Hamilton C.J.
Barrington J.
Keane J.
Lynch J.
Barron J.
226/96
THE SUPREME COURT

CARMEL COLLINS

V.

MID-WESTERN HEALTH BOARD AND O’CONNOR

Judgments by Keane J., and Barron J.; Hamilton C.J., Barrington J. and Lynch J. agree with Keane J. and Barron J.

JUDGMENT delivered on the 12th day of November 1999 by BARRON J.

The plaintiff’s husband (“the deceased”) who was in his early 40s was taken ill suddenly at about 3.30 p.m. on the afternoon of Wednesday the 20th February 1991 while at work. He was a block layer by trade and was working with his brother on a building site. He was unable to

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continue and it was some time before he was well enough to go home. On his way home as he passed the surgery of the second-named defendant (“Dr. O’Connor”) who lived close to him he saw that his car was outside. The family doctor was Dr. O’Brien. However, the plaintiff had been to Dr. O’Connor on one occasion and the deceased apparently decided to go to him because he was nearer. When he arrived home he told his wife that Dr. O’Connor was probably in his surgery and asked her to ring him to make sure that he was which she did. It was just about 5.00 o’clock. She asked the doctor would he wait a few minutes. She told him: “Jim has a very bad headache. He does not usually go to doctors. He must be very bad.” The doctor said that he would wait. The deceased then changed his clothes and went to the doctor’s surgery on his own.

He was examined by Dr. O’Connor and found to be complaining of the symptoms of an upper respiratory tract infection (“URTI”) or in other

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words a head cold. The doctor’s advice was that it would take two to three days to run its course and that it was not necessary to prescribe him any medication.

On Saturday, 23rd February the plaintiff who was disturbed that her husband who never went to doctors and who had stayed in bed since his visit to Dr. O’Connor was getting no better rang the doctor. She asked him whether he was absolutely sure that her husband had a viral flu, something which her husband had told her had been the doctor’s diagnosis. She told him that her husband had been in bed for three days and that he never stayed in bed and that she was really concerned. Dr. O’Connor’s reply was that sometimes people who are not used to being sick think they are worse than they are when they do get sick. She asked him if he were sure that there was nothing that he could prescribe for him

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and his answer was “no, not for viral flu. it has to take its course. It may take four to five days.”

On the 25th February the deceased was no better. The plaintiff rang the defendant at 8.00 o’clock in the morning saying “Jim is very bad” and he came around almost immediately. The deceased was in bed. Following his examination Dr. O’Connor took the view that he was probably suffering from headaches caused by sinus congestion. In the course of this visit he found signs under the patient’s eyes which suggested that he might have increased cholesterol. He advised a test and suggested that a blood sample should be provided at his surgery. The deceased attended Dr. O’Conor’ s surgery on the 28th February where he provided a blood sample for the cholesterol test. On inquiry as to the result on or about the 5th March the plaintiff was told that it was normal. She

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indicated to Dr. O’Connor that the deceased was no better and he said that if the deceased wanted he could come up to see him again.

The deceased did not get any better. On March the 17th the plaintiff again rang Dr. O’Connor. He was not working on that day but had a locum. She decided that there would be no point in the deceased going to see the locum. On the following day there appears to have been a change of mind. The deceased went to see Dr. O’Brien. He immediately was of the opinion that the deceased needed a CT scan. He contacted the hospital and on the 20th March the deceased received in the post notification of an appointment for the 2nd April. When this arrived the plaintiff thought that it was too far away. She contacted Dr. O’Brien who agreed. He appeared to have made some arrangement with the hospital to admit the deceased and gave his wife a letter suggesting that the hospital had agreed to admit him. In any event at 5.00 p.m. on the

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20th of March the deceased was brought to the outpatients department.

There he saw the senior house officer, Dr. Nur. After a full examination Dr. Nur took the view that he needed further examinations, and said that he would make an appointment for the deceased to see a specialist, meanwhile he sent him home. The plaintiff immediately contacted Dr. O’Brien. On the following day Dr. O’Brien sought an assurance from Dr. Nur that the deceased would be admitted. When he did not get it, it was decided that Dr. O’Brien would on the following day do everything he could to have the deceased admitted under a consultant. However, events overtook everyone in that the deceased appeared to get a further serious attack at 2.00 a.m. on the 22nd. He was immediately brought into hospital as an emergency. His condition was serious. A lumbar puncture was carried out at 4.00 a.m. and a CT scan at 10.00 a.m. He was diagnosed to have suffered a subarachnoid haemorrhage.

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Following this scan and the confirmation of subarachnoid haemorrhage the deceased was transferred to Cork. There he came under the care of Mr. Marks, a consultant neurosurgeon. A further CT scan was carried out sometime in the late afternoon which showed a similar pattern to the first one. At this stage the deceased was unconscious and had no real hope of recovery. Ultimately he died on the 27th March.

Arising out of this sequence of events the plaintiff has brought proceedings on her own behalf and on behalf of her three children against the two defendants for negligence.

The claim is divided into three parts. The first part is a claim against Dr. O’Connor. This in turn is subdivided into two parts. First it is said that he was negligent at the consultation on the 20th February. Secondly, it is said that even if he was not negligent on that occasion he ought subsequently to have referred the deceased to a specialist. The

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second claim is against the hospital board because of the failure of Dr. Nur to admit the deceased to the hospital on the 20th March. Finally, there is a further claim against the hospital for negligence in the manner in which the deceased was treated when he was admitted on the 22nd.

