THE SUPREME COURT 

Murray C.J.
McGuinness J.
Hardiman J.
Geoghegan J.
Fennelly J.
143/03

BETWEEN/

FIONA GRIFFIN

Plaintiff/Respondent

and

RACHEL PATTON

First-named Defendant/Appellant

and

TIM TYNDALE

Second-named Defendant

JUDGMENT of Mr. Justice Geoghegan delivered the 27th day of July 2004 [Nem Diss]

	This is an appeal on liability only from a judgment of the High Court (O’Donovan J.) awarding €100,000 damages and costs to the respondent against the appellant who is a consultant obstetrician and gynaecologist for negligence in the carrying out of a surgical procedure.   This procedure was carried out in the Bon Secours Hospital in Cork and the second-named defendant was the nominated representative of that hospital which was also sued in negligence arising out of the same procedure.   The action against the second-named defendant in the High Court was dismissed and there is no appeal against that order.
	
	Although there were a large number of formal grounds of negligence in the statement of claim it can broadly be stated that essentially the allegations were twofold.   The first was that in a situation where there were a number of possible ways of dealing with the respondent’s medical problem the appellant negligently chose the wrong option.   The second was that having chosen that option which was a surgical procedure, she negligently failed properly to check that the procedure had been completed.   As I will explain in due course this second heading of negligence had itself a twofold aspect.
	
	The learned trial judge has explained in some detail in his judgment the relevant facts relating to the first of these allegations of negligence and having done so, he found in favour of the respondent.   The learned trial judge then went on to find the appellant liable under the second heading of negligence to which I have referred and in both its aspects.   The appellant has appealed that finding to this court.   There is no cross-appeal against the finding in favour of the appellant on the other heading of negligence.
	
	As considerable space will be necessarily taken up in dealing with the matters which are relevant to this appeal, I do not intend even for the purpose of putting the matter in context to detail the facts relevant to the first heading of negligence.   If it is ever thought desirable to refer to them for the purposes of context they are to be found in the judgment of O’Donovan J.
	
	It is sufficient for the purposes of this appeal to give the following outline of facts.   
	
	When the respondent was into her seventeenth week of pregnancy the unborn baby died.   It is common case that this happened through no fault of anyone.   When it was discovered that that had happened it was hoped that the dead foetus could be evacuated from the uterus as soon as possible.   For this purpose the respondent was prescribed dosages of prostaglandins which have a propensity for inducing a termination of pregnancy.   Unfortunately, in the respondent’s case they did not work.   The appellant then decided on a surgical procedure involving the evacuation of the uterus through the vagina.   There was difference of medical opinion at the trial as to whether this procedure should properly be called D and E (dilation and evacuation) or E.R.P.C. (evacuation of retained products of conception) but nothing turns on this terminology issue.   What is however relevant is that unsurprisingly all the doctors who gave evidence agreed that it is incumbent on the doctor carrying out this surgical procedure to satisfy himself or herself that all parts of the foetus are removed.   It is common case also among the medical experts who gave evidence that without negligence, small pieces of soft tissue can be accidentally left behind.   That normally presents no problem because within days they are passed out of the body in the normal way.   What was in issue between the medical experts however was whether a piece of bone 5.5 centimetres in length and probably a lower limb of the baby could be accidentally left behind in the uterus without there being negligence on the part of the surgeon.   This is in fact what happened in this case and that being so, the question arose not only whether it could ever happen without negligence but also whether even if it could, the respondent was in fact guilty of negligence on this occasion.
	
	I intend to review the relevant evidence in some detail but with a view to a proper understanding of its significance, I think it helpful to refer at this stage to some operative parts of the judgment of the learned High Court judge.   Having referred to the evidence of Mr. Jarvis, one of the medical experts called on behalf of the appellant to the effect that it was possible “for someone exercising the criteria which Dr. Patton says that she observed” to miss an entire lower limb notwithstanding that he or she was doing the procedure competently and that this was because  Dr. Patton was dealing with a “macerated foetus of at least three weeks standing”, the judge then goes on to say the following:

“In the light of the foregoing, it is clear that, once again, the court was confronted with a marked difference of opinion between expert witnesses.  Despite the fact that it was established beyond any doubt that the E.R.P.C. procedure which Dr. Patton carried out on the plaintiff on the 23rd day of January, 1998 was unsuccessful in the sense that she failed to remove the entire foetus from the plaintiff’s uterus; leaving behind a piece of bone which I am satisfied by the evidence which I heard was 5.5 centimetres in length and in all probability comprised a lower limb and, despite the fact that, following that procedure, she failed to arrange for an ultra sound scan of the plaintiff’s uterus to confirm that the entire foetus had been removed therefrom, both Dr. Turner and Mr. Jarvis were of the view that she had not fallen below the standard which one would expect of a gynaecologist of her training and experience, exercising ordinary care, whereas Mr. Clements and Dr. Griffiths took the contrary view.  In this regard, once again, I had no reason to doubt the honesty of any of those witnesses and, accordingly in the light of the decision of the Supreme Court in the case of Dunne (an infant) v. The National Maternity Hospital and Reginald Jackson to which I have already referred, it would seem that, legally speaking, I must conclude that Dr. Patton was not negligent in failing to remove all the bony structures from the plaintiff’s uterus and/or in failing to confirm such removal with an ultra sound scan.

In my view, however, it is not as simple as that.   While I cannot disregard the views of Dr. Turner and Mr. Jarvis and, as I have indicated, I do not doubt that those views are honestly held, their conclusions appear to me to be dependent upon; firstly, a total acceptance of Dr. Patton’s evidence with regard to the conduct of the  E.R.P.C. procedure which she carried out on the plaintiff at the material time, secondly, an assumption that the procedure was a routine one and, thirdly, an understanding that, at the material time, there was no reason why Dr. Patton’s judgment might have been suspect.   In my view, an analysis of the reasons for those conclusions suggests that they are not soundly based.   In this connection, it was common case that a doctor, who undertakes an E.R.P.C. procedure should make sure that he/she finishes it and, in that regard, finishing the procedure means evacuating the uterus of major bony structures.   Even Dr. Patton’s most ardent critics accepted that to leave some soft tissue behind following the performance of an E.R.P.C. procedure is excusable.   In this regard in the course of her evidence, Dr. Patton said that she had satisfied herself that she had removed the complete foetus from the uterus and that she had done so using three criteria to assist her in coming to that conclusion, namely; a consideration of the volume of the foetus which she had removed, a consideration of what the uterus felt like when she curetted it after, as she asserted, she had emptied it, and a consideration of what the uterus felt like on a bimanual examination following curetting.   As it transpired, that judgment was wrong because the fact of the matter is that Dr. Patton had failed to remove a piece of bone some 5.5 centimetres in length from the uterus.   It was implicit in Dr. Patton’s evidence with regard to her consideration of the volume of foetus which she had removed and how she satisfied herself that it had been removed in its entirety that she had had regard for the presence among the removed pieces of all major bony structures and, as I interpret their evidence, Dr. Turner and Mr. Jarvis were of the view that Dr. Patton had done just that; i.e. that she had had regard for the presence of all major bony structures among the pieces of the foetus which she had removed when satisfying herself that she had removed it all.   In fact, when cross-examined with regard to her visual assessment of what she had removed, she made no mention whatsoever of major bony structures.   On the contrary, as I have already indicated, she said “you have bits of tissue, you have bits of body, you have bits of bone, you have bits of everything.   It is a jingle jangle of bits when you look at it.   You look at the volume, you assess it.”   Given that evidence and given that Dr. Patton conceded the operation was a complicated one and that, at the stage that she had carried it out, (seventeen week gestation) there was a greater risk that she might leave something behind than if the foetus was smaller, I am not persuaded that, in fact, Dr. Patton carried out a visual check of the pieces of foetus which she had removed which was sufficient to identify the major bony structures of the foetus; much less to satisfy herself that the entire foetus had been removed.   To that extent, therefore, I think that she fell below an acceptable standard of care and, in so far as Dr. Turner and Mr. Jarvis expressed a different view, I think that their views were based on the erroneous belief that Dr. Patton had carried out a visual check of the pieces of foetus which she had removed which was sufficient to entitle her to be satisfied that she had removed it all.”   

	At first sight there might appear to be an inconsistency between  stating on the one hand that “legally speaking, I must conclude that Dr. Patton was not negligent in failing to remove all the bony structures from the plaintiff’s uterus” and on the other hand by stating that “I am not persuaded that, in fact, Dr. Patton carried out a visual check of the pieces of foetus which she had removed which was sufficient to identify the major bony structures of the foetus; much less to satisfy herself that the entire foetus had been removed.   To that extent, therefore, I think that she fell below an acceptable standard of care.”    However, I am satisfied that there was none.   The learned trial judge found, as he was entitled to do, that the evidence of Dr. Turner and Mr. Jarvis to the effect that the respondent did not fall below an acceptable standard of care was based on what was proved before him to be a factually incorrect assumption, that is to say, that the appellant when carrying out the removal procedure had proper regard for the presence among the removed pieces of all major bony structures.   Put shortly, the learned trial judge found as a fact that she did not have such regard and was on that account negligent.
	
