Supreme Court dismisses appeal in negligence claim where trial judge correctly preferred conflicting expert medical evidence.

THE SUPREME COURT

Keane C.J.

Denham J.

Murray J.

McGuinness J.

McCracken J.

75, 127 & 131/02

BETWEEN

DARREN PURDY (A PERSON OF UNSOUND MIND, NOT SO FOUND, SUING BY AND THROUGH HIS MOTHER AND NEXT FRIEND

ELIZABETH PURDY)

PLAINTIFF/APPELLANT

AND

MICHAEL LENIHAN, KIERAN O’DRISCOLL, MARGARET SHERIDAN-PEREIRA, MOIRA SKELLY, JOHN STRONG AND JOHN RYAN AND

VINCENT FENTON BY APPLICATION

DEFENDANTS/RESPONDENTS

JUDGMENT delivered the 5th day of February 2003, by Keane C.J.

This is an appeal from a judgment and order of the High Court (Johnson J) dismissing proceedings brought by the plaintiff against the

first, second, third, fourth and seventh named defendants for negligence and breach of duty arising out of his birth in the National

Maternity Hospital, Holles Street, Dublin, (hereafter “the hospital”) on the 28th February 1978. The action as against the fifth named

defendant was by consent adjourned generally with liberty to re-enter and that as against the sixth named defendant was struck out

by consent with no order as to costs.

A motion on behalf of the plaintiff seeking an order giving him liberty to adduce fresh evidence on the hearing of the appeal had been

before the court on a previous occasion and was adjourned to the hearing of the appeal itself. Having heard submissions from

counsel, the court rejected this application and indicated that reasons for its ruling would be given when judgment in the action itself

was being delivered.

The plaintiff, now aged 24, suffers from cerebral palsy. The first named defendant is the nominated representative of the hospital and

the second, third, fourth, fifth, sixth and seventh named defendants were at the relevant time obstetricians and/or doctors on the

staff of the hospital. The second named defendant was at the relevant time the master of the hospital. The plaintiff claimed that the

condition of cerebral palsy from which he suffers was the result of the negligence and breach of duty of the defendants in the care

and management of his delivery.

Since the trial took place 23 years after the events with which it was concerned, the medical and nursing staff had obvious difficulty

in recalling in any detail what had transpired. That difficulty was compounded by the fact that many of the relevant notes or records

had been lost or destroyed in the interval. So far as the hearing of the appeal was concerned, however, there was little, if any,

dispute as to the primary facts: the issue was rather as to the inferences which should properly be drawn from those facts.

At the time of the delivery of the plaintiff, his mother (hereafter “Mrs. Purdy”) was aged 36 and already had four young children. On

the 9th November 1977 she attended at the hospital at a stage when she was 27 weeks and two days pregnant. This was because of

a relatively insubstantial ante-partum haemorrhage. She was detained for observation, but there having been no further bleeding she

was allowed home on the 19th January 1978. She attended again on the 3rd February 1978, as a result of which she was prescribed

antibiotics for bronchitis.

On the 28th February at 10.00 a.m. Mrs. Purdy was again admitted to hospital, this time with a substantial but painless ante-partum

haemorrhage. At this stage she was 33 weeks and 3 days pregnant. At the time of the admission, the third named defendant, Dr.

Sheridan-Pereria, who admitted her was a recently appointed junior doctor. Her diagnosis that a condition known as placenta praevia

was the cause of the bleeding was confirmed at 10.30 am by the seventh named defendant, Dr. Vincent Fenton. Dr. Fenton is a

consultant obstetrician who at the time was an assistant master in the hospital. In the staff hierarchy at the hospital, this meant

that he had the status of a registrar and not a consultant, although, as it happened, he reached consultant status shortly after the

events with which this case is concerned.

Placenta praevia is a condition arising in a pregnancy resulting in the implantation of the placenta in the bottom part of the uterus

adjacent to or over the cervix. This results in unavoidable bleeding during the latter weeks of the pregnancy, the situation being

exacerbated where the placenta lies over the internal os, since this is likely to result in more significant haemorrhaging. Placental

separation reduces the contact area between the mother and the foetus and reduces the potential for oxygen transfer.

