IESC 10 · Supreme Court

Murray J.

Geoghegan J.

Fennelly J.

THE SUPREME COURT

Record No. 332/346/2000

BETWEEN/

CAROL WOLFE

Plaintiff/Respondent

and

ST. JAMES'S HOSPITAL, MICHAEL BUCKLEY AND DONALD WEIR

Defendants/Appellants

JUDGMENT of Mr. Justice Geoghegan delivered the 20th day of February 2002

This is an appeal arising out of a judgment and order of the High Court (Barr J.) in a fatal injury medical negligence action. The

action against the third-named defendant Dr. Donald Weir was withdrawn in the High Court on consent and although he

remained an important witness in the case his liability is not in issue.

The case related to a most unusual medical condition known as a "phaeochromocdoma" and referred to by way of shorthand in

medical circles and hereinafter in this judgment as a "phaeo". Broadly speaking a phaeo is a tumour which if left undetected has

the effect of releasing an excess of adrenaline resulting invariably in death. If once considered as a serious possibility there are

tests which render it relatively simple to discover whether it exists or not. If it is proved to exist it is a relatively simple surgical

procedure to remove it and the patient is then cured.

The plaintiff's husband died in November, 1991 in the first-named defendant's hospital. As a result of a post mortem it was

discovered that a phaeo was the cause of his death. The plaintiff claimed in the High Court that having regard to a particular

combination of symptoms which her deceased husband had had, the condition ought to have been diagnosed. It is only fair to

say that that was the main plank of the plaintiff's case. A secondary allegation of negligence however was that one of the

several symptoms was so called "panic attacks" which in all the circumstances of the case and above all having regard to one

particular circumstance which I will be explaining, ought to have been investigated but were not (it being suggested that had

such an investigation taken place the phaeo would have been discovered as a matter of probability. The plaintiff failed against

both defendants on the first allegation but succeeded as against the first-named defendant St. James's Hospital only in relation

to the second. The first-named defendant has appealed against the finding of negligence against it and the consequential

judgment for damages. The plaintiff has cross-appealed both against the finding by the learned High Court judge against her in

respect of her first and main allegation of negligence and also against the dismissal of the action as against the second-named

defendant Dr. Buckley, it being asserted that under both headings of negligence he should be liable.

Before summarising the facts of the case there is one other introductory matter which should be referred to. Although the

failure to investigate the panic attacks was regularly raised and probed by counsel for the plaintiff/respondent in cross-

examination at the trial it is fair to say that at the end of the evidence the plaintiff primarily relied on a failure to diagnose.

Between reserving his judgment and the delivery of that judgment the learned trial judge put the case in for mention again and

prepared a detailed memorandum in which he expressed concern that what I have ultimately described as the second heading of

negligence was very much open. At that stage counsel for the plaintiff readily and, indeed, understandably agreed with the trial

judge and sought permission to call a psychiatrist, the only psychiatric evidence having been called on behalf of the

defendants, albeit in the special context that the psychiatrist called was also an endocrinologist. The learned trial judge

rejected that application but permitted both sides to draw his attention in a written memorandum to the parts of the transcript

that dealt with the point which was concerning him. It was not seriously disputed nor could it be that counsel for the

plaintiff/respondent had throughout the trial raised the issue of the failure to investigate separately the panic attacks. The only

purpose of cross-examination along those lines could conceivably have been that had such investigations occurred it would

have been discovered that the so-called panic attacks were not in fact panic attacks and that the possibility of a phaeo would,

as a matter of probability, have been considered and that once considered it would have been discovered.

One of the grounds of appeal of the first-named defendant is that the learned High Court judge permitted "extensive

submissions" after the termination of the trial by and on behalf of the plaintiff/respondent. I would reject that ground. The

judge was acting within his discretion.