	I would comment, however, that this apparent inconsistency in the judgment need never have arisen.   It is quite clear that the judge interpreted the Dunne case as holding that where medical experts honestly disagreed as to whether a doctor had fallen below an acceptable standard of care, the judge was not entitled to prefer one view rather than the other and make a finding of negligence.   In my view, the Dunne case is not authority for such a proposition.   The principle of the “honest difference of opinion between doctors” only arises in relation to diagnosis and ways of treating a patient.   There is nothing in Dunne to support the view that if two medical experts express an honestly held opinion on the negligence issue to opposite effect, the judge is precluded from making a finding of negligence in relation to the way a particular treatment is carried out.  The learned trial judge was perfectly entitled if the evidence supported it, to form a view that the respondent did not carry out the evacuation process properly there being no disagreement between the experts as to how such process should be done.   I will be returning to the question of whether there was evidence to support the finding of negligence in that particular respect.

At this stage however, it is important that I refer to the next stage of the judgment and the second finding of negligence.   Here the judge is dealing with an issue which was heavily canvassed at the trial not least by his own interjections namely, whether the appellant having purported to carry out the procedure including the evacuation of the uterus ought to have checked out that everything relevant had been removed by carrying out an ultrasound scan which on the evidence would not have been difficult.   The relevant passage at p. 27 of the judgment reads as follows:
   
“While all the expert witnesses agreed that one would not routinely do an ultra sound scan after carrying out an E.R.P.C. procedure, and I accept that that is so and while Dr. Turner and Mr. Jarvis were of the view, that in the circumstance that Dr. Patton had expressed confidence that she had removed everything from the plaintiff’s uterus, it was not incumbent upon her to carry out an ultra sound scan, I am not persuaded by the evidence which I heard that the E.R.P.C. procedure carried out by Dr. Patton was a routine procedure, or anything like it and, accordingly, I am not persuaded that it should have been followed by a routine practice.  Dr. Patton, herself, conceded that it was an unusual and difficult procedure, as did most of the medical witnesses.  Dr. Turner said that, in the circumstances that the procedure carried out by Dr. Patton was a destructive one, it was difficult to visually confirm that you have removed every single part of the baby and Dr. Jarvis said that, as Dr. Patton was dealing with a macerated foetus, the tissue is less easy to recognise because it comes out piece meal rather than in an intact limb.  In those circumstances, it seems to me to defy logic that it was not incumbent upon Dr. Patton to carry out an ultra sound scan because, whether or not she believed that she had removed the entire foetus, and even though it was not routine to conduct an ultra sound scan following an E.R.P.C. procedure if, as appears to be the case, it is difficult to visually confirm that every single part of the foetus has been removed, common sense would dictate that recourse should be had to an ultra sound scan so as to ensure that the foetus had been fully evacuated.  Accordingly, I think that the view of Dr. Turner and Mr. Jarvis that Dr. Patton’s failure to conduct an ultra sound scan following the E.R.P.C. procedure which she carried out on the plaintiff was within an acceptable standard of practice was misconceived because that view reflected a routine practice and, as I have indicated, I am persuaded by the evidence which I heard that the E.R.P.C. procedure carried out by Dr. Patton was anything but routine.  Accordingly, it seems to me that the reality is, as Mr. Clements asserted, that the failure, in the particular circumstances, to carry out an ultra sound scan amounted to substandard care on the part of Dr. Patton.”

