Mordaunt v. Gallagher [1997] IEHC 123 (11th July, 1997)

Judgment of Miss Justice Laffoy delivered on the 11th day of July 1997 1. In these proceedings, the Plaintiff, a 59 year old married woman, claims damages in connection with a medical procedure which she alleges was negligently carried out at St. Mary's Orthopaedic Hospital, Cappagh, on 27th November, 1989. The first Defendant is a Consultant Orthopaedic Surgeon under whose care the Plaintiff was in connection with hip problems from 1984 to 1990. The second Defendant is a nominee of St. Vincent's Hospital, Elm Park. At the material times, care of orthopaedic patients was shared between St. Vincent's and St. Mary's and elective orthopaedic surgery was carried out in St. Mary's. The procedure in issue in this case was carried out in St. Mary's, not by the first Defendant, but by a Senior Registrar, Dr. Thomas E. Burke. However, neither Defendant seeks to avoid responsibility on the ground that the procedure was carried out by Dr. Burke in St. Mary's. Accordingly, the issues which arise for determination are whether the procedure was, in fact, carried out negligently, as alleged, and, if so, the quantum of damages to which the Plaintiff is entitled. 2. In 1984, the Plaintiff underwent a total hip replacement operation on the right side. The operation was performed by the first Defendant at St. Mary's. It was totally successful and the Plaintiff testified herself that she had badly needed it and that the result was " fabulous " and that she was given " a new lease of life ". 3. As is usual in a hip replacement operation, the great trochanter had been cut through and "hinged" back and, when the prosthesis was in place, it was stitched back to its former position using wire. In normal circumstances, the wires would have become redundant when bony union took place but, nonetheless, they would have been left in situ unless they gave trouble. In the Plaintiff's case, while bony union did take place and the wires became redundant, they did give trouble. 4. The trouble started around August 1989. The Plaintiff was experiencing pain at the top of her hip. She attended the first Defendant at his clinic in St. Vincent's. The Plaintiff's right hip was x-rayed on 28th August, 1989. The diagnosis was that the pain was probably caused by trochenteric bursitis and that the bursitis was caused by the knots or twists at the end of the wires which had been inserted in 1984. The solution to the problem was to have the Plaintiff admitted to St. Mary's to have the wires removed. 5. On 27th November, 1989, the Plaintiff was operated on under general anaesthetic by Dr. Burke in St. Mary's for the removal of the trochenteric wires. Dr. Burke opened the incision which had been made at the time of the hip replacement. He found a bursa which he noted as being significant. The fluid in the bursa was murky and he sent a specimen for analysis for culture and sensitivity. His intention and what he set out to do was to remove the trochenteric wires totally. There were two wires, one vertical and one transverse or horizontal. Each had been finished off by its two ends being twisted together to form a knot. Dr. Burke encountered no difficulty with the vertical wire which came out easily when he snipped the knot. In relation to the horizontal wire, it went right around the head of the femur. Going from the anterior to the posterior of the femur, it was threaded, as it were, through a hole in the bone, then, on the anterior side, it emerged for approximately 1 cm and then it was threaded through bone again until it came out on the posterior side for about 1 cm and then it passed through bone again. When the horizontal wire was threaded into position in 1984, it would have passed through bone and through the cement which had been inserted within the bone to keep the prosthesis in place. Dr. Burke snipped and removed the knot on the horizontal wire leaving two ends. He then pulled on the end of the wire at the anterior and when he did so the posterior end receded into the bone and out of sight. The horizontal wire did not come out fully but got stuck. He tried a pulling manoeuvre levering a forceps against the bone, similar to the manoeuvre used in opening a can of sardines with a key, but to no avail. He could not see the end of the wire on the posterior side but he assumed that it was following the natural line of the wire and was lying adjacent to or inside the bone. He looked for the end of the wire which had been at the posterior side but he did not chase it around to the front because he did not think it was going to be worthwhile to do so. He was of the view that exploring through scar-tissue with his finger would be hazardous to the patient. He decided to leave the remainder of the wire as it was and, having impacted the visible end into the bone, he terminated the operation. 6. Although Dr. Burke noted in the hospital notes that one wire, which was not moveable, had been left in place, the Plaintiff was discharged from St. Mary's without being told that the trochenteric wires had not been fully removed. Sometime after she was discharged, a pain developed in her buttock and affected her when she sat down. She returned to the first Defendant at his clinic at St. Vincent's in January 1990. She was x-rayed on 15th January, 1990. The x-rays disclosed that a piece of wire approximately 9 cms long remained looping around the inner side of her femur through a drill hole and that one end of the wire measuring approximately 15 mms was sticking directly back from the femur into tissue and that this appeared to be the source of the pain. Apparently the reason Dr. Burke had been unable to pull the horizontal wire was that a kink in the wire prevented it entering the second hole drilled in the posterior of the femur. It was decided to re-admit the Plaintiff to St. Mary's to have the remaining wire removed. On the 20th March, 1990, the remaining wire was successfully removed. The operation was performed at St. Mary's under epidural by a Registrar, who had a "fix" on the location of the wire from the x-rays taken on the 15th January, 1990. 