It is common case that the deceased suffered a subarachnoid haemorrhage on the 20th February, 1991 and a more serious one in the early morning of the 22nd March of the same year. The case against Dr. O’Connor is that he ought to have diagnosed that the deceased was suffering from a serious condition which required him to be referred to a specialist for further diagnosis and, if necessary, treatment.

Before considering the question of any liability on the part of Dr. O’Connor, it is necessary to consider what must have occurred at the surgery visit on the 20th February, 1991.

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This must be seen against the evidence of what had actually occurred that afternoon. This evidence was given by the deceased’s brother. It was to the following effect.

The deceased and he were working together laying blocks when sometime around 3.30 p.m. his brother put his two hands up on his head all of a sudden. He asked what was wrong and his brother just said something and looked around. He repeated what’s wrong and his brother said I don’t know, my head. He had turned almost pure white. At that time they were working above ground level. His brother stopped and sat down and remained there for about three quarters of an hour. He asked for panadol. He did absolutely nothing, he was in a complete stressed kind of situation, very pale and white. His brother got him down from where they were working by ladder with the help of another worker. When he reached the ground he went straight into the passenger seat of his

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brother’s car. He didn’t leave the site until about twenty to five. His brother had continued to work on and off but checked on him from time to time. At that stage he looked the same but was in awful pain which frightened his brother, whom he had told about the pain. When he got down from the ladder he staggered as he went towards the car. His condition did not change while he was with his brother.

The learned trial judge has found as a fact that the doctor diagnosed a viral flu; expressed in his notes as URTI (upper respiratory tract infection). He further found that the doctor was not told of the sudden onset of headache which undoubtedly occurred, and that having regard to what he was told and the apparent condition of the deceased he had asked all the correct questions.

It will be necessary to revert to these matters, but it is appropriate to consider at this stage how this diagnosis might have come about. The

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deceased had just suffered a serious traumatic experience and his first reaction as he felt well enough to go home was to want to consult a doctor. It was to be expected that when he saw the doctor he would have told him of the sudden and appalling headache and the manner of its onset and said “What is wrong with me Doctor?” This did not happen. The nearest he got to telling the actual history was to tell the doctor that he had felt unwell at work.

While this is surprising, it is probably accounted for by several factors. The deceased was unaccustomed to visiting a doctor. By the time he did visit Dr. O’Connor he had recovered sufficiently to go to him on his own. The manner in which Dr. O’Connor conducted his surgery visits was in his own words:

“.... when I say (sic.) see a new patient, when I have the drug history, allergies and that taken, I sit back in my chair and say “right, what is the problem.

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What can I do for you?” and give the patient the opportunity to tell me what the problem his. His headache was one of a number of complaints on the first occasion. It was the main complaint on the second occasion.

Finally, Dr. O’Connor assumed that the deceased’s purpose in coming to him was preventative. In his own words:

“I think that the reason he came to see me was not that he merely had URTI, but felt unwell and the malaise, and that and the fact that he was a brick-layer and had to use a lot of energy in this would have brought him to see me. Often patients come to get a cure for flu when it is early so that they can prevent it getting worse and stopping them working.”

Having found that Dr. O’Connor was not told of the sudden onset of headache and that he had no reason as a result of his surgery consultation

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to go beyond his diagnosis of URTI, the learned trial judge found that in the course of that visit Dr. O’Connor had asked all the correct questions. This finding was made in the light of the expert medical evidence that a general practitioner at a surgery visit had an obligation not only to listen to what the patient said but also to ask appropriate questions. This is in effect no more than a reiteration of the general principle that it is the duty of a professional person to satisfy himself or herself that he or she knows what is being asked of them and that it is proper in the interest of the patient or client to act on such instructions.

In the present case, the question arises as to whether the learned trial judge took too narrow a construction of the obligation of the general practitioner by confining it to what he was told by his patient at the surgery visit and not taking into account the circumstances under which he came to his surgery. These were the apparent urgency as expressed by

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the telephone call from the plaintiff enquiring whether he was still seeing patients as well as what was actually said by the plaintiff. Having asked the doctor to wait a few minutes she told him: “Jim has a very bad headache. He does not usually go to doctors. He must be very bad.”

The test of the obligation of the general practitioner is whether a reasonably prudent general practitioner exercising ordinary care would have acted as he did in the circumstances. The reality of the test is to enquire whether or not the general practitioner acted reasonably in the circumstances as known to him. In the present case, the findings of the learned trial judge amounted to a decision that in confining his questions to what he was told by the deceased and his opinion as to his condition he was exercising the degree of care required of him. The plaintiff’s case is that he failed in his duty to the deceased by not taking into account the

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circumstances in which the visit was arranged and what was said by the plaintiff in arranging that visit.

It is appropriate to look at the evidence in this regard and the views of courts has expressed in similar cases. Professor Ronald Salkind gave evidence on behalf of the plaintiff as to what is expected of a general practitioner. He had been in general practice for some forty years and at the date of the hearing he was Emeritus Professor of general practice in the University of London. Since general practitioners see a whole spectrum of illness one of their major functions is to separate the self-limiting disorders which they can treat from life threatening ones which require a referral. It is important that they should take a good history and record it. Eighty per cent of diagnosis is gained from the history. While the best way to discover what is wrong is to listen to the patient, it is still the responsibility of the doctor to ask questions of the

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patients to elucidate the details of the symptoms. Not to do so is neglect.

It was not for the patient to volunteer everything that they could think of. The doctor has a duty to elicit the appropriate responses to clues which are given by the patient.

Sudden severe headache in a person over thirty-five is something which should be considered carefully. Headache in a patient without an obvious cause, or one which persists for some time or one which interferes with the patient’s way of life all suggest the need for referral. What should be inquired about is the quality of the headache, its severity, its location, its duration, the type of onset, as well as any previous history, whether there has been any change in behaviour, any memory loss, any vomiting, any sensitivity to light or any change in the way of life.

