Judgment delivered by O’Donnell, J. on the 18th day of November 2010.
In 1996, the Plaintiff then aged 38, underwent a Wertheim-Meigs hysterectomy conducted by the first named Defendant. This operation is a radical and invasive procedure which involved the removal of her uterus, one of her ovaries, a portion of her vagina and her pelvic lymph glands. This procedure is the appropriate treatment in cases where it is considered the patient is suffering from cervical cancer. After the operation, a biopsy was carried out which showed that the Plaintiff did not have cancer. The first named Defendant told the Plaintiff this and added that had he known this prior to the operation he would not have carried out the hysterectomy. Whether on the information available to him, the first named Defendant was entitled to come to the view that a Wertheim-Meigs hysterectomy was necessary, was a central issue in the High Court. Initially, the Plaintiff, who had a good relationship with the first named Defendant, had expressed her gratitude that the operation had been carried out. When she investigated the matter further however the Plaintiff came to the view that the operation should never have been carried out and that a number of parties were at fault.
The Plaintiff commenced proceedings against the first named Defendant (her surgeon), the second named Defendant (the radiographer responsible for a CT scan performed shortly before the surgery), the third named Defendant (her GP who had received reports of smear tests in 1991 and 1993), and the fourth Defendant (the health board which maintained the laboratory which had been responsible for those tests and two earlier smear tests carried out on the Plaintiff in 1986 and 1987). These smear tests were central to the case made by the Plaintiff against the Third and Fourth named Defendants. For the purposes of this appeal it was accepted that while none of the smear tests up to 1994 had shown the presence of cancer, all were abnormal. It was also accepted there was evidence that in the light of such results, proper practice would have been to inform the patient and then follow up on the report by performing a colposcopy, which is a specialised examination of the uterus. The Plaintiff was not informed of the results of any of the tests between 1986 and 1994. Accordingly, no treatment was afforded to her until the 1996 operation.
The trial was at hearing for 14 days. The first and second named Defendant were represented by the same counsel. The third and fourth named Defendants were separately represented. There was no notice of indemnity or contribution between any of the Defendants. At the close of the Plaintiff’s case on Day 7, counsel for the first and second named defendants indicated his intention to make an application for the dismissal of the claim against the second named Defendant accepting that there was a case to answer in respect of the first name Defendant. Counsel for the third and fourth named Defendants indicated that they intended to make the same application. In each case, as was required by the procedure identified in the leading cases of Hetherington v Ultra Tyres Services [1993] 2 IR 535, and O’Toole v Heavey [1993] 2 IR 544, each Defendant informed the Court that if the application was unsuccessful they intended to go into evidence. It is accepted that the issue for the Court in those circumstances was whether the Plaintiff had made out a prima facie case against each of the Defendants making the application. Furthermore, since this was multi party case, the procedure required the Defendants to indicate the line they proposed to take in evidence so as to avoid what Finlay, CJ described in O’Toole v Heavey as the manifest injustice of one defendant being dismissed from the action and the remaining defendant then seeking to avoid liability by making the case in evidence that the party against whom the claim had been dismissed was in truth, responsible for the accident.
At this point the case took an unusual turn. Counsel on behalf of the first and second named Defendants indicated that he would be opposing the application on behalf of the other Defendants on the basis that he contended that under s.32 of the Civil Liability Act 1961 he was entitled to present evidence against the other Defendants to show that they, and not the first or second Defendants, were negligent. He stated that:
“My experts will corroborate the evidence already given on behalf of the plaintiff by her experts that the ten year or nine year abnormal cytology without any follow up created an abnormal situation which put great pressure on Dr Mylotte which was listed by Dr Murphy as one of the factors which would have influenced Dr Mylotte.”
The interrelationship between the cases made against the Defendants was already quite complex and this intervention made matters more difficult. In the end the trial judge, although clearly attracted by the application, declined to dismiss the Plaintiff’s claim against any of the Defendants partly on the basis of the intervention made on behalf of the first and second named Defendants, and also on the basis that the Plaintiff’s counsel had urged that it was at least possible that the testimony of the first named Defendant might well assist the Plaintiff as against all the remaining Defendants. Accordingly, the trial judge refused the application.
The first named Defendant then gave evidence. After he had given his evidence, but before the experts had been called (who it should be recalled, counsel for the first named Defendant had said would support the Plaintiff’s case), counsel on behalf of the second and third named Defendants renewed their applications for a dismissal of the action against their clients. Counsel for the first named Defendant now indicated that he was no longer making any case against the third and fourth named Defendants. It was argued that the factors which had prevented the Court from granting a dismissal (the possibility the first named Defendant’s evidence might assist against the second named Defendant and the indication that the first named Defendant wished to support the Plaintiff’s case against the third and fourth named Defendants) were no longer present. After some further argument, the trial Judge acceded to the application and dismissed the Plaintiff’s case against the second, third and fourth named Defendants.
