating note?

A. Yes.

. . .

297. Q: Which are you suggesting would have broken down firstly?

A. You see the problem is that when some of the stitches were removed the wound was not completely healed. Two stitches were removed correctly leaving other stitches behind because the wound was not yet sufficiently well healed for all the other stitches to be taken out. That is good standard practice. When the next dressing was done the wound was found to be open. Why was the wound open. My belief is the tension that is the main problem here. That the stitches did not hold. The skin was too tight. The movement of the patient. The size of the wound. The stitches did not hold. I am not suggesting that the surgeon did not tie his knots properly or did not put them in properly but they were going through fat which is friable tissue and the stitches did not hold under a tight wound and that is why it opened.

298. Q: You are not suggesting that the reason it opened was due to any wrong way in which the stitches were put in by the surgeon, is that correct?

A. I am not suggesting the stitches were put in wrongly. I am suggesting the thing was very tight and that the stitches did not hold.

299. Q: Are you simply suggesting to the court that it may have been simply some movement of Ms. McCann which caused the wound to open?

A. It is not as simple as one thing, it is a combination of things. You have the tightness of the wound, you have the size of the wound. Whether steps were taken to release the tension or not. How long the stitches remained in for. Were there infection or haematoma. Whether the haematoma was there interfering with the wound healing without infection and then you get infection.

300. Q: I have to respectfully suggest to you that you are being a little disingenuous now. Can I firstly say to you my instructions are that Dr. Murphy's practice at the time was that he would have carried out undermining of the skin edges if he had considered that it was necessary given the size of the wound that it was not his practice and Mr. O'Reilly and Mr. Lawlor I am instructed will give similar evidence that it was none of their practices to record undermining in operation notes?

A. Where do you draw the line as to what you record in the notes and what you don't record in the notes. You put down all the material facts I believe.

. . .

302. Q: Now if I give you that information that Dr. Murphy will be telling the court that it was his practice where he considered it necessary to undermine the skin for the very reason you say to be able to draw the skin back together and give him a little bit . . .

A. I am quite ready to accept that if he said that he did that.

. . .

305. Q: . . . What I have to suggest to you is that in the absence of any abnormality or anything wrong being observed on the 13^th that it must follow that the most probable cause of the break down by the following Friday or Saturday is that the infection has eaten into the sutures and caused the breakdown of the wound?

A. You suggest that it is an abscess. I feel that on the balance of probabilities, on balance, I cannot say for certain, but on balance that the wound was very tight and that's the reason that it broke down.

306. Q: What evidence have you found of that Mr. Goldin?

A. Because the wound broke down.

307. Q: Have you any evidence at all that the wound tightened?

A. There is a letter, for example, in the notes suggesting that the wound was rather tight.

308. Q: That is the letter written on the 23^rd December?

A. Yes, and as I said I would have expected the wound to be tight from that size of excision on a young woman's thigh.

309. Q: If I understand you then you are telling the court that you think the wound was probably tight because of the position of the wound on Ms. McCann, is that correct, because it was on the thigh?

A. Yes.

310. Q: Was I correct in understanding you to say that you are not suggesting that there was anything incorrect in the way the stitching was done?

A. Correct.

311. Q: Are you therefore telling the court that you can have this breakdown of a wound without any fault on the part of the surgeon?

A. Yes.

312. Q: That is what you believe to have occurred on this occasion?

A. Yes.

In light of the evidence before the High Court the question arises as to whether this appellate court should interfere with the decision of that Court. The jurisdiction of this court has been referred to many times. See Hay v. O'Grady [1992] 1 I.R. 210.

From an analysis of the transcript it is clear that there was a conflict of evidence. The learned trial judge heard the evidence. He heard and saw the plaintiff while giving her evidence, and her medical witness. He heard the evidence of the defendant. All of the points raised by the plaintiff were put to the defendant. There was a conflict of evidence. The learned trial judge was entitled to make a determination on this conflict of fact. There was evidence upon which the learned trial judge could reach his conclusion. The trial judge relied on the evidence of the defendant, which he was entitled to do. This evidence was supported by that of Dr. Goldin upon which the trial judge was also entitled to rely. The plaintiff has been left with a scar which the medical evidence indicated is pretty much the type of scar one would expect. In light of the evidence it is clear that the High Court judge was entitled to determine the case, as he did, against the plaintiff.

As to the issue of consent, it was not contested that the plaintiff had consented to the procedure. It was submitted that she should have given her consent again to Dr. Murphy immediately before the procedure itself.

The consent form was signed and was in evidence before the trial court. There was sufficient evidence for the finding of the trial judge to be sustainable. There was a conflict between the plaintiff and the defendant. But there is no doubt that evidence existed that the plaintiff was informed. There was the evidence of the defendant and the letter of the defendant to the G.P. referring to the matter, which letter is set out previously in this judgment.

Allied to the question of consent was a contention made on behalf of the plaintiff that she had not been adequately informed as to the nature and extent of the scar with which she would be left. The plaintiff's evidence was that she was told by Mr. O'Reilly that she would be left with a scar in the form of a thin white line about an inch long. She stated that if she had been informed that the procedure would result in a scar approximately twice the diameter of the lesion to be removed she would not have undergone it. In conflict with this evidence the defendant, Mr. O'Reilly, rejected the suggestion that he had told the plaintiff that she would end up with a one inch scar which would be a thin white line. In evidence he explained why he did so as follows:

"Two reasons, number one the length of the scar I cannot remember what I have said in the actual dimensions but I made it clear that the scar would be, approximately, two to perhaps two and a half times the length, the diameter of the lesion. That is point number one. Number two, in this part of the thigh in a young girl, in anyone, the skin is quite tight there so that the scar would have a tendency to stretch and I would have made that clear as well. This will almost certainly not be a white line scar. This scar would have a tendency to stretch. In other words become widened with time. I cannot remember if I put dimensions on the width of the scar but I would have made it clear it would not be a nice fine line scar."