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A patient who has not been to a doctor for as long as anyone can remember and suddenly turns up with what appears to be a simple cold. That is an alerting symptom in itself. The doctor should be suspicious.

The doctor has to ask certain questions. The patient does not know what is important in the context of his illness. If the doctor does not ask those, obviously, the patient is not going to volunteer it so if Dr. O’Connor was not told it is because he did not ask.

Even if he was not sufficiently concerned to make a referral on the first visit he should have made arrangements to see him again. Having received the phone call on the 23rd should have been enough to make a referral and this should certainly have been done as a result of his visit of the 25th February. He should not have ignored the evidence that headaches were precipitated by TV.

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Much of the evidence adduced on behalf of the plaintiff concentrated on the suddenness of the onset of the headache suffered by the deceased. With knowledge of such onset, it was said to be negligent not to have referred him for further examination by a specialist. To some extent this clouded the issue. Dr. O’Connor accepted that he knew the import of the sudden onset of headache in his patient and had he known of it would have referred his patient immediately. The real issue since Dr. O’Connor did not discover that there had been a sudden onset of severe headache was whether he ought to have ascertained that fact.

Dr. George Crouch, a general practitioner with a practice in Harrogate, North Yorkshire was called to give evidence on behalf of Dr. O’Connor. He had been in practice for almost thirty years as a general practitioner and was the senior partner in his present practice for the last five years. He had been a Fellow of the Royal College of General

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Practitioners since 1983. He was associated regional advisor in general practice for the Yorkshire region which involved him in assessing the postgraduate education for general practitioners in Yorkshire.

In his opinion, Dr. O’Connor’s notes suggested that he was a caring and conscientious practitioner who had seen the patient for the first time, endeavoured to find out relevant details with regard to his medical history before actually finding out what it was that he was presenting him with.

Patients with upper respiratory tract infections are common in general practice, they normally present as a little bit of a sore throat, perhaps a runny nose, a bit of a headache, feeling vaguely unwell, dry cough and perhaps feeling a bit shivery and a little bit flu like, all fairly non-specific.

Dealing with the examination on the 25th February Dr. Crouch was of the opinion that Dr. O’Connor had asked all the proper questions.

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Although the cause of the headache appeared to him to be sinus infection nevertheless he was thinking in terms of some possible other cause for such headache and he wanted to rule out any such other cause. He had been looking to find out where the headaches were and what they were like and how frequent they were and whether there were any associated symptom signs which came with the history.

While he accepted that good general practice was taking a good history and a good examination he was of the opinion that a general practitioner was entitled to rely upon the history given by the patient. Dealing with headaches, he accepted that they came into two categories, those with which a general practitioner should not be concerned and those with which he should. If the patient presented with URTI a general practitioner would not be expected to ask questions about the headache. If he presented with a history of headache, then he should ask questions.

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In such a case, a careful general practitioner should make sure that a sudden severe headache is ruled out. The questions which he would normally ask would be, where the headache is, how it came on, what the patient was doing the time it came on, that sort of question. (Book 11 Q. 177).

Evidence in support of the plaintiff was also given by Professor Peter Behan, a consultant neurologist with several appointments in Glasgow. He was of the view that the deceased had clearly not been suffering from URTI and that Dr. O’Connor did not take a proper history. He said that there was a battery of standard questions which should be asked in relation to headaches and that the deceased should have been referred to a specialist.

Evidence in support of the defendant was given by Mr. Robert Gibson, a consultant neurosurgeon with several appointments in Leeds.

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In his opinion neither on the evidence given by Dr. O’Connor nor of his notes nor on the basis of his physical examination could he find any reason for Dr. O’Connor to have taken further steps.

Nevertheless he seemed to suggest that Dr. O’Connor having regard to what he found on the visit to the deceased on the 25th February, 1991 should have made a referral. At Book 10 Question 139 he was asked:

“If My Lord accepts Mrs. Collins’ evidence that when she rang him before he was first visited by Mr. Collins and told him he developed headache at work, and if by the following Saturday the first being Wednesday the 20th she rang again indicating headache and that he was not getting well but was ill and no flu symptoms?

A: Yes. If she calls him again to the ho use for the second occasion because he is still not getting well and there are no flu symptoms, and on this occasion Dr. O’Connor agrees there were no flu symptoms, if those are the circumstances of the examination and

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the state of knowledge of the doctor does not agree he should as an ordinary qualified careful practitioner have taken steps to have that man then examined.”

As can be seen there was a conflict between the doctors in relation to what Dr. O’Connor did. To a large extent this stemmed from an assumption on the part of those called on behalf of the plaintiff that Dr. O’Connor knew or should have known the history of the afternoon of the 20th February, whereas those called on behalf of Dr. O’Connor were of the view that he did not know because he had not been told. Nevertheless, it was common case, that if headache was a significant presenting complaint that questions needed to be asked in relation to it.

The conflict narrowed itself to whether Dr. O’Connor should have been obliged to go outside what he discovered from the patient himself. Mr. Gibson was of the opinion that there was no need to refer the patient

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on the basis of the evidence of Dr. O’Connor, his notes and his physical examination. Dr. Crouch took the view that Dr. O’Connor’s notes were very good, that there was no need to take the telephone calls into account since the patient had plenty of time to express any concerns which he had.

Dr. O’Connor gave evidence. He graduated in 1982 and received honours and a gold medal in the course of his university studies. He became a member of the Royal College of General Practitioners in 1988. In that year he practised as a general practitioner in a rural practice in Cork. He left it and set up his practice in Limerick in December 1990.