The relevant facts are fully set out in the judgment of the learned High Court judge. The summary which I will give at this stage

of the judgment will essentially relate to the actual heading of negligence so found and, therefore, the matter of appeal by the

first-named defendant. On the 11th of February, 1989 Mr. Joseph Wolfe, the plaintiff's late husband, presented himself in the

accident and emergency department of St. Vincent's Hospital, Dublin, having had a particularly bad attack of headache for the

whole day and being unable to bear it. He was brought there in an ambulance. Before arriving he had suffered from shaking and

sweating but although the sweats and shakes only lasted about half an hour the headaches had lasted all day. The deceased

told the hospital that he had suffered from "panic attacks" from time to time over the years which he had ascribed to upset at

losing his full-time job with the Dublin Port and Docks Board in 1985. The evidence of the plaintiff however which the trial judge

clearly accepted was that these attacks were not of great significance until in or about the later part of 1988. According to the

plaintiff, her husband for several months prior to attending at St. Vincent's Hospital had been getting headaches and starting to

get shakes but they would come and go. On the 11th of February, 1989 Mr. Wolfe was detained in St. Vincent's Hospital for

about three hours as an outpatient. His blood pressure was checked and was normal a fact which is of considerable importance

in this case as I will be explaining. Other details of his symptoms were given to St. Vincent's Hospital but it is not necessary to

go into them in any detail as that hospital is not concerned in this action. Believing he was suffering from some kind of migraine,

St. Vincent's Hospital advised that he should be sent to a neurologist if any further episode occurred. On that basis he was

discharged home but told to take Ponstan. It turned out however that Mr. Wolfe's headaches continued on during the following

days and he decided to attend the accident and emergency department of the first-named defendant's St. James's Hospital at

10.00 p.m. on the 15th of February, 1989. His complaints were recorded in the hospital notes as being "a severe headache, one

last Saturday, vomiting, previous medical history, Vincent's last Saturday, same complaint." Again, his blood pressure was

taken and this was normal. He complained of headache which had been severe for several days with intermittent bouts and he

had also vomited on that day and was in pain. On foot of a provisional diagnosis of a viral illness he was admitted as an in-

patient on the 16th of February. In a document headed "Record of Nursing Care and Patient's Progress" it was stated that he

had complained of sudden onset of frontal headache the previous evening while watching TV and that this was associated with

severe nausea and shaking. He had experienced a similar headache on the day he had attended St. Vincent's Hospital. Mr.

Wolfe told the hospital that he had shaking attacks for three years and he evidently suggested that this might be because

being rendered unemployed in 1985. His blood pressure remained normal.

On the next day he still had the headache though less severe and a lumbar puncture was performed which was normal and he

was then recorded as having no complaint of headaches. At this point in his summary of the facts the learned High Court judge

specifically points out that the severity of the shaking attacks was not investigated and he opines that in the light of the

plaintiff's evidence it is probable that they did not become of great significance until the latter part of 1988 i.e. within a few

months of his arrival at St. James's Hospital for the first time. The partial significance of this finding of fact by the learned High

Court judge is that if it were to be believed that the so called "panic attacks" arose from the plaintiff losing his job with the Port

and Docks Board it would mean that these were insignificant attacks for the first three years after losing the job and suddenly

in 1988 they became severe. There was undoubtedly some evidence from the psychiatrist called on behalf of the defendants

that panic attacks arising out of particular events such as loss of a job can in some instances go on forever. But the learned

High Court judge appears to have drawn and correctly drawn a sharp distinction between that situation which presumably is

rare in itself and the situation where "panic attacks" only became of any significance three years after the alleged event that

might have sparked them off.

Returning to the general narrative, Mr. Wolfe was put under the care of Dr. Keeling, Director of Gastro Enterology in the hospital

and a major witness in this case. He investigated the possibility of meningitis and ruled it out. He was then inclined to the view

that the deceased's symptoms were caused by a viral type illness but as they had resolved Mr. Wolfe was discharged home. Dr.

Keeling had found a raised white cell count which could be indicative of a viral infection. A phaeo was never suspected and I will

return to the reasons put forward later. The learned High Court judge refers to the fact that Dr. Keeling and his team never

checked out the "panic attacks" the symptoms of which had been going on for three years and which allegedly had become

more severe. The judge further adverted to the fact that it was not in dispute that the transient viral infection which was

thought to have been found in 1989 could not explain the symptoms which the deceased stated he had had for the previous

three years.

Mr. Wolfe returned home on the 20th of February, 1989 and he was symptom free for about two weeks. The usual symptoms of

headaches, pains, sweats and shakes returned after that. These might all be symptoms of a phaeo but as all the doctors called

on behalf of the defendant emphasised they were symptoms of a large number of other conditions also. Indeed, it is only fair to

say that there is nothing on any of the records in St. James's Hospital which indicate that Mr. Wolfe ever told them about the

sweating. However, his wife gave clear evidence of the sweating which was not disputed and was clearly accepted by the

learned trial judge. The judge clearly took the view that if there ever had been a proper investigation of the panic attacks the

sweating aspect would have been discovered.

