High Court dismisses clinical negligence claim against GP for delayed appendicitis referral due to reasonable 'watchful waiting'.

THE HIGH COURT

[2026] IEHC 110

[Record No. 2021/5972p]

BETWEEN

MARIA AFOLABI

PLAINTIFF

AND

SOUTHDOC SERVICES LIMITED

AND

RACHEL FINNEGAN

DEFENDANTS

JUDGMENT of Ms Justice Leonie Reynolds delivered on the 11th day of February 2026.

Introduction.

1. Children presenting with signs and symptoms of acute appendicitis in a general practice setting typically complain of abdominal pain, loss of appetite (with or without vomiting), low grade fever and, in some instances, urinary symptoms. The classical textbook history is of migrating abdominal pain, which is colicky and located in the central abdomen in the early part of the illness, but which migrates, over time, to the lower right part of the abdomen. However, not all appendicitis presentations follow such patterns. Careful GPs rely on their clinical acumen and experience when assessing their patients. Such was the agreed position of the medical experts in this clinical negligence case in circumstances where there are no formal diagnostic criteria for appendicitis in general practice. Absolute diagnostic criteria, insofar as they exist, are designed for use in a hospital setting where laboratory work, ultrasound and CT imaging are readily available.

2. The plaintiff (then eleven years of age) was brought by her mother to the first defendant’s out-of-hours general medical practice (“SouthDoc”) for treatment. A history of the plaintiff's complaints and symptoms was taken, and the second defendant (“Dr. Finnegan”) conducted a physical examination. A diagnosis of gastroenteritis (infection/inflammation of the stomach and intestines) was made. Dr. Finnegan provided advice to the plaintiff’s mother and a hospital referral letter in the event the plaintiff's condition deteriorated.

3. The plaintiff (who has now reached her majority) alleges that Dr. Finnegan was negligent in failing to identify that she met several diagnostic criteria for acute appendicitis and thereafter, in failing to refer her to hospital that evening. It is alleged that this failure caused a three-day delay in diagnosis resulting in a perforated appendix.

Relevant background and pleadings

4. The proceedings were initiated by the plaintiff’s mother in 2021 at a time when the plaintiff was a minor (aged fifteen years). She had reached the age of majority when the trial commenced and is currently a fulltime student.

5. Her claim against the defendants’ centres on an out-of-hours GP consultation which took place on 13.12.17 with Dr. Finnegan. The plaintiff was brought to the clinic in circumstances where she had been feeling unwell since the previous day. When there was no improvement in her condition, her mother sought an appointment with SouthDoc in circumstances where their own GP surgery had closed early that day. At that consultation Dr. Finnegan took a history of symptoms; the plaintiff was examined, and a diagnosis of likely gastroenteritis was made. Of note in this regard, is that para.6 of the personal injury summons specifically pleads: - “The Plaintiff’s mother was particularly concerned about the possibility of appendicitis and indeed voiced her concerns but was falsely reassured. Her mother insisted on a referral letter for the hospital for use should the Plaintiff’s condition deteriorate.” It is common case that Dr Finnegan provided a hospital referral letter.

6. The response at para.2(b) of the replies to particulars concedes that the plaintiff’s condition did deteriorate over the following days: - “(b) Ongoing significant worsening pain in her abdomen. She suffered diarrhoea on 14, 15 and 16th of December 2017. She didn't take any medication on 14, 15 and 16th of December 2017. She hardly ate or drank anything as taking anything by mouth would result in an increase in the pain in her abdomen. She was extremely weak. She recalls her mother trying to force her to drink something to avoid dehydration as her mother was so worried that she was not taking any food or drink during these days. She remembers feeling that her mother did not believe her that she was in so much pain. She remembers her mother relying on the advice of the defendants that it was just a gastrointestinal bug and it would pass.”

7. A full defence was delivered on 01.04.22, premised on assertions that Dr. Finnegan’s diagnosis of gastroenteritis was reasonable in the clinical circumstances and that she managed the plaintiff appropriately in providing general and red flag advice together with a hospital referral letter. To the extent that the plaintiff's condition deteriorated it was contended that the plaintiff’s mother failed to follow the advice provided by Dr. Finnegan and/or to use the referral letter as advised.

8. Updated particulars of negligence were delivered prior to the hearing on 22.04.25 with an assertion at particular (e) as follows: - “Providing a handwritten note with absolutely nothing contained in it as to what the Plaintiff should do if she continued to be unwell, and which in fact further mitigated against her receiving the necessary second opinion and played a significant role in causing or compounding the delay in attending the Emergency Department for the required assessment”.

9. It is common case that the plaintiff suffered serious medical

complications due to the perforation of her appendix including a prolonged hospital stay; surgical intervention complicated by severe wound infection; a long midline surgical incision resulting in permanent disfiguring scarring and the risk of further adverse consequences as outlined in the medical reports.

Issues to be determined.

Breach of duty

10. Was the primary diagnosis of gastroenteritis reasonable?

11. Considering the diagnosis, was Dr. Finnegan’s management and advice to the plaintiff’s mother reasonable and in accordance with the standard expected of a GP acting with ordinary care?

Causation

12. In the event of a finding of breach of duty, what flows from that breach? In particular, what would have occurred had the plaintiff been referred to hospital on 13.12.17?

Clinical records

13. Before embarking on a review of the evidence, it is useful to consider the chronology of events on 13.12.17 as set out in the contemporaneous SouthDoc medical records, the relevant extracts of which are summarised below.