7. The Plaintiff's contention is that the procedure carried out on 27th November, 1989 was negligently performed in that, having determined to remove the wires in their entirety, the operation should not have been terminated until all the wires were totally removed or, at least, any wire which was going to cause a problem was completely removed. In particular, it is contended that, having pulled on and disturbed the horizontal wire, Dr. Burke should have taken steps to ensure that it would not cause problems to the Plaintiff in the future, by locating the end of it which was not visible to him by exploring with his finger or, alternatively, by bringing an x-ray machine into the theatre and x-raying the Plaintiff's hip. 8. It is common case that the consequences of part of the horizontal wire not having been removed on 27th November, 1989 were short term only and the problem was remedied on 20th March, 1990. The Plaintiff suffered severe pain, a violent stinging pain, which was described as being akin to sitting on a drawing pin in reverse, and discomfort from early December 1989 to March 1990 and had to incur the risks of the operation on 20th March, 1990, which it was contended should not have been necessary, which risks fortunately did not materialise, and a period of hospitalisation, about a week in duration, in connection with that operation. 9. Before outlining the independent medical evidence upon which the Plaintiff's contention is founded and the independent medical evidence adduced by the Defendants to refute the Plaintiff's contention, I think it would be useful to address the legal principles applicable to allegations of medical negligence. The relevant principles were summarised in the judgment of Finlay C. J. in Dunne (an Infant) -v- National Maternity Hospital [1989] I. R. 91. The first principle, the fundamental rubric, is stated as follows at page 109:- "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." 10. Finlay C. J. then went on to set out certain principles which flow from the first principle. Proof of deviation from a general and approved practice will not establish negligence unless it is proved that no medical practitioner of like specialisation or skill would have followed the course adopted had he been taking the ordinary care required from a person of his qualifications. On the other hand, a medical practitioner who follows a general and approved practice will not escape liability if the practice is so inherently defective that this would be obvious to any person giving the matter due consideration. As to the function of a Judge when two alternative courses of treatment are advanced by the proponents in an action for medical negligence, Finlay C. J. said:- "It is not for a ... Judge ... to decide which of two alternative courses of treatment is in ... his ... opinion preferable, but ... 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." 11. At page 110, Finlay C. J. set out certain broad parameters which underline the foregoing principles and which the Court must have regard to in applying them in the following passage:- "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 on 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." 12. The Plaintiff's allegation of negligence was founded on the evidence of Mr. John Michael Pegum, Consultant Orthopaedic Surgeon. Mr. Pegum considered the operation performed on 27th November, 1989 to be a straight forward operation and he considered it reasonable for the first Defendant to delegate it. In his opinion, in performing such an operation, it does not matter if some wire is left behind, provided it does not cause pain. However, the thrust of his evidence was that it is incumbent on the surgeon performing the operation to take steps to ensure that the remaining wire will not cause problems. He suggested that the surgeon should feel around the back of the femur with his finger to see if the remaining wire is causing problems. If he cannot locate the remaining wire by feeling, the patient should be x-rayed on the operating table while still under anaesthetic. In his opinion, the operation on 27th November, 1989 was inadequately performed in that the surgeon did not take steps to ensure that the remaining wire would not cause problems. He suggested that if x-rays similar to x-rays taken on 15th January, 1990 had been available, the remaining wire would have been taken out. In his view, the operation was not satisfactorily done and it was not completely done. 13. While Mr. Pegum accepted that an infected hip is a major problem and can be disastrous and that a surgeon does everything he can to avoid infection of the hip, he did not accept that the approach advocated by him was risky. The technique he suggested should have been employed was exploring for the end of the wire gently with the finger, looking for it and, if necessary, using a scissors or a forceps and then, if it could not be found, taking an x-ray. While Mr. Pegum accepted that an x-ray machine would have been introduced into a germ free zone if an x-ray machine had been brought into the operating theatre at St. Mary's, he stated that it is routine to bring x-ray machines inside an enclosed regime in spine operations, although it is not routine to do so in hip operations because they are not needed. If he had been performing the operation, he would have taken an x-ray and, in his view, an x-ray should have been taken. Had an x-ray been taken there would have had to be a compelling reason for not removing the remaining wire. 14. Mr. Pegum accepted that there is an alternative point of view but, in his opinion, it is wrong. 