The evidence established that Mr. Wolfe did occasionally visit the Outpatients' Department of St. James's Hospital when he

would have intermittent symptoms but he did not return there with serious symptoms until the 5th of April, 1991. Barr J. sets

out in his judgment the relevant section of the plaintiff's evidence at this point. It reads as follows:-

"It was grand, they were gone for a while and then they started coming back more often and he started getting worried

again and that is when he went back. The shaking started and pains in the stomach and headaches. He was also

complaining of the stomach with the shakes since before he went to St. James's in 1989. The shaking, the stomach

pains, the sweats and the headaches were back and getting worse, he was worried about the shaking and the stomach

pains and he went back to the hospital."

On this occasion Mr. Wolfe came under the care of the second-named defendant Dr. Buckley, a senior consultant physician in

the hospital. On the 23rd of April, 1991 Dr. Buckley wrote a letter to Dr. Carthy, the deceased's general practitioner. From the

plaintiff's point of view this letter, in my opinion, is the most important document in the case and like the learned trial judge

does in his judgment I intend to cite it in full. It reads as follows:

"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

was 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 x-ray as well as 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 that he had come seeking treatment for these attacks and not for abdominal pains. Nevertheless, I feel we

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

The emphasis on certain words in that letter is mine because I think it important to highlight that here is a somewhat unusual

case where the patient complaining of a number of symptoms specifically earmarks what he considers he requires treatment for.

It is, of course, common case that the attacks were never investigated and still less treated. I will return to the significance of

this later on in the judgment.

What then happened was an unfortunate series of events. It is quite obvious that Dr. Buckley never thought that anything

would come of the screen tests which he was directing but Mr. Wolfe was returned to the care of the Dr. Keeling for this

purpose. It then emerged that Mr. Wolfe was in fact suffering from a substantial wall peptic ulcer. His stomach pains but

certainly not the other symptoms and particularly not the so called "panic attacks" could be explained by that finding. The ulcer

was cured after the deceased agreed to take part in drug trials for some weeks and Mr. Wolfe was returned to the care of Dr.

Buckley's team. At that stage however Mr. Wolfe was not examined by Dr. Buckley personally but rather by his Senior House

Officer, Dr. Aidan Quinn. This fact in itself was not in any way unusual and could not give rise to any heading of negligence. But

unfortunately Dr. Quinn took the view that Mr. Wolfe's problems had been solved and discharged him back to the care of his

ordinary general practitioner. He did this without any reference to Dr. Buckley. It is clear, however, from the evidence of Dr.

Quinn that he would have had before him and would have read the important letter of the 23rd of April, 1991 written by Dr.

Buckley to Dr. Carthy. It appears from that letter that Dr. Buckley was intending to consider what should be done about the

panic attacks after the screening test had been completed. If I am right in interpretation of the letter then Dr. Quinn was

negligent in discharging the deceased without either himself organising steps to investigate the panic attacks or referring him

back to Dr. Buckley. Alternatively, even if I were wrong in my view that the letter was reasonably clear in this regard there was

some negligence because in that event Dr. Buckley should have made that clear in notes which would be available to any senior

house officer dealing with the patient. But in my view it was clear from the letter. And this is obviously the view taken by the

learned High Court judge. The discharging letter from Dr. Quinn to Dr. Carthy is also cited in the High Court judgment and reads

as follows:-

"I reviewed this patient in the Outpatients. As you know, this man has an interior wall duodenal ulcer which is

helicopractor positive. He is now attending Dr. Keeling's team on an ulcer drug trial. We can now safely discharge him to

your and their care."

There is no doubt that the finding of the peptic ulcer provides at least an understandable reason why he was discharged home

without further investigation. But although it was understandable one must ask was it excusable? Clearly, the learned High

Court judge did not think so and in my opinion it was open to him to take that view. I would slightly differ from the learned High

Court judge however in his treatment of the question as to whether the "panic attacks" ought to have been investigated. He

clearly took the view that this should have been done by Dr. Keeling in 1989 and/or by Dr. Buckley in 1991. I would take the

view that Dr. Keeling cannot be faulted for not separately investigating the panic attacks in 1989. At p. 102 of Book 4 of the

transcript the learned trial judge himself asked Dr. Keeling the following question:-

"What did you conclude about these panic attacks as to why they were happening?

