Supreme Court allows appeal on hospital negligence regarding panic attacks, dismissing cross-appeal on phaeochromocytoma diagnosis.

THE SUPREME COURT

No. 332 & 346/00

Murray J.

Geoghegan J.

Fennelly J.

BETWEEN

CAROL WOLFE

Plaintiff/Respondent

and

ST JAMES'S HOSPITAL MICHAEL BUCKLEY AND DONALD WEIR

Defendants/Appellants

JUDGMENT delivered the 20th day of February, 2002 by FENNELLY J.

Mr Joseph Wolfe died in November 1991 at St James’s Hospital at the tragically early age of 33. The cause of death was an

extremely rare condition. He had a tumour called a phaeochromocytoma. It became the practice to call it a "phaeo". It was not

diagnosed in the hospital when the deceased attended there either in 1989 or 1991. It was only discovered on post-mortem. If

it had been diagnosed, it could have been treated. Not having been diagnosed, it was fatal. When he returned to the hospital in

November 1991, it was too late.

The plaintiff brought a fatal injuries action against St James’s Hospital, (“the hospital”), Doctor Michael Buckley, a senior

consultant physician at the hospital , (“Dr Buckley”) and Doctor Donald Weir, also a consultant. The claim against Dr Weir was

withdrawn at the outset.

The action was at hearing for ten days before Barr J in the High Court. Barr J found that the hospital was negligent but that Dr

Murphy was not. The principal if not the sole basis of the claim was that the hospital and/or its consultants had been negligent

in failing to diagnose that the deceased was suffering from a phaeo and consequently failed to treat him appropriately. The

plaintiff relied on the evidence of two eminent consultants, Dr Harry Barniville, M.D., F.R.C.P.I., a former consultant physician

attached to the Mater Hospital in Dublin and other hospitals and Professor Sean Blake, M.Sc., F.R.C.P., professor of clinical

cardiology at University College Dublin and also a former consultant to the Mater Hospital, in his case as a specialist

cardiologist. It is not unfair to say that the opinions of these two eminent physicians were predominantly, if not entirely, based

on the failure to consider the possibility of a phaeo, with consequent fatal results. The learned trial judge rejected this

allegation of negligence. He preferred the evidence of Professor James Wass, Professor of Endocrinology at Oxford and

consultant physician at the Radcliffe Infirmary in Oxford, who was called as a witness by the defendants.

In spite of this, however, he found that there had been negligence on the part of the hospital, though not of Dr Buckley, the

second-named defendant, in failing to investigate panic attacks of which the deceased had complained, specifically failing to

conduct appropriate abdominal tests, which would have led to the discovery of the phaeo. He made an award of £112,429 to

the plaintiff.

I should explain briefly the procedure by which the learned trial judge came to arrive at this conclusion. Having concluded the

hearing and reserved judgment, he thought that the plaintiff’s case could be made out without relying exclusively on the phaeo

issue. At a resumed hearing, he provided the parties with a memorandum which he had prepared. In essence, this document

stated the following. Firstly, the root question to which the parties had addressed their attention at the hearing was whether

the medical experts treating the deceased should have directed their attention to the possibility of a phaeo. However, the

essence of the liability issue might, he suggested, be different, namely whether a consultant physician of comparable status

and experience to the consultants who treated the deceased would have investigated the panic attacks of which the deceased

had been complaining for some years on the basis that they might be indicative of a physical abdominal problem as yet

undiagnosed. The learned trial judge heard argument on the issue thus defined but did not permit the plaintiff to call further

evidence. Having done so, he gave judgment for the plaintiff.

There is an appeal by the hospital against this finding and a cross-appeal by the plaintiff, against the failure to find negligence

generally on the phaeo issue and, in any event, failing to find that Dr Buckley was negligent.

Geoghegan J, in his judgment, gives reasons why the cross-appeal should not be allowed. He rightly says that it was perfectly

open to the learned trial judge to make the finding he did on the evidence before him. He was confronted not only by a conflict

of evidence between the plaintiff's two experts on the one hand and Professor Wass on the other, but also between them and

Dr Buckley, Dr Keeling and Dr Weir. Although the last-named experts could be said to have had an interest in the outcome of

the case (even if the case against Dr Weir had been withdrawn), as Geoghegan J says, they were strongly of the view that it

would have been wholly unreasonable and impracticable to expect a physician to diagnose a phaeo in the absence of any

evidence of raised blood pressure. Their evidence, though not technically independent, was that of experts. I agree with

Geoghegan J that the cross-appeal should not be allowed in this respect. I do not, however, for reasons which will become

apparent, agree that the appeal plaintiff’s cross-appeal should be allowed in the case of Dr Buckley. Geoghegan J. is, of course,

correct insofar as, having determined that there was negligence on the part of the hospital, because of a failure by Dr Buckley,

there should also have been a finding against him. My disagreement is with the determination in respect of the hospital.