The case then proceeded against the first named Defendant alone. The trial judge delivered a judgment on the 2nd March 2006 dismissing the Plaintiff’s claim against the first named Defendant. In a careful judgment, the trial judge applied the well known principles set out in Dunne (an infant) v. The National Maternity Hospital and Another [1989] IR 91, and concluded that while there was evidence on behalf of the Plaintiff on which the Court could conclude that the first named Defendant ought to have approached the matter in a more conservative fashion, it had not been demonstrated that “no obstetrician of like skill, acting with ordinary care, would have performed the operation carried out by the first named defendant”. There were, in the trial judge’s view, two bona fide schools of thought on the issue as to whether the first named Defendant acted appropriately in the circumstances presented to him. In the result, the case was dismissed and the Plaintiff ordered to pay the costs of all Defendants of what was a lengthy trial.
On this appeal, the Plaintiff does not contest the dismissal of the claim against the second named Defendant and furthermore, accepts that the trial judge’s findings in respect of the first named Defendant were within the province of the trial court and could not realistically be disturbed on appeal. The Plaintiff’s appeal is confined therefore to an appeal against the trial judge’s decision dismissing the Plaintiff’s claim against the third and fourth named Defendants which had occurred at, or shortly after, the close of the Plaintiff’s case. This appeal is therefore confined to what might appear to be a dry and rather technical issue as to whether or not there was a prima facie case; i.e. whether there was evidence from which the trier of fact, could, but not necessarily would, find that either Defendant was liable.
There was a high degree of agreement as to what the evidence in this case showed. It was accepted that for the purposes of this application there was indeed evidence from which it could be found that both the third and fourth named Defendant had been negligent in failing to act on the abnormal smear tests. The issue here was narrower still. The question was whether there was evidence from which the Court could conclude that such negligence had caused any loss and damage to the Plaintiff.
The running of a trial, particularly one as hard fought and relatively complex as this, is a difficult task and there may be many issues, controversies and sources of confusion which loom large during the course of the trial but which may have evaporated by the time the appeal is heard. Multi party trials can give rise to particular complexities. There may be more than one theory of liability advanced even in respect of an individual defendant. There may be different theories of liability as between defendants, some of which may be contingent on the view a court may take of certain evidential matters which are in contest in the proceedings themselves. The process is an organic one and notwithstanding the degree of structure provided by pleadings, the development of a case is fluid and unpredictable. The position of the parties as between themselves is rarely absolutely precisely defined and fixed. Multiple defendants may be united in attacking the plaintiff’s case but thereafter their interests are rarely perfectly aligned. Sometimes it may be very clear that they have an active dispute between themselves, which is itself the subject of pleadings in notices of indemnity and contribution. On other occasions the difference may be more subtle and contingent. One fairly standard possibility is that there may be a claim that a defendant will, if adjudged liable, contend for a contribution or indemnity from the other defendants. Another possibility is the case which was asserted at one stage on behalf of the first named Defendant, namely that while denying liability, one defendant would wish to make the positive case that another defendant was responsible for the injuries to the plaintiff. The position a party takes on these issues is often a difficult strategic decision and the position may develop and change depending on the parties’ assessment of the way the case is running. For one defendant to seek to assist the plaintiff’s case against the other defendants can be a high risk strategy. It certainly risks retaliation so that the remaining defendants’ fire may be directed at that defendant. Unless carried out with perfect precision and some good fortune, the end result may be to ensure that all defendants are found liable. Defendants thus have difficult tactical decisions to make and the option of an application for a non suit before the potential differences between the defendants becomes patent, may be highly attractive.
The obverse of this calculation is also true. From the plaintiff’s point of view, the most difficult task may be to keep all the aspects of the plaintiff’s case alive while under concerted attack from all defendants. If a difference in the position of the defendants can be detected, then, that can be very productive from the plaintiff’s point of view. Even if the defendants are not actively making a case against each other, it is often the case that what might appear to be a weak case on the part of a plaintiff may be significantly strengthened by exploiting the evidence called on behalf of the defendants. The application for a non suit can therefore be a critical point in the development of any case.
While it is undoubtedly easier to address these matters in hindsight, it does appear to me that the complexity of this case illustrates the wisdom of the approach taken by McCarthy, J in Hetherington v Ultra Tyres Services, where he seemed to consider that the appropriate course for the Court to take when it had been indicated (particularly in a multi party case) that the defendants intended to go into evidence, was simply to adjourn the application until all the evidence was heard. Furthermore, there is much sense in the course which is often adopted on an application for a non suit: if the Court is disposed to grant the application, it gives its reasons for so doing, but if it is concluded that the application should be rejected, the Court gives its decision but does not give reasons at that stage because it is considered that it may distort the trial (and the prospect of compromise) if the Court gives its views on the state of the case at any given stage. Here, the trial judge did not take that course and instead outlined his views of the case and the relative strength of the application. That course may have led to the attempts to address those issues which had defeated the application (the attitude of the first Defendant and the possibility that the first Defendant’s evidence might give assistance to the Plaintiff’s case) and then to the renewal of the application on Day 9. This step was unusual, particularly since the case on behalf of the first named Defendant had commenced but not concluded, and since it had been indicated that the first named Defendant’s expert evidence would support the Plaintiff’s case at least in part. There must have been at least the possibility that those experts could have been persuaded to advance the Plaintiff’s case even further. The Plaintiff relied on many of these matters in this Appeal. However, I am reluctant to decide this case on any of the procedural matters or to lay down hard and fast rules as to the approach which should be taken by the High Court in any given case. I would reserve for another day therefore, whether a non suit application can be made at any time other than the close of the Plaintiff’s case or whether once made, it can be renewed at any further stage.