Dr. Keeling replied as follows:

"At that moment in time the weight on the panic attack did not defer us from the investigation of the severe headache

associated with the nausea so we didn't put very much weight on it at that point in time. In other words, what I am

saying is that if we felt the symptoms were primarily driven by a panic episode we wouldn't have progressed with the

series of investigations for the headache, such as the lumbar puncture."

At p. 114 Q. 436 in the same transcript Dr. Keeling was asked why he did not refer the patient to a psychiatrist in respect of

the panic attacks and his answer reads as follows:-

"Because his symptoms as he presented to us were not driven by the panic attacks. The symptoms as we saw it was

related to what we considered to be a viral illness with meningeus and headaches and nausea."

De. Keeling goes on to develop the theme and emphasises that as far as he and his team were concerned Mr. Wolfe was a

patient presenting himself to the hospital with severe headache and that the panic attack was a side issue. If it had been a

serious issue he would have been referred to a psychiatrist.

In short it is quite clear from Dr. Keeling's evidence that he considered he was treating abdominal pain and that the so-called

panic attacks were not a serious symptom that required some independent investigation. It certainly would never have occurred

to him that such investigation would be desirable because of the possibility of a phaeo. This was because at all material times

Mr. Wolfe's blood pressure was normal, that is to say he was in medical terms "normotensive". I will explain in more detail the

importance of this when I deal with the cross-appeal but it is important even at this stage that I very briefly explain the

context in which this factor had significance.

A phaeo is an extremely rare condition. In at least 90 per cent of all "attacks" associated with a phaeo the patient is

hypertensive. But approximately 40 per cent of the attacks are paroxysmal which means that the blood pressure is raised only

at the time of the attack though there was some evidence to suggest that it would continue somewhat raised for a period

thereafter. It was very much part of the plaintiff's case that although the deceased may have presented himself following on

the attacks as normotensive that is to say with normal blood pressure, the attacks were nevertheless paroxysmal but the blood

pressure had gone down at the time he presented himself to the hospital. It was obviously to the plaintiff's great advantage if

she could establish this as 40 per cent of all cases come within that category whereas if her late husband was completely

normotensive during the attacks there are not more than 10 per cent in that particular category and obviously a failure to

diagnose is much more understandable. As I will be pointing out when I am dealing with the cross-appeal it is clear that

although there was conflicting expert evidence in this matter the learned trial judge accepted the view of Professor Wass, an

English expert that because of continuing headaches at the time of presentation, the attacks were still in being and that

therefore if they were paroxysmal rather than normotensive there would still have been raised blood pressure. It was the view

of all the doctors called on behalf of the defendants that if Mr. Wolfe was of the normotensive category no physician could

reasonably have been expected to have thought of a phaeo on foot of the other symptoms.

It is in that context therefore that Dr. Keeling was of the view that it would have been absurd for him to have thought of a

phaeo and, therefore, on that account to have pursued further investigations of the panic attacks in 1989. The views of Dr.

Weir were even stronger in this regard. Given that Mr. Wolfe was himself attributing the panic attacks to loss of employment I

do not think it reasonable to find negligence on the part of Dr. Keeling for not separately investigating the panic attacks in

1989.

With regard to his position in 1991 it appears to be unclear on the evidence as to whether Dr. Keeling ever had sight of Dr.

Buckley's famous letter to Dr. Carthy, but even if he had Mr. Wolfe, at that stage, was for general purposes under Dr. Buckley

and not under Dr. Keeling. Dr. Keeling was only brought in to carry out the tests which in the event showed that he had a

peptic ulcer. In my view there is no prima facie case of negligence against Dr. Keeling. There is a finding by the learned High

Court judge that in his 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. But it does not seem to me that the evidence supports

that finding. Nor in my view can such a finding be justified against Dr. Keeling in 1991. At that stage he was only dealing with

the peptic ulcer. Effectively, Mr. Wolfe was Dr. Buckley's patient. It had been intended by Dr. Buckley that following on the

investigations by Dr. Keeling, Dr. Buckley would review the position relating to the panic attacks. It was to Dr. Buckley that Mr.

