Doherty v. Reynolds & Anor [2004] IESC 42 (15 July 2004)

THE SUPREME COURT

Keane C.J.
Murray J.
Fennelly J.

86/04
BETWEEN
CHRISTOPHER DOHERTY
PLAINTIFF
AND
JOHN REYNOLDS AND 
ST. JAMES’S HOSPITAL BOARD
DEFENDANTS

JUDGMENT delivered the 15th day of July 2004, by Keane C.J. [Nem Diss]

Introduction
This is an appeal from a judgment of the High Court (O’Donovan J.) in proceedings in which the second named defendants (hereafter “the hospital”) were found liable in negligence to the plaintiff.  The action against the first named defendant (hereafter “the surgeon”) was dismissed.  The assessment of the damages, if any, to which the plaintiff was entitled had been left over until after the issue of liability had been resolved.
The factual background, insofar as it is not in dispute, is as follows.  The plaintiff is a married man who lives with his wife and three children in Ballinasloe, Co. Galway and, at the time of the events which gave rise to these proceedings, was an electrician and service engineer.  In the year 1991, when he was approximately 32 years of age, he began to suffer from gastric problems, taking the form of acid reflux and heartburn.  It was ultimately established that this was due to a loose valve at the end of the oesophagus and that the appropriate treatment was an operation known as a Nissen fundoplication.  The objective of this procedure was to tighten the valve and stop the reflux.  The plaintiff was admitted to St. James’s Hospital on the 12th December, 1996 for the purpose of having this operation carried out by the surgeon.

The plaintiff’s claim in these proceedings was that as a result of the negligence of the surgeon and / or the hospital he sustained a traction injury to a neurostructure called the brachial plexus which is situated in the shoulder / neck area of the body.  This resulted, it was claimed on his behalf, in a permanent disability in his right shoulder and right arm.  

Initially, the operation on the 13th December took the form of laparoscopic surgery, involving the making of a number of small incisions rather than one larger incision with, as it was hoped, a shorter stay in hospital and a quicker recovery.  As it proceeded, however, the surgeon decided that he would have to change to open surgery.

While there was considerable controversy as to the extent to which the plaintiff was suffering from pain and limitation of movement in his shoulder and neck area immediately following the operation and prior to his discharge from the hospital on the 18th December, it is not in dispute that, having been seen by two general practitioners shortly afterwards, he was ultimately admitted to Beaumont Hospital on the 13th January, 1997, where he had a number of tests.  The plaintiff was found to be suffering from inter alia significant pain and limitation of movement in the shoulder area (effectively a “frozen shoulder”) and it is not in dispute that this condition did not respond to any treatment until ultimately in December 2002 and February 2003 procedures were carried out in London which significantly reduced the pain.

Evidence was given on behalf of the plaintiff by Dr. Peter Harvey, a consultant neurologist, that the plaintiff’s condition was the result of his having suffered a traction injury to the brachial plexus.  He disagreed with the view of another consultant neurologist, Dr. Michael Hutchinson, who had examined the plaintiff on behalf of the surgeon and the hospital, that his symptoms were due to a syndrome called brachial neuritis.  
At the conclusion of the plaintiff’s case, an application for a non-suit was made on behalf of both the surgeon and the hospital.  That application was refused by the trial judge in the case of both defendants.  Having heard the evidence on behalf of the surgeon and the hospital, the trial judge in a reserved judgment, as already noted, dismissed the claim as against the surgeon but found the hospital liable in negligence to the plaintiff.

The evidence at the trial
As already noted, there was a conflict of expert opinion at the trial as to whether the plaintiff’s condition was the result of a traction injury sustained by him during what was called the “peri-operative period”: i.e. the period during which the plaintiff was in the induction room, the operating theatre itself and the recovery room, during all of which time he would have been under the effects of anaesthesia.  It was accepted on behalf of the plaintiff that if his condition was the result, not of such a traction injury, but of the syndrome known as brachial neuritis, the plaintiff could not succeed.  It was also accepted that, in determining whether he had or had not sustained a traction injury during the peri-operative period, an important factor was the time in which the symptoms of pain and limitation of movement manifested themselves and, in particular, whether he was suffering from them at the time the anaesthesia ceased to have effect, i.e. well before his discharge from the hospital on December 18th. 

The plaintiff’s evidence can be summarised as follows.  He did not remember coming round from the anaesthesia in the recovery room: his first memory was late in the evening when he was brought back to the ward and received a visit from his brother-in-law.  He had been connected to an instrument called a PCA pump which enabled him, by pressing a button, to obtain pain relief.  While he was conscious of pain, this was controlled by the PCA pump but at about midday on Sunday 15th January the pain started to get worse.  It was in the upper area of his body, but principally the right shoulder.  He told one of the nurses that he thought the PCA pump was not working.  That afternoon, when his wife and children came to see him, one of the children climbed up on the bed and he shouted at her because of the pain.  The nurse reassured him that the pump was working, but he still was not getting any relief from the pain.  He said that, at about 3:30 a.m. the following morning, when he was still in pain and not getting any relief from the pump, he used strong language to one of the nurses on duty and said he wanted a doctor.  A doctor arrived and the plaintiff pointed out to him that the pump was not working: he also told the doctor that he was “crippled” with pain.  A doctor arrived and confirmed that the pump was not working and after some time it was reactivated.  He said that he told the doctor that he was in considerable pain, but that the doctor told him that, since he had undergone major surgery, it was understandable that he would be feeling “stiff for a few days”.  He said that the doctor who came to him was the anaesthetist who had been present during the operation.  He did not see a doctor again until Wednesday morning, the 18th, when he was told that he was going home.  His wife and a friend of theirs, a Father Flanagan, arrived to take him home.  He told them that he was in such pain that he could not put his shirt on: he said that he was in agony trying to lift his arm.  A lady doctor (subsequently identified as Dr Guest) whom he had seen earlier in the day and who had told him that he was being sent home because there was “MRSA” in the hospital came to see him again at this stage and, when he told her he was still in agony, she said that he was “bound to be stiff for a few days”.  He remembered Father Flanagan saying to the doctor that they would have to travel 100 miles with the plaintiff in that condition, to which she responded that he was being discharged and that if he had any further pain he should go and see his own general practitioner.  He said that he was in such excruciating pain in the car journey which followed to Ballinasloe that Father Flanagan, who was driving, had to drive very slowly.  As already noted, he subsequently saw the general practitioners and was referred to Beaumont Hospital for the further investigation.
The plaintiff’s wife and Father Flanagan also gave evidence, confirming his complaints of excruciating pain and difficulty in movement when they saw him in the hospital, the incident with the child jumping on the bed and the apparent effect on the plaintiff of the car journey to Ballinasloe.