Dr. Fenton considered that the diagnosis of placenta praevia should be confirmed by ultra sound. It is not in dispute that, at this

stage, Dr. Fenton did not order the cross-matching of Mrs. Purdy’s blood.

The cross-matching of blood involves taking a blood sample, analysing the blood type, identifying units of stored blood of the same

type and making this blood available in the event that a transfusion becomes necessary. In such a transfusion, the person giving and

the person receiving the blood must belong to the same blood group or a dangerous reaction may take place. The significance of

cross-matched blood being available in the present case was that it would be essential if a Caesarean section was to be performed.

In the event, the plaintiff was delivered by Caesarean section at 6 pm.

No record of Mrs. Purdy’s condition between 10.30 a.m. and 16.20 p.m. was available at the hearing, all the relevant nursing notes

and records having been lost. The notes available record her as having suffered a further substantial ante-partum haemorrhage,

which was painless, at 16.20 p.m. Dr. Fenton at this stage ordered an IV drip and 4 units of blood to be cross-matched. He also

ordered a Caesarean section to be performed, if the bleeding continued. At that time, the blood loss was estimated at 4.500 mls: it

was again a painless bleed and had concluded at that time.

Dr. Fenton went off duty at approximately 16.30 p.m. and was replaced by the fourth named defendant, (hereafter “Dr. Skelly”), who

was also an assistant master. At 16.50 p.m., Mrs. Purdy had a further bleed of approximately 300 mls: Dr. Skelly noted that she

looked “pale” and needed blood and she directed that a lower segment Caesarean section should be performed as soon as blood

became available.

At 6.00 p.m. the lower segment Caesarean section was performed and the baby was delivered with a forceps with some difficulty,

because the placenta was in the left anterior lateral position. Following the delivery, the uterus and abdomen were closed in a routine

manner. The blood loss at this stage was a further 300 mls. The plaintiff’s weight at birth was 2.77 kgs and his head circumference

was 35.5cm. His condition at birth was poor and he was intubated. His Apgar score – a rating of 0 – 10, generally used for assessing

the need for resuscitation after birth – was 1 at one minute and he was suffering from respiratory distress syndrome. Subsequently he

was diagnosed as suffering from cerebral palsy.

This condition has resulted in the plaintiff being totally dependant on assistance in all bodily functions: he spends some of his time in

respite centres. He is confined to a wheelchair when he is not in hospital and has very little speech and limited control only over his

bodily movements.

The High Court Proceedings.

The case was at hearing for 22 days in the High Court. The plaintiff’s claim was grounded in part on allegations of negligence on the

part of the hospital or the medical personnel by whom Mrs. Purdy was seen on her previous attendances at the hospital from the 16th

– 19th January 1978 and on the 3rd February 1978. The learned High Court judge found that those allegations had not been

established at the trial and there has been no appeal from that finding. There were also allegations of negligence based on what was

said to have been a failure by the nurses and/or midwives then on duty at the hospital properly to attend to Mrs. Purdy between the

hours of 10.30 a.m. and 16.20 p.m. on February 28th. The trial judge found that, because of the lapse of time – 20 years – between

the events in question and the institution of proceedings and the loss of medical records and notes, the defendants were not in a

position to defend themselves against the claim and that, applying the principles laid down in this court in Toal –v- Duignan and

Others [1999] ILRM 135 and other cases, the interests of justice required the striking out of that part of the plaintiff’s claim. While

there was an appeal from that finding, it was not pursued on the oral hearing of the appeal.

The remaining claims of negligence and breach of duty against the defendants were based on

(a) the alleged negligence of the hospital and/or Dr. Fenton in failing to have Mrs. Purdy’s blood cross- matched and the

requisite supplies ordered at 10.30 a.m.;

(b) the failure of Dr. Fenton to carry out a Caesarean section at 16.20 p.m.;

(c) the failure of Dr. Skelly to carry out a Caesarean section at 16.30 p.m. or shortly thereafter.

It was also alleged that, in the case of Dr. Skelly, she had been negligent in carrying out a vaginal examination of Mrs. Purdy

immediately prior to the performance of the Caesarean section, thereby, as it was said, wasting valuable time.

As to the first of these allegations, the trial judge found that Dr. Fenton believed, as a result of conversations with masters in the

hospital, that the policy of the hospital was not to cross-match bloods unless the mother was actually bleeding or a diagnosis of

placenta-previa had been confirmed by ultra sound scan. He also found that there was almost unanimous agreement among the

medical experts that such a policy, if it existed, was mistaken. Since there was also evidence that the policy was working

satisfactorily, he concluded that Dr. Fenton was not negligent in following the practice in question. He found, however, that,

“the hospital was negligent in failing

(a) to communicate what its correct practice was to Dr. Fenton or

(b) in failing to correct Dr. Fenton’s practice, which he said he had been carrying out for two years, if it was not hospital

policy”

He dismissed the claims for negligence against Dr. Fenton and Dr. Skelly arising out of their alleged failure to carry out a Caesarean

section at the appropriate time.

The trial judge’s finding that the hospital had been negligent was, of course, posited on the cerebral palsy from which the plaintiff was

subsequently diagnosed to be suffering having been caused by the failures which he had identified on their part. It was accepted on

behalf of all the parties that, assuming it was an appropriate procedure not to have embarked on a Caesarean section until the third

bleed had occurred – at 16.50 p.m. – an issue arose as to whether the damage from which the plaintiff is now suffering had already

been caused before the Caesarean section could have been completed or whether – as contended for on behalf of the plaintiff – the

damage was more probably suffered during the final twenty minutes before the actual delivery by Caesarean section at 6.00 p.m. The

trial judge pointed out, that on the 17th day of the trial, Dr. Mary King, a paediatric neurologist, gave evidence on behalf of the

defendants that, in her opinion, the “insult” (to use the medical term) to the plaintiff did not occur in the last half hour or twenty

minutes before birth but during the three bleeds which had occurred earlier in the day. This, he said, required the recalling of some of

the plaintiff’s experts and the adduction of new evidence on his behalf in relation to an issue which he described as “fundamental to

the whole case”.

In considering this issue, the trial judge referred to conflicts of view between the experts respectively for the plaintiff and the

defendants on certain matters. The first of these was as to when the last bleed occurred, the significance of this being, he said, the

agreement between the experts that, on the balance of probabilities the injury to the plaintiff occurred during a bleed prior to birth.

He said that Dr. Hoskins and Dr. Pearse, for the plaintiff, were of the view that there was a hidden continuing bleed during the final

twenty minutes before birth, whereas Dr. King was of the view that the damage occurred at the last recorded bleeding, namely, at

16.50 p.m. He also noted other areas of disagreement between the experts on this issue, including the condition of the plaintiff

immediately after delivery and, in particular, whether he required intubation and intermittent positive ventilation for 10 minutes. He

summed up his conclusions as follows:

“there is no doubt that under those circumstances I am faced with an absolutely black and white picture. However, for the

plaintiff’s thesis and that of Dr. Pearse and Dr. Hoskins to be accepted, it was necessary to accept that he was intubated for

10 minutes which appears to be against the notes and the many entries therein and the fact that there was a hidden or

secret bleed going on from 16.50 p.m. until 6.00 p.m., the time of the delivery. There is no evidence that such a bleed was

continuing as was witnessed by the fact that from a vaginal examination conducted by Dr. Skelly, no such bleeding was

recorded. Under those circumstances I have no option but to come to the conclusion that the plaintiff has failed to establish

that the insult from which the plaintiff suffers occurred in the last half hour prior to his delivery and that being so the plaintiff

has failed to establish [that] the condition from which he now suffers was caused by the negligence of the defendants or any

of them.”

The plaintiff has appealed to this court from that finding by the trial judge and from his earlier finding that there was no negligence on

the part of Dr. Fenton and/or Dr. Skelly in failing to carry out a Caesarean section at an earlier stage. A notice to vary was served on

behalf of the hospital in respect of the finding that the hospital had been negligent in failing to communicate what its correct practice

was to Dr. Fenton or in failing to correct his practice, if it was not hospital policy.