The balance of this judgment concerns the appeal by the first-named defendant, the hospital.

THE PHAECHROMOCYTOMA

The phaeo is a rare condition of abdominal tumour occurring in between 1 and 4 per million of the population. The phaeo found

in the deceased on post-mortem examination was of significant size. It was situated behind the liver. The phaeo excretes

catecholamines (adrenaline and noradrenaline), usually paroxysmally, which ultimately affect the heart and cause cardiac arrest.

The typical range of symptoms consists of attacks of severe abdominal pain and headaches as well as vomiting, sweating, and

shaking. The shaking is caused by the excretions. Two aspects of the symptoms are highly material to this case. The deceased,

in 1991, spoke of himself as suffering from “panic attacks” associated with the abdominal pain. The failure to investigate this

complaint was central to the finding of Barr J. In the great majority of cases, the patient is hypertensive (has high blood

pressure). Some of these, about 40% of the total, have high blood pressure only during attacks. A small minority, less than

10%, do not even manifest this symptom during attacks. This appears to have been the case with the deceased, which made

him, as was said in the evidence, and accepted by the learned trial judge, “a rarity within a rarity.” A normal blood pressure

reading makes the diagnosis of a phaeo much less likely.

It was accepted by all the experts that the condition is very difficult to diagnose, and it is especially so when the patient is

normotensive. It was also common case that the range of its symptoms are, to a large extent, referable to many other more

common medical conditions. It was said that it is “a great mimic.” For all these reasons, it is very often either discovered on

post-mortem or serendipitously on investigation of some other matter. As against all of these problems in its diagnosis, it can be

readily detected by means of ultrasound scanning, which will be carried out only if the physician suspects it is present.

THE HISTORY

The deceased served in the army from 1977 to 1982. He married in 1979 and had three children. He was employed by Dublin

Port and Docks Board after leaving the army, but lost this full-time job in 1985. The extent to which he suffered distress as a

result of this unfortunate event was debated for its materiality to the panic attacks, which will need to be considered.

From some time prior to 1989, the deceased commenced to suffer from intermittent attacks of headaches accompanied by

shaking and sweating. The headaches were so severe that he would, according to the evidence of the plaintiff, his wife, sit in a

room holding spectacles to his head to see if he could stop the headaches. This had gone on for several months before he

admitted himself to St Vincent’s Hospital Accident and Emergency unit on 11th February 1989. The notes of that hospital

indicate that the deceased was complaining of bursting occipital and then frontal headache, vomiting and “involuntary shaking

of his head hands etc. x 3 yrs,” meaning that this had been going on for three years. His blood pressure was normal. He spent

three hours at the hospital. He was seen by a Senior House Man whose impression was that he had a “probable migrainous

event.” Simple analgesics were prescribed and he was to be reviewed by his GP. The final note records: “Says pain is much

better now, almost gone.”

However, the headaches continued in the following days and he presented himself at the Accident and Emergency department

of St James’s Hospital at 10pm on 15th February 1989. St James’s was nearer his home. The hospital notes record him

complaining of severe headaches for the previous four to seven days as well as vomiting. On examination he was distressed

with pain but, in respect of his abdomen the notes say: “nothing abnormal detected.” He was admitted as an in-patient. The

nursing notes in respect of his time as an in-patient record his complaints of recurrent headaches over the previous days and

that these were associated with nausea and shaking. The medical notes also refer to his shaking attacks over the past three

years put down to anxiety in the following note: “Onset since lost job x 3 yrs.” As already noted, he had lost his job in 1985.

Again his blood pressure was normal. The headaches eased.

The deceased came under the care of Doctor Keeling, director of gastro-enterology at the hospital. Investigation disclosed a

raised white blood cell count. He had a lumbar puncture and other tests including a brain scan. The results were normal. Dr

Keeling was of the opinion that these findings confirmed his own provisional diagnosis of a viral type illness. The shaking attacks

were not specifically investigated. Dr Keeling said, in evidence, that he had no reason to suspect a phaeo.