In view of the fact that there is no appeal against the dismissal of the claim against the first named Defendant (or indeed the second named Defendant) and since this appeal is limited to the question of the existence of a prima facie case against the third and fourth named Defendant, it is I believe undesirable to say too much about the merits of the case. Since I take the view that there was indeed an error in the dismissal of the claim against the third and fourth named Defendant, there may have to be a retrial where the issues between the third and fourth named Defendants may be fought out to conclusion. In order however to understand the points which arose in this appeal, it is unavoidably necessary to set out at least in broad detail, some of the background to the case which should be read subject to the qualification that as between the third and fourth named Defendants, this matter is still at the halfway stage and furthermore, that the case against the first named Defendant has concluded and accordingly he was not represented in this appeal.
It does not appear to be in controversy that the Plaintiff suffered from gynaecological difficulties and had attended her doctor on a number of occasions. She had also gone for a series of smear tests. On the first two occasions in 1986 and 1987, the record of the tests carried out by the laboratory maintained by the fourth named Defendant did not disclose the name of the general practitioner. Each of the test results showed a certain abnormality and were all marked “PRIORITY”. The 1986 result showed CIN II which is moderate dyskaryosis, being an alteration within the normal arrangement of the cell nucleus. The 1987 result showed CIN III, being severe dyskaryosis. Both reports recommended a colposcopy and biopsy. The changes noted did not themselves indicate the presence of cancer and it was not in contest that conservative treatment would have been appropriate. It was also not in controversy in this appeal that there was evidence that in the absence of a GP or other referrer to whom results could be sent, that the duty on the fourth named Defendant on receipt of an abnormal report such as those received in 1986 or 1987, was to seek to communicate the report and its contents and recommendations to the individual concerned and to follow up upon it. Again, it is not in contest that, at a minimum, there was evidence that this was not done.
In 1991 and 1993, the reports were addressed to the third named Defendant GP. In 1991 the report was again marked “PRIORTY” and read: “CIN II suggested colposcopy, severe cervicitis/ erosion with moderate dyskaryosis, junctional probably V”. The 1993 report stated blood was present and accordingly, the test was unsatisfactory and requested a repeat test. It is accepted that there was no evidence that the report was repeated. Again putting it at a minimum, there was evidence that the third named Defendant had not taken action on these reports or communicated them to the Plaintiff as he ought to have done. Accordingly the Plaintiff never received treatment on foot of the smear test results between 1987 and 1994.
In November 1995, the Plaintiff attended the third named Defendant again. A smear test was taken and this time she was referred to the first named Defendant. In this case, the result of the smear test was different from the earlier tests. It showed abnormal cells suspicious of Adeno-carcinoma. The first named Defendant also took a history from the Plaintiff in which she complained of post coital bleeding which, it was accepted in evidence, was the classic symptom for cervical cancer. Furthermore, the first named Defendant had taken the precaution of checking with the fourth named Defendant (which it appears maintained the only laboratory in the region for analysis of smear tests) as to whether there were other smear test results for the Plaintiff (the third named Defendant having informed him of the contents of the 1991 and 1993 tests). As a result, the first named Defendant became aware of the 1986 and 1987 results and of what his counsel was able to characterise as the nine to ten years of abnormal results. In the circumstances it appeared that the first named Defendant considered that the Plaintiff’s position would require a hysterectomy in any case and that the suspicion of Adeno-carcinoma led him to consider that the Wertheim-Meigs hysterectomy was the appropriate course. After the operation however, a biopsy showed that the Plaintiff was not in fact suffering from any cancer. This is something of which the first named Defendant frankly informed the Plaintiff and when she inquired further, he explained his reasoning and said: “If I knew then what I know now I wouldn’t have treated you so extensively”. Spurred by this, the Plaintiff made further inquiries and then became aware of the results of the abnormal smear tests between 1986 and 1993 and the lack of activity by the third and fourth named Defendants. These proceedings ensued.
The Plaintiff’s essential complaint was that she was subjected to a radical procedure which was not necessary. The first named Defendant was the person who carried out this procedure and therefore, the prime focus of the case. Indeed, it seems that the case against the first named Defendant tended to overshadow the case made against the third and fourth named Defendants.
The case made against the first named Defendant was that in late 1995 and 1996, notwithstanding the difficult situation with which the first named Defendant was confronted, there were in truth three options available. These were identified in the report of Dr Murphy, an expert called on behalf of the Plaintiff. In the evidence these were referred to as Options A, B and C. Option A (and to a lesser extent Option B) were considered to be conservative options, whereas Option C was clearly a radical procedure. They were described as follows:
A LLETZ is a Large Loop Excision of the Transformation Zone of the cervix.
There was some difference of opinion between Dr Murphy and Professor Bonnar, also called on behalf of the Plaintiff, as to which step was appropriate. Dr Murphy initially taking the view that Option B was appropriate, whereas Professor Bonnar considered that Option A was appropriate. It should be emphasised that this evidence was directed to the position which presented itself to the first named Defendant in 1995 and 1996. For present purposes it also appears to have been accepted that Option A was the appropriate step at any earlier stage i.e. between 1986 and 1993. Further, and strikingly, evidence was given and not contested that this conservative procedure would in all probability have addressed the Plaintiff’s difficulties at those times.