	I think it appropriate to dispose of this particular finding of negligence at an early stage of the judgment because I am satisfied that it cannot be sustained.   There is no finding by the High Court nor was it seriously suggested that the appellant was not herself satisfied that she had removed all the relevant parts of the foetus.   The respondent’s own medical expert witnesses accepted that it was not routine practice to carry out an ultra sound scan if the doctor carrying out the procedure is satisfied that a full evacuation has taken place.   Indeed, the learned High Court judge accepts that.   But he has taken the view that this was not a routine operation because of the macerated state of the foetus and that what might be routine practice would not in those circumstances apply.   He then uses principles of logic and common sense to argue that an ultra sound scan ought to have been taken.   However, there seems to me to be a number of problems about that finding.   First of all, as is clearly indicated in a letter that was written shortly after the surgical procedure by the appellant, the non-routine aspect of the operation related essentially to the difficulties of removing the head.   Secondly, I do not think that there is anything in the evidence to suggest that it would be medical practice to carry out an ultra sound scan unless either the doctor had himself or herself doubts as to whether everything had been removed because of some objective evidence or if the particular doctor was somewhat squeamish about “ticking off” the major parts such as limbs, spine etc. (I am deliberately avoiding the word “reconstructing” for reasons to which I will return) and resorts to an ultra sound scan instead which would be perfectly effective as a checking device.   But quite apart from those evidential points, Mr. Hanratty S.C., one of the counsel for the appellant objected at one stage during the hearing to having to meet a case that an ultra sound scan although not required as a matter of routine practice might be required in special instances other than in the            two examples I have already mentioned.   He did not think that that case had been made on the pleadings and he did not think that it was a case that he should have to meet.   I think that that submission was well-founded.   That case could only be made, in my view, within the parameters of the third principle enunciated by Finlay C.J. in the Dunne case at p. 109 of the report which reads as follows:

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

This would seem to me to be not altogether unlike the famous principle in Bradley v. C.I.E. established in a non-medical context.   It is a particular case however which would have had to be made from the start and argued as such.   I do not think it was.   For all these reasons (which can be taken disjunctively) I believe that the finding by the learned High Court judge that the appellant was negligent in not carrying out an ultra sound scan cannot be supported.
	
	Having formed that view, I intend to concentrate now on the finding that the appellant was negligent in the manner in which she checked whether she had removed all relevant parts.  
	For that purpose, I propose first to set out the relevant evidence in relation to this finding of negligence as given by the appellant herself and then as given by the two medical experts called on behalf of the respondent i.e. Mr. Clements and Mr. Griffith and the two medical experts called on behalf of the appellant, Dr. Turner and Mr. Jarvis. 

 The appellant’s evidence

	After explaining why she decided to carry out the particular surgical procedure of evacuation via the vagina and after pointing out that the structure of a foetus, dead for some three weeks of the seventeen week period is substantially different from the texture of a live foetus and that as a consequence, the foetus has reduced in size due to removal of fluid and general maceration of the soft tissue and that although the bones would not have reduced in size their texture would have changed in that they would have become softer, she proceeded to explain how she carried out the operation.   In particular she explained that the baby is taken out in pieces because bone is broken and crushed.   She said that you look at the volume of what you have removed.   To use her own words she said: 

“You look at the structure and the sensation of the uterine cavity when you have completed the procedure and you make a decision at the end of your procedure that it is complete and that you shouldn’t go any further.   If you go any further, you are dealing with possible problems of perforation of the uterus and (inaudible) syndrome.   So there comes a stage in any evacuation of retained products where you have to make a decision that this is complete and, as we saw in the evidence, 10 per cent of that is not correct and we have to live with that.”

I think it important to mention at this point that the reference to 10 per cent is somewhat misleading in that everybody agreed that soft tissue can be left behind without fault, but there was no statistical evidence as to how often a bone of the length of 5.5 centimetres was left behind and the overall impression gained from the evidence was that if it happened at all it was a rare event.   The appellant in explaining the procedure which she adopted for checking whether she had removed all the relevant parts referred at one stage to a textbook which had been referred to by Mr. Clements.   I intend to confine myself to what she said she actually did as far as she could recall.   I used that last phrase because the clear impression gained from her evidence was that her memory was somewhat hazy about what actually happened.   I will, however, refer to some answers of a general nature which she gave.   She was asked in direct examination whether the purpose of looking at what she removed was to determine or get an impression of volume or whether it was to build up a picture of a foetus in terms of head, thorax, arms, legs or what.   She answered that it was probably a combination of both.   She said that you don’t sift through each little bit to see that everything is out.   She referred to the possibility of “a bit of a hand or a foot” being left behind but that “really wasn’t of any consequence because that would be passed anyway”.   That evidence in turn was of doubtful value because I do not think that anywhere in the transcript is it suggested that a limb of 5.5 centimetres would “pass” through the body in the ordinary way.
	
	The following questioning then occurred.
“169 Q.	On this occasion where you yourself satisfied that you had got the complete foetus out of the uterus?
       