14. At 18.43, the clinical notes record a routine call to the operator, Eileen Doherty: “Call taker Notes: Vomiting, C/O Abdo pain.” The Triage Nurse Notes then record: “Symptoms: Vomiting yesterday and abdominal pain. unable to stand up with abdominal pain Today no relief post Calpol by two... taking sips of fluids only as she feels sharp pain in abdomen after drinking.

Onset: yesterday

Current Medication: Nil” The findings post examination were completed by Dr Finnegan: “Clinical Findings: Presenting Complaints: Vomiting x 2/7, diarrhoea (no blood) started this evening. Abdominal pain + Examination: Temp 37.7 looks well able to get on couch, abdo soft mild generalised tenderness no rebound no guarding. Urine ketones only. pulse 72 motilium prn.

Diagnosis: Likely GE. [Gastroenteritis]

Management and follow-up: Conserv mx general and red flag advice avoid nurofen push fluids reg calpol letter given if any deterioration Follow up: No Further Action/Review if Required Consulting Doctor: Rachel Finnegan.”

Referral letter

15. The records also hold a copy of the hospital referral letter provided to the plaintiff's mother:

“Hospital Referral Letter

Referral to: Emergency department, Mercy University Hospital

Presenting complaints: Vomiting x 2/7, diarrhoea (no blood) started this evening Abdominal pain + Examination: Temp 37.7 looks well able to get on couch, abdo soft mild generalised tenderness no rebound no guarding. Urine keytones only Pulse 72.

Diagnosis: Likely GE Cave appendicitis [inserted in handwriting]

Management and Follow Up: Conserve mx general and red flag advice avoid Nurofen push fluids reg Calpol letter given if any deterioration.” Dr. Finnegan signed the letter as the doctor on duty, dated 13.12.17.

The Evidence

16. The plaintiff’s mother, Gladys Afolabi, and the plaintiff provided oral testimony. Expert witnesses who gave evidence on the plaintiff's behalf were Dr. Stephen Murphy, the plaintiff's GP, Dr. Gabriel Jones, Consultant in Emergency Medicine and Mr. John Orr, Consultant Paediatric Surgeon. The report of Dr. Jason Kelly, Consultant Plastic and Reconstruction Surgeon dated 17.01.24 was admitted. The reports of Dr. Jamal Zaido, Consultant Obstetrician and Gynaecologist dated 17.01.24, and Dr. Mike Bowen, Consultant Gynaecologist dated 26.01.24 were also admitted (in circumstances where it was conceded that the plaintiff’s exposure to future medical complications were possible, not probable). In addition, the reports of Dr Blanaid Gavin, Consultant Child and Adolescent Psychiatrist, dated 17.11.23,

09.04.24 & 10.04.24 were admitted in evidence without the necessity of formal proof.

17. The defendants relied on the oral testimony of Dr. Rachel Finnegan, Eileen Doherty, and Elizabeth Osborne (SouthDoc staff members) together with expert testimony from Dr. Ronan Boland, GP, Dr. Paul Gaffney, Consultant in Emergency Medicine and Mr. Sakhawat Rahman, Consultant Surgeon. The report of Dr. Finian Kelly, Consultant Psychiatrist dated 04.02.25 was admitted on the same terms as the plaintiff's psychiatrist’s reports.

Evidence on behalf of the plaintiff

Gladys Afolabi (the plaintiff’s mother)

18. On 12.12.17, the plaintiff began feeling unwell, complaining of a sore belly, nausea, and vomiting. Mrs. Afolabi, a health care support worker, stated she administered paracetamol, Nurofen, and Dioralyte. When the symptoms persisted into the following day with no improvement she decided to seek medical attention for the plaintiff. As their GP surgery closed early on Wednesdays, she was directed to contact SouthDoc. She phoned SouthDoc that evening and gave the plaintiff’s history of vomiting and abdominal pain since the previous day, together with an onset of diarrhoea from earlier that afternoon. Upon arrival at the clinic, she stated the plaintiff “wasn’t standing straight” and was “bending” over due to the pain. She recalled meeting a triage nurse who took the plaintiff's history before they were seen by Dr. Finnegan.

19. When called to the consultation room by Dr. Finnegan, she testified that she had to support the plaintiff to get up on to the examination couch due to her pain. After the examination she was advised “Maria has a bug” which the doctor diagnosed as gastroenteritis. She asked Dr. Finnegan if the problem could be appendicitis (prompted by her older daughter’s online research). She stated Dr. Finnegan became “upset” and “cross,” dismissed this possibility and wrote “gastroenteritis” on a piece of paper, adding “This is what is wrong with her, not appendicitis.”

20. This handwritten note (written on the back of a brown envelope) outlined the expected symptoms, diagnosis, and advice, and was produced in evidence:

“24-48 hours nausea/vomiting

3-5 days diarrhoea

If any blood in diarrhoea – sample

Gastroenteritis [Circled by Dr. Finnegan]

- fluids

- paracetamol

- avoid Nurofen

- handwashing.”

21. Mrs. Afolabi stated she was reassured that appendicitis was not the problem and that her daughter had a bug. Having been advised that it would take three to five days to clear, she then queried: “If she is not getting better in these days, can you give me something so I can go to the big hospital?” Dr. Finnegan provided a hospital referral letter which Mrs. Afolabi advised was a “sealed letter” and she was unaware of its contents. Over the following two days she accepted the plaintiff's condition did not improve; the pain persisted, and her fluid intake decreased because drinking was painful. By 16.12.17, she said the pain was worse and that her daughter was very weak and dehydrated. She decided she could not wait the full five days for the bug to clear and took the plaintiff to the emergency department(‘ED’) at Cork University Hospital. The plaintiff was immediately admitted and subsequently underwent surgery for a perforated appendix.