Notwithstanding the fact that the Wertheim-Meigs procedure was one appropriate to a diagnosis of cancer, and that cancer was not found, the case against the first named Defendant was obviously difficult, and both Professor Bonnar and Dr Murphy expressed some sympathy for the position in which the first named Defendant found himself. It was also apparent that although the case against all Defendants involved an allegation of liability for an unnecessary Wertheim-Meigs hysterectomy carried out in 1996, the case against the first named Defendant was quite different from that which was made against the third and fourth named Defendants. In the case of the first Defendant there was no doubt that he was responsible for and therefore had caused the radical and, in the event, unnecessary hysterectomy: the only question was whether he was negligent in so doing. On the other hand, there was little doubt (at least on the prima facie basis on which it was being addressed at this point) that the third and fourth named Defendants had been negligent: the question in their case was whether that negligence had caused the hysterectomy.
There were further complications. In the simplest form of multi defendant cases, the issue may be whether one or more of the defendants is liable and if more than one is, then in what proportion. A further scenario may be where liability is truly exclusive i.e. where a finding against one defendant may by definition exculpate the other. This case involved elements of both scenarios and the further significant complication that the case against each defendant was to some extent contingent of the view the court took of the outcome of the case against the other defendants.
For me, the most striking features of this case are the acknowledgement that the third and fourth Defendants were negligent in failing to act on the abnormal smear tests between 1986 and 1993, coupled with the fact that there was very clear and strong evidence that had the appropriate course been taken in response to any of the tests during that period, then in all probability, the conservative treatment which would have been afforded to the Plaintiff would have resolved her condition without the need for a hysterectomy, still less the radical Wertheim-Meigs hysterectomy which was in fact carried out. In the light of these matters alone, it seems to me that sufficient had been established to require that the third and fourth named Defendants should go into evidence.
The case against the third and fourth named Defendants undoubtedly becomes more clear when the outcome of the case against the first named Defendant is known and when it is possible then to focus solely on the case against the third and fourth named Defendants with that issue a fixed rather than variable element in the equation. In this regard, the case against the Third and Fourth named Defendants was undoubtedly distorted by the focus on the case of the first named Defendant. The more the Plaintiff pressed the case that the first named Defendant had been excessive in carrying out the Wertheim-Meigs hysterectomy, the more difficult it became to maintain the separate hypothesis that the Plaintiff’s treatment was caused by the negligence of the third and fourth named Defendants since it allowed those Defendants to maintain that the Plaintiff’s difficulties were caused by the hysterectomy in 1996 and not by anything which had occurred earlier.
There can be little doubt that if the first named Defendant was negligent in carrying out the Wertheim-Meigs hysterectomy, then that itself would have been the primary cause of the Plaintiff’s condition and the third and fourth named Defendants would then have been exculpated from any responsibility for that operation and its sequelae (although not perhaps from responsibility for the failure to treat the Plaintiff between 1987 and 1993). However, the significant aspect of that formulation is its contingent nature. That was only one of the possible outcomes of this case. It had not occurred by the time the third and fourth named Defendants were dismissed from the case. In the event, it did not transpire at all.
However, it is confusing and misleading to approach the case against the third and fourth named Defendants through the allegations made against the first named Defendant. The case against those Defendants can be best understood by considering a number of different possibilities as of the time when each test result became available and was not acted upon. It is clear that on the acknowledged state of the evidence those Defendants would be liable for all the foreseeable consequences of the negligence which it was conceded (at least for the purposes of the application) had been established against the third and fourth named Defendants in failing to respond to the abnormal smear test results. What those consequences were, would depend on a number of factors which were not within the third and fourth named Defendants control. If for example, in 1996, the first named Defendant had taken the conservative option, which on the Plaintiff’s case the first named Defendant ought to have adopted, then the third and fourth named Defendants liability would be limited to the claim, if any, for additional suffering through the continued experience of the condition and symptoms for longer than was necessary. On the other hand, if the Plaintiff had contracted cervical cancer (and thankfully she did not) then there would, again at a minimum, have been a strong case that the third and fourth named Defendants were liable for the pain, suffering, trauma and loss of life expectancy etc involved in this, and also, significantly, for any necessary treatment for her condition which on the evidence in this case it appears would have included a Wertheim-Meigs hysterectomy. In a different scenario, if the first named Defendant had been negligent in carrying out the Wertheim-Meigs hysterectomy, then that would have been a novus actus interveniens which would have largely if not completely broken any causal link between the Plaintiff’s condition and the third and fourth named Defendants’ negligence. Another possibility was that if the procedure adopted was reasonable and appropriate (as it would have undoubtedly have been if there had been a positive diagnosis of cancer vindicated by biopsy, but also if the Plaintiff’s symptoms were such as to indicate to a reasonable surgeon the necessity for such a radical procedure) and the evidence was that such an invasive procedure would not have been necessary if steps had been taken on the test results up to 1994, then, at least prima facie, the third and fourth named Defendants would have been responsible in law for the damage comprising the operation treatment and its sequelae. It seems to me, that at a very minimum, if the Court determined that the Wertheim-Meigs hysterectomy was not an unreasonable response to the Plaintiff’s symptoms (even if it transpired that the Plaintiff did not have cancer), then there was a clear case that the third and fourth Defendants were liable for that procedure and its sequelae unless it could be said that it was not reasonably foreseeable that the Plaintiff’s condition would develop to such a point where such a procedure was a reasonable response to the Plaintiff’s condition or that the Plaintiff’s condition had always necessitated a Wertheim-Meigs hysterectomy (neither of which had been suggested). The complications involved in these contingencies were in themselves a good reason not to accede to an application for a non suit before all the evidence was given and all possible contingencies explored.