Eight nurses gave evidence in relation to the period of the plaintiff’s stay in the hospital.  They were giving evidence seven years after the event and had no specific recollection of dealing with the plaintiff.  The notes made by them, however, record various matters concerning the plaintiff from the time he returned to the ward after the operation until his discharge.  There was no record of his complaining of extreme pain or difficulty in moving his right arm, nor did they record any difficulty being experienced with the PCA pump.  These witnesses were insistent that they would have recorded these complaints if they had been made.  They also recorded a pain score – i.e. one which records on a range between 1 and 10 the patient’s own estimate of pain he is suffering – at between 3 and 5, which, it was contended on behalf of the hospital, was inconsistent with a complaint of excruciating pain.  

Dr Guest also gave evidence and, while she had no specific recollection of the plaintiff, identified a note she had made in relation to him on December 18th, viz:

“Well.  No complaints.  Home today.  OPD 6/52.  Analgesia PRN one week”

The adequacy of these records was challenged on behalf of the plaintiff: in particular, they relied on the discrepancy between the recorded time of the return by the plaintiff from the recovery room to the surgical ward at 6 p.m., the evidence from the nursing records that he was in the recovery room until at least 6:50 p.m. and the evidence of his brother-in-law, Patrick Madden, that, although he arrived at the hospital to see the plaintiff at approximately 5:45 p.m., the plaintiff did not return to the surgical ward until some time after 8:30 p.m.

As I have already noted, Dr. Harvey was of the view that the plaintiff’s condition was due to a traction injury.  His view that it was not a brachial neuritis was based on a number of grounds.  First, the plaintiff was suffering from a condition called causalgia, which is caused by damage to a sensory nerve and results in hypersensitivity of the skin.  This, in his view, excluded a diagnosis of brachial neuritis.  Secondly, the distribution of the pain was indicative of a traction injury to the brachial plexus.  Thirdly, if the plaintiff was suffering from brachial neuritis resulting from the surgery, there should have been an interval before the symptoms manifested themselves, which, on the plaintiff’s account, was not the case here.  Fourthly, if the plaintiff had suffered from brachial neuritis, the intense pain of which he complained would not have lasted for a lengthy period.

As to what caused the traction injury, Dr. Harvey was of the view that it was most probably caused by the plaintiff’s arm falling off the table at some time while he was under anaesthesia and that there must have been some “flailing or rotating of the arm”.  (It should be pointed out, parenthetically, that what might seem an innocuous limb movement, such as an arm falling off a table and rotating or flailing, can have more drastic consequences where the person concerned is under anaesthesia and the normal defensive mechanisms of the body against movements likely to cause pain are not operative.)

There was also evidence from two consultant neurophysiologists, Dr. Al Khayatt and Dr. Seán Connelly.  Both were of the view that the plaintiff’s problem was consistent with a brachial plexus injury, but they differed as to whether it was a traction injury or the result of brachial neuritis.  

As I have already noted, Dr. Hutchinson gave evidence on behalf of the defendants that the plaintiff’s condition was the consequence of brachial neuritis and not a traction injury.  He said that, if a traction injury was to cause damage right across the brachial plexus and outside the brachial plexus, it would have to be “a very severe injury”.  He said he could not conceive of such an injury occurring in an operating theatre: it would have to happen with the sort of velocity and force associated with someone coming off a motorbike.  He said that if he had sustained such an injury, the plaintiff would have had to be brought to the casualty ward.  While he accepted that causalgia occurred only rarely in cases of brachial neuritis, he did not accept that it was an indication in the present case that the syndrome was not brachial neuritis.  He said that surgery or anaesthesia could precipitate the condition, but that it was relatively rare and would only be seen in 1 in 10,000 cases.

Dr. Hutchinson said that there were two factors which caused him to think that this was a case of brachial neuritis rather than a traction injury.  The first was based on his understanding of the onset of the condition of weakness in the shoulder, which he believed had not manifested itself until towards the end of December.  The second was what he called the “anatomical spread” of the symptoms, i.e. the involvement of nerves outside the brachial plexus, such as the lower part of the cervical plexus.  He did not think that a traumatic mechanism could have caused this wide anatomical spread.  While he agreed with Dr. Harvey that in most cases of brachial neuritis, the patient recovered, there could be a relatively small number, in the 5 to 10% region of all patients, who did not make an early recovery.

It should be noted that Dr. Hutchinson was pressed in cross-examination as to how he reconciled his view as to the onset of the plaintiff’s symptoms with the plaintiff’s own evidence and accepted that he had “misreported” the time of the onset, since he had been relying on the hospital notes which recorded no complaints of pain.  

The evidence of the two general practitioners who examined the plaintiff after his discharge from hospital should also be noted.  Dr. Arnold examined him on the 27th December and said that he was complaining of pain in the right shoulder, arm and wrist.  When Dr. O’Beirne saw him on 7th January, 1997, he said that the plaintiff was complaining of the pain in his right arm.  Dr. O’Beirne said that he found that his neck and shoulder had “free range of movement”.  However, Dr. O’Beirne was subsequently recalled and gave evidence that, when he gave his evidence initially, he had misinterpreted his notes and that he simply recorded that the plaintiff had suffered pain in his right arm from his neck and shoulder.  He said that, when originally giving evidence, he had misread the notes as indicating that the plaintiff had a “free range of movement” in his neck and shoulder: he said that he would have used capital letters if he was using shorthand for “free range of movement”.

A number of witnesses gave evidence on behalf of the surgeon and the hospital as to the course of events during the time the plaintiff was under anaesthesia in the induction room, the operating theatre and the recovery room.  With one limited exception, to which I will refer shortly, given the lapse of time none of these witnesses had any specific recollection of the particular operation undergone by the plaintiff.  The evidence on which the hospital strongly rely is that of the anaesthetic registrar, Dr. Abraham Matthew, the sister in charge of the operating theatre, Ms. Lynda Myer, the surgeon, the anaesthetic nurse, Nurse Doyle and the recovery room nurse, Nurse Maloney.

These witnesses gave evidence that the procedure which would normally have been followed in an operation of this nature, and which they said they had no reason to suppose was not followed in this operation, was as follows. (In reconstructing, so far as they could, what had happened in the case of this particular operation, they relied, of course, on the hospital records relating to the peri-operative period.) The relevant period began when the patient was brought in by the anaesthetic nurse, Nurse Doyle, on a trolley into the induction room and the procedure of administering the anaesthesia began.  The latter procedure in this case was carried out by the consultant anaesthetist, Dr. Hughes, but Dr. Matthew said he was satisfied from reading the chart that he, Dr. Matthew, would have been present at that stage.  He said that the consultant would probably have left the operating theatre once the plaintiff had been put in the appropriate position for the operation.  He [Dr. Matthew] would then have been present as the responsible anaesthetist during the operation itself and at the stage when the patient, after the operation, was wheeled to the recovery room, at which stage the patient would be placed on a recovery trolley and the recovery nurse would thereafter be in charge.

The evidence of these witnesses was that the procedure in a case such as this was to bring the patient on a trolley to the induction room at which stage he would be put on an operating trolley with rails on either side which could be put up and down when required and would be put up as soon as the patient was anaesthetised to prevent his arms from falling off.  That trolley would then be wheeled into the operating theatre and docked on to a base pneumatically with the rails still up.  The rails would then be removed and the patient secured in position by having pillow slips placed underneath him.  An attendant or porter would be standing right against the patient at that stage, thereby preventing the arm from falling off.

At that stage, the patient was placed in what was called the lithotomic position, with his legs up and his hips flexed, in order to enable the laparoscopic method of surgery to proceed.  That would also involve the putting in of what was called a “fast clamp”, again with a view to ensuring that the patient did not move.

As we have seen, in this case, the surgeon decided to discontinue the laparoscopic procedure and to continue with open surgery.  At that stage, with the assistance of the attendant or porter and under the guidance of the anaesthetist, the patient would be repositioned in a supine position and checks would be carried out to ensure that the pillow slips were in position to prevent the arms from falling.

At the completion of the operation, the procedure was to take the patient to the recovery room, at which stage the pillow slips would be taken out and replaced by the rails.  He would then be put into the recovery room and transferred from the operating tabletop to the trolley in that room.  The patient was then manoeuvred on to the trolley using a roller board and the rails were put up.

Dr. Matthew said that, in order to administer the anaesthetic, a cannula, i.e. a drip, would be inserted in the patient’s right hand and that a movement of the nature indicated by Dr. Harvey in his evidence would have caused it to come out.  He would then have asked the surgical team to stop the procedure so that the cannula could be reinserted. This would have been recorded in the notes, but there was no record of this having happened during the operation on the plaintiff.  (It is also noteworthy that the anaesthetist called on behalf of the plaintiff, Dr. Hartell, accepted that an event such as that described by Dr. Harvey would be more likely to occur in the operating theatre than in the recovery room.)

Sister Myer gave evidence that she was the nurse in charge of two operating rooms on the day in question, including the theatre where this operation took place.  Unlike the other hospital staff, she did have some specific recollection of this operation, because the surgeon had asked her about the case in the following mid-January, at the stage when he had received a query from the doctors in Beaumont Hospital as to what had transpired during the operation.  She said that she also had some recollection of it because it was unusual for the surgeon to conduct the operation by open surgery.  

While she was not in the operating theatre throughout the operation, as she was also on duty in the other theatre, she said that she would have been involved in the securing of the plaintiff’s arms, both at the beginning of the operation and during the change to open surgery.  She would also have been involved in the transfer of the plaintiff in the recovery room to the recovery trolley.  She said that, if any incident had occurred involving one of the plaintiff’s arms falling off the operating table despite the precautions being taken, it would have been recorded in the nurses’ notes and in an incident form.  

The surgeon also said that at no stage in the operation did the plaintiff’s arm fall off the table.  He said that he had never seen such an event occur and would certainly have recalled it if it had happened in this case.  The anaesthetic nurse, Nurse Doyle, also said that she had never seen an arm falling off the operating table and would certainly have seen it if it happened in this case.  The recovery room nurse, Nurse Maloney, also said that she had never experienced an arm of a patient falling while he was being transferred from the operating table to the recovery room trolley.  

It was accepted on behalf of the defendants that three other members of the hospital staff who would have been present in the operating theatre, the circulating nurse, the scrub nurse and an attendant or porter, had not given evidence.  It was also accepted that the records of doses of morphine given to the plaintiff in the recovery room included one given at 5:00 p.m. by a Nurse Lenehan, who had not given evidence.

The High Court judgment
In his judgment, the trial judge, having set out the background to the case, referred to the inconsistency between the nursing records which indicated that the plaintiff was returned to the ward at 6:00 p.m., the noting of observations of him by Nurse Maloney in the recovery room at 6:20 p.m. and the evidence of Patrick J. Madden.  He also referred to the conflict between the evidence of the plaintiff, his wife and Father Flanagan and what was recorded in the nursing notes as to his condition from the time he came round from the effects of the anaesthetic until his discharge from the hospital.  While, in some instances, he said that he considered that the nursing records of what happened were to be preferred to the plaintiff’s recollection, he was satisfied that the evidence of the plaintiff, his wife and Father Flanagan as to what transpired when the plaintiff was being discharged from the hospital was truthful.  He was not prepared to conclude that they had deliberately given a false account of what had transpired at that time and pointed out that it had not been suggested to them that they were fabricating that account of events.  In those circumstances, he concluded that the failure of the hospital staff to record his complaints as to his arm and shoulder must have been because they were concerned solely with the condition of his stomach and were not addressing his complaints about the pain in the arm and shoulder.  In the case of Dr. Guest, he concluded that, while she was an honest and intelligent witness, she must have been mistaken in her record of the plaintiff’s condition when he was discharged.  The trial judge also accepted, on the basis of the plaintiff’s own evidence and that of Father Flanagan, together with the evidence of the general practitioners who had seen him after his discharge, that there was a weakness in the arm in the immediate post-operative period, but that it had been masked to some extent by the pain from which the plaintiff was then suffering.

The trial judge then went on to consider what he regarded as a crucial issue in the case, namely, whether the plaintiff’s on-going problems were attributable to a traction injury or a brachial neuritis.  Having referred to the conflicting views of the two neurophysiologists, the trial judge went on

“It seems to me that the only reliable evidence on which I could base a conclusion as to whether what the plaintiff was suffering from is a traction injury or a neuritis is the evidence of the two neurosurgeons (sic) [Dr. Harvey and Professor Hutchinson].” 

Having considered in detail the evidence of Dr. Harvey and Professor Hutchinson, the trial judge said that it seemed to him that the latter had approached the question of the nature of the plaintiff’s problems “with a very closed mind”.  He pointed out that Professor Hutchinson had not taken into account the history given by the plaintiff that he had developed pain within a day or two of the surgery.  Having emphasised the difficulty presented for him as the trial judge in choosing between the conflicting views of two eminent experts, he went on 

“… If Professor Hutchinson is correct that the plaintiff is, indeed, suffering from a brachial neuritis, then it is very much an exception to the general rule and, that being so, it follows, in my view, that common sense dictates that, as a matter of probability it is not a brachial neuritis and, therefore, as the only alternative diagnosis canvassed by any of the parties is that, on the balance of probability, the plaintiff is suffering from a traction injury, I must conclude that that is so.  In this regard, I acknowledge that it was suggested on behalf of [the surgeon], that, in the event that I could not choose between the two likely explanations for the plaintiff’s complaint, it was open to me to reject both explanations and to conclude that the plaintiff is suffering from an injury whose origin it is impossible to determine.  In the light of the evidence which I have heard, I think it would be very wrong of me to take what might be perceived to be ‘an easy way out’ when I am satisfied that, notwithstanding Professor Hutchinson’s protestations, the probabilities are that the plaintiff is suffering from a traction injury.”

The trial judge went on to list eight reasons why he had come to that conclusion, i.e.

(1)	The fact that the risk of brachial neuritis following surgery was exceedingly rare, whereas the risk of traction injury to nerves in that area during the peri-operative period was well recognised;
(2)	The relatively speedy onset of pain;
(3)	The duration of the pain;
(4)	The existence of causalgia;
(5)	Professor Hutchinson’s concession that, if it was brachial neuritis, it was a unique case;
(6)	The onset of weakness at the same time as the onset of pain;
(7)	The existence of a sensory disturbance; and
(8)	The fact that the sensory disturbance was not limited to a small area over the lateral deltoid.

He also said that he was influenced by Dr. Harvey’s remark that, if this was a case of brachial neuritis, it was the oddest that he had ever seen and “should be written up immediately”.

The trial judge went on to find that the surgeon was not negligent, since he was not involved in the physical act of positioning or repositioning before, during or after surgery: that was the responsibility of the anaesthetist and the nursing staff.  

As to the possible liability of the hospital, the trial judge said that, while he was persuaded that the injury suffered by the plaintiff was a traction injury sustained during the peri-operative period, there was no evidence which enabled him to identify any particular incident which gave rise to the injury.  He also said that he accepted that such an injury did not normally result from Nissen fundoplication operation.  

Having referred to the evidence as to the nature of the limb movement during the peri-operative period which could have caused a traction injury, the trial judge went on

“If, as I understood the evidence which I heard, a traction injury results from the movement of a limb and if, as I also interpreted the evidence to be that, when a patient is under the influence of an anaesthetic, it is necessary to protect his / her limbs from movement so as to avoid the possibility of movement, I cannot understand how and, to be quite frank, I do not accept that a traction injury could occur in the absence of sub-standard care in the management of a patient.  It seems to me that such an injury does not happen if proper care is taken.”

The trial judge went on to refer to the evidence of Dr. Matthew and the nurses who were present in the induction room, the operating theatre and the recovery room.  He went on:

“Although satisfied by available records that they had been on duty and caring for the plaintiff in the several ways in respect of which they gave their evidence, no one of these witnesses had any recollection of the plaintiff, or any recall of actually caring for him.  Accordingly, their evidence was not so much about what they did for Mr. Doherty but what they would normally do for a person in his position.”

The trial judge said that, in the light of the evidence of the nurses, Dr. Matthew and the surgeon, he had no doubt that, if the systems and procedures to which they referred had been implemented in the case of the plaintiff, there is no way in which the movement of his right arm, such as would cause a traction injury to the brachial plexus, could have occurred.  

He went on

“At the same time, I did not hear evidence from the circulating nurse, from the scrub nurse or from the theatre attendant; all of whom would have been present, at least, during the period of Mr. Doherty’s operation.  It is also noteworthy that Sister Myer and Nurses Doyle and Maloney would not have been present at all times during the peri-operative period.  Accordingly, as [the surgeon] and Dr. Matthew would be concentrating on their respective duties during the course of the operation, rather than what might be happening to the plaintiff’s limbs, I am not persuaded that all of the evidence which might have been available with regard to what happened to the plaintiff during the peri-operative period was, in fact, available and it seems to me that the evidence of Sister Myer and of Nurses Doyle and Maloney had gaps in it which reduced its value.  In any event, and it seems to me that nurses and doctors, who remember nothing, can prove nothing except what should happen in an ideal hospital situation and it does not necessarily follow that because a nurse or a doctor, who remembers nothing, has not recorded an untoward event that such an event has not occurred.  Accordingly, while as I have indicated, I have no difficulty of accepting that, if the systems and procedures for caring for a patient during a peri-operative period which were described for me by the several nurses and the doctors, who cared for the plaintiff on the 13th December, 1996, had been implemented at that time, [the plaintiff] could not have suffered a brachial traction injury.  However, in the circumstances that no-one was in a position to state positively that those systems and procedures had, in fact, been implemented in the case of [the plaintiff], I cannot exclude the possibility that such an incident did occur, as a result of which the plaintiff suffered the injury of which he complains.”

The trial judge went on to say that he also could not ignore the fact that there was no evidence to explain what was happening to the plaintiff between the time when the records suggested that he was discharged from the recovery room and the time when Mr. Madden said he arrived back in the ward.  He was of the view that it could not be said that nothing untoward happened during that period.

The trial judge went on to say that this was, in his view, a case in which the doctrine of res ipsa loquitur applied.  Having referred to the decision of this court in Lindsay (a Minor) –v- Mid-Western Health Board [1993] 2 IR 147, he said that, in a case such as this, where the doctrine applied, it could be met by the defendant proving that on the balance of probabilities the plaintiff met with his injury in a manner which excluded blame on the defendant’s part or by the defendant establishing that, during the period when the plaintiff was not sentient, there was no negligence on the defendant’s part.

In a passage which then encapsulates his finding on liability, he said

“In this case, the defendants have not established precisely how and when the plaintiff sustained the injury of which he complains and, accordingly, have not demonstrated that it cannot be attributed to any blame on their part and, although they have purported to lead evidence to establish that, from the beginning to the end of the procedure to which the plaintiff was subjected on 13th December, 1996, there was no negligence on their part, the fact of the matter is, as I have already indicated, that, because the persons responsible for caring for the plaintiff during that period have no actual recollection of what occurred, all that has been proved is what should have happened in an ideal hospital situation; not what actually occurred.  Accordingly, as I have already indicated, I am not persuaded that the defendants have excluded the likelihood on the balance of probability that the injury suffered by [the plaintiff] was occasioned by sub-standard care on their part.  Accordingly, it is my judgment that the plaintiff is entitled to succeed in his claim here against the second named defendant.”

Submissions of the parties
On behalf of the defendants, Mr. Meenan S.C. submitted that there was no evidence that the plaintiff had suffered a traction injury other than the opinion evidence of Dr. Harvey.  He submitted that the trial judge had failed to consider that opinion in the context of Dr. Harvey’s concession that it was an atypical case of traction injury which must have been precipitated by trauma to the arm which would have manifested itself in the immediate onset of paralysis or weakness.  He said that the uncontradicted evidence in the case of the anaesthetist, Dr. Matthew, the surgeon and the nursing staff was that no such event had taken place during the peri-operative period.

Mr. Meenan further submitted that the trial judge had erred in law in the manner in which he had applied the doctrine of res ipsa loquitur to the facts of the present case.  He said that the trial judge had in effect held that once he had come to the conclusion that the evidence of Dr. Harvey was preferable to that of Professor Hutchinson, an onus rested on the defendants to establish how the injury had been caused and that since, as he concluded, they had failed to do so, he was entitled to infer that it must have been the result of a lack of reasonable care on their part.  Mr. Meenan submitted that, if the trial judge was correct in concluding that a traction injury had occurred, which was not accepted on behalf of the defendants, he should nonetheless have gone on to consider, not merely whether the defendants had established what caused that injury, but whether, alternatively, they had demonstrated as a matter of probability that there was no lack of care on their part.  Mr. Meenan submitted, in this context, that the trial judge had not correctly applied the relevant principles as laid down by this court in Lindsay (a Minor) –v- Mid-Western Health Board.

Mr. Meenan further submitted that, in applying the statement of the law in Lindsay, the trial judge should have taken into account the possible explanation of brachial neuritis in determining whether the hospital had established that there was no negligence of their part.

Mr. Meenan further submitted that the trial judge had erred in rejecting the evidence of the defendants’ witnesses on the grounds that they had no specific recollection of this operation and were merely recording what would happen in an ideal world.  He submitted that the trial judge had failed to give sufficient weight to the uncontradicted evidence of the defendants’ witnesses that the systems and procedures of which they had given evidence were invariably implemented and any departure from them would have been recorded.  He referred in this context to the decisions of the English Court of Appeal in Delaney –v- Southmead Health Authority [1995] 6 Med. LR 355 and the same court in Ratcliffe –v- Plymouth & Torbay HA [998] Lloyds Law Reports 162.

Mr. Meenan further submitted that the trial judge placed undue weight on the fact that not all the persons present throughout the peri-operative period on behalf of the hospital had given evidence.  Where, as here, a number of witnesses had given evidence who occupied positions of responsibility during the operation and were present at the periods when, it was accepted as a matter of probability, the necessary limb movement of the plaintiff would have taken place which gave rise to the traction injury, the court could not simply disregard that evidence, although that is what the trial judge had in effect done.  

On behalf of the plaintiff, Mr. John Finlay S.C. submitted that the trial judge was clearly entitled to prefer the evidence of the plaintiff, his wife and Father Flanagan to the evidence of the hospital staff as to his complaints in the post-operative period.  That was not only of significance in establishing that the plaintiff suffered the onset of pain and weakness in the shoulder and arm area in the immediate aftermath of the operation: it also indicated so poor a standard of record keeping on the part of the hospital that it was also relevant to the evaluation of the hospital’s claim that, if any untoward event had happened during the peri-operative period, it would have been recorded.  

Mr. Finlay further submitted that the trial judge was perfectly entitled to prefer the evidence of Dr. Harvey to that of Professor Hutchinson and had given cogent reasons for so doing.  He submitted that, in that state of the evidence, the doctrine of res ipsa loquitur placed an onus on the defendants to show that the traction injury had been caused without negligence on their part.  This they had failed to do: at best, they had simply indicated what should have happened during the course of the peri-operative period rather than what actually happened.  Even approached from that point of view, their evidence was, as the trial judge found, significantly incomplete in that not all the witnesses who had been present during the peri-operative period had given evidence and no explanation had been offered in any case as to why they had not been called.  

Mr. Finlay further submitted that the trial judge had correctly applied the approach indicated in cases of res ipsa loquitur by this court: in particular, it was not a necessary inference from the judgment of O’Flaherty J. in Lindsay that the trial judge should have taken into account the possible explanation of brachial neuritis in determining whether the hospital had established that there was no negligence on their part.  

Conclusions
I have not the slightest doubt that the trial judge in this case was entitled to accept the evidence of the plaintiff, his wife and Father Flanagan as to the complaints of severe pain and limitation of movement in his right shoulder and arm that the plaintiff was making in the immediate aftermath of the operation.  The absence of any records of these complaints by any of the hospital staff is certainly remarkable and reflects, at best from their point of view, a singularly inadequate system of record keeping.  It is clear that the plaintiff, who had gone into hospital for an operation intended to deal with a condition of heartburn and acid reflux but was otherwise in normal health, came out suffering from a painful and disabling condition in his right shoulder and arm which did not respond to any treatment until some six years later: so much, at least, is not in dispute in this difficult case.  

The problems which it raises have not, unhappily, been altogether resolved by the invocation of the res ipsa loquitur principle, the generally accepted formulation of which is to be found in the following passage in the judgment of Erle C.J. in Scott –v- The London & St. Catherine Docks Company [1865] 3 HNC 596 p. 667:

“There must be reasonable evidence of negligence.  But where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.”

As has been frequently observed, in practical terms this amounts to no more than saying that a plaintiff who is unable to prove a specific act or omission amounting to negligence against the defendant may, at the conclusion of his case, have established that he was injured as a result of the impact on him of a state of affairs under the control of the defendant – be it a premises, a surgical procedure or something else – in circumstances where he would not have suffered the injury if the defendant had used proper care.  Where that much has been established, there will be a prima facie case for the defendant to answer.

That well established principle may be of particular importance where the allegation is of negligence in the conduct of a surgical operation in which a general anaesthetic is administered to the plaintiff.  Where the plaintiff is unconscious throughout the period of the operation and the basis of his claim is that he would not have suffered the consequences in question unless there was a want of care on the part of those responsible, the circumstances may amount to a prima facie case to which the defendant must respond.  As Brooke L.J. pointed out in Ratcliffe –v- Plymouth & Torbay HA, that position can be reached in a medical negligence case without any need for expert evidence in some simple situations.  He instances the cutting off by the surgeon of a right foot instead of the left, a swab left in an operation site, or the patient waking up in the course of the operation despite the anaesthetic.  But he also points out that in contested medical negligence cases where the plaintiff contends that that position has been reached, his own evidence is likely to be supported by expert evidence to the effect that the matter complained of does not ordinarily occur in the absence of a want of care amounting to negligence.

In the present case, at the conclusion of the evidence on behalf of the plaintiff, an application on behalf of the surgeon for a non-suit was rejected by the trial judge, but no such application was made on behalf of the hospital.  Counsel on their behalf was, accordingly, not disputing that there was a prima facie against his client.  That was an inevitable concession on the part of counsel, having regard to the evidence as to the condition of the plaintiff following the operation and the expert opinion of Dr. Harvey that he had suffered a traction injury to the brachial plexus while he was in the hospital and probably during the operation itself, none of which was, at that stage, contradicted by any other evidence.

However, whether the res ipsa loquitur maxim applied at the close of the plaintiff’s case is another matter.  Where, as here, the plaintiff’s case that something untoward had happened depended, not on the existence of an unchallenged and unchallengeable fact, such as the leaving of a swab in the surgical site, but on expert evidence as to the nature of the injury sustained by the plaintiff which was challenged on behalf of the hospital, it does not seem to me that the application of the res ipsa loquitur maxim is clear beyond argument.  The fact remains that, both in the High Court and, to some extent, in this court, it was accepted on behalf of the hospital, as the written submissions filed in the High Court demonstrate, that, if the trial judge concluded, as he ultimately did, that the plaintiff had suffered a traction injury, the maxim res ipsa loquitur applied.  That is an important consideration, since this court has repeatedly emphasised that it is reluctant, save in exceptional circumstances, to decide a case on a basis which has never been argued in the High Court.  

If the finding by the trial judge that the plaintiff suffered a traction injury during the course of his stay in the hospital called for the application of the res ipsa loquitur maxim, it is accepted that the evidential burden resting at that stage on the hospital was as set out in the judgment of O’Flaherty J., speaking for this court, in Lindsay (a Minor) –v- Mid-Western Health Board.  In that case, an emergency operation had been carried out on an 8 year old girl under general anaesthetic during which her appendix was removed.  After the operation, the plaintiff, although she began to regain consciousness in the normal manner, then experienced a series of seizures and sank into a coma.  She was subsequently diagnosed as suffering from irreversible brain damage.  The claim on her behalf was that her condition was due to a hypoxic insult which she had suffered during the course of the operation as a result of a reduction in, or withdrawal of, her oxygen supply.  Alternatively, it was contended that res ipsa loquitur applied and that there was an onus upon the hospital to explain the plaintiff’s injuries and to show that it had not resulted from any negligence on its part.

In the High Court, it was held that the plaintiff had failed to establish on the balance of probabilities that her injuries were the result of a hypoxic insult.  As to the alternative limb of the plaintiff’s case, it was held that the defendant was obliged to establish that the injuries sustained by the plaintiff had occurred without negligence on the hospital’s part and that, in order to do this, it would have to establish that there was a reasonable explanation, not involving negligence on its part, for what had happened to the plaintiff.  The explanation offered by the hospital, that the plaintiff’s condition had been induced by a viral infection, was rejected by the trial judge as being entirely theoretical and based on speculation.  He held, accordingly, that the plaintiff was entitled to damages.

This court declined to interfere with the finding of the trial judge that the hypoxic insult had not caused the plaintiff’s injury.  In his judgment, however, O’Flaherty J. (with whom Finlay C.J. and Egan J. agreed) expressed his agreement with the trial judge that this was a case in which res ipsa loquitur applied, and he also indicated his assent to the trial judge’s view that the maxim was not a special rule of substantive law, but was no more than the application of 

“the general method of inferring one or more facts in issue from circumstances proved in evidence”,

citing a passage from a judgment of Andrews J. in the decision of the British Columbia Supreme Court, Girard –v- Royal Columbian Hospital Et Al. [1976] 66 DLR (3d) 676.  

The learned judge then went on to consider the application of the maxim in that case in this important passage:

“… For the reasons I have suggested as regards how unique and unusual this occurrence was, and because of the respective positions of the litigants, clearly an answer was required from the defendant.  That answer could be provided in two ways.  It could have proved, on the balance of probabilities, that the plaintiff met her injuries in a particular manner that caused her condition but which was not connected to the administration of the anaesthetic.  This it failed to do.  The furthest the defendant got was to suggest as possibilities other means by which the plaintiff sustained her injuries.  I believe this evidence is not, however, to be regarded as totally inadmissible.  It was legitimate, I believe, for the defendant to adduce evidence of possibilities, remote though they might be, as explanations; in contradistinction to saying that it could not offer any explanation of any description whatsoever.  It went to provide some corroboration, as well, that there was no negligence on its part in the administration of the anaesthetic.  The other course was for the defendant to establish that from beginning to end of this anaesthetic procedure there was no negligence on its part.  This it did decisively and, in those circumstances, it appears to me that it rebutted the burden of proof that rested on it to displace the maxim res ipsa loquitur and so the case returned to the plaintiff’s bailiwick to prove negligence.

“I believe that it is necessary to ensure that the rule embodied in the maxim does not put a burden on defendants which is so onerous as to produce an unjust result.  Each case must, of course, be dealt with in accordance with its own particular facts but, as I have said, I believe that in the circumstances here the defendant has met the prima facie case made against it as fully as could be expected.  It would be an unjustifiable extension of the law to say that in the absence of an explanation that could be proved, on the balance of probabilities, negligence on the part of the defendant must be inferred.  It has often been said that medical science is not an exact one and it is safe to prophesy that medical science and its technology will advance past frontiers which are not within anyone’s contemplation at this time and so matters at present not amenable to explanation will be capable of resolution.”
						[Emphasis Added]