22. Regarding the long-term effects of the surgery on the plaintiff, Mrs. Afolabi stated her daughter is very self-conscious of the large permanent abdominal scar and has ceased participation in sporting activities (basketball and swimming) for fear of exposing the scar. She advised that the plaintiff became moody, withdrawn, developed social anxiety, and lost confidence in medical professionals.

23. Mrs. Afolabi’s evidence was rigorously challenged by Mr. Reidy, senior counsel for the defendants. The keys issues in dispute included the plaintiff’s presentation at SouthDoc and her ability or otherwise to stand up straight; the triage process which the defendants contended took place over the phone, whether the plaintiff required help to get up onto the couch as asserted by the witness in contrast to Dr. Finnegan’s contemporaneous note, whether Dr. Finnegan dismissed her concern about appendicitis or kept it as a differential diagnosis (as documented in the referral letter) and the extent of the red flag advice given by Dr. Finnegan. Further, it was contended that her evidence on the impact on the plaintiff’s social life was overstated in light of photographs produced by the defendants portraying a quite different picture.

24. The tenor of Mrs. Afolabi’s evidence was that she was very dissatisfied with the consultation with Dr. Finnegan. She felt it was rushed and that her query about appendicitis was dismissed out of hand. She accepted that Dr. Finnegan conducted a physical examination and urinalysis and conceded that she did not seek a second opinion with her GP the following day or indeed on the Friday despite the plaintiff’s condition continuing to deteriorate; she was unable to tolerate fluids or mediation and was becoming increasingly dehydrated. When pressed on why she did not follow the red flag advice and/or use the referral letter when the plaintiff’s symptoms continued to deteriorate, she stated that she was relying on the advice in the handwritten note (which she stated was confusing) and the reassurance she got from Dr. Finnegan that the plaintiff had a bug. She denied Dr. Finnegan gave any red flag advice.

Maria Afolabi (the plaintiff):

25. The plaintiff confirmed that she was eleven years of age at the time of these events but recalled what happened clearly. She woke on 12.12.17 with “extreme abdominal pain” and was vomiting. Her mother gave her Calpol and Dioralyte. By the following evening, the pain was still there and her mother phoned SouthDoc. When they arrived at the clinic they were directed to the waiting room. Over an hour later, Dr. Finnegan called them to the consultation room and the plaintiff sat opposite her as she recounted her symptoms of abdominal pain and vomiting, together with the more recent onset of diarrhoea earlier that day. Dr.

Finnegan requested her to get up on the examination bed and lie down. She stated because she was bent over with pain and was unable to walk properly that: “My mum walked with me to the bed and then she supported me up onto the bed, helping me get onto the bed because the pain was so bad that I couldn't have done it on my own.” She recalled that Dr. Finnegan quickly examined and palpated her abdomen, and a diagnosis of gastroenteritis was made.

26. Her evidence was she provided a urine sample in the bathroom before the consultation took place, albeit that this was at odds with her mother's evidence which was that the sample was taken during the consultation. When her mother asked Dr. Finnegan about appendicitis “she shot down my Mum…” and scribbled the diagnosis of gastroenteritis on a piece of paper.

27. Thereafter, she described persistent and intensifying pain over the following days, especially when trying to drink fluids, which also caused vomiting. She stated, “sometimes I felt that she [her mother] didn’t believe how much pain I was in because Dr. Finnegan had assured her that the pain would, like, go after the three to five days.”

28. In terms of the long-term consequences for her post surgery, she described the “horrific” appearance of the 12cm laparotomy scar. She avoided swimming because the scar’s indentation was visible (even in a one-piece swimsuit). She avoided tightfitting clothes like crop tops, preferring loose jumpers, and had missed social events such as discos in secondary school due to anxiety about her appearance. She stated she lost her passion for sport for fear of injury to her abdomen and had attended counselling for anxiety and social withdrawal.

29. When pressed on the issue of counselling, she recalled having two counselling sessions in 2023 but could not remember the therapist’s name or specific details about how the counselling addressed her issues, other than being “hyperfocused” on her appendectomy scar. She also exhibited uncertainties about specific details of the appointment with Dr. Finnegan including the location of the waiting room and whether she had vomited whilst in the waiting room (for over an hour). She was challenged on her description of needing help from her mother to get onto the examination couch, maintaining that her mother supported but did not lift her, in contrast with the clinical notes which recorded that she got onto the bed unassisted.

30. Her evidence was probed on whether she verbally expressed pain during the examination. She stated she could not recall specifically saying “that hurts” despite admitting she experienced pain during examination. Dr. Finnegan characterised the examination in her contemporaneous notes as showing mild, general tenderness with no rebound or guarding, whereas the plaintiff contended she experienced pain, including increased pain on palpitation, but could not clearly recall voicing it to Dr. Finnegan. She rejected the proposition that Dr. Finnegan was able to clearly observe her walking towards the consultation room from the waiting room and stated the doctor could not watch her as she (Dr. Finnegan) was ahead of her.

31. In relation to the referral letter, the plaintiff stated her mother insisted on it due to concern about appendicitis. Her evidence was Dr. Finnegan had dismissed appendicitis and reassured them it was gastroenteritis, which the plaintiff characterised as “false reassurance.” She denied that Dr. Finnegan gave clear red flag advice about when to seek further medical assistance and stated that no such advice was communicated. She testified that the referral letter containing the phrase “cave appendicitis” was not seen by her or her mother and was not adequately explained to them.

Dr. Stephen Murphy (General Practitioner)

32. Dr. Murphy is a retired GP with extensive experience who gave evidence as the plaintiff's expert on GP standards. He stated that based on the plaintiff's presenting symptoms on 13.12.17, gastroenteritis and appendicitis were the two main differential diagnoses. However, he opined that the plaintiff's presentation “warranted a second opinion” and immediate referral to hospital for further investigation in circumstances where a GP must give extra weight to the more serious possibility, which in this case was appendicitis. He believed a GP acting with ordinary care would have made the referral. Whilst he acknowledged the recording of “Cave appendicitis” (beware of appendicitis) on the referral letter, indicating that Dr. Finnegan considered appendicitis as a possibility, he stated she failed to act appropriately by neglecting to provide immediate referral. In his view, the referral letter did not meet the required standard of care.

33. Further, he stated that the handwritten note was “unhelpful” and “misleading” and lacked specific instructions about what changes or symptoms should prompt urgent re-evaluation. In his view, this likely delayed or confused the decision-making process by the plaintiff’s mother. He opined that the ongoing and worsening pain together with the plaintiff’s inability to tolerate fluids should have prompted earlier and more decisive clinical action by Dr. Finnegan.

34. When challenged on the documentation available to him in forming his initial opinion, Dr. Murphy admitted he had not seen the handwritten note, nor the referral letter with “Cave appendicitis” written on it when preparing his first report and it was suggested to him that this may have impacted upon his initial opinion. However, Dr. Murphy maintained that upon seeing the additional documents, his opinion remained that immediate referral was warranted. He advised that appendicitis can be notoriously difficult to diagnose: “… that's why, in my opinion, one should always err on the side of caution because of the well documented difficulty in diagnosing.” His stated that in a hospital setting further investigations would have been conducted, including laboratory work. Thereafter, it was likely that a surgical opinion would have been sought.

35. When asked for his opinion on general and red flag advice which Dr. Finnegan maintained she had given to the plaintiff’s mother, he argued that verbal red flag advice was insufficient in this case and disagreed with the defendant’s approach of “watchful waiting” when appendicitis could not be ruled out in a child. Dr. Murphy was challenged that he had never specifically enquired about what red flag warnings were given to the plaintiff’s mother before forming his definitive opinion. He accepted he did not specifically ask but stated that the term “red flag” is vague and can mean different things to different people. Further, and having contended that delay in this case made management more difficult, he accepted it was difficult to say exactly when the appendix rupture occurred. In short, Dr. Murphy consistently maintained his position that urgent referral was necessary on 13.12.17 and that this failure on the part of Dr. Finnegan fell below the required standard of care.

Mr. John Douglas Orr (Paediatric Surgeon)

36. Mr. Orr (a former paediatric surgeon with the NHS until his retirement in 2009) acknowledged at the outset that his evidence was limited to the probable timeline involved (for perforation) as the standard of care issue was not within his area of expertise. He opined that on the balance of probabilities the plaintiff's appendix perforated on 13.12.17 or 14.12.17. He stated that had she been referred on

13.12.17 by Dr. Finnegan, she would have been admitted for observation, investigated, and would have undergone a laparoscopic appendectomy on 14.12.17. This would have avoided the laparotomy (and resultant scaring), wound infection, prolonged hospital stay, and the possible risk of future medical complications. He emphasised that a delay in diagnosis gives time for perforation to occur and is the “most serious problem in the management of children with acute appendicitis.”

37. However, he accepted, when challenged, that the question of when perforation occurred was highly speculative. When questioned about his knowledge of the Alvarado scoring system (used for acute appendicitis, more commonly in adult than paediatric practice), he indicated it was not a tool used in Edinburgh for assessing patients with acute appendicitis albeit that he was familiar with it and acknowledged its use in EDs for that purpose. Mr. Reidy, SC, put the defence case (evidence of Mr. Raman) that on 13.12.17, the plaintiff’s maximum score on the system “would have been 3 (out of 10) and the likelihood of appendicitis would have been extremely low”. He disagreed.

38. Mr. Orr was also invited to comment on the operative notes from surgery on 17.12.17, and Mr Raman’s conclusions based on those notes: Mr. Reidy: “Q. There were interloop abscesses noted at surgery on the 17th, that’s on Sunday morning.

A. Yes.

Q. And his view [Mr. Raman’s] is that those abscesses would have taken between 24 to 48 hours to develop from existing collections. Would you agree with that?

A. I think that is a reasonable assumption, yes, 24/48 hours, yes.

Q. Therefore, on the balance of probabilities, the patient may have had a perforation of a gangrenous appendix on 15 December 2017, the perforation would have been localised with abscess formation.

A. I would say the 14th or 15th was certainly localised without any abscess formation beyond a small, localised abscess in relation to the perforation.

Q. He [Mr. Raman] then goes on to say that: ‘If the patient's mother had followed the safety net advice provided by Dr Finnegan and presented to hospital by late evening on the 14th or on 15th, on the balance of probabilities, she would have been diagnosed with appendicitis and undergone an appendectomy and there would have been no need for a laparotomy.’

A. ‘I would agree, yes.”

Dr. Gabriel Jones (A&E Consultant)

39. Dr. Jones gave expert testimony as a practicing consultant in emergency medicine based in the UK, with extensive expertise in paediatric emergency care.

40. He reviewed the medical records with a view to giving evidence on the likely sequence of events had the plaintiff presented at an ED on 13.12.17. He stated that an ED is “duty-bound” to exclude appendicitis if it is mentioned in a referral letter. He stated it was likely that blood tests, white blood count (“WBC”) and C Reactive Protein (“CRP”) would have been abnormal which would have prompted admission for observation and further investigation. He testified that on the balance of probabilities, the plaintiff would have been admitted to hospital and diagnosed with appendicitis, as the process to exclude appendicitis is a “well-trodden path.” He outlined the standard protocols for investigating suspected appendicitis in children and how these would have led to earlier diagnosis.

41. On cross examination, Dr. Jones confirmed he had no experience of the Irish ED system. The clinical notes from the ED in Cork University Hospital (dated 16 December 2017) were put to him and in particular the reference to the increased intensity in pain over the previous two days. When asked to explain what would have caused this, he accepted that as appendicitis is an inflammatory process, pain will increase as inflammation increases. On that basis, it was suggested to him that the CRP level on 13.12.17 could have been normal (in circumstances where Dr. Finnegan’s clinical findings recorded “generalised tenderness”). Dr. Jones disagreed and stated it was more likely to be elevated.

42. The defendant’s evidence (to be given by Mr. Gaffney) as to what would have occurred in an Irish A&E had the plaintiff presented on 13.12.17 was also put to him,, specifically that she would have been triaged, bloods would likely have been normal, she would have been discharged and given advice to return if symptoms persisted or detiorated. He disagreed with this scenario insisting it was likely that her blood tests would have been abnormal. He further disagreed with the opinion expressed by Mr. Raman that the plaintiff would have had a low score on the Alvarado scoring system (3 out of 10) and would have been discharged.

Evidence on behalf of the defendant

Dr. Rachel Finnegan

43. Dr. Finnegan is a GP (20yrs qualified) with experience working in out-ofhours services including SouthDoc. She stated that SouthDoc is a co-op designed for GPs to ensure 24hr care to patients (as per their obligations under GMS contracts). She stated she had a “reasonable recollection” of the evening of 13.12.17. The phone operator (Eileen Doherty) took a call from Ms Afolabi outlining the plaintiff’s symptoms (“vomitting and abdominal pain”). An appointment was given for 19.40 and categorised as routine. The triage nurse (Nurse Osbourne) later contacted Mrs. Afolabi and the plaintiff’s symptoms were documented, including “unable to stand up with abdominal pain.” She stated that having considered the triage notes she commenced her assessment of the plaintiff when she called her from the waiting room. She specifically recalled the plaintiff walking normally down the corridor to the consultation room, stating “I am confident that Miss Afolabi was able to stand straight.” She accepted that she had not documented this observation in her notes.

44. She tested the plainitff’s urine sample which confirmed mild dehydration, noted her pulse as normal and her temperature as 37.7 (mild fever). Dr. Finnegan stated it was her customary practice to assess mobility by asking patients to get on the examination couch unaided (“the bed test”). She testified that the plaintiff’s mother offered to help the plaintiff, but she asked her not to. She stated the plaintiff “was able to get on the bed without assistance” (recorded in her contemporaneous notes). On examination, she found a “soft” abdomen with “mild generalised tenderness” but “no rebound tenderness or guarding.” In the circumstances she concluded there were “no clinical signs of appendicitis.”

45. Based on the plaintiff’s history (vomiting settling, diarrhoea starting) and the absence of an acute abdomen (findings which pointed away from appendicitis), she made a working diagnosis of “Likely GE.” She denied she “shut down” the appendicitis concern as voiced by the plaintiff’s mother and stated she “never gives guarantees that something was not a particular diagnosis.” Her evidence was she kept appendicitis as a differential diagnosis, which was why she included “Cave appendicitis” on the referral letter.

46. She testified that after explaining the diagnosis to Mrs. Afolabi, she wrote it down on a piece of paper along with what to expect with the diagnosis as was her customary practice. She stated this was supplemented with clear verbal red flag advice to the plaintiff’s mother to seek review for persistent vomiting, worsening pain or fever. Mrs Afolabi then sought a hospital referral letter in the event of such detioration, and she was happy to provide it.

47. When questioned on the specific advice given, she stated she urged “close observation by her mother overnight, preferably coming back to SouthDoc or her GP in the morning, if there was persistent vomiting” (within 12hrs). She stated her clinical notes would have been automatically forwarded overnight to the plaintiff’s GP.

48. When challenged by Dr. O’Mahony, senior counsel for the plaintiff, on her failure to immediately refer to an ED, she defended her decision arguing that her assessment was more consistent with gastroenteritis; the clinical picture was improving as “often when diarrohoea starts, the cramping or tummy pain starts to ease,” and that she had provided appropriate safety netting. She stated there was a clear deterioration in the plaintiff’s condition over 14.12.17 & 15.12.17 (voiced by the plaintiff to her mother) and that Mrs Afolabi “clearly did not follow my verbal red flag advice.”

Eileen Doherty (SouthDoc Call Operator)

49. Ms Dorothy, a call operator with SouthDoc (for 22 years) stated she took the initial call at 18.43 on 13.12.17 and recorded the symptoms as “Vomiting and complaining of abdo pain”. She categorised the call as “routine,” noting that vomitting and abdominal pain are common in children. She explained the standard triage process and how calls are prioritised based on presenting symptoms.

Elizabeth Osbourne (SouthDoc Triage Nurse)

50. Ms Osborne (a qualified paediatric nurse) was engaged by SouthDoc as a triage nurse at the time. She acknowledged that she conducted the triage by phone from Killarney SouthDoc Centre. She gave her evidence by reference to the contemporary timesheets from SouthDoc. She recorded Mrs. Afolabi’s report of the plaintiff’s symptoms and noted that she was “unable to stand up with abdominal pain.” She confirmed classifying the call as “routine” because the “winter vomiting bug was rampant" at that time of year. She explained her clinical rationale for the triage decision and the factors that would have prompted an urgent categorisation as opposed to routine.

Dr. Ronan Boland (GP)

51. Dr. Boland, a GP with 34years experience, supported Dr. Finnegan’s management of the plaintiff. He opined that it was reasonable having regard to the plaintiff’s clinical presentation and in line with standard GP practice. He noted the onset of diarrhoea (and settling of vomiting) would make appendicitis less likely. In relation to Dr. Finnegan’s use of verbal red flag advice (supplemented by a handwritten note and hospital referral letter), he stated this was good careful practice that went beyond the norm. He strongly disagreed with the “mandatory referral” approach advocated for by the plaintiff’s experts. He stated that such approach was simply unworkable; GPs must stratify risk and use “watchful waiting” as they cannot refer every patient in whom a serious diagnosis cannot be 100% excluded.

Dr. Paul Gaffney (Consultant in Emergency Medicine)

52. Dr. Gaffney (a practicing consultant in emergency medicine based in Mayo University Hospital, Castlebar) confined his evidence to the issue of what would have occured if the plaintiff had presented at an ED on 13.12.17 with the symptoms which had presented on clinical examination by Dr. Finnegan. He stated it was likely she would have been assigned a triage category of 3 (to be seen by a doctor within 60 mins). Thereafter, investigations would have been requested including full blood count, renal function and CRP, the results of which would be typically available within 60-90mins. Based on Dr. Finnegan’s clinical findings (tenderness was not localised to the lower abdomen) combined with her note that the plaintiff had no difficulty getting onto the examination couch, his view was the plaintiff would likely have been discharged (particularly if blood tests were normal) with clear advice to return if symptoms detiorated or her general condition worsened. Based on his assessment of the availabile medical records, he concluded there was no indication for an appendicectomy on 13.12.17.

Mr. Sakhawat Rahman (Consultant Surgeon)

53. Mr. Rahman gave evidence as an experienced and practicing consultant general surgeon in the Royal Free Hospital, London. At the outset, Mr Rahman acknowledged that his initial opinion (as outlined in his first report) was that had the plaintiff been referred to an ED on 13.12.17, she would likely have been admitted, diagnosed via laparoscopy on 14.12.17 and all major complications would have been avoided. However, he stated after seeing Dr. Finnegan’s witness statement (describing Maria as looking well and able to “hop on the examination table with ease”), he changed his opinion (second report). His rationale was the plaintiff was not as sick as he first thought and, on the balance of probabilities, would have been sent home from an ED on 13.12.17.

54. Based on a retrospective analysis of CRP doubling times and the presence of abscesses at surgery (hospital surgical notes 17.12.17), he opined that perforation most likely occurred on 15.12.17. He applied the Alvarado score (clinical scoring system used in a diagnosis of appendicitis) and Paediatric Appendicitis score (PAS) to argue that on 13.12.17, the plaintiff would have had a low score, indicating a low probability of appendicitis.

Meeting of the experts

55. The parties’ respective experts in General Practice, Dr. Stephen Murphy and Dr. Ronan Boland, met (Feb 2025) with an agenda agreed in advance and produced a report which assisted in a narrowing of issues in advance of the hearing as follows: -

(a) both agreed that gastroenteritis in non-adult patients is usually managed by supportive measures, fluids and administration of paracetamol as required, with appropriate safety netting advice on the circumstances in which the patient needs further review.

(b) the usual presenting symptoms for appendicitis (i.e. what the patient complains of) are abdominal pain, anorexia (loss of appetite) with or without vomiting, low-grade fever and, in some instances, urinary symptoms. Additional complaints consist of migratory abdominal pain located in the central abdomen in the early part of illness, but which migrates, over time, to the right iliac fossa.

56. Thereafter, the experts disagreed on the management and care provided by Dr. Finnegan having regard to the plaintiff's presentation on 13.12.17. Dr. Murphy's view was that hospital referral was mandated whilst Dr. Boland maintained that having regard to the presenting symptoms and signs, these were not specific enough to warrant same-day referral.

57. A meeting of the parties’ respective expert consultants took place after the trial had commenced, in circumstances where the issue of CRP and a retrospective analysis of CRP doubling time had been introduced in evidence (and the subject of several addendum reports).

58. Both experts agreed that scientific literature supports an average CRP doubling time of approximately eight hours; that CRP levels increase in response to inflammation and tissue damage and that in the early stage of appendicitis CRP levels may be within normal limits or only mildly elevated.

59. Thereafter, the experts disagreed as to the likely CRP level had the plaintiff presented at an ED on 13.12.17; Mr. Rahman contended that it would have remained within normal limits whilst Dr. Jones maintained that in all probability it was moderately elevated. Notably, it was accepted that any retrospective analysis of CRP involved such a degree of speculation and variability between patients that it was of limited value and needed to be interpreted in conjunction with pathological findings and clinical features.

The standard of care

60. It is well established that the legal principles to be applied to the standard of care in medical negligence litigation are those as set out by Finlay CJ in Dunne v National Maternity Hospital [1989] IR 91:

1. “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.

2. If the allegation of negligence against a practitioner is based on proof that he deviated from a general and approved practice, that will not establish negligence unless it is also proved that the course he did take was one which no medical practitioner of like specialisation and skill would have followed had he been taking the ordinary care required from a person of his qualifications.

3. If a medical practitioner charged with negligence defends his conduct by establishing that he followed a practice which was general, and which was approved of by his colleagues of similar specialisation and skill, he cannot escape liability if in reply the plaintiff establishes that such practice has inherent defects which ought to be obvious to any person giving the matter due consideration.

4. An honest difference of opinion between doctors as to which is the better of two ways of treating a patient does not provide any ground for leaving a question to the jury as to whether a person who has followed one course rather than the other has been negligent.

5. It is not for a jury (or for a judge) to decide which of two alternative courses of treatment is in their opinion preferable, but their (or his) function is merely to decide whether the course of treatment followed, on the evidence, complied with the careful conduct of a medical practitioner of like specialisation and skill to that professed by the defendant….”

61. The Supreme Court in Morrisey v HSE [2020] IESC 6 affirmed the judgment in Dunne, (para 6.7) stating: “The standard of approach of a medical professional is to apply a standard appropriate to a person of equal specialist or general status acting with ordinary care. A failure to act in that way will amount to negligence.”

62. The burden rests on the plaintiff to prove the facts necessary to establish that there was negligence or breach of duty on the part of the defendant. Whilst there is no issue between the parties on the test to be applied, the facts are clearly disputed.

Key areas of dispute

The plaintiff’s presentation on 13.12.17

63. Dr. Finnegan stated that having considered the triage notes documenting the plaintiff symptom’s (“unable to stand up with abdominal pain”), she commenced her assessment by observing the plaintiff as she walked to the consultation room and concluded that she was able to stand up straight. Thereafter, she requested the plaintiff to get up on the examination couch unaided (“the bed test”) and documented in her contemporaneous notes “looks well able to get on couch.” This was in direct contrast with the evidence given by the plaintiff and her mother who stated that the plaintiff was bent over with pain and needed assistance to get on the couch. Futher, the triage nurse had recorded the plaintiff’s difficulty standing up in her clinical notes some hours earlier.

64. In circumstances where Dr. Finnegan had sight of the triage notes in advance of the consultation, commenced her assessment by observing the plaintiff walking from the waiting room to her consultation room, and her contemporaneous notes confirm the plaintiff's ability to get on the couch unaided, I must attach more weight to that evidence. Clearly Dr. Finnegan had concerns about the plaintiff’s mobility (in light of the triage notes) and the only plausible explanation for the reference in her notes was to document her clinical findings in that regard.

Communication about appendicitis

65. The plaintiff and her mother gave evidence that Dr. Finnegan dismissed the possibility of appendicitis out of hand. However, again the contemporaneous notes provide a different picture. Dr. Finnegan recorded that her examination revealed a soft abdomen, mild general tenderness, no rebound, and no guarding, ruling out the classic symptoms of appendicitis. In circumstances where there was no cause for concern in respect of urineanalysis, temperature or pulse, Dr. Finnegan made a diagnosis of “likely gastroenteritis.” Her evidence was that appendicitis remained a differential diagnosis, as confirmed in the referral letter where her primary diagnosis of “likely GE” is recorded but also “Cave appendicitis.” It is difficult to reconcile the evidence of the plaintiff and her mother that she dismissed their concerns out of hand against this background and in the circumstances the evidence of Dr. Finnegan must be preferred.

Diagnosis of gastroenteritis

66. Having ruled out the classic symptoms of appendicitis, Dr. Finnegan's evidence was she explained her diagnosis of gastroenteritis to the plaintiff and her mother, wrote down what to expect on a brown envelope (the handwritten note) and supplemented her diagnosis with red flag advice. The plaintiff and her mother dispute that any such advice was given and contended that the handwritten note was confusing, giving rise to a delay in seeking medical attention. Again, Dr. Finnegan's contemporaneous notes (management and follow-up) confirm that red flag advice was given and a referral letter “if any deterioration.” Whilst there was great emphasis in the evidence about confusion caused by the handwritten note, this alleged confusion compounding the delay in seeking treatment was never pleaded and only materialised in updated particulars furnished on 22.04. 25.. Further, the plaintiff’s mother in her evidence sought to resile from the undisputed fact that the plaintiff’s condition deteriorated over 14.12.17 & 15.12.17 (as confirmed in replies to particulars). In the circumstances the court must have concerns about the reliability of Ms Afolabi’s evidence on this issue.

Use of red flag advice and referral letter

67. Dr. Boland confirmed in evidence that the use of red flag advice and referral letters is standard practice. He stated Dr. Finnegan went beyond the norm in providing the handwritten note, supplemented by her red flag advice and referral letter. In contrast, Dr. Murphy's firm view was that immediate referral was mandated once appendicitis was considered in the differential and was the only management option open to Dr. Finnegan.

68. Dr. Boland disagreed, explaining that it was essential for GPs to use “time as a tool” and stated that 95% of presentations in general practice are managed without hospital referral. He emphasised that if every case of suspected appendicitis were referred to hospital, the hospital system would simply not function.

Issues

Was the primary diagnosis of Gastroenteritis reasonable?

69. I am satisfied that when the plaintiff presented on the 13.12.17, Dr. Finnegan used her clinical acumen and experience to carefully assess her symptoms/complaints and carried out a thorough physical examination as documented in her contemporaneous notes. Based on the plaintiff’s history (vomiting settling, diarrhoea starting) and the absence of an acute abdomen (findings which pointed away from appendicitis) together with other clinical findings, she made a diagnosis of “likely gastroenteritis” and managed the plaintiff accordingly by providing a handwritten note, red flag advice, and a hospital referral letter. Nonetheless, she kept appendicitis in her differential diagnosis as evidenced by her contemporaneous notes (hospital referral letter with “Cave appendicitis”) and gave clear safety netting advice if deterioration occurred.

70. Notably, there was common ground between the GP experts (Drs Murphy & Boland), on this issue in circumstances where para 9(iv) of their joint report confirmed that the diagnosis of gastroenteritis was reasonable in the circumstances. The central issue in dispute was Dr. Finnegan’s management and advice thereafter.

In light of the diagnosis, was Dr Finnegan’s management and advice to the plaintiff reasonable and in line with the standard expected of a GP, acting with ordinary care?

71. Dr. Finnegan explained the diagnosis to the plaintiff’s mother and provided a handwritten note which outlined the symptoms to be expected. Her clinical notes (“Management and Follow Up”) record conservative management, general and red flag advice, avoid nurofen, push fluids, regular Calpol and “letter given if any deterioration.” It was common case that Dr. Finnegan managed the diagnosis of gastroenteritis appropriately in circumstances where no evidence was led to the contrary. The conflict centered on the use of red flag advice, a deferred hospital referral letter and the failure to immediately refer to an ED.

72. In terms of red flag advice, I have accepted Dr. Finnegan’s evidence that she provided red flag advice to the plaintiff’s mother (for the reasons outlined above). The plaintiff’s evidence was her condition deteriorated over the following two days and on

16.12.17 yet despite her complaints to her mother no follow up/review occurred. In circumstances where Ms Afolabi’s evidence was she insisted on a hospital referral letter, it was surprising that several days elapsed before she acted upon it.

73. Dr. Boland was wholly supportive of Dr. Finnegan’s management and stated that red flag advice is standard practice. Like Dr. Finnegan, he stated he uses referral letters regularly as do most of his colleagues. Dr. Gaffney, an ED Consultant who has seen thousands of GP referral letters, rated Dr. Finnegan’s letter very highly.

74. Dr. Boland strongly disagreed with the “mandatory referral” approach advocated for by the plaintiff’s GP, Dr. Murphy, stating it was simply unworkable (“you can’t refer everything”). He emphasised that if every case of suspected appendicitis were referred to hospital, the hospital system would cease to function. Conversely Dr. Murphy maintained the position throughout his evidence that the only management option open to Dr. Finnegan was immediate referral once appendicitis was considered in the differential and argued that a deferred referral letter was inappropriate and unsafe in case of suspected appendicitis.

75. I simply cannot accept the proposition that the only management option available to Dr. Finnegan was mandatory referral to hospital and prefer the evidence of Dr. Boland that a “watchful waiting” approach was the proper course of action. As emphasised by Dr. Boland, an essential part of GP training and experience is to use “time as a tool,” as Dr. Finnegan did on this occasion. In all the circumstances, I am satisfied that Dr. Finnegan’s management and advice to the plaintiff and her mother was reasonable and in accordance with the standard expected of a GP acting with ordinary care.

Causation

76. Notwithstanding my findings on breach of duty, I am further satisfied from the evidence that had the plaintiff been referred to an ED on13.12.17, it was likely she would have been triaged, blood tests would have been normal, and she would have been discharged from hospital with similar safety netting advice, as outlined in the evidence of Dr Gaffney. This view was supported by the evidence of Mr Rahman.

77. Mr Rahman contended that if appendicitis was present on 13.12.17, it was in an early stage and had not yet triggered a measurable acute-phase response. The evidence on the issue of perforation (given the formation of abscesses found during surgery on 17.12.17) was that perforation likely occurred on 15.12.17, corresponding with the recent complaints of intensifying pain and the CPR level on arrival at ED.

78. Even if perforation occurred on 14.12.17, Dr Orr (the plaintiff’s expert) agreed that on 14th & 15th Dec, any perforation would have been localised without any abscess formation. Therefore, had the plaintiff presented to hospital on 14/15th, there would have been no need for a laparotomy, and its consequences could have been avoided.

79. I can only conclude that had Mrs. Afolabi followed the red flag advice provided by Dr. Finnegan and presented to hospital by 14/ 15th, on the balance of probabilities the laparotomy would not have been required, and the plaintiff’s unfortunate injuries would have been avoided.

Conclusion

80. For the reasons set out above, I have concluded that the primary diagnosis of gastroenteritis by Dr. Finnegan was reasonable. Further, I am satisfied that Dr. Finnegan’s management and advice to the plaintiff and her mother was in accordance with the standard expected of a GP acting with ordinary care. In circumstances where there was no clinical negligence on the part of either Dr Finnegan or SouthDoc, I must dismiss the plaintiff’s claim.

81. Having heard brief submissions from the parties on the issue of costs, I have acceded to the defendants’ application pursuant to S169 of the Legal Services Regulation Act 2015 for their costs in circumstances where I am satisfied that costs must follow the event.

Dated: 23/2/2026