Wolfe made clear that his real complaint was the panic attacks. I entirely accept, of course, the view of the learned High Court

judge that in a busy hospital such as St. James's, medical consultants are obliged to rely on their senior house officers to assist

them with their workload and to take many routine decisions on their behalf. But in this case the liability of Dr. Buckley cannot

be absolved on that account. If the plan was that Mr. Wolfe was to be reviewed in relation to his complaint of panic attacks

after the investigation by Dr. Keeling then that should have been made absolutely clear on notes which would have been before

Dr. Quinn. I have already found that Dr. Quinn should have understood this from the letter to Dr. Carthy, but I do not think that

the inclusion of that letter in the file was sufficient. It should have been made crystal clear by Dr. Buckley in a note on the file

that the patient was to be referred back to him for consideration of the panic attacks. The reason I take that view is the

express instructions which were given by the patient to Dr. Buckley. Dr. Buckley, in his evidence, seems to lay great emphasis

on the fact that he was only told by Mr. Wolfe that the panic attacks were his main complaint at the end of an interview. Dr.

Buckley mentions this several times in his evidence but I cannot understand the relevance of it. Whether it was at the

beginning, the middle or the end of the interview, it was a clear statement coming from the patient. A peptic ulcer could not

possibly explain the panic attacks over a long period of time and in my view it was open to the learned High Court judge to find

as he did that there was negligence in discharging Mr. Wolfe without the panic attacks being investigated. That negligence

must be attributed to the hospital itself, to Dr. Buckley and to Dr. Quinn. I do not think that it can be attributed to Dr. Keeling.

One cannot but have great sympathy with Dr. Buckley. He gave his evidence in an admirable fashion without engaging in too

much advocacy or special pleading. Secondly, he frankly admits that the unfortunate event from his point of view was the

finding of the peptic ulcer.

In this connection it is important to review some of the evidence of Dr. Buckley. At p. 46 of Book 7 of the transcript there was

the following question and answer in the course of Ms. Irvine's cross-examination on behalf of the plaintiff:-

"Q. I will come to the blood tests in a moment. But you did not investigate the panic attacks at all with him; is that

correct?

A. I arranged for him to come back to my clinic, whenever it was, two weeks later. I did not address it. This was the

end of the interview on that day."

The following dialogue then ensued between the learned trial judge an Dr. Buckley:-

"Q. Did you form any opinion about what he was telling you about the panic attacks which he was apparently very

clearly associating with the abdominal pain? The idea he was trying to get across to you and did apparently get across

to you, Dr. Buckley, was that he felt, rightly or wrongly, that if he could have the panic attacks sorted out that he would

have no more problems with the pain because the pain in the stomach was associated, was related to the panic

attacks, but the prime mover was the panic attack and the other was ancillary symptom that came with it. So he felt

that If he could get rid of the prime mover he would not have any more stomach trouble. That seems to be what he

was thinking rightly or wrongly?

A. I would agree, My Lord, yes.

Q. That is what he was trying to say to you. What was your reaction to that?

A. My reaction to that, My Lord, at the end of a difficult interview and subject to time constraints, would be to review it

on another day.

Q. Did you in fact review it at a subsequent date?

A. I gave Mr. Wolfe an appointment to re-attend my clinic after he had been investigated. The problem then was

positive findings came to light as a result of these investigations and it would have been better if the investigations had

been negative.

Q. What I would like you to comment on is this, your thinking of time was, when you say Mr. Wolfe at this interview, was

that the stomach pains did not have a physical origin, that they had, for want of a better word, a mental origin. That

was your thinking at the time. He then at the end of the interview gave you this information about panic attacks which

of course could well have a mental origin, and associated with it he said abdominal pains; did that confirm your thinking

that the problem was not physical, probably not physical, but was mental in origin, or did you take it into account at all

one way or another?

A. I would have to say, My Lord, that at the end of the interview and after this statement had been made by Mr. Wolfe,

I was still not concerned about his health or safety to the extent that I should have done something else on that day

other than what I did do. But I did erect a safety net to a certain extent by getting them back.

Q. In the meanwhile although you did not think that in fact any symptoms would emerge, any discovery would be

emerged, you thought nonetheless it would be wise to have this stomach examination carried out by Dr. Keeling's team.

It was carried out, as we know, and contrary to your expectation a peptic ulcer was discovered. Is it the position then

that that, so to speak, took over now as the source of the problem as being identified, it is the peptic ulcer and the

peptic ulcer was duly treated, as we know, and ultimately Mr. Wolfe was discharged as an outpatient from St. James's

Hospital?

A. That is exactly the position, My Lord."

The learned trial judge at that point checked out that Dr. Buckley had not in fact seen Mr. Wolfe again and he was duly

reminded of the evidence that Mr. Wolfe was seen by Dr. Quinn instead. At that point Barr J. put it to Dr. Buckley that he would

be responsible for Dr. Quinn even though it did not follow that he had to personally see him and that proposition was assented

to by Dr. Buckley. What seems to clearly emerge from this and subsequent questioning of Dr. Buckley was that he does not

seriously dispute that Mr. Wolfe's specific assertion that it was for the panic attacks rather than the stomach pains that he was

seeking treatment should have been pursued, but time and again he makes two points which would give a reason why the

investigations were not carried out but which would clearly not absolve him from the duty to carry them out if such a duty of

care existed. In other words Dr. Buckley's dilemma was understandable but if such duty did exist it was not in the end legally

excusable. The two points were that the specific emphasis on the panic attacks by Mr. Wolfe came at the end of an interview

in circumstances where some kind of time limit was operating understandably enough for interviews with each patient in the

Outpatient's Department. The second point was that everything was effectively derailed by the finding of the peptic ulcer.

At p. 52 of the same transcript the cross-examination by Ms. Irvine continued as follows:-

"Q. Now you are at five years with the paroxysmal symptoms and you didn't get them investigated?

A. I did not get them investigated, they are common presentations and I did not dismiss the patient, I arranged for him

to return. This is the point I am trying to make.

Q. I know he returned, Dr. Buckley but he only returned in relation to the abdominal pain. The plaintiff's presenting

complaint was that he wanted the panic attacks dealt with, they had not been dealt with in 1989 and he is back asking

for treatment for his panic attacks. I know you dealt with the abdominal pain, but I am suggesting you never dealt with

the panic attacks, which you thought, or you certainly thought his problem was psychological. What you did was you

cast out the physical net rather than the psychological net, which is the one you should have cast out?

A. I cast out a safety net and asked him to return in two weeks. The tragedy was the positive findings of the

investigation. It would have been much better if I had arranged no physical investigations at all."

At pp. 54 and 55 there was further cross-examination which ended in a rather curious answer. It reads as follows:-

"Q. He was never reviewed again from the panic attacks symptoms aspect; isn't that correct?

A. Yes, it is correct. The explanation for that was a cause was found for his symptoms.

Q. No, a cause was found for his abdominal symptoms but not for the persistent shaking panic attacks that he was

having for three weeks before 1989; isn't that correct?

A. Yes, it is correct. My response to that would be that it would have been better if we had not done an endoscopy and

we had failed to diagnose an ulcer, then we cold have possibly pursued the anxiety. Then he might have died from

gastric haemorrhage due to an unrecognised ulcer."

Since the persistent panic attacks over many years could not have been caused by the peptic ulcer it would seem quite clear

that if there was a duty of care to investigate those attacks when Mr. Wolfe returned to Dr. Buckley after tests proved

negative there must necessarily have been the same duty if as happened, in the event the tests proved positive but in a way

that could not explain the panic attacks. It is clear in my view that there was a duty and that Dr. Buckley was in breach of it

having regard to the evidence of Dr. Quinn.

None of this, however, is relevant unless the learned trial judge was entitled to draw the inference which he did that had the

panic attacks been investigated it would have been discovered as a matter of probability that Mr. Wolfe was suffering from a

phaeo. In my view, the trial judge was entitled to draw this inference. First of all the only explanation for the so called panic

attacks which had ever been put forward was one which to a lay man at least would seem inherently unlikely, that is to say

that they arose because of Mr. Wolfe losing his job with the Port and Docks Board as far back as 1985 notwithstanding that the

serious panic attacks did not really commence until 1988 and notwithstanding that they persisted until 1991. There was no

evidence that any doctor or expert of any kind had ever determined that he loss of job was the reason for the panic attacks.