The trial judge was entirely correct, in my view, in treating the issue as to whether the plaintiff suffered from a traction injury or a brachial neuritis as of crucial importance.  I would, however, have to say that I cannot agree with the approach he adopted of treating this as a wholly discrete issue which he should resolve by considering the evidence of the two consultant neurologists, Dr. Harvey and Professor Hutchinson, and no other evidence.  While the trial judge evaluated the evidence of these two experts in a meticulous manner and was clearly entitled to prefer, as he did, the opinion of Dr. Harvey to that of Professor Hutchinson, I am satisfied that he was in error in failing to take into account in resolving that issue the evidence adduced on behalf of the hospital as to the procedures normally adopted by them during the peri-operative period.  The issue as to whether the plaintiff suffered a traction injury could not be determined solely by reference to the opinions of the two neurologists: it also depended on whether, as a matter of probability, an event happened during the peri-operative procedure which caused such a traction injury.  It may even be the case that the onus of proof of establishing as a matter of probability that no such event occurred did not rest on the hospital, since, at the stage they adduced their evidence, for the reasons I have already indicated, the maxim res ipsa loquitur did not necessarily apply.  However, even looking at it in the light most favourable to the plaintiff, I cannot see how it was possible to resolve this issue without determining whether, as a matter of probability, a movement such as that postulated by Dr. Harvey, i.e. not merely a falling off the table of the arm but “some flailing, some rotation” took place.  That would unquestionably have required, in my view, an assessment of the evidence of the anaesthetist, Dr. Matthew, that, if such a movement had taken place, the cannula would have fallen out and the operation itself would have had to be suspended and the evidence of the surgeon that he had no recollection of any such event ever occurring during an operation..  It would also have required an assessment of the evidence of the nursing staff as to the precautions normally taken to avoid any such movements and their evidence that they had never seen such a movement during the peri-operative period and that, if it had taken place, it would certainly have been recorded.

Even if the trial judge was correct in resolving this issue without regard to that evidence, the manner in which he then proceeded to apply the res ipsa loquitur maxim still gives rise, in my view, to serious difficulties.  If he was correct in determining that the plaintiff had, as a matter of probability, suffered a traction injury and that, accordingly, the maxim res ipsa loquitur applied, the evidential burden undoubtedly shifted to the hospital of demonstrating either 

(a)	that the injury was caused in a manner which did not indicate any negligence on the part of the hospital; or 
(b)	that throughout the course of the peri-operative period there was no negligence on their part.

The trial judge was entitled to conclude on the evidence that the hospital were not entitled to succeed on the first basis, but there remained for resolution the question as to whether they were entitled to succeed on the second basis.  The trial judge held that because, as he put it, no-one was in a position to state positively that their admittedly safe system had been implemented in the case of the plaintiff, he could not exclude the possibility that an incident did occur as a result of which the plaintiff sustained the traction injury.  Such an incident, he held, could not have happened without negligence on the part of the hospital.

That approach seems to me difficult to reconcile with the law as stated in Lindsay (a Minor) –v- Mid-Western Health Board.  The fact that, for the most part, the anaesthetist, surgeon and nursing staff were unable to recall, at that remove of time, the specific details of what transpired during the operation itself or the peri-operative period generally did not have, as its necessary consequence, as the trial judge appeared to assume, that they could not discharge the burden of proof resting on them of establishing that there was no negligence on their part.  In my view, that would be to impose a burden of proof on defendants in a case such as this which is unfair and unreasonable.  The fact that the staff of the hospital cannot, at a particular remove of time, give honest evidence that they recall how a particular patient was dealt with is, of course, a fact to which the court must have regard.  But it must also give the appropriate weight to evidence, such as was adduced in this case, as to the procedures which would normally be applied, the inferences that can properly be drawn from the hospital records and the evidence, if it exists, as it did in this case, of those concerned that, while they did not recall the specific operation, they had no recollection in any operation of the procedures being departed from with the consequences alleged to have resulted in this case. As Stuart-Smith LJ put it in Delaney –v- Southmead Health Authority:

“The criticism which (counsel) makes of (the doctor) is that, not having realised any criticism was being made of him for a considerable time, all he was able to do was to say, ‘I would have done this; I would have done that; that is my usual practice’.  But in the case of a doctor or anaesthetist who adopts a regular practice, very often that is all he can say unless there is some reason why he should adopt a different process in a particular case and, as I have already indicated, no such suggestion was made in this instance.”

The conclusion to be reached after an assessment of such evidence is inevitably a matter for the court of trial and it will not normally be disturbed by this court where it rests on an assessment by the trial judge of the credibility of the evidence in question and inferences which were properly drawn by the trial judge from the evidence, but, for the reasons I have given, I am satisfied that in this case the approach adopted by the trial judge imposed an unreasonably high burden of proof on the hospital.  

I am also satisfied that the trial judge was in error in attaching the weight that he did to the fact that some members of the staff who were present at various stages did not give evidence.  If the evidence of the anaesthetist, the surgeon and the members of the nursing staff was credible evidence from which the trial judge was entitled to infer that there had been no want of care on the part of the hospital which could have resulted in the traction injury, it was not open to the trial judge to have no regard to that evidence because not all the members of the staff who had been in the relevant area at any particular time had given evidence.

At more than one point in his judgment, the trial judge appears to have approached the evidence on the basis that, once he had concluded that the plaintiff had suffered a traction injury during the peri-operative period, the conclusion also inevitably followed that there had been a want of care on the part of the hospital, unless they were in a position to prove from the actual recollection of those responsible for the plaintiff’s care what had occurred throughout the peri-operative period.  That is equivalent to saying that, if the defendants cannot give evidence of what actually occurred as distinct from the form of evidence adduced in this case, they must be found negligent unless they can explain how the plaintiff’s injury occurred.  That does not seem to me to be reconcilable with the law as stated by this court in Lindsay (a Minor) –v- Mid-Western Health Board. 

There was evidence in this case on which the trial judge might have concluded that the plaintiff was entitled to succeed on the issue of liability.  I am satisfied, however, that the trial judge misdirected himself in law as to the approach he should adopt in determining whether the plaintiff had established negligence on the part of the hospital.  In those circumstances, I am satisfied that the appeal must be allowed, the order of the High Court set aside and an order for a new trial substituted therefor.