Although the claim against the first named Defendant seemed to dominate the case, it seems to me clear the Plaintiff pleaded and made the separate, distinct and coherent case against the third and fourth named Defendants that if the first named Defendant was not negligent then the third and fourth Defendants were liable. Indeed, I did not understand the Respondents on this Appeal to contend otherwise or to challenge the theory of causation that the Plaintiff asserted against those Defendants. Instead it was argued that on the evidence this case was not made out, or rather more subtly, that the trial judge had been entitled to consider that the case had not been made out, on the evidence. It is accordingly necessary to review the evidence relied upon by the parties.
As I have already observed, it is clear that the case against the first named Defendant caused difficulties for the case against the third and fourth named Defendants. Thus, on Day 1 at page 19, at an early stage of the Plaintiff’s opening, the trial judge identified the gravamen of the complaint in relation to the first and second named Defendants but asked “what is the relevance of your complaint in relation to the third and fourth named Defendant vis a vis the carrying out of the hysterectomy”.
That received a reply, which in retrospect seems very clear “If the plaintiff had been properly treated, first of all in relation to the 1986 and 1987 smear tests, both of which were abnormal, she could have had conservative treatment at that stage and that may well have eliminated her problem”. However the trial judge again returned to this issue at page 77 of the same transcript:
“… At this stage I am finding it very hard to see why either of the third or fourth named defendants are sued in this action, because there seems to be a lack of nexus between the actions of the first and second named defendants and these particular defendants. It may well be, and obviously I haven’t heard the evidence yet, but taking the case as being correct that you are making, mainly that the plaintiff never had the findings of the initial test communicated to her, where does that take your case. The decision to operate was taken by the first named Defendant based upon what he received from the second named Defendant also based on the history of the plaintiff. The plaintiff may have been in my opinion of the view that there were no abnormalities, but you are not, as I understand it, suggesting that the earlier cystology [sic] reports were inaccurate. You are accepting their findings.”
This it should be said, was in response to a portion of the Plaintiff’s opening which again made the case that if the proper procedures had been followed in response to the abnormal cytology reports, then the Plaintiff would have been “cured”:
“We say that if the 86 Cytology test, for example, had been properly dealt with it would be that the fourth defendant ought to have referred the plaintiff to the first defendant’s colposcopy department with the fourth defendant, and after colposcopy and biopsy then one lazer treatment should have cured the plaintiff.” (my emphasis)
This may if anything, have been a slight overstatement of the case being made by the Plaintiff against the third and fourth named Defendants, but certainly cannot be faulted for lack of clarity. Unfortunately however, the seeds of confusion had already been sown and when the application for a non suit was made on Day 7, ruled upon on Day 8, and successfully renewed on Day 9, it is apparent that the relative positions of the Plaintiff and of the trial judge on the analysis of the case had not moved on to any significant degree from those exchanges from Day 1.
It is often the case, when a non suit application is made, that the evidence in support of the plaintiff’s claim is relatively weak, and the effective contest in whether the plaintiff raises just enough evidence to require the defendant to go into evidence, and give the plaintiff the opportunity of bolstering his case from the defendant’s evidence. In this case, however there was a large and apparently impressive volume of evidence which seemed to support the case being made against the third and fourth named Defendants.
The Plaintiff called evidence from Professor John Bonnar a distinguished former Consultant Obstetrician and Gynaecologist, Dr John Murphy a Consultant Obstetrician and Gynaecologist with a particular interest in and experience of colposcopy; and Dr Colin Bradley, a Professor of General Practice from University College Cork. It is not necessary to review their evidence in detail; it was not seriously in contest that in their reports they presented to the Court, and in their evidence in chief, they strongly supported the Plaintiff’s case against the third and fourth named Defendants. They all were of the opinion that the appropriate treatment between 1986 and 1993, would have been colposcopy and biopsy followed by diagnosis, and then treatment by diathermia or laser. Even more significantly, these witnesses were all willing to state that in all probability, this treatment would have eliminated the Plaintiff’s problems.
Thus, on Day 3 page 22 Professor Bonnar said:
“Because cytology is not a diagnosis we must have a tissue diagnosis and a tissue diagnosis would have revealed CIN changes and these would have been treated. In fact, the biopsy would have been done and the treatment would have been done at the same time. In other words, the colposcopy will tell us where the suspicious area is, and that would be treated by either diathermia or laser.”
When asked (Q.84) what would have been the outcome of that treatment his answer was quite unequivocal:
“Well the probability is that it would have eliminated the problem, but you wouldn’t assume that, you would follow the patient with further cytology and if you had no abnormal smears, you would know that the process had been removed.”
It is a telling illustration of the complexity of multi party litigation, and the fluidity of the position of parties, that the most effective evidence on causation against the third and fourth named Defendants was elicited from Professor Bonnar by the cross-examination conducted on behalf of the first named Defendant. Thus on Day 4, counsel for the first named Defendant put Dr Murphy’s report to Professor Bonnar who agreed with the conclusions set out therein including the conclusion in respect of 1986 that:
“The clinic in Galway should have alerted her family doctor and Julia Schuit in turn.
Her doctor in turn should have referred her to the colposcopy clinic. There she would have been colposcoped and a biopsy taken. In the likely event that CIN was present she would have had a conservative LLETZ or lazer procedure, which would have addressed the situation and the most that Julia Schuit would have expected at ten plus later, that she would be the subject of regular cervical follow up of screening in the anticipation that the smear would have been normal.”
This was summarised by counsel at question 220:
“Q. If action had been taken then none of us would have been here today, isn’t that right?
A. That’s correct yes.”
Counsel returned to the theme at question 315 as follows:
Dr Murphy’s evidence in chief was similarly forthright. On Day 5 question 17 he said that if the Plaintiff had been referred for further investigation and possible treatment then even in 1986 she would have been referred for colposcopy and most likely biopsy and “most likely conservative treatment probably with laser vaporisation at that time …”. That treatment was described in the case as conservative, and certainly by contrast to the Wertheim-Meigs hysterectomy was very mild. At question 19 he was asked what would be involved in that treatment. He answered:
“For laser electro diathermy or cryotherapy it would have been done as an out patient’s procedure and she would have, apart from mild vaginal discharge, no significant sequelae. If she had a cone biopsy it would be an inpatient procedure under general anaesthetic and she probably would have been in hospital for the order of one to two nights.”
He was then asked what the likely result of that treatment would be and his answer was strikingly unequivocal:
“The likely result in capable hands of which they were present … any of those treatments would have got rid of the lesion in ninety-five per cent of incidences, there would be about a five per cent incidences with a requirement for a second treatment.”
When asked what the likelihood was that that would have been the end of her problems he said:
“Ninety-five per cent after the first treatment, near enough one hundred per cent after a subsequent treatment.”
If this was not enough, the witness went on to confirm in oral evidence his written report, which had been prepared to conclude in respect of the third named Defendant that “considerable liability attached” for not acting on the first smear he took on the 3rd May 1991. On Day 7 Professor Bradley gave evidence largely to the same effect:
“Essentially what I am saying there is that if she had a colposcopy in 1991, the probability is that she would have had a treatment that would have stopped the disease in its tracks and would have prevented further progression. However, she would have had further need for continuing monitoring and so forth. She would not have been completely out of the woods. Again, the logic of cervical cytology is that it is a procedure that is advised and done in a timely fashion the patient then has their disease treated at an early stage.”
He concluded his evidence by confirming his conclusion that:
“The liability of the GP … relates only to failure to adequately follow up smear results, so this did [sic] probably contributed to the emergence of the clinical condition that led to what ultimately proved to be excessive surgery.”
In addition to all this evidence, the Plaintiff’s witnesses also gave some support to the argument being advanced by counsel for the first named Defendant, that the ten years of abnormal reports which had not been reported or followed up, and for which the third and fourth named Defendants were responsible, had contributed to the difficulty of the position confronting the first named Defendant.
In the light of this evidence, it might be somewhat surprising that the application was made, let alone succeeded, that there was no sufficient prima facie case against the third and fourth named Defendants. That application however depended almost entirely on the interpretation of a passage in the cross-examinations of Professor Bonnar and more particularly Dr Murphy, conducted on behalf of the third named Defendant GP and supported by the fourth named Defendant. The thesis advanced on behalf of these Defendants, was derived in part from a report from a consultant pathologist, Professor Mary Leader prepared on behalf of the fourth named Defendant. This report stated that it did not appear that the Plaintiff had suffered any harm as a result of the failure to inform her of the outcome of the smear test because, in effect, her condition had not deteriorated between 1986 and 1996.
“In summary therefore, whilst [the GP] should have informed the patient of the results of these smears and recommended a colposcopy at that time, the patient from a cervical abnormality viewpoint did not suffer any harm as a consequence of that. The decision to perform a Wertheim’s hysterectomy appears to have been made on clinical and radiological suspicions of invasive carcinoma. It would be conjecture to attempt to decide whether these suspicious features would have been present in 1991 or 1993.” (emphasis added)
This statement falls very far short of the determination, (which in any event is essentially a matter of logic and law) as to whether there has been any damage caused to the Plaintiff by reason of the failure to notify her and follow up on the smear test results. Critically, the features which led the first named Defendant to conduct the Wertheim-Meigs hysterectomy, (the suspicion of Adeno-carcinoma, the report of post-coital bleeding and the ten years of abnormal reports) were, by definition, not present at any earlier stage. Furthermore, the fact that this cervical abnormality had not in fact altered, did not by any means mean that the legal or factual position was not different. The Plaintiff’s condition now appeared different to the first named Defendant so that he considered a Wertheim-Meigs hysterectomy to be indicated. Professor Leader repeated in a number of reports her opinion that the delay had not led to “an altered prognosis for the patient” but that is merely another way of stating that the Plaintiff did not contract cancer or any other illness. Significantly Professor Leader does not appear to have had available to her the reports of Professor Bonnar, Dr Murphy and Professor Bradley and of course because the Plaintiff’s claim against the fourth named Defendant was dismissed, she herself never came to give evidence and be cross-examined.
There is no doubt, that if the conservative treatment which the Plaintiff contended ought to have been applied between 1986 onwards, had been carried out in 1996, then the Plaintiff’s only complaint would be that she had suffered from a condition for ten years longer than she should have. Similarly, if the Plaintiff’s case against the first named Defendant had succeeded, and it had been established that he ought not to have conducted a hysterectomy in 1996 then that would have exculpated the third and fourth named Defendants from responsibility for anything other than having a condition which ought to have been treated earlier. But if the first named Defendant’s conduct was reasonable (and therefore must I think be considered to be reasonably foreseeable), then the failure to act appropriately in 1986, 1987, 1991 or 1993 could be said to have caused the situation to arise where a hysterectomy was carried out which could have been avoided. It was not an answer to this line of argument to say, even if correctly, that her medical condition had not altered in the sense that the subsequent biopsy showed she did not have cancer.
Doctor Murphy was cross-examined by counsel on behalf of the general practitioner. In this regard it must be recalled, that the Plaintiff’s case at this stage was still that the first named Defendant ought to have adopted the conservative option even in 1996. Therefore at Day 5 question 417 counsel asked:
“If Dr Winters is guilty of the delay, would you agree with me that notwithstanding that delay “A” [the conservative option] as you have described there should still have been done.”
Doctor Murphy answered:
“A should still have been done. The patient should have been referred for colposcopy.”
At question 419 counsel asked:
“I think you are agreeing with me that any alleged blame lay on the part of Dr Winters between 1991 and March 1993 did not mean that “A” was no longer available.”
Doctor Murphy’s answer was:
It is worth pausing at this point to observe that so far Dr Murphy has agreed that the delay between 1991 and 1993 (and by extension any delays from 1986) did not mean that the conservative option was no longer available. This was interlinked to the Plaintiff’s case against the first named Defendant. If therefore, the Plaintiff succeeded against the first named Defendant, then this evidence would significantly reduce any potential liability of the third and fourth named Defendants notwithstanding their clear negligence in failing to follow up on the abnormal reports. But this evidence was clearly given in a context which assumed that the first Defendant ought to have taken the conservative option even in 1996. The trial judge however interjected at that point, in an echo of the concerns he had expressed on Day 1. He said:
“In essence I think what Mr Meenan is putting to you doctor is that if there was a culpable delay on the part of Dr Winters, there was no adverse consequence that flowed from that culpable delay.
A. That is true.”
In essence the Defendants’ application for a non suit rested on that single answer. It seems that what the trial judge putting to the consultant surgeon, was at least on one view, and probably understood by the trial judge, as meaning adverse consequences in the legal sense of any loss giving rise to a claim. It is not so clear that this was what counsel was putting to the doctor. Furthermore any such conclusion would run directly contrary to the clear evidence that had already been given by Dr Murphy and Professor Bonnar. It seems that Dr Murphy may have been referring to the fact that there were no adverse medical consequences in the sense that her condition had not deteriorated. At very best, his answer was ambiguous. It did not address the possibility that the Court would decide that the first Defendant had acted reasonably in adopting the radical option. But in my view whatever interpretation is put on this answer, it could not reasonably be said that it completely negatived the evidence already given by Dr Murphy. Even excluding Dr Murphy’s evidence there was still the evidence given by Professors Bonnar and Bradley. Thus even on the most favourable interpretation of Dr Murphy’s evidence from the third and fourth Defendant’s point of view it still could not be said that there was no evidence on which a Court could conclude the Defendants had been negligent.
However the application for a non suit relied almost entirely on this single passage in Dr Murphy’s cross-examination. The Defendants did make reference to the evidence of Professor Bonnar in cross-examination on Day 4 but this if anything was even less compelling. Professor Leader’s report was put to Professor Bonnar including the statement:
“The patient has shown no definite progression of disease between 1991 and 1995.”
Professor Bonnar was asked to agree with that and said:
“There is no progression of the disease from the precancer – I agree with you then that the two cytology reports are different and the recommendation on the slides are different. One is saying colposcopy, the other is saying colposcopy and D&C because there is an Adeno-carcinoma suspected in the 1995 one. So I am not saying this is a progression, I am simply saying we have got a different situation. That it is certainly a more serious one for the patient.”
Counsel then asked a further question:
“Leaving aside that refinement you agree with Professor Leader that the prognosis and treatment for the condition which Mrs Schuit was afflicted with in 1995 was the same as it would have been in 1991.”
I pause to observe, that it is not possible to “leave aside” what was described as “the refinement”. In truth Professor Bonnar’s answer encapsulated the two key features of this issue. First, that all that could be said was that the disease had not progressed. That in itself was not determinative of the legal issue. Second, it could not be said that the factual position in 1995 facing Dr Mylotte was the same as that in 1986 since by 1995 there was evidence of a suspicion of Adeno-carcinoma.
It was put to Professor Bonnar that Professor Leader had said that the treatment of CIN II and CIN III “is cured by local removal of the abnormality generally by a LLETZ biopsy”. Again I pause to observe, that this in fact makes the Defendants’ case against the third and fourth named Defendants in the events which transpired. Professor Bonnar agreed. He was then asked:
At question 352 Professor Bonnar agreed:
“The evidence we have is that it has not progressed. There was no invasive cancer detected in the uterus, cervix or vagina.”
It appears to me to be quite clear, that this evidence could not possibly or reasonably be interpreted as resiling from the evidence Professor Bonnar had given in his evidence in chief set out above. Instead because of both the medical and factual complexity of the case, attention was not necessarily focussed in anyone’s mind on the multiple possibilities and contingencies which arose in the case. Once again however, even taking this evidence at its height from the Defendant’s point of view, it could not in my view reasonably be said in the light of all the evidence, that there was at that point no evidence from which a Court could conclude that the third and fourth named Defendants had been negligent, and that such negligence had caused loss and damage to the Plaintiff. Finally, it should be observed that the Defendants were not able to point to any passage in relation to the evidence of Professor Bradley. In addition, as was pointed out by counsel for the Plaintiff, when the first named Defendant came to give evidence on Day 8, he did give some support to the Plaintiff’s case against the fourth named Defendant. At question 271 he said:
“She was subjected to treatment that might not have been considered if the glandular atypia was not in a smear test.”
That glandular atypia, only emerged in the 1995 test. At question 317 he said:
“As I said I thought she had about a ten per cent chance of there being an invasive cancer there. And that ten per cent was influenced by the nine or ten years of inaction. Not hugely but it was influenced by it.”
Fundamentally, it seems clear that this was very far removed from the type of case in which it could be said that the Plaintiff’s case against the Defendants was flimsy or had been destroyed under cross-examination so that it could be said that there was no basis upon which the case could proceed. On the contrary there was a significant body of evidence supporting the Plaintiff’s case. It appears that the complications involved in the case meant that the various contingencies were never analysed with sufficient clarity and that the thrust of the case against the first named Defendant tended to overshadow, and to some extent distort, the case being made against the third and fourth named Defendants. While it is regrettable, it seems plain to me that the decision to accede to the application and to non suit the Plaintiff was in error.
It is said by the Defendants however, on the authority of Hanafin v Minister for the Environment [1996] 2 IR 321, that the trial judge’s decision in this regard is a decision to which the principles in Hay v O’Grady [1992] 1 IR 210 apply and accordingly that if there was evidence upon which the trial judge could come to the conclusion he did, the decision should not be disturbed on appeal. I cannot agree. Hanafin is a case which was very much sui generis and has never been treated as an authority of general application on the principles to be applied on an application for a non suit in personal injuries litigation. That case concerned a petition to set aside the outcome of the constitutional referendum, and it is not easily compared to simple inter partes litigation. Indeed in this Court, at least one of the members of the Court considered that the case ought to have proceeded as a form of inquiry rather than litigation inter partes.
The test in Hay v O’Grady, is derived from the fact that an appeal Court which does not hear the evidence must give considerable deference to a trial Court’s assessment of the cogency and credibility of evidence given to it. This follows from the different functions of a trial Court and appeal Court. As a result, the question for a Court on appeal is essentially a matter of logic: was there evidence, whatever its apparent credibility or cogency, upon which the trial judge could come to the conclusion he or she did. The test in Hetherington v Ultra Tyres Services and O’Toole v Heavey provides in truth little scope for the application of the principle in Hay v O’Grady since it is rare that a Court will proceed to asses the credibility of witnesses at the end of the plaintiff’s case. While I do not rule out the possibility that a Court could come to the conclusion that the plaintiff’s evidence was so wholly incredible that there was no plausible or viable case, in most cases the issue is simply a matter of logic: is there evidence, whatever its relative cogency or strength, upon which a Court could conclude that a defendant was liable. That exercise is very similar to that set out in Hay v O’Grady. It does not normally, and did not here, involve the type of assessment of the cogency or credibility which attracts the rule in Hay v O’Grady, and accordingly the decision is fully reviewable on appeal.
In any event, when the trial judge acceded to the application of the third and fourth named Defendants, he did not do so on the basis of the assessment of the credibility or cogency of any of the evidence. Instead, on Day 9 page 84 he returned to the fact that he had made it quite clear that “at a very early stage of the proceedings that [he] couldn’t see how Dr Winters and the Western Health Board were before [him] at all”. At page 108 of the same transcript he delivered the essence of his ruling:
“I am similarly of the view in relation to the evidence against both Dr Winters and the Western Health Board, that a prima facie case has not been made out against them, insofar as the evidence, both of Professor Bonnar and Dr Murphy, has been and is to the effect that the approach of Dr Mylotte in this case was inappropriate and that there should have been no question of radical surgery unless and until he had an adverse biopsy histological finding.”
Thus it is apparent that the Court had concluded as a matter of deduction, that since the Plaintiff was making the case against Dr Mylotte that he should have adopted the conservative approach in 1996, that any failure to do so at an earlier stage was irrelevant. With great respect to the trial judge, who was undoubtedly faced with considerable difficulties in this case, I am afraid that I consider that this was wrong, or at the very least incomplete. It is true that if the Plaintiff succeeded against the first named Defendant that would almost completely exculpate the third and fourth named Defendants but what the Court did not consider in this extract, was the fact that no such determination had been made. Furthermore this reasoning did not address the circumstance which in fact transpired, where the Court found that the conduct of the first Defendant was not unreasonable. In the circumstances, the appeal must be allowed.