         A.	Yes, I was.   I would not have finished the operation had I not thought so.

 170 Q.	Did you, in fact, look at the products you had removed to assist you in your judgment on that point?

       A.	Yes, in that sort of circumstances I would put what I took away into a kidney dish, so that I would see what was there and make a judgment on that. 

 171 Q.	Yes.
       A.	I felt at the end of the procedure that I had completely removed this foetus, I handed it over to our pastoral care team to prepare it for burial, as was Mrs. Griffin’s request, and I was quite convinced that I had finished the procedure.”

At Q. 178 of the same day i.e. day 5 of the hearing, she was asked and she answered the following:

“178 Q.	Yes.  Now going back to the 23rd January, the criticism that is made of you in respect of which it is suggested that you fell below acceptable standards of practice was that you didn’t in fact achieve a complete evacuation, that there was in fact a piece of bone left and that you should have picked up.   I am not just talking about the ultra sound, we will come to that as a separate issue, but that you should have in your evacuation satisfied yourself by some means that you had in fact achieved a complete evacuation.   I just want you to explain to His Lordship your perspective on that suggestion and on that criticism?  
 
          A.	As I said this morning there are numbers of criteria which we use to help us to decide that the operation is complete and I had gone through those in my head rather than any other way, really, that this was a complete foetus.   I thought that from the volume of the foetus, what I had taken out, what the uterus felt like when I curetted it subsequently and the feel of it on bimanual examination that I had completed the evacuation.

 179 Q.	In terms of trying to judge whether or not you have, is there any difference between looking at the body of material that you had beside you, which is obviously the products of a three week dead foetus, and after looking at what you would have after you had removed the foetus who had recently deceased in terms of trying to satisfy yourself as to the completeness by reference to the products removed?

        A.	That, I think would be fairly difficult in that if you remove a complete foetus, it comes through the vagina and comes as a baby.   You see it as a baby, albeit a macerated baby.   You can see the head and the body and the limbs and whatever.   When you are taking out a macerated foetus with a forceps, you are taking out chunks of tissue, pieces of tissue over a period of about twenty to twenty-five minutes and you build up a volume of tissue that you look at and say ‘well, that is the head’ because I had great difficulty in getting the head out.   And you look in general at the rest of the material that you have and you make a value judgment on that, that that was complete.”

That last answer would seem to indicate that the appellant only specifically looked for one aspect of the skeleton i.e. the skull and that in relation to other materials removed whether bony or soft tissue it was essentially volume that she assessed.   
	
	On the question of how good her recollection of the operation was the appellant said that she remembered the case fairly well but that there were specific details of it that she did not.   She went on to say that it was one of the most difficult cases she had to deal with in her career.   As I have already indicated the difficulty to which the appellant is referring seems to have been largely the problem of evacuating the head as indicated in the letter which she wrote.   Indeed in Q. 121 on day 6 she makes it crystal clear that the most difficult part of removing the baby was the skull.   Under further cross-examination, the appellant said that what she removed “appeared to be a complete baby” and she said that she made that judgment by her examination of the uterus at the end of the procedure by putting in a curette and curetting around the whole structure of the uterus and by feeling it and finding that it had come down to a normal size.   The questioning at that point continued as follows:

“161 Q.	How did you miss a lump of bone 5.5 cm long if you did that?

         A.	That is the dilemma.
 162 Q.	It certainly is the dilemma.   
        A.	Yes.”

It is impossible to know what was in the mind of the learned High Court judge, but that kind of an answer could hardly have given him confidence that it might be reasonable to have overlook a bone of that size.   It emerged from the evidence that the appellant had not considered that the piece of bone which she ultimately removed was anything like 5.5 cm even though it had to be accepted on all sides that that was the correct measurement.   She explained this to some extent by suggesting that the appellant pass some of the bone out in bits and that what she would have ultimately removed was the residue.   Counsel in cross-examination put to her that it followed as night followed day that her visual assessment of what she had taken out was wrong.   Her answer took the following form.

“Yes, I was looking at a baby that had come out in pieces.  This is not very pleasant to look at.  You have bits of tissue, you have bits of body, you have bits of bone, you have bits of everything.  It is a jingle-jangle of bits and you look at it, you look at the volume you assess it.  You assess it in conjunction with your findings at the end of your operation and you make a judgment that this is complete and that is what I did.”