The suggestion came from Mr. Wolfe himself, though it is clear from the transcript that the trial judge was of the view that this

was suggested to him by somebody and probably by his general practitioner. The neat theory put in cross-examination that had

he been sent to a psychiatrist, a psychiatrist would have ruled out this explanation or any other psychiatric explanation and

would have considered the possibility of the phaeo was rubbished (perhaps correctly) by Dr. Keeling and Dr. Buckley. But this

appeared to be partly on the basis that in general psychiatrists were not know for disclaiming reasons connected with their own

speciality and attributing physical reasons for symptoms that might otherwise be regarded as psychiatric. It would seem to me

that the real question which had to be addressed by the trial judge was whether if a psychiatrist, as seems likely, ruled out or

even expressed scepticism as to the loss of job explanation and could come up with no other explanation a consultant physician

to whom Mr. Wolfe would have been returned would have then considered the question of a phaeo having regard to the

combination of symptoms and notwithstanding the normotensive presentation. Barr J. at p. 26 of his reserved judgment says

the following:

"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."

I think that the learned trial judge was clearly entitled to draw those inferences. I would, therefore, dismiss the appeal.

Turning now to the cross-appeal it must logically follow from the views which I have expressed that I would allow that part of

the cross-appeal which relates to the dismissal of the action against Dr. Buckley in that the heading of negligence under which

the plaintiff/respondent was successful in the High Court necessarily involves a liability in him.

Altogether different considerations apply to the rest of the cross-appeal. It is not necessary to go into them in any detail. The

position can be summarised as follows. It was at all times the plaintiff/respondent's case that having regard to the particular

combination of symptoms which Mr. Wolfe had a phaeo ought to have been diagnosed notwithstanding the absence of one of

the most usual symptoms in that connection namely hypertension. It was never in dispute that the symptoms complained about

by the late Mr. Wolfe were undoubtedly symptoms commonly associated with a phaeo, but a phaeo is an extremely rare

condition and those same symptoms were associated with numerous other medical ailments. Furthermore, one important

symptom which would generally be a feature of a phaeo namely, sweating was not complained about in the hospitals by Mr.

Wolfe. Indeed at one stage when he was asked was there night sweating he answered in the negative. However, his wife's

evidence was that sweating was a regular feature and it is part of the plaintiff's case that had there been any proper

consideration of the other symptoms when taken in combination the existence of the sweating would have been discovered. As

I have already indicated earlier on in the judgment it was an important part of the plaintiff's case that although her deceased's

husband's blood pressure was normal upon presentation as a matter of probability that was because the attacks had then come

to an end and that he was in the 40 per cent category who have paroxysmal attacks, that is to say have raised blood pressure

during the attacks but not afterwards. It is true that the plaintiff/respondent as a fall back case also claimed negligence in

failure to diagnose the phaeo even if the court found that the deceased was at all times normotensive and, therefore, within

the category of 10 per cent or in the view of some less.

On this issue the learned trial judge was faced with the difficulty that he had entirely conflicting evidence from well known

Dublin consultant physicians who gave evidence on both sides. Dr. Buckley, Dr. Keeling and Dr. Weir in particular were strongly

of the view that it would have been wholly unreasonable and wholly impracticable to expect any physician to have thought of,

never mind, diagnose a phaeo in the absence of hypertension though they did acknowledge the textbook cases of phaeos

without hypertension even at the stage of attack, that is to say completely normotensive. Dr. Barniville and Professor Seán

Blake however who were called on behalf of the plaintiff/respondent gave very strong evidence to the opposite effect. All of

this was somewhat unusual in that there inevitably tends to be a pattern in medical negligence actions of plaintiffs relying on

specialists brought in from outside the jurisdiction, some of them in retirement or semi-retirement and regularly giving expert

evidence in court. But in this case there was a clash of opinion between leading practising or retired practising physicians in the

well known Dublin hospitals. It is not very easy for a layman to understand how this can happen and it certainly makes it very

difficult for a trial judge. But in addition to the Irish consultants the defendants relied heavily on a Professor Wass from the

Radcliffe Infirmary in Oxford who was an acknowledged expert on this branch of medicine and was not only a professor but was

a practising physician also. He was very strongly of the view that it would have been unreasonable to have expected diagnosis

and furthermore he was strongly of the view that on the occasions when the deceased presented himself with the symptoms

his attacks were not over particularly having regard to the headaches and that therefore he came within the 10 per cent

category of completely normotensive patients with phaeos.

With this range of views it was open to the learned trial judge to come down on either side. This is what Barr J. in fact said at

p. 34 of his judgment:-

"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 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 Dr.

Barnable 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 evidence of hypertension when his blood pressure was checked at anytime

in hospital while the severe attacks 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."

It was perfectly open to the learned trial judge to make that finding on foot of the evidence before him and it cannot be

interfered with by this court. Except to the limited extent to which I have already indicated in relation to Dr. Buckley I would

hold that the cross-appeal should fail. But it should be allowed to the limited extent of substituting a finding of negligence

against Dr. Buckley for the failure to investigate the panic attacks.

It may seem surprising that so far I have not referred to the legal principles laid down by this court in relation to medical

negligence and particularly the principles enunciated by Finlay C.J. in Dunne (an infant) v. The National Maternity Hospital

[1989] I.R. 91 as referred to by the learned trial judge. I will now put that omission in context. The former Chief Justice in that

judgment set out a number of principles but the relevant one for the purpose of this case as pointed out by the learned trial

judge is the following:-

"The true test for establishing negligence in diagnosis or treatment on the part of a medical practitioner is whether he is

bring 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 formulation of this test has been carefully thought out with a view to achieving a proper balance between two legitimate

concerns. This is illustrated by the further passage from the judgment cited by Barr J. and which I think it useful to cite again in

this judgment:-

"In order fully to understand these principles and their application to any particular set of facts it is, I believe it helpful to

set out certain broad parameters which would appear to underline their establishment. The development of medical

science and the supreme importance of that development to humanity makes it particularly undesirable and inconsistent

with the common good that doctors should be obliged to carry out their professional duties under frequent threat of

unsustainable legal claims.

The complete dependence of patients of the skill and care of their medical attendants and the gravity from their point of

view of a failure in such care makes it undesirable and unjustifiable to accept as a matter of law a lax or permissive

standard of care for the purpose of assessing what is and is not medical negligence. In developing the legal principles

outlined and in applying them to the facts of each individual case the courts must constantly seek to give equal regard

to both of these considerations."

The learned trial judge took the view that there was actionable negligence by reason of the failure to investigate the panic

attacks in 1989 and 1991. In relation to 1989 the above cited test of "no medical practitioner of equal specialists or general

status and skill" would be the appropriate test. I applied that test on foot of the evidence contained in the transcript and for

the reasons which I have indicated came to the conclusion that the learned trial judge was not entitled to make a finding of

negligence in 1989. On the other hand, I believe that he was fully justified in making a finding of negligence in relation to the

failure to investigate the panic attacks in 1991. But in my view in making that determination the "medical practitioner of equal

specialist or general status and skill" is of very little relevance. In relation to 1991 it is not a question of the deceased's medical

advisors being obliged to use their professional skills and thinking up some test which ought to be carried out. At that stage the

patient himself, Mr. Wolfe, was telling Dr. Buckley that he was seeking treatment not for the abdominal pains but for the panic

attacks. He may well have mentioned this at the end of an interview but the panic attacks had featured in earlier complaints

and the medical records show that he had had them for some years. If this was his major concern in 1991 and that concern

was expressed to his doctors I see no reason why one has to apply some artificial test as to what the doctor's duty was.

Expert evidence is never necessary to prove the obvious. The learned trial judge was entitled to take the view that there was a

clear duty on Dr. Buckley to see to it that the panic attacks would be investigated as required by the patient. As I have already

indicated it is perfectly understandable (though not excusable) why in the end this did not happen and Dr. Buckley in his

evidence very fairly admits that the finding of the peptic ulcer effectively caused the distraction. The duty remained and the

defendants were in breach of it. I have also indicated that in my view it was fully open to the learned trial judge to draw the

inference that had the panic attacks been investigated the phaeo, as a matter of probability, would have been discovered. The

Dunne v. The National Maternity Hospital test was correctly applied by the learned trial judge in relation to the first heading of

negligence that is to say the failure to diagnose. But that test would seem to me to be of only marginal relevance to the

question of whether the panic attacks should have been investigated in 1991 for the reasons which I have given.

In short therefore, I would propose the following orders:-

1. That the appeal be dismissed.

2. That the cross-appeal be allowed to the limited extent that there be substituted a finding of negligence on the part of

the second-named defendant and that therefore the judgment in favour of the plaintiff would be against both the first

and second-named defendants.