The deceased was discharged from hospital to out -patient care. I will come to deal later with the learned trial judge’s finding

that Dr Keeling was at fault in failing to cause an investigation of the shaking attacks recorded at this time. Barr J uses the

expression, “panic attacks,” though that was not the expression used at that time. In his judgment he also describes these

attacks as having become more severe in the latter part of 1988. This latter aspect does not appear from the hospital notes

made in February 1989. Both the medical and nursing notes record his complaints of shaking attacks as dating from three years

back and as being connected with his loss of job at that time. I must digress to refer to this issue in a little detail, as it became

highly material to the decision of the learned trial judge. An excerpt from the medical records reads as follows:

“Has been having shaking attacks x 3 yrs

Associated nausea and palpitations

Put it down to anxiety

Onset since lost job. 3 yrs ago..”

As explained in evidence, these notes represent what was taken down as the patient’s account of his complaints. Barr J

appears to have based his very important qualification of the commencement of the attacks to 1988 on the evidence given by

the plaintiff at the trial in the High Court. Firstly, in reference to the headaches, she said she could not really remember how

long they had been going on and then said: “months I would say.” She then agreed that the shakes and sweats had been going

on “for a number of months.” The following exchange took place in cross-examination:

Q. Your husband had informed the doctors that these panic attacks or shaking, or whatever you want to call it, that

these symptoms he had started around the time he became unemployed?

A. They started in 1988 I think.

Q. Well, is it not the fact that they started around that time?

A. Probably did, yeah.

Although the plaintiff also said the shaking attacks had started either months or a year before February 1989, there does not

appear to be any evidence of the shaking attacks becoming more severe in the latter part of 1988. The plaintiff was asked

about their commencement. She appears to have agreed in the passage quoted above that they probably commenced about

the time the deceased lost his job. In any event, what is important is whether the defendants were on notice or should have

been on notice of any radical change in 1988. The patient, the deceased, appears to have given an account of his shaking

attacks as dating from three years before his first attendance at hospital in 1989 which is consistent with their being related to

the loss of his job. The defendants were not informed of any change in the severity of the attacks in the latter part of 1988.

Most strikingly, the entire of the evidence of the plaintiff’s experts was given on the basis that the attacks had been going on

for several years.

Following his discharge from St James’s in March 1989, the deceased got better for about a year, but gradually the symptoms

came back. They got progressively worse. The plaintiff gave evidence that her husband had suffered from shakes associated

with severe stomach pains, though, it will be noted, he had not himself complained of stomach pains in 1989. The deceased

went back to St James’s on 5th April 1991. He then came under the care of Dr Buckley for the first time. He complained of

having suffered stomach pains for two years. His complaints, at that time, are recounted in a letter written by Dr Murphy on

23rd April 1991 though possibly dictated earlier, to the deceased’s GP. This letter was crucial to the decision of the learned trial

judge. I will quote it in full:

"Dear Dr Carthy

Unfortunately, I was unable to read your referral letter and Mr Wolfe proved himself to be a rather poor historian.

Initially, he admitted to intermittent abdominal pain of uncertain character for two years, accompanied at times by

nausea and vomiting. He gave a past history of chest surgery at the age of nineteen when serving in the army. There

were no localising features on examination other than the fact that he is somewhat overweight.

I think the safest thing here is to get an upper GIT endoscopy, chest x-ray as well as the routine haematology and

biochemistry. My feeling at the moment is that these tests will be normal. At the end of the interview, Mr Wolfe

reported recurring panic attacks and that his abdominal discomfort was associated with these rather than occurring in

isolation. He stated he had come seeking treatment for these attacks and not for abdominal pain. Nevertheless, I feel

we should proceed with the screening tests and review the situation thereafter when the results come to hand."

The illegible referring letter from the GP was dated 15th April 1991 appears merely to have said that the deceased was

“complaining of abdominal pain and was currently being treated with [.. illegible].

Dr Murphy referred the deceased to Dr Keeling, a consultant gastro-enterologist, who performed an upper genito-urinary

endoscopy. This, contrary to the expectations expressed by Dr Buckley in his letter, revealed an active duodenal ulcer and

helicobacter (bacterial) infestation. This discovery may, in retrospect have had the unfortunate effect of distracting attention

from investigation of the associated symptoms. It certainly provided an explanation for the stomach pain. A drug trial regime

was prescribed and it appears clear that the duodenal ulcer was successfully treated. His ulcer healed. The deceased was

discharged from the hospital. On 9th May 1991, Dr Aidan Quinn, Senior House Officer to Dr Buckley wrote to the GP referring to

the finding of the duodenal ulcer and to the fact that the deceased was attending an ulcer drug trial. The letter concluded:

“We can now safely discharge him to your and their care.”

Tragically, the true cause of the deceased’s complaints, the phaeo, had not been diagnosed when he was discharged. On 9th

November 1991, he was taken ill and brought to St James’s Hospital. It is common case that it was then too late to save him.

He died on 11th November 1991.

THE HIGH COURT DECISION

The finding of negligence, made by the learned trial judge against the hospital, turns essentially on the discharge home of the

deceased without investigating the complaint of “panic attacks,” mentioned in Dr Buckley’s letter. Firstly, it is important to

recall that the primary case made by the plaintiff is that the defendants were negligent in failing to diagnose and, having

diagnosed, to treat the phaeo. The learned trial judge found against the plaintiff on that point. However, he found the hospital,

but not Dr Buckley, negligent in failing to investigate the panic attacks. The relevant parts of the judgment read as follows.

He referred to the test laid down by the decision of this Court in Dunne (an infant) v National Maternity Hospital [1989] I.R. 91 (

“Dunne” ). He then formulated the question which he had to decide in the instant case (at page 14):

“Was Doctor Keeling and/or Doctor Buckley at fault in failing to discover by diagnosis, or in consequence of investigation

of Mr Wolfe’s symptoms, that he was suffering from the phaeo tumour from which he died? If so was such a failure of

duty that no medical practitioner of equal status and skill would be guilty of if acting with ordinary care?” (Note: clearly

a word such as “a fault” has been inadvertently omitted from the last sentence.)

The learned trial judge then drew attention to two important problems on the facts of the case:

"Two facts of major importance which have been established in evidence created particular difficulty regarding the

diagnoses of Mr. Wolfe's phaeo tumour. The first was present at all material times. I accept the evidence of Professor

Wass that in all probability Mr. Wolfe's tumour was a rarity within a rarity in that he remained at all times normotensive.

It has emerged that he did not have an actual attack in hospital such as those described by his wife as having occurred

at home. However, he was still having severe headaches in hospital which probably indicated the tail-end of attacks and

he ought to have been found to be hypertensive on those occasions unless he was one of the minute number of phaeo

sufferers who are normotensive. It is common case that hypertension, either continuous or during attacks, is normally

the primary symptom of a phaeo tumour."

The learned trial judge then summarised the facts as he saw them. I will return to this summary when I come to state my own

conclusions. Firstly, he dealt with the issue of the phaeo (at page 25) and said:

"I accept the evidence of Professor Wass, which was supported by other defence experts, that in all probability Mr.

Wolfe was one of those very rare phaeo sufferers who remained normotensive during attacks. The opinion has been

expressed that he was suffering the tail-end of such attacks when his blood pressure was checked in hospital and found

to be normal on both occasions after his arrival there with a severe headache which had not yet subsided. In the

absence of the primary phaeo symptom of hypertension on those occasions, the possibility that such a tumour may

have been the cause of Mr. Wolfe's condition was too remote to be checked out by a competent clinician. I accept that

opinion. Having regard to the probable normotensive nature of Mr. Wolfe's tumour, I am not convinced by the opinions

expressed by Doctor Barniville and Professor Blake that the cluster of symptoms which were known to or which ought to

have been ascertained by the treating doctors at St. James's hospital, including severe sweating during attacks, should

have put them on notice that there was a real possibility that the cause of the deceased's symptoms was a phaeo

tumour. As I have already stated, I am satisfied that the absence of hypertension when his blood pressure was checked

at any time in hospital while the severe headaches were continuing would rule out in the mind of a competent clinician a

phaeo tumour as a realistic possibility which ought to have been investigated."

I break the quotation at that point, as it is the end of the phaeo issue. The deceased's condition was "a rarity within a rarity"

and the possibility of a phaeo was "too remote to be checked out." The learned trial judge continued immediately:

"However, in my view that is not an end to the matter, I accept the opinion that a clinician of equal specialist status to

Dr. Keeling if acting with ordinary care would have investigated in February, 1989 or subsequently in April/June, 1991 the

so called "panic attacks". The symptoms which were known to Dr. Keeling and his team in 1989 and 1991 and to Dr.