The next bit of dialogue on cross-examination on day 6 would have been relevant, in my opinion, to the view which the learned High Court judge took from the transcript, it reads as follows:

“167 Q.	My two experts have said that this judgment can be made mentally.  You can chalk off the thorax and the four limbs as you proceed with the operation.  Clearly you didn’t do that, or didn’t do it properly?
        
        A.	I thought I had done that, My Lord.

 168 Q.	Well, will you now agree that you clearly had not?

        A.	I obviously missed a piece of bone, yes.

 169 Q.	So you clearly had not completed a proper visual check?

       A.	I had felt that I had looked at what I took out.   I had made a judgment that this was the baby and on my examination of the uterus following that, I made a judgment that the uterus was empty and I finished the operation.  

 170 Q.	And the judgment was erroneous, isn’t that so?

        A.	And I left a piece of bone behind.

 171 Q.	The judgment was erroneous, isn’t that the fact?

        A.	I had a complication of my procedure and I left a bit of bone behind.”

	Although in general, the appellant did not agree with the relevant evidence given by Mr. Clements, after which I will be referring, she had indicated in her evidence full agreement with a book which he had written.   In her direct evidence, she had cited passages from it but it was put to her in cross-examination by Mr. Hickey, counsel for the respondent that she had stopped short of reading what he considered to be an important passage which was as follows:

“Complete removal of the foetus is easier to determine during second trimester abortions by dilation and evacuation.  The foetal parts are large and easy to recognise, but there may still be some uncertainty whether the entire placenta has been obtained.”

The appellant was asked whether she had accidentally or deliberately omitted reading that passage.   Had Mr. Hickey put to her that would she not have wanted to make the point that complete removal of the foetus was easier to determine during second trimester abortions which was of course the case here.   Her answer to that was “Yes, easier, but not always possible”.   After Mr. Hickey had emphasized again that the book had referred to foetal parts being large and easy to recognise during a second trimester abortion, the respondent pointed to another sentence “it is never possible to be completely certain that abortion is complete”.   But Mr. Hickey went on to point out that her reference to that sentence was misleading in that that was referring to abortion by vacuum aspiration.   In the operative part of his judgment, the learned trial judge uses the expression “I am not persuaded”.   It would be fair comment to make that answering of that kind would hardly contribute to such persuasion.   At the end of the cross-examination of the appellant, the following dialogue took place.

“370 Q.	Dr. Patton, may I conclude by suggesting to you that the operation you carried out was a failure, the operation on 23rd January was a failure, that you should not have left a piece of bone of the size that you did leave behind and that you failed to check having carried out the operation, either properly visually and not at all by ultra sound that the uterus was clear and had you carried out a proper check, we wouldn’t be here?
      
     A.	All I can say in response to that is that I carried out an evacuation on the 23rd January.  At the end of the procedure I felt that I had emptied the uterus.   I looked after the patient for a number of days afterwards, there was no extra blood loss to indicate that there was anything left behind.  Had there been, she would have had a scan at that stage, that was not indicated.   I do accept that there was a piece of bone left behind.  This is a complication of this operation and when it was pointed out to me I dealt with it.

371 Q. Mr. Justice O’Donovan:  Do you accept Mrs. Griffin’s evidence that there were also pieces of flesh left behind?

        A.	I did not see that.

372 Q. Mr. Justice O’Donovan:  I know you didn’t see it, but she says that she passed flesh and bone, do you accept that?

       A.	I can’t deny that.”

	There are also, of course, references in the transcript of the appellant’s evidence to her being in tears and being allegedly emotional following on the operation and as is clear from the passage cited earlier in this judgment this was a matter referred to by the learned High Court judge.   I will return to the appellant’s evidence on this matter at a much later stage in the judgment.   I turn now to the evidence of the medical expert witnesses.  

Mr. Clements’ evidence

	Early on in the direct examination of Mr. Clements who was called on behalf of the respondent there were the following questions and answers:

“Q.	Putting yourself in Dr. Patton’s position, having completed the operation as best she could, what should she have done at that stage?

 A.	It is, My Lord, incumbent on any surgeon who begins an operation to make sure they finish it.  There are two ways in which she could have made sure that she had completed the operation that she set out to perform.  The first was to identify the major bony structures in the foetus.  It is not necessary to recreate the body of the foetus in order to do this.  The experienced operator knows what bits are likely to be left behind.  The skull, the thorax, the spine and the limbs.  Nothing else matters because everything else is small enough to come through the cervix which is now slightly open.  It does not take more than a moment or two to look through the bits that you have removed, identify the skull, the thorax and spine and count four limbs.  If you do that you can be reasonably sure that you have finished the operation or at least done enough to ensure the patient’s safety.  If you are not prepared to do that then the only alternative way is to take a picture to do an ultra sound and you can do that either in the operating theatre with a portable machine or you can wake the patient up and do it the next day.  It seems to me that if you are undertaking an operation as difficult as this you have an obligation to make sure that you have completed it.  

Q.	Is there anything in the notes or records, Mr. Clements, to indicate that Dr. Patton carried out a visual check of what she had removed?

A.	Not in her operation note, no, we know that she or somebody gave parts of the foetus to Mrs. Griffin for burial but we have no description of what was given to Mrs. Griffin.”

It was suggested in cross-examination by Mr. Hanratty that the respondent did in fact achieve “an almost complete evacuation of the contents of the uterus.”   Mr. Clements strongly disagreed with that proposition and said the following at Q. 184, day 2.

“The retention of the foetal spine cannot possibly be described as an almost complete procedure.  An almost complete procedure would be leaving a few fragments of placenta or membrane left behind.  That would be an almost complete procedure.  That is the common complication of all pregnancy interventions, that you leave a little bit of membrane or placenta behind because they are jolly difficult to find.”

Nothing turns on the reference in that answer to “spine”, there was some difference of expert opinion as to whether the piece of bone left behind was “spine” or a lower limb.   The learned trial judge found that as a matter of probability it was a lower limb but as I read the transcript and, indeed, this was the view also of the trial judge it makes no relevant difference.   It emerged from the evidence that the appellant had thought that the piece of bone which she removed was much smaller than 5.6 cms.   She had thought that it was something in the order of 1½ to 2 cms. and in that context Mr. Clements was asked whether he would regard the evacuation as almost complete if a bone of that smaller size had been left behind.   He emphatically answered that he did not think leaving bone was ever excusable “because it is so easy to check that you have got all the bone structure”.   Throughout her evidence the appellant had suggested in different ways that although the foetus was seventeen weeks gestation it had become reduced after it had died to a size the equivalent of thirteen weeks gestation.   Mr. Clements dealt with this proposition in different parts of his evidence but one answer to Q. 206 on day 2 makes clear his position.

“It hadn’t reduced in size to thirteen weeks.  I thought I made that perfectly clear yesterday.  That is a delusion and I explained how the delusion comes about.  It comes about partly because the head bones, the two parietal bones overlap to reduce the ultra sound measurement, this is the bi-parietal diameter.  The second part of the elusion is that the liquor is absorbed and so when you feel the uterus it feels smaller than seventeen weeks because all the liquor is gone.  You are left with this impression of a thirteen week size, in fact the same dead body is there that was there two weeks, three weeks before.  It has still got the bones of the same size, it has just got less fluid.”

	On the same day at Q. 251 the learned trial judge addressed Mr. Clements as follows:

251 Q. Mr. Justice O’Donovan:	  Before you go for your lunch, Mr. Clements, whether or not Dr. Patton was entitled to undertake the evacuation of the foetus in the manner in which she did so and whether or not she did that competently and apparently there is going to be a dispute between you and the experts on the other side, could there be any doubt in your view about her neglect when after the operation she did not visually check that all the important parts of the foetus had been removed and to confirm that visual checking by a scan?

        A.	The short answer is No, My Lord, that is a separate and completely different area of competence.”

	Shortly after the lunch on the same day, Mr. Hanratty put it to Mr. Clements that there would be evidence from Mr. Jarvis and Dr. Turner that it was not uncommon for somebody carrying out this sort of procedure to find that despite their best efforts and their greatest care they have in fact inadvertently left some material behind.   Mr. Clements agreed.   It was then put to him that those experts would say that in carrying out the procedure, you were trying to strike a balance between on the one hand not damaging the uterus or rupturing it by over vigorous curettage and on the other hand ensuring complete evacuation.   With some qualification which is not particularly relevant, Mr. Clements agreed with that also.   But he then elaborated on his view when it was suggested to him that if you got the balance marginally wrong you could find yourself in a situation where you had “left something”.   Mr. Clements again reiterated that there was undoubtedly a small instance of leaving some soft tissue placenta membranes behind and that there could be an excuse for that but that there was never any excuse for leaving bone because as