He does not remember the telephone call from Mrs. Collins on the 20th February. No claim was made against him until April, 1994. He did, however, become aware that Mr. Collins had died suddenly and within a relatively short time of being seen by him. He went back over his notes at that time. The main things of which the deceased had complained of

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were a cough, aches and pains, headache, malaise, feeling unwell, nasal congestion and sore throat, though he was not sure of the latter complaint. There was nothing in the information he was given to regard the headaches as being significant nor to require him to make detailed inquiries about them. The notes of this consultation were as follows:

“Past history: nil; family history: nil; social history: bricklayer; no cigarettes for three weeks - twenty per day. Alcohol: sixty units a week. Drug history: nil; Allergy: nil; Complained URTI - on examination well; Temperature: normal; Pulse: 72 regular; CVS: normal; Respiratory system: normal; ENT: normal; Fundi: both normal; Blood pressure: 140/80;
Plan: Warn re alcohol consumption and conservative treatment for upper respiratory tract infection.”

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He had no recollection of the phone call on the following Saturday the 23rd. On the 20th headache had been one of a number of complaints, on the 25th it was the main complaint.

On this occasion Dr. O’Connor asked the deceased if the headaches were of sudden onset. The deceased does not appear to have answered yes or no. In answer to the question asked by counsel, what did the patient himself say as to when they started? The answer was:

“The headaches were present from the time he had seen me, they had come on the initial presentation the day of the initial presentation or a few days before, were intermittent, they were over the eyes and frontal area, worse in the evening, and no associated nausea or vomiting, and were not precipitated by light, but after a while were brought on watching TV”.

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Dr. O’Connor had looked for a serious cause for the headache on this occasion. He was of the opinion that it had been excluded by the history he had been given and by the physical examination. The most likely possibility was that of persistent sinus congestion although on the date in question the sinuses were clear.

His notes of that consultation were as follows:

“Still headaches on & off eyes & frontal, worse p.m. No nausea; ppt by TV on examination well; and temperature normal. Blood pressure 110/78. CVS normal, CNS normal, PERLA (pupil reaction to light and accommodation). No neck stiffness. Fundi normal. Sinuses normal, ears & throat normal Impression, reassure.”

It is relatively clear that on the 20th February Dr. O’Connor asked the deceased a series of questions relating to his past medical history and other matters which might affect any diagnosis. Having done so he then

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asked for the complaints. This is clear both from the doctor’s notes of the visit and his own evidence. Having heard such complaints he accepted them as the reason for the visit. He says that he asked no questions about headaches and it seem clear that he would not for the same reasons have asked any questions about any of the other complaints. This seems to be confirmed by the fact that the whole consultation took approximately twenty minutes.

This obligation to ask questions was accepted by the learned trial judge and a basic issue is, did he ask all the questions which the reasonably prudent general practitioner exercising ordinary care would have asked.

The effect of the evidence suggests that simple questions should be asked whenever pain is a significant presenting feature and that a doctor cannot rely only on what he has been told when it is reasonable to ask

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further questions. It also suggests that where there are inconsistencies between what the doctor is told and what he finds this is a further ground for making further enquiry.

In fact the strongest case for asking questions in relation to pain occurs in the evidence of Dr. Nur the doctor who saw the deceased on the 20th March and was not prepared to admit him. At Book 7 Q. 72 when dealing with this issue he said:

“I said yesterday, when you ask the patient, when you see the patient with a headache you have your line of questions, it is no matter if it is headache, if it is chest pain, abdominal pain, the line of questioning or the questionnaire is very clear. It is drilled into the brains of undergraduate students. You start from the onset, mode of onset, you ask the duration, you ask the nature of pain, you ask associated symptoms, you ask aggravating factors, you ask relieving factors, and even a

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medical student would start with that. I would have definitely asked that question and would have proceeded down the line of questioning which is a routine for every doctor, for every medical student.”

In the present case, there is conflicting evidence as to whether Dr. O’Connor took a proper history and in particular the evidence of Professor Salkind that URTI and viral flu are not the same thing. There is also a conflict in the evidence as to whether the deceased had the symptoms of URTI.

These two issues do not advance the matter and do not need to be resolved as such. So far as the history is concerned, there is a distinction between a general history to enable the doctor to place the current complaints in context and a specific history in relation to the reason for the particular surgery visit. There is not any complaint about the former. The complaint is about the latter what is in reality a complaint that Dr.

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O’Connor did not ask sufficient questions. The conflict over the symptoms was a matter for the learned trial judge, but it also was a criticism that the inquiry was too narrow.

In the course of his judgment the learned trial judge found Dr. O’Connor to be a careful and considerate doctor. His findings in relation to Dr. O’Connor were as follows:

“(He) asked the correct questions in the course of taking the history and in his examination, (2) that he recorded accurately the history which was given to him by the deceased, and (3) that having regard to the condition of the deceased at the time, there was no need for him to go further to take a history other than the deceased himself”

He also accepted that there were telephone calls from Mrs. Collins for which the doctor had no recollection.

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He further found that the deceased had failed to communicate to either Dr. O’Connor or Dr. O’Brien or Dr. Nur the following facts:

(a) the sudden onset of the said headache;
(b) the severity of the headache;
(c) the persisting disabling effects of the headache.

In particular the learned trial judge found that this applied to the fact that when on the 28th February the deceased presented to Dr. O’Connor the blood sample for the cholesterol that he did not make any further complaint regarding his condition and said that he was on his way to work. While the plaintiff did say on this occasion that her husband was no better, his failure to return to Dr. O’Connor is probably explained by the fact that his condition did not become sufficiently bad for him to return to a doctor until the 17th March.