In referring to the scar the plaintiff's expert, Dr. Goldin, acknowledged that while the scar was not an ideal one, it was not far off what he would have expected after an incision of this nature at this site. (The relevant extract is cited below)

The learned trial judge heard all the evidence tendered on behalf of the plaintiff and the defendant on this point and he was entitled to resolve the matter by relying on the defendant's evidence in preference to the plaintiff's.

On the issue of whether the surgery was carried out negligently there was evidence in support of the defendant. There was the defendant's evidence and the evidence of Mr. Goldin, who was the expert called on behalf of the plaintiff. For example, on the transcript of the evidence heard on the 24^th October, 2000 Mr. Goldin was asked and answered as follows:

"248. Q: In relation to the procedure itself by Dr. Murphy?

A. The notes indicate a fairly standard type of surgical procedure. The notes are not very detailed about exactly what he did and whether or not he took steps to try and reduce tension or not. I have to say also that if he did take all necessary steps to reduce tension the outcome may well have been the same."

It was on the basis of this and other evidence that the defendant submitted that the plaintiff had not established negligence. Apart from the above evidence was given by Dr. Goldin that:

"243. A. It is not an ideal scar but it is not far off what I would have expected after having an excision of this nature at this site. It is perhaps a little wider than one might otherwise normally expect but it is nor far off.

. . .

297. A. . . . Why was the wound open. My belief is it is the tension that is the main problem here. That the stitches did not hold. The skin was too tight. The movement of the patient. The size of the wound. The stitches did not hold. I am not suggesting that the surgeon did not tie his knots properly or did not put them in properly but that they were going through fat which is a friable tissue and the stitches did not hold under a tight wound and that is why it opened.

298. A. I am not suggested that the stitches were put in wrongly. I am suggesting the thing was very tight and the stitches did not hold.

. . .

308. A. . . . I would have expected the wound to be tight from that size of excision on a young woman's thigh.

309. Q. If I understand you then you are telling the court that you think the wound was, probably, tight because of the position of the wound on Ms. McCann, is that correct, because it was on the thigh?

A. Yes.

310. Q. Was I correct in understanding you to say that you are not suggesting that there is anything incorrect in the way the stitching was done?

A. Correct.

311. Q. Are you, therefore, telling the court that you can have this breakdown of a wound without any fault on the part of the surgeon?

A. Yes.

312. Q. That is what you believe to have occurred on this occasion.?

A. Yes."

In light of the evidence before the court there is no ground to argue that a finding of the trial judge in favour of the defendant was without basis. In the circumstances I could not interfere with this aspect of the determination of the High Court.

An issue also arose in the High Court as to whether or not the defendant had warned the plaintiff of the danger of infection and that it would make the scar worse. I am satisfied that it is quite clear that this did not form part of the plaintiff's case. It was not specifically pleaded; it was an issue that arose during the case. No evidence was given as to this by the plaintiff. The plaintiff's expert was not asked as to this issue and gave no evidence as to the matter of a warning of infection. At the close of the plaintiff's case there was no case made of medical negligence on the lack of warning of infection. However, in spite of all of that, when this matter arose the defendant gave an answer. While the trial judge held it would be inadmissible, the defendant said an infection would be a most exceptional situation. In any case, as has already been pointed out, the plaintiff's expert, Dr. Goldin, expressed the view that the resultant scar was more or less what one would have expected from such a procedure on that part of the thigh. Moreover, there is no evidence that the defendant fell below the standard of care in relation to a warning of infection. This was not simple elective surgery. It arose in a situation where the plaintiff had a mole which had become itchy and discoloured. The plaintiff had seen a programme on television on moles and had mentioned the matter to her general practitioner. She was then referred to the plastic surgeon.

I am satisfied that the submission that there was an unfair trial is not sustainable. All the essentials of a fair trial were met. The plaintiff had the opportunity to present her case and to cross examine the defendant. The absence of an opportunity to make submissions, in the circumstances, does not render the trial unfair. Sometimes events occur in trials that are less than ideal. Sometimes in the cut and thrust of a case unfortunate interventions may be made by a judge. However, in this case the interventions were not such as to render the trial unfair.

The two books of transcripts were opened extensively on this appeal. I have read and considered the evidence. There is no doubt that on occasions in cases there are interventions by judges which are made in the heat of the moment. Perhaps they are not all as measured as they should be, in a perfect world. However, in this case the plaintiff gave extensive evidence and presented her views. Her evidence was called. She had the opportunity of presenting her case and of cross-examining the defendant's evidence. There was a considerable body of evidence and there was some conflict of evidence. The trial judge had the duty of determining the facts, of making a decision on the conflicting evidence. Looking at the case as a whole I would not intervene in the decision of the High Court or hold that there was an unfair trial.

I am satisfied that there are no grounds as submitted or for the purpose of doing justice upon which to interfere with the ruling of the High Court on this matter.

9. Conclusion

For the reasons stated I would dismiss the appeal and affirm the order of the High Court.