Buckley and his team in 1991 are serious and, as previously stated, included nausea, vomiting, abdominal pain,

headaches, shaking and loss of normal pallor. If they had been investigated it would have been discovered (a) that the

attacks also included severe sweating; (b) that they had been happening in severe form regularly since late 1988 and,

crucially, (c) that they had become acute three years after Mr. Wolfe lost his permanent job in 1985. There is no

evidence or expert testimony to connect the time lag between the onset and continuance of severe symptoms in 1988

and the loss of employment in 1985. In my view no clinician of comparable status and skill if acting with ordinary care

would have failed to investigate "panic attacks" having such severe associated symptoms. Having done so, he/she would

have contemplated at least a possibility that the attacks from late 1988 were unrelated to the plaintiff's loss of

employment in 1985 and that in fact they may have been caused by an as yet unidentified abdominal ailment. Once that

possibility presented itself prudence would indicate that appropriate abdominal tests should be carried out. If that had

been done in the instant case Mr. Wolfe's phaeo tumour would have been discovered and surgically treated with probable

success.

In 1989 Dr. Keeling's tentative diagnosis of a viral infection did not explain the known symptoms of the attack which the

patient had suffered - far less the full nature of such attacks if investigated. In my view he or his team should have

investigated the attacks and, if so, would have discovered that they were unlikely to have any connection with the

patient's loss of employment in 1985 and may have had a purely physical cause associated with the abdomen. It was

negligent as defined in Dunne's case not to carry out that investigation, or to have it carried out by some other

appropriate expert. Likewise, when Mr. Wolfe returned to Dr. Keeling's care in 1991 the "panic attacks" from which he

was suffering ought to have been investigated - all the more so as they were similar to those with which he had

presented in 1989. If that had happened it would have been found that the peptic ulcer which was then discovered,

though explaining abdominal pain at that time, did not explain the onset of severe intermittent attacks from 1988. The

nature and severity of such attacks suffered by Mr. Wolfe since their onset in that year ought to have been investigated

by Dr. Keeling and/or his team in 1991 as in 1989. That obligation is unrelated to the possibility that the patient might

have been suffering from a phaeo tumour. If the so called panic attacks had been investigated by Dr. Keeling or anyone

else at St. James's hospital their actual history as it has emerged in evidence at the trial probably would have been

ascertained and an abdominal problem would have been suspected as a likely or at least a possible source thereof - thus

giving rise to an abdominal investigation and the discovery of a previously unsuspected phaeo tumour. (That discovery

would have been similar to two of the three phaeo tumours being treated by Prof. Wass at the time he gave evidence).

It seems to me that no clinician of equal professional status and skill as Dr. Keeling if acting with ordinary care would

have failed to investigate the purported severe "panic attacks" suffered by Mr. Wolfe - even on the basis of the

information which was actually known to the medical staff at the hospital. Furthermore, it seems to me in all the

circumstances that no clinician of equal specialist status if acting with ordinary care would have discharged Mr. Wolfe in

July, 1991 without any follow-up arrangement and without carrying out any investigation of the so called "panic

attacks". If Mr. Wolfe's subsequent history after discharge had been monitored it would have been discovered that his

symptoms deteriorated still further in the ensuing months leading ultimately to the fatal attack from which he died in

the following November. I cannot envisage any possible justification for leaving major so called "panic attacks" as a loose

end without any investigation. In short, I find that Dr. Keeling was negligent in his treatment of Mr. Wolfe in 1989 and

again in 1991.

THE APPEAL

Finlay C.J., in his judgment in Dunne expounded the approach to be adopted by the courts in dealing with allegations of medical

negligence under a number of headings. The parties to this appeal made no submissions as to the inappropriateness of these

tests. In the event, only the first proposition of Finlay C.J. was mentioned. It was accepted therefore that “the true test for

establishing negligence in diagnosis or treatment on the part of a medical practitioner is whether he has been proved to be

guilty of such failure as no medical practitioner of equal specialist or general status and skill would be guilty of if acting with

ordinary care.”