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If the learned trial judge was entitled to rely solely upon what occurred at the surgery visit on the 20th February, 1991, then his findings cannot be disturbed. His further finding that the deceased failed to communicate to any of the three doctors the sudden onset, severity or persisting disabling effects of the headache does not advance the matter. The absence of such communication bore on the issue of what questions should have been asked. This was correct for the visit of the 20th, if you ignore the telephone call. It was probably correct for the visit on the 25th again if you ignore the three telephone calls.

In my view, the telephone calls should not have been ignored. The findings of the learned trial judge have disregarded these calls. He makes three findings. The first is that there was an accurate record of the history given to him by the deceased. The second is that having regard to the condition of the deceased at the time there was no need for Dr.

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O’Connor to go further to take a history other than that from the deceased himself. His first finding that Dr. O’Connor asked the correct questions in the course of taking the history and his examination is a conclusion from the other two findings.

It is clear that the essence of the findings is that they were made having regard to the condition of the deceased at the time and that they were not made having regard to the contents or fact of the telephone call which preceded the visit on the 20th February.

The effect of these findings is that Dr. O’Connor exercised ordinary care when diagnosing the nature of the deceased’s condition. Ordinary care, in my view, requires the doctor to take into account everything which might bear on his patients’ condition. If he fails to do so, then the further questions arise, what would have been the course of events if he had taken everything into account, and would that have made any difference?

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To consider whether or not the consultation on the 20th February met the standard of care required of Dr. O’Connor it is necessary to put it in the context of how it came to take place. The manner in which the consultation was conducted might have been very well for a patient coming to a doctor’s surgery in the ordinary way. Where however the visit was preceded by a telephone call which suggested urgency the doctor should have had regard to those circumstances, and what was said in the course of such call.

In the first place the doctor should have asked himself whether somebody who never went to a doctor would come to him as a matter of urgency for what was a mild infection. Dr. O’Connor in his evidence gave an explanation. That was surmise. He should have asked. Again he was told in the telephone call that the deceased had a severe headache. He totally ignored that factor. Secondly, he should have been concerned

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why his patient’s wife had highlighted the question of headache when the deceased himself did not.

Even if as he did Dr. O’Connor believed that there was a mild infection nevertheless it seems that both these factors should have prompted him to probe further from the deceased as to why his wife had to ring up to ensure that he would still be in his surgery and had said ‘he has a very bad headache’,  Had he even asked what were you doing at work when you started to feel unwell, it is almost certain that the deceased would have told him the actual history of what had occurred, since it had only just happened.

Those events having occurred so recently any question would surely have elicited a response giving that information. If any questions had been asked about the headache such as how severe is it? How long have you had it? When did it start? What were you doing when it started?

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Have you ever had it before? It seems highly unlikely that the whole unfortunate history would not have been given to the doctor.

On the 20th Dr. O’Connor had diagnosed URTI. When he got the call on the 23rd, this was really inconsistent with what he had found on the 20th. There was no reason for the deceased to have remained in bed. He should have gone out. He had not told the deceased to go to bed.

The visit to the deceased’s home on the 25th February 1991 was dealing with apparently a different situation. On the doctor’s own evidence the mild infection appears to have cleared up and the only presenting complaint was headache. On this occasion he inquired about the onset of the headache but the answer which he says he received is not in the words in which it would have been given. While the deceased never said it came on suddenly, he does not appear to have given an answer which would have suggested that it did not. In any event what occurred

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in the afternoon on the building site five days would not have been in the forefront of his mind in the same way as on the 20th and it is not surprising that the deceased did not specifically refer to those events. Again there seems to have been inconsistencies. If the URTI had cleared up save for the headache, the deceased’s wife was unlikely to be calling the doctor at 8 o’clock in the morning saying “Jim is very bad”.

I have already indicated how it might have come about that the deceased did not tell Dr. O’Connor what had actually occurred. But the discrepancy between what he was told and the reason for the phone call and its content must have put the doctor on notice to probe further. I have no doubt that had he asked even a couple of simple questions he would have been told of the sudden onset and severity of the headache leading to a referral, if not on the 20th, then certainly because of the call on the 23rd.

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The circumstance of the telephone call from the plaintiff on the 20th and what she said would also have been a reason to seek to probe beyond what he had been told by his patient. It is common sense that the patient may leave out something which is not important to him, but which, if the doctor had been told, would have been important to the doctor. This case relates essentially to the headache, but the probing should have been in regard to all the symptoms of which complaint had been made. In the ordinary case, one or two questions would probably be sufficient. In this case, because of the telephone call and what he was told, there should also have been a focus on headaches with the sort of questions suggested by Professor Salkind, Dr. Crouch and Dr. Nur. The conclusion which should be drawn from these matters having regard to the evidence given or accepted on behalf of the defence is that Dr. O’Connor fell below the standard required of him. Put in a nutshell, the question in relation to the

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20th February is, was Dr. O’Connor entitled to ignore completely the telephone call to him from the plaintiff approximately ten minutes or so or perhaps less before the visit of the deceased? I cannot see how the answer can be other than no. Similarly on the 23rd and the 25th he was not entitled to disregard totally the calls made by the plaintiff to him on those days as well as that of the 2 0th.

Dr. Crouch said that the deceased had plenty of time on the 20th to express his concerns and that therefore there was no need for Dr. O’Connor to take the telephone call into account. I cannot see the validity of this view. Dr. O’Connor was on notice that the reason for the visit was because of, but certainly included, a bad headache. Ordinary care required a few simple questions about headache. He asked none at all.

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The issue in this case is really a very simple one. It was accepted by Dr. O’Connor that he knew the significance of sudden onset of severe headache. If the questions had been asked, it is inconceivable that he would not have been told of sudden onset. So the real issue is, should questions have been asked about headache on the 20th? Reliance on notes would normally be sufficient though when something has been missed it follows that it won’t be in the notes. Here not only do the notes on the 20th omit any reference to asking questions about headaches, but it is known that none were asked. Accordingly, the notes in the present case are really immaterial.

Dr. O’Connor was not expected to make the correct diagnosis. But he was expected to be in a position to know when his patient should be referred to a specialist. Undoubtedly, on both the 20th and the 25th February there were negative findings which would have suggested that

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there was nothing seriously wrong. Nevertheless, history was said to be 80 per cent of diagnosis. So that if no proper history in the sense of correct questions is taken the chance of an accurate diagnosis or decision to refer is seriously restricted.

On the 20th February Dr. O’Connor may well have failed to see the significance of the fact that the deceased was someone who did not go to doctors. There does not however seem to be any justification for his failure to follow up on the question of headaches having regard to the telephone call which he received from the plaintiff. Had he done so, he must have discovered that there was a sudden onset of headache from which on his own admission he would have known what the problem was.

In the present case a question arises as to whether Dr. O’Connor was entitled to rely upon what he was told by the deceased. Obviously yes, but that did not absolve him from asking questions to establish that his patient

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had left nothing out that he as a doctor would have considered material to a proper diagnosis. Here, the information was given in reply to “tell me all about it”. While that must be a good starting point, it should not be the finishing point also. He has to be satisfied that the patient has left out nothing which might be of significance to the doctor. Simple questions would probably be all that was necessary to satisfy the doctor that what he has been told does not mask anything else.

The visit was not just a simple surgery visit. It was preceded by a telephone call suggesting urgency and which at the same time gave him two further pieces of information, first, that his condition was likely to be serious because he didn’t go to doctors, and secondly, that the principal symptom was severe headache. Even without the added element of urgency both these matters needed to be taken into account. Neither was

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the obvious element of urgency. In my view, to be satisfied with the diagnosis of URTI was negligence.

These failures continued on the 23rd and the 25th. These matters required more attention than they were given. While Dr. O’Connor did ask specifically about headaches on the 25th, he persisted with his diagnosis notwithstanding that the answers he was given tended to deny the diagnosis. At the same time all the warning signs which he had ignored on the 20th were also denying his diagnosis as was what he had been told on the 23rd.

In this type of case, hindsight is a problem. At the hearing, it was common case that the deceased had suffered serious trauma to the brain on the 20th February. It is all too easy to assume therefore that the doctor is negligent because he fails to diagnose it. That is not the test. The questions to be asked are, did the doctor do all that could reasonably

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be expected of a reasonably prudent general practitioner exercising ordinary care and, if not, would what he should have done have led to a correct diagnosis either by him or by a specialist to whom he would have been referred.

For the reasons which I have already indicated Dr. O’Connor failed the test on the first question. He did so on the 20th February and equally on the 23rd and the 25th. If he had not so failed the correct diagnosis would have been made probably by him but certainly following tests directed by a specialist to whom the deceased would have been referred.

There was no direct evidence on the particular issue whether the conflict between the clinical findings and the information supplied over the telephone as well as that information itself justified further questions. Unfortunately, the conflict lay largely between what Dr. O’Connor knew

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or must have known on the one hand and what he was not told and did not know on the other.

Mr. Gibson’s evidence appears to support the investigation of an apparent inconsistency. While both Dr. Nur and Dr. Crouch would ask simple questions where pain was a feature, of course, the premise for this is the need to consider all the information wherever it comes from. If there is no such need this aspect of the appeal fails. I cannot see however how that could be correct and would allow the appeal in relation to the claim against Dr. O’Connor.

In the course of submissions, counsel for the plaintiff referred to a Canadian authority Dale v. Munthali 73 Dominion Law Reports, 3rd series, p. 588. In that case, a general practitioner was found negligent in failing to realise that his patient’s illness - subsequently diagnosed to be meningitis - was something more than flu. One of the grounds for such

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finding was that the doctor should have questioned both the patient and his wife more thoroughly concerning the high fever that had existed prior to his visit.

In Langley v. Campbell The Times November 5th 1975, a general practitioner was found negligent because he failed to consider the possibility that his patient, an Englishman who had recently returned from Uganda, could be suffering from a tropical disease - malaria. He had diagnosed flu, the symptoms being fever, headache and alternative sweating and shivering. The trial judge in reaching his decision accepted evidence from members of the patient’s family that the doctor had been told that the patient had just returned from Uganda and that he had suffered from malaria previously.

This type of case depends upon its own facts. Nevertheless, both these cases show that the trial judge regarded as material what the patient

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said to the doctor, but also what he was or might have been told by his spouse or other family member.

I agree with that view. Where, as here, information is supplied by someone other than the patient whether in arranging the consultation or before or after a visit, it should be taken into account and, if necessary, further questions asked. This is particularly so when, as here, there is a discrepancy between what is said by the patient on the one hand and the family member on the other. The failure to heed what was said by the plaintiff in each of her three telephone calls and to follow it up was negligence.

The two cases to which I have referred both acknowledge the importance of what a doctor is told by relatives. I agree entirely. Such information is important. The weight to be given to it is a matter for the doctor, but it should not be completely ignored.

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In the circumstances, Dr. O’Connor was not entitled to confine himself to what he was told by the deceased and what he saw. He had an obligation to consider the circumstances of the several telephone calls from the plaintiff and what she said in the course of each. Had he not so confined himself, he would have realised the need to refer the deceased to a specialist. What would then have happened and what recovery the deceased would have made is a matter which remains to be determined.

The case against the hospital board in relation to Dr. Nur is different. The case for the plaintiff is that Dr. Nur should have admitted the deceased as an inpatient. At the time of his examination in the casualty department of the hospital Dr. Nur was aware that Dr. O’Brien had formed the opinion that the deceased should be referred for expert opinion. Accordingly, he started his examination with this knowledge.

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The letter was dated 20th March 1991 and headed Jim Collins with his address. It was as follows:

“Dear Doctor

Thank you for admitting the above as arranged. He has been unwell for the past five weeks. Has severe headache - not relieved by analgesics. 
Anorexia and weight loss. Past history: Nil relevant
S.W: Used to smoke thirty cigarettes a day until seven weeks ago. 
Alcohol 
On examination he looks unwell.
CNS: examination grossly normal. R.S / ENT 1, abdomen /
He has never been unwell previously and usually is reluctant to seek medical advice. Accordingly, I feel he needs admission to rule out anything sinister underlying his symptoms. Yours sincerely”

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In the course of his examination he asked the deceased various questions. He examined him and he observed his demeanour and how he appeared to look. In answer to questions about his headache the deceased indicated that he had had it for the last four days and that he previously had headache some months before. In a sense this answer was correct in that the headache did not recur sufficiently severely until the 17th so that on the 20th he had been suffering it for four days, the 17th, 18th, 19th and 20th. There was nothing from all of this which suggested to him the urgency which in fact existed. He formed the opinion that the deceased required further examination. It did not seem to him that there was a matter of extreme urgency.

It has been submitted that there are other findings which suggested an urgency, but it is not necessary to refer to them. What is significant is the authority vested in Dr. Nur a senior house officer in the accident and

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emergency ward. While he could refuse admission, he could not admit a patient without a second opinion. Again, Dr. O’Brien’s letter referred to the possibility of something sinister underlying the deceased’s symptoms. But Dr. Nur did not seek a further opinion. , there was no evidence that if he had called in someone more senior that any different opinion would have been expressed by his senior. It might even be said that he took the same view as Dr. O’Brien but differed from Dr. O’Brien as to the circumstances in which the further examination of the deceased should take place.

It seems to me that any system which gives absolute authority to a junior doctor is inadvisable. By its very nature the position of a senior house officer is one where the holder is learning his profession. He must meet from time to time cases with which he is not familiar and in which he would welcome the opinion of a senior. If he is given absolute authority

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there is a danger that he may miss things which his seniors would not. I do not seek to impose greater liability on hospitals than is necessary. House officers should not be required to look over their shoulders on every occasion that a patient is brought to casualty. An absolute authority is inadvisable. It is a matter for the hospital authorities themselves to indicate a scheme to provide under what circumstances a house officer would be required to seek the advice of somebody more senior. In the present case, a member of the medical team might well have taken a different view.

It seems to me that the problem really arose from the system which gave Dr. Nur such an absolute authority to refuse admission. All the indications were that he ought to have referred the deceased to the medical team having regard in particular to the letter from Dr. O’Brien. In my view he was wrong not to do so. He was, in effect, ignoring Dr. O’Brien’s

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concerns and treating the case as calling solely for his own diagnosis.

Perhaps he felt himself bound by the system in which case it is the authors of the system who must take the blame. In either case, there was breach of the duty of care for which the first-named defendant is liable.

In relation to what occurred on the 22nd March, it was said on behalf of the plaintiff that a lumbar puncture should not have been carried out because it was contraindicated by a number of factors of which intracranial pressure was the most significant. This was denied by the witnesses called on behalf of the defendant. The learned trial judge preferred the latter evidence and for that reason this ground of appeal fails.

The tort of negligence is not committed until there is both a breach of duty and loss flowing from it. Although, I have used the word negligent to describe conduct in breach of a duty to take care, that was a

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colloquial use of the word. Whether loss flowed from the breaches of care which have been identified and, if so, to what extent was expressly left over by the parties to be determined only in the event of breach of duty being established. This has now been established. Accordingly, I would allow the appeal and remit the matter to the High Court to determine whether loss flowed from the breaches of duty of the first-named defendant on 20th March, 1991 and of the second-named defendant on the 20th February 1991, the 23rd February 1991 and the 25th February 1991, or either of them and, if so, the extent of such loss.

THE SUPREME COURT
226/96
Hamilton, CJ,
Barrington, J.
Keane, J.
Lynch, J.
Barron, J.

BETWEEN
CARMEL COLLINS
Plaintiff/Appellant
AND

MID-WESTERN HEALTH BOARD AND O’CONNOR
Defendant/Respondents
Judgment delivered the 12th day of November 1999. by Keane, J.

The facts in this case are fully set out in the judgments of Barron J. I agree with that judgment and with the order which he proposes. I would merely wish to add a few observations as to the case against the first named defendants/respondents (hereafter “the Board”).

In Dunne v. The National Maternity Hospital, [1989] JR 91 Finlay CJ, speaking for the court, set out the principles of law which are applicable to

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allegations of medical negligence. In particular, the learned Chief Justice said that:-

“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 fin reply the plaint if establishes that such a practice has inherent defects which ought to be obvious to any person giving the matter due consideration.”

It can, I think, be safely said that, in general, a lay tribunal will be reluctant to condemn as unsafe a practice which has been universally approved in a particular profession. The defects in a practice universally followed by specialists in the field are unlikely to be as obvious as the test requires: if they were, it is a reasonable assumption that it would not be so followed. But the principle, which was first stated by the court in O’Donovan v. Cork County Council, [1967] IR 173, is an important reminder that, ultimately, the courts must reserve the power to find as unsafe practices which have been generally followed in a profession.