15. Mr. Pegum expressed the opinion that when the Plaintiff was discharged from St. Mary's in early December 1989 the remaining wire was where it was when the x-ray was taken on 15th January, 1990 and that the Plaintiff was probably not sitting down much in the immediate aftermath of the operation and that is why she did not feel it. 16. Mr. James Sheehan, Consultant Orthopaedic Surgeon, who was called on behalf of the Defendants, testified that removing trochenteric wires, other than in revision surgery, is a rare procedure and his own experience, having performed between 7,000 and 8,000 hip replacements over 30 years, was that it arose in about one in 1,000 cases. Mr. Sheehan stressed that even in a wire operation, if one opens a wound with an implant, there is a significant risk of infection, which may lead to rejection of the joint, although he did acknowledge that such risk in a wire operation is not as high as in a total hip replacement operation. Accepted practice worldwide is to limit the possibility of damage to the implant by not going after wires if they are not readily accessible. Even in revision surgery, fragments of wires are frequently left in place, even in tissue. Wire is a long term implant and is designed to stay in tissue. If a loose end causes a problem, as happened in the Plaintiff's case, the wire can be taken out when irritation occurs which results in a bursitus which localises the problem. 17. Mr. Sheehan stated that he is vehemently opposed to bringing an x-ray machine into a sterile unit such as the unit in which hip operations are performed in St. Mary's and increasing the risk of infection. In his view, Dr. Burke adopted the correct approach surgically. He was entitled to assume that the wire would follow the contour of the bone. Specifically, in the Plaintiff's case, it was appropriate to limit dissection because of the existence of the bursa which could have been infected. The risk from the bursitis outweighed the benefit of taking out the remainder of the wire. It was also proper to minimise exposure and avoid cutting into scar tissue around the sciatic nerve area. 18. It was specifically put to Mr. Sheehan in cross-examination that the wire which was left in place was not a wire which was not causing a problem. Dr. Burke had worked at it, he had disturbed it and he had left the posterior end of it in an unknown position and this was not a correct end to the operation. Mr. Sheehan's response was that to leave a wire in an unknown position is an acceptable practice. Although Dr. Burke had pulled the other end and the wire had travelled a bit, he had adopted the standard practice, which is not to go after a wire in such circumstances. 19. Mr. Sheehan, while acknowledging that one cannot say with certainty when the 15 mm end of the wire became prominent, suggested that there is a high degree of probability that it became prominent subsequent to the operation with the contracting of adjacent muscles. 20. The essential difference between the course advocated by Mr. Pegum and the course advocated by Mr. Sheehan is that, in following the former, the surgeon must ensure that a wire will not cause a problem in the future before deciding not to remove it, whereas, in following the latter course, the surgeon is justified in making a judgment that a wire which is not accessible will not cause a problem and in waiting to see whether the judgment is correct and whether symptoms develop or not. As is clear from the passage from the judgment of Finlay C. J., which I have quoted above, it is not for this Court to determine which course is preferable. The Court's function is to decide whether the course followed by Dr. Burke complied with the careful conduct expected from a surgeon carrying out this type of operation. 21. On 27th November, 1989, Dr. Burke made a judgment that the remaining wire, which he could not see or feel, was likely to be lying in its previous passage, in scar tissue and bone, and was not likely to cause a problem. Although that judgment, as Dr. Burke in retrospect admitted in evidence was wrong, in that either when the operation was finished or within a short period of time thereafter part of the wire was sticking into the Plaintiff's buttock and caused her severe pain and discomfort until it was removed, on the evidence it was reasonable. An error of judgment is not necessarily negligence. In my view, having regard to the risks inherent in prolonging the procedure and, in particular, the risk of exposing the Plaintiff's hip to infection, Dr. Burke, in relying on his judgment and in deciding not to explore further for the inaccessible end of the remaining wire and not to bring an x-ray machine into the theatre in order to attempt to obtain a lateral exposure of the Plaintiff's hip, did not fall below the standard which the law requires of him, namely, careful conduct of a medical practitioner of like specialisation and skill to him at the time. 22. It is regrettable that the Plaintiff was exposed to pain and to discomfort even for the relatively short period of four months. It is particularly regrettable that, before she was discharged from St. Mary's, she was not apprised that some wire remained in her femur and warned of the possibility of further irritation and pain from it. However, in my view, she has not established that her pain and discomfort is attributable to negligence on the part of the Defendants. Accordingly, the Plaintiff's claim is dismissed. © 1997 Irish High Court BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII