McNicholas -v- Hermann [2017] IECA 67 (28 February 2017)

McNicholas -v- Hermann [2017] IECA 67 (28 February 2017)

The Court of Appeal held that the trial judge properly addressed the core issues pleaded and argued at trial, namely the failure to release the retractors during surgery, and was entitled to prefer the defendant's expert evidence that this did not amount to negligence. The Court found that the issues of misplacement or slippage of the retractor and res ipsa loquitur were not sufficiently advanced at trial to require adjudication. The appellant was afforded a fair trial and the appeal was dismissed.

Citation
[2017] IECA 67
Parties
Plaintiff / Appellant: Mary McNicholas; Defendant / Respondent: Andrea Hermann
Jurisdiction
Ireland
Judgment Date
28 February 2017
Procedural Posture
Medical Negligence Appeal / Appeal From High Court Judgment
Outcome
Appeal dismissed
Legal Topics
Standard of Care, Surgical Negligence, Res Ipsa Loquitur, Appellate Review, Expert Evidence
Medical Negligence Personal Injury Tort Law Standard of Care Surgical Negligence Res Ipsa Loquitur Appellate Review Expert Evidence

Case Brief

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Parties

Mary McNicholas

Plaintiff / Appellant

Andrea Hermann

Defendant / Respondent

Procedural Posture

Medical Negligence Appeal / Appeal From High Court Judgment

Legal Issues

  1. 1 Whether the trial judge erred in failing to adjudicate on all pleaded allegations of negligence, including misplacement or slippage of surgical retractors and application of res ipsa loquitur; whether the trial judge properly applied the standard of care in medical negligence; whether the plaintiff was afforded a fair trial.

Ratio Decidendi

The Court of Appeal held that the trial judge properly addressed the core issues pleaded and argued at trial, namely the failure to release the retractors during surgery, and was entitled to prefer the defendant's expert evidence that this did not amount to negligence. The Court found that the issues of misplacement or slippage of the retractor and res ipsa loquitur were not sufficiently advanced at trial to require adjudication. The appellant was afforded a fair trial and the appeal was dismissed.

Court Disposition

Appeal dismissed

Orders

  • High Court judgment affirmed
  • No order for retrial