In the case of the Board, however, the court is not concerned with a medical practice as such. The allegation against the Board is that, under the

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admissions system operated in the hospital, Dr. Nur, a senior house surgeon, was allowed to substitute his own judgment as to whether the plaintiff required admission and investigation as a matter of urgency for the judgment already arrived at by an experienced general practitioner, Dr. Maurice O’Brien, that he did. The claim that the Board were negligent and in breach of their duty to the deceased in operating such a system cannot be refuted, in my view, simply by demonstrating that it is a system in use in at least some other hospitals in these islands.

It is, in any event, by no means clear from the evidence that it is, in any sense, a generally approved system. Mr. John Marks, a neurosurgeon who gave evidence on behalf of the plaintiffs, said (Book 2, Q419):

“Q.. You have heard Dr. O’Brien's evidence, f my Lord accepts it, that he sought to have the deceased admitted for investigation to Limerick Hospital - what would you expect to have been the course taken by the hospital following such a referral?

A. In my experience, having been myself a Casualty Officer in Britain, but not in Ireland, essentially the practices are the same in both countries with very few differences - etiquette in medicine between the two countries is the same, but having been an SHO

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[Senior House Officer] in Casualty in Britain and worked here for a number of years, I would have expected a physician to be consulted. I have said in my report I felt the SHO in Casualty - its difficult for him to overrule an experienced GP, and if he is going to overrule a GP’s wish for urgent admission and investigation, he needs some grounds for doing so, i.e. a more experienced person to see the patient, even f only an SHO in general medicine, who is part of the team who will have discussed it perhaps with his Registrar and Consultant. I had disquiet about that aspect of the management.”

Professor Ian Bone, a consultant neurologist attached to the Southern General Hospital in Glasgow, said that in Scotland general practitioners were entitled to ensure the admission of their patients to hospital and that this is what he would have expected to have happened in this case. It was put to him in cross-examination, however, that general practitioners in Ireland did not have such a right of admission. Mr. Patrick Plunkett, a consultant in the Accident and Emergency Department of St. James’s Hospital Dublin, gave evidence that the procedure followed by Dr. Nur in the present case was appropriate.

In contrast, Professor Peter Behan, a consultant neurologist in Scotland said (at Book 4, Q445):-

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“Here is a clinically ill man [about] whom the GP is worried and arranges admission by phone. Suppose this letter came to the hospital in Glasgow. I can positively assure you that that patient would be admitted, for no other reason than the fact that you would be in court if you did not, but clearly you would have to admit him because he is critically ill.”

The evidence thus clearly demonstrated that, far from there being a generally approved practice that, in circumstances such as arose in the present case, Dr. Nur was entitled to substitute his judgment for that of Dr. O’Brien as to whether the patient required immediate admission and investigation as a matter of urgency, there was, at best from the Board’s point of view, a difference of opinion.

It is relevant to recall the comparative experience of the two doctors concerned. Dr. Nur graduated with a primary medical degree in Pakistan in 1987, a B.Sc in 1988 and then had practical experience as a surgical house officer for 1 year in Pakistan, medical house officer for six months in the Neurology Unit under a professor of neurology and thereafter 18 months equivalent to SHO in surgery in Pakistan. He took up an appointment in

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Ireland as an SHO in 1990 and had completed the first part of his fellowship of the College of Surgeons in Glasgow.

Dr. O’Brien had qualified in 1973 and had been in general practice since that year, i.e. for a period of approximately 18 years at the time of the events which gave rise to the proceedings.

A system, which, according to the Board’s own evidence, allowed a junior hospital doctor, although admittedly one at a relatively senior level, effectively to disregard the opinion of an experienced general practitioner that his patient required further investigation as a matter of urgency without even obtaining an opinion from a doctor at a more senior level, clearly suffered from an inherent defect which should have been obvious to any person giving it due consideration. It cannot be equated to a medical practice followed by specialists in a particular field. The letter from Dr. O’Brien should, in my view, have been sufficient to ensure that Mr. Collins was admitted for the investigation that his general practitioner correctly thought he urgently required and particular procedures applicable in the hospital for the admission of patients should not have prevented that happening.

As the learned High Court judge pointed out, Dr. Nur was criticised by some of the other doctors who gave evidence for inter alia failing to protect himself by ensuring that he obtained another opinion. It is no doubt the case that medical practitioners today are more conscious than their predecessors of

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the risk they run of being sued for negligence. However, the view taken by the doctors whom I have cited, that an SHO in this situation should have consulted the medical team instead of overriding the general practitioner’s view on his own initiative, was by no means solely based on the desirability of his protecting himself against a possible action for negligence.

The decision in this case should not be taken as encouraging general practitioners to send patients to hospital where that is unnecessary: it was clearly necessary in the present case that the patient should be admitted and investigated. Nor is there any reason to doubt the importance of having a filtering system in the hospital, operated by junior doctors, which ensures that the limited time and resources of the hospital are not overtaxed by the admission of relatively minor cases. It is sufficient to say that, on the facts of the present case, it is evident that the system in operation failed to segregate a case which plainly required expert investigation from the more routine and even trivial cases.

I am satisfied that the appeal against the judgment dismissing the claim as against the Board must, for those reasons, be allowed. I also agree that, for the reasons given in the judgment of Barron J, the appeal against the judgment dismissing the claim against the second named defendant/appellant should also be allowed. I also agree with the order proposed by Barron J.