The submissions of the defendants on the appeal can be summarised as follows:

a) the finding of negligence in failing to investigate is a “non-sequitur” in view of the rejection by the learned trial judge of

a like contention regarding the failure to diagnose the phaeo; the finding that the absence of hypertension rendered the

possibility of a phaeo to remote to be checked out by a competent clinician should have been the end of the matter;

b) the central conclusion on this point is based on mere supposition and speculation, is not supported by evidence and

would impose a standard of care going well beyond that laid down in Dunne, amounting in effect to strict liability;

c) the learned trial judge relied on the evidence of Dr Barniville, the plaintiff’s expert, in this crucial respect, but he had

said that the matter should have been referred to a psychiatrist as “a person who sees a lot of panic attacks;” the only

psychiatrist called was the defendants’ expert, Professor Ted Dinan, an expert in the field of neuro-endocrinology; the

latter, in evidence did not agree that further stomach investigation would have been indicated and thought that a phaeo

would have been “very, very low in any differential diagnosis”;

d) the learned trial judge criticised Dr Buckley’s SHO for not referring the deceased back to the specialist when

discharging him, though no criticism was made of this doctor in the pleadings or at the trial.

The plaintiff fully supports the conclusions of the learned trial judge, says they were supported by the evidence.

CONCLUSIONS

It seems to me that, once the learned trial judge reached the conclusion that the defendants or any of them were not negligent

in failing to diagnose a phaeo, it is very difficult to defend his alternative conclusion. This conclusion is heavily, one could say,

exclusively founded on the presence of symptoms of “attacks of shaking” as they appear to have been called up to 1989 or

“panic attacks” as they were described in 1991 and by the learned trial judge in his judgment. Dr Barniville was of the opinion

that the hospital and/or its consultants should have considered a phaeo as a possibility from 1989. He repeatedly emphasised

that the symptomology was strongly indicative of the possibility of a phaeo. It is quite clear that his evidence regarding the

duty to investigate the panic attacks flowed from his view that there was a need to investigate for the presence of a phaeo.

He acknowledged, of course, that the fact that the deceased was normotensive rendered the phaeo much less likely, but he

held firmly to his view that it was this condition that the medical experts should have foreseen. In the result, of course, the

learned trial judge, as we have seen, preferred the evidence of Professor Wass, the defendants’ expert. He accepted Professor

Wass’ view that the absence of a finding of hypertension rendered the possibility of a phaeo “too remote to be checked out by

a competent clinician.” Expressing himself in other words, he thought the same fact “would rule out in the mind of a competent

clinician a phaeo tumour as a realistic possibility.”

He explains his later finding of negligence by saying that the obligation to check out the panic attacks was “unrelated to the

possibility that the patient might have been suffering from a phaeo tumour.” At this point of the analysis, the presence or

absence of hypertension has become irrelevant. So, at the risk of stating the obvious, has the possibility of a phaeo. The

patient is suffering from two relevant symptoms, namely stomach pain and panic attacks.

Taking the stomach pain firstly, the learned trial judge acknowledged that the discovery by Dr Keeling and his team of the

peptic or duodenal ulcer “would have appeared to explain some of his symptoms at that time-notably abdominal pain.” This

coincides with the evidence of Dr Barniville who agreed that the finding of the ulcer explained the stomach pain. (Day 2 Q 121).

Dr Keeling explained the matter in more technical terms. The deceased had a large active duodenal ulcer. The associated

helicobacter infestation (bacterial infection) sufficiently explained the ulcer, without the need to look for another, more unlikely,

cause, such as a phaeo, which might have been there.

The more difficult issue concerns the failure to investigate the panic attacks so clearly recorded in Dr Buckley’s letter of 23rd

April 1991. It will be noted that the plaintiff associated these with the stomach pain and said that it was these that he wanted

to have treated. At this point, I recall the history of this complaint, which I have mentioned in some detail in my eariler account

of the facts. From his first attendance at St James’s Hospital in 1989, the deceased had recounted that his shaking attacks,

which have been assumed to be the same as panic attacks, had been going on for three years and he seems clearly to have

associated them with his loss of a job in or about 1985. Yet, the learned trial judge (page 26 of his judgment) recounts that

these “had been happening in severe form regularly since late 1988" and that “they had become acute three years after Mr

Wolfe lost his permanent job in 1985.” This account appears central to the following conclusion of the learned trial judge, who

says:

“In my view no clinician of comparable status and skill if acting with ordinary care would have failed to investigate “panic

attacks” having such severe associated symptoms. Having done so, he/she would have contemplated at least the

possibility that the attacks from late 1988 were unrelated to the plaintiff’s loss of employment in 1985 and that they

may have been caused by an as yet unidentified abdominal ailment.”

This version of the evidence does not appear ever to have been canvassed in the evidence or argument at the trial. It is true

that the learned trial judge invited Dr Keeling to speculate that the deceased might have been advised at some time in the past

that a panic a attack he had then suffered had been caused by his loss of his job and that he had later attached this

explanation in his own mind to the later attacks. But, at no point was it established as a fact, or considered as such by the

experts called on behalf of the plaintiff, that the panic attacks had become more severe three years later. Even in his

memorandum, the learned trial judge records the attacks as dating from “the loss of his employment .... in 1987 ...” and that

they had become more severe in 1990, i.e., between the first and second attendance at the hospital, not in late 1988.

The information which was before the medical staff of the hospital, either in 1989 or 1991, was not as described by the learned

trial judge. The account from the deceased was that the attacks started three years before and he associated it with the loss

of his job. Whether that could be a sufficient explanation or not does not arise at this point. What is clear is that the finding of

negligence in this respect depends on a deterioration sometime in late 1988 in the condition of the deceased. This is, at best,

dubiously supported by the evidence of the plaintiff given at the trial. More materially, it was not the account given by the

deceased when he gave his history of symptoms nor the version of the facts upon which the plaintiff’s two experts at all times

based their opinions.

That is not the only difficulty about the conclusion of learned trial judge. He goes on to postulate that “appropriate abdominal

tests should [have been] carried out.” He does not say what those “appropriate” tests would have been. We know, however,

that Dr Buckley referred the deceased to Dr Keeling and that the latter did in fact carry out an upper GI endoscopy, which led

to the diagnosis of a peptic ulcer. Quite obviously, therefore, Dr Keeling carried out abdominal tests, which were appropriate to

the condition of the deceased. What the learned trial judge suggested was that, in order to investigate the panic attacks,

these further “appropriate abdominal tests” should have been carried out. He does not, however, refer to any expert evidence

to suggest that, independent of the now irrelevant issue of the phaeo, panic attacks should be investigated by means of any

other abdominal tests. In essence, the only expert evidence available to him on this issue was that of Dr Barniville and Professor

Blake, both of whom were certainly of the opinion that ultrasound examination should have been ordered, but they expressed

this opinion only on the basis that the possibility of a phaeo would have called for such investigation and not on the alternative

basis adopted by the trial judge. In the specific context of the letter of 23rd April, Dr Barniville said: “... he should have

investigated for phaeochromocytoma.” (Day 2 Q 68). Inevitably, given the strong view of Dr Barniville and Professor Blake

about the possibility of a phaeo, there was no independent expert evidence that the deceased should have undergone

abdominal examination on any other basis. In these circumstances, I have to agree with the submission on behalf of the

defendant that the learned trial judge had engaged in speculation and that his conclusion was not founded on evidence.

One is left with the position that the deceased presented with severe stomach pain associated with panic attacks. Not only

was the severe stomach pain investigated, but a perfectly good explanation was found for it and it was treated with every

indication of success.

In these circumstances, I do not think that the learned trial judge had any basis, in the evidence, for concluding that Dr Keeling

and the hospital were negligent in failing to carry out abdominal tests in order to investigate the panic attacks. I agree with

submissions of the defendants that the approach he adopted goes well beyond the standard laid down in Dunne. As I have

explained, I base this conclusion primarily on the absence of any expert evidence to support the view of the learned trial judge.

I would add that, in order to determine whether failure to conduct an ultrasound examination, as distinct from the upper GI

endoscopy which was performed, amounted to such “failure as no medical practitioner of equal specialist or general status and

skill would be guilty of if acting with ordinary care,” (the Dunne test) one would have to have evidence that, apart from the risk

of a phaeo, such a specialist should, as a matter of practice, order an ultrasound in any case where severe abdominal pain was

accompanied by panic attacks. There was no such evidence and, leaving aside the evidence of Dr Keeling that it would be

completely uneconomical for hospitals to conduct expensive investigations on the basis of the cluster of symptoms exhibited by

the deceased, the court would have to consider the practicality and proportionality of ordering such tests in every case.

It remains necessary to consider whether psychiatric investigations should have been carried out which would have led to the

discovery of the phaeo. Indeed, when one refers to the evidence of Dr Barniville on this subject, (day 1 page 137), one finds

him questioning, certainly, the loss of a job as an adequate explanation for panic attacks going on for some years, but

continuing:

“I think if you are trying to pin down panic attacks I would think there are two ways to approach it; one has to get

confirmation that there are in fact panic attacks, preferably from someone who sees a lot of panic attacks, like a

psychiatrist...... If you are still not happy .... then you have to resort to a diagnosis of exclusion and rule out the other

causes of very similar symptoms. And the one that you dare not miss is phaeochromocytoma .......” Professor Blake was

of opinion that “recurring panic attacks would be reason enough for checking for the possibility of phaeochromocytoma,

regardless of anything else.” (Day 2 Q 423).

Here, it has to be said that there are certain difficulties in coming to any conclusion on the state of the evidence. The plaintiff

did not call any psychiatric evidence, but relies on a remark made by Dr Keeling, not a psychiatrist, in the course of his

evidence to the effect that the deceased did not “get the psychological interview that you would expect somebody who is

having difficult panic attacks.” (day 5 Q 98). The apparently available evidence was that the deceased had himself attributed

his panic attacks to his loss of employment three years before he first attended the hospital in 1989. The plaintiffs experts, also

not psychiatrists, were sceptical about this explanation and Dr Barniville, as I have said, suggested that a referral to a

psychiatrist would have been appropriate. This, of course, was not done, but the defendant called, as an expert witness,

Professor Ted Dinan, Ph.D., M.D., Professor of Psychiatry at the Royal College of Surgeons in Dublin and consultant at Beaumont

Hospital. His main field of specialist interest is neuro-endocrinology. In respect of his evidence the learned trial judge said:

“I accept the evidence of Professor Dinan ... that major adverse events in a persons life, such as loss of a good permanent job

in times of poor employment prospects, might cause intermittent significant panic attacks with physical manifestations which

could persist indefinitely- even for life. However, there is no psychiatric or other medical evidence that three years or more

after the perceived triggering event such panic attacks may develop new or other greatly increased physical manifestations

including severe abdominal pain, vomiting, headaches and profuse sweating and shaking. Should the onset of these symptoms

in severe form in late 1988 have indicated a likelihood or at least a possibility that they were not related to panic attacks

connected with the loss of Mr Wolfe’s job in 1985 but pointed to the possibility of an as yet undetected abdominal disorder?

.........” (emphasis added)

Professor Dinan gave evidence that the majority of patients that he saw in his clinical practice who present with panic attacks

did so in a setting of life events such as the loss of a job. He disagreed with the evidence of the plaintiff’s experts, where they

had cast doubt on the possibility of such symptoms persisting and said that people can retain such symptoms over a number of

years. Furthermore, he said that he would put the possibility of a phaeo very very low down on the list of any differential

diagnosis. He disagreed with the proposition of the plaintiff ‘s experts that, even following the discovery of the duodenal ulcer,

further tests should have been carried out. Furthermore, he made it clear that, among patients with a duodenal ulcer, about

twenty per cent have psychiatric problems including panic attacks. He thought the diagnoses by Dr Buckley and Dr Keeling were

appropriate, having regard to the information at their disposal.

The learned trial judge based his conclusion on the absence of any psychiatric evidence dealing with a situation where there

was a sharp deterioration in the condition of the patient three years after the “triggering event.” I do not think this conclusion

is soundly based. I have already explained why I think that this is an incorrect version of the facts. I have also pointed out that

it was not the version of the facts upon which the plaintiff's experts based their evidence. In the present context, the

important point is that Professor Dinan was not asked to express an opinion based on that hypothesis. He was cross-examined

most thoroughly, but always on the basis that the panic attacks had been going on for three years as of 1989 and five years as

of 1991. It does not appear ever to have formed part of the case that the panic attacks worsened at the time and in the

manner assumed by the learned trial judge. If the defendant had intended to make that case, it would have been put to

Professor Dinan, the only psychiatric expert called in the case. The learned trial judge appears to have accepted the evidence

given by Professor Dinan based on the actual complaints of the deceased. On that basis, there was perfectly good reason to

accept that the panic attacks could have been associated with the loss of a job in 1985. Accordingly, there was no evidential

basis for the conclusion of the learned trial judge either.

For the reasons I have given, I would allow the appeal of the defendants. It follows logically, that there is no basis for allowing

the cross-appeal against Dr Buckley and I have already said that I would dismiss the cross-appeal on the phaeo issue.