The Application to Adduce New Evidence

In his affidavit grounding this application, the solicitor for the plaintiff said that in advance of the trial date all the parties had

exchanged medical experts’ reports in accordance with the requirements of the relevant statutory instrument. He said that the

evidence given by Dr. King on the 17th day of the hearing, that the damage suffered by the plaintiff did not occur in the last twenty

minutes prior to delivery, was an entirely new departure in the defence of which the plaintiff had been given no warning in the medical

reports. He said that in support of her thesis, Dr. King had relied upon and quoted extensively from an article by Drs. Rowland and Hill

of Vancouver and had said in her evidence that this article showed that, in order for the plaintiff to have suffered the type of injury

alleged, he would also have to had suffered other organ damage. He said that after the trial had ended, he got in touch with Dr. Hill,

the senior author of the article in question, and said that he ascertained from him that his article had been misinterpreted by Dr. King

and that she had “misstated” what appeared in the article.

A report from Dr. Hill was exhibited with the affidavit. Much of this report, it should be pointed out, is taken up with the author’s view

as to whether the injury to the plaintiff in this case was more probably caused in the final twenty minutes before delivery than at an

earlier stage. On this issue, Dr. Hill was in disagreement with Dr. King. He does, however, also take issue with the conclusion she drew

from his article that the later the insult occur, the greater the likelihood of damage to other organs.

On behalf of the plaintiff, it was submitted that there were “special grounds” within the meaning of Order 58, Rule 8 of the Rules of

the Superior Courts which justified the admission of this evidence. It was submitted that it met the three criteria identified by Finlay

C.J., speaking for this Court in Murphy –v- Minister for Defence [1991] 2 IR 161, i.e.:

(1) the evidence was in existence at the time of the trial but was such that it could not have been obtained with reasonable

diligence for use at the trial;

(2) it was such that, if given, it would probably have had an important influence on the result of the case, even if it were not

decisive;

(3) it was apparently credible, although not incontrovertible.

It seems at least doubtful whether this evidence could be said to have been in existence at the time of the trial, since, insofar as it

was relevant, it took the form of Dr. Hill’s opinion that Dr. King had misstated the effect of his article, or, was mistaken in her reliance

on it, an opinion which he could not have formed until the solicitor communicated with him after the trial. However, altogether apart

from that consideration, the evidence clearly failed to meet the second of these requirements, i.e. that it would probably have had an

important influence on the result of the case.

There is nothing in the evidence of Dr. King to suggest that she regarded her conclusions as to the time at which the plaintiff

probably suffered the injury as dependent on the conclusions she believed Dr. Hill and his colleague to have arrived at in the article in

question. On the contrary, Dr. King specifically rejected that suggestion during the following exchange in the course of her cross-

examination by counsel for the plaintiff:

“Q. Now, is this the article on which you based your conclusions in this Court that this is not a late acute hypoxic intrusion

because there was no renal damage; is this were you get the basis for that assertion?

A. Not at all, My Lord. I get it from my clinical experience and that is then supported by a small body of literature where these

cases are well documented. All I have said is that it is the rule rather than the exception. So this article is one that I would

have. I collect any literature that comes out in this subject. So most of the studies of this type of damage are in small

numbers.” Transcript, (Vol.21, p.85)

The evidence in question thus did not establish any facts relevant to the issues of the trial which would have had an important

influence on the case. It was no more than evidence as to the credibility of an admittedly important witness. That, however, called

for the application of the stricter test identified in Meek –v- Fanning [1951] 2 QB 366 and adopted by this Court in Re Greendale

Developments Limited (No. 2) [1998] 1 IR 8, i.e. that the new evidence was of such a nature that it must have led the trial judge to

a different conclusion from that actually arrived at in the case. This additional evidence clearly did not fall into that category.

Submissions of the parties on the issues arising in the Appeal

On behalf of the plaintiff, Mr. James Connolly S.C. submitted that, so far as the issue of causation was concerned, the trial judge was

in error in stating that the experts agreed that on the balance of probabilities the injury to the plaintiff occurred during a bleed before

delivery. He said that the two obstetricians called on behalf of the plaintiff, Dr. Pearse and Dr. McKenna, had not given evidence to

that effect and it was clear from their evidence that the damage could have occurred after the bleeding had stopped. The evidence

of Professor Johnson was to the same effect. He further said that Dr. Pearse and Dr. Hoskins, the neonatologist and paediatric

neurologist respectively, called on behalf of the plaintiff did not agree that the damage occurred specifically during a bleed and said

that this was exclusively within the area of expertise of obstetricians. He submitted that Dr. King ought similarly to have deferred to

the expertise of obstetricians in this area and that the trial judge had failed to take this into account.

Mr. Connolly submitted that this mistaken assumption on the part of the trial judge rendered his conclusion that the plaintiff had failed

to establish that the want of care on the part of the hospital was the cause of the injury to the plaintiff unsustainable and that, at

the least, there should be a re-trial. Alternatively, this Court should substitute its own finding of facts based on the inferences which

the trial judge should have drawn from the evidence and resolve the issue of causation in favour of the plaintiff.

Mr. Connolly further submitted that the trial judge was in error in concluding that Dr. King’s opinion that the injury to the plaintiff did

not occur in the final twenty minutes before delivery was borne out by the condition of the plaintiff immediately after his birth. He

submitted that the trial judge had attached undue significance to the question as to whether the baby required intubation and

intermittent positive pressure ventilation for ten minutes, since there was other evidence pointing to the baby’s poor condition at

birth, i.e. the low Apgar score of one at one minute.

As to the negligence alleged against Dr. Fenton and Dr. Skelly in failing to carry out a Caesarean section on Mrs. Purdy at 16.20 p.m.

or as soon as possible thereafter, Mr. Connolly submitted that the trial judge was in error in holding that there was a large body of

medical opinion, possibly a majority opinion, which would considered it reasonable to defer a Caesarean section until the time it was

actually performed by Dr. Skelly, with a view to prolonging the pregnancy until a vaginal delivery could be effected. He said that the

evidence of Professor Johnson and Dr. Pearse was that an emergency Caesarean section should have been organised at 16.20 p.m.

and that Dr. Skelly herself said she would have considered doing the operation at 16.20 p.m. if she had been present. Mr. Connolly

further submitted that the trial judge was in error in failing to consider whether Dr. Skelly was negligent in carrying out a vaginal

examination upon Mrs. Purdy immediately before proceeding to perform the Caesarean section, it having been urged on behalf of the

plaintiff that this was not in accordance with proper practice and wasted valuable time during which the foetus could have been

further compromised.

Mr. Connolly urged that the argument on behalf of Dr. Skelly that, in any event, a Caesarean section could not have been safely

carried out until 6 p.m. because of the non-availability of cross matched blood, for which she was not responsible, could not be

reconciled with the evidence of Dr. King, relied on by all the defendants, that the damage to the foetus more probably occurred

during the bleeds observed at 16.20 p.m. and 16.50 p.m.

On behalf of the hospital, Mr. Charles Meenan S.C. submitted that, so far as the issue of causation was concerned, the trial judge

had correctly identified that two aspects of the evidence were crucial, first, whether there was credible evidence that the plaintiff

had been intubated for ten minutes and, secondly, whether there was a hidden or secret bleed going on from 16.50 p.m. until the

actual delivery at 18.00 p.m. He submitted that, on both these matters, there was credible evidence to support the finding of the

High Court judge which, accordingly, should not be set aside by this Court.

On the question of intubation, Mr. Meenan submitted that the contemporaneous medical records relied on by Dr. King indicated that

the intubation was for one minute, which was not consistent with a baby being nearly dead at birth and was also inconsistent with

the damage having happened in the last twenty minutes before delivery. He said that the trial judge was perfectly entitled to prefer

that view to the view of Dr. Pearse on behalf of the plaintiff that the baby was intubated for ten minutes, which was based on a

statement to that effect in a discharge letter of the 14th April 1978.

Mr. Meenan further submitted that there was credible evidence on which the trial judge was entitled to conclude that there was no

hidden or secret bleed going on from 16.50 p.m. to 18.00 p.m. He was entitled to rely in this context on the fact that Dr. Skelly had

carried out the vaginal examination at 16.50 p.m. and that at that time there was no record of any bleeding. He also submitted that

the trial judge was entitled to have regard to the fact that Dr. Pearse himself acknowledged that the question of whether there was a

secret bleed going on was essentially one for an obstetrician rather than a paediatrician such as himself.

On behalf of Dr. Skelly, Mr. Brian McGovern S.C, submitted that it had never been put to Dr. Skelly that she should have carried out a

Caesarean section at 16.30 p.m. He further submitted that, on the question of whether or not she should have carried out the

section at 16.50 p.m. despite the absence of cross matched blood at that stage; there was simply no evidence to suggest that she

should have carried out a Caesarean section without waiting for cross matched blood to be available.

As to the carrying out of a vaginal examination, Mr. McGovern submitted that it was never put to Dr. Skelly at the trial that she

should have not carried out a vaginal examination. He said that, in any event, the relevant text book in use at the time by midwives

and medical staff made it clear that such an examination was appropriate where the patient was in the operating theatre “set up in

readiness for a Caesarean section”.

On behalf of Dr. Fenton, Mr. Murray McGrath S.C. submitted that there was credible evidence, on which the trial judge was entitled to

act, that there was a body of medical opinion which would have supported Dr. Fenton’s view at 16.20 p.m. that a Caesarean section

should not be carried out unless there was further bleeding. He submitted that the trial judge was perfectly entitled to rely on the

evidence that that was a legitimate point of view, having regard to the desirability of prolonging the pregnancy in the interests of the

foetus and in the absence of any evidence that the foetus was suffering distress at that time.

Mr. Meenan made submissions in support of the notice to vary on behalf of the hospital to which Mr. McGrath and Mr. Connolly replied

on behalf of Dr. Fenton and the plaintiff respectively. In view of the conclusions I have arrived at on the other issues arising on the

appeal, I do not find it necessary to refer to them in detail.

Conclusions.

The central issue for resolution on this appeal is as to whether there was credible evidence which would support a finding by the trial

judge that, on the balance of probabilities, the damage to the plaintiff was caused during the earlier bleeds and not during the final

twenty minutes prior to delivery at 6.00 p.m. or, alternatively, a finding by him that the plaintiff had not established as a matter of

probability that it had occurred during the latter rather than the former period.

I am satisfied that there was such credible evidence. Ultimately, the trial judge was confronted with a conflict of view between the

experts called on behalf of the plaintiff, Dr. Pearse and Dr. Hoskins, and on behalf of the defendants, Dr. King. All three were in

agreement that, in determining whether the injury was sustained in the final twenty minutes prior to delivery, the condition of the

baby in the period following the delivery was of critical importance. It was, of course, the fact that the only guidance to the condition

of the baby at the relevant time, having regard to the 23 years which had elapsed, was what could be inferred from the

contemporaneous notes. It is not in dispute that there are three individual references in those notes to the baby having been

intubated for one minute after birth and that the only basis for a finding that ten minutes intubation was required was the reference

in the discharge letter, which, it should be noted, did not make it clear whether the ten minute period related solely to intubation or

to a combination of intubation and “intermittent positive ventilation”. The trial judge was perfectly entitled, in my opinion, to take the

view that the records were more consistent with the view taken by Dr. King. He was also clearly entitled to prefer the view of Dr.

King that the damage occurred during the course of a bleed before delivery and that, in the absence of any indication of any bleed

subsequent to the ones observed at 16.20 p.m. and 16.50 p.m. the more likely conclusion was that the injury had occurred during

that period rather than during the final twenty minutes prior to delivery.

I am also satisfied that the trial judge was entitled to conclude that there was no evidence to sustain a finding of negligence against

either Dr. Skelly or Dr. Fenton. There was no ground for characterising the former’s decision not to proceed with a Caesarean section

until cross matched blood was available as negligent: on the contrary, there was ample evidence that to attempt a Caesarean section

in circumstances where cross matched blood was not available would have exposed Mrs. Purdy to an unjustifiable risk. As to the

suggestion that she should not have carried out a vaginal examination, there was again evidence that she has acted in accordance

with a recognised practice in conducting such an examination at a stage when the patient was in position in the operating theatre for

the carrying out of a Caesarean section. As to Dr. Fenton, while it may be that some doctors might have taken the view that he was

adopting a somewhat conservative approach in deferring a decision on a Caesarean section at 16.20 p.m., it certainly cannot be said

that, in adopting a practice which a substantial body of medical opinion would have favoured at the time, he had been guilty of any

breach of duty.

I would dismiss the appeal and affirm the order of the High Court. I would make no order on the notice to vary served on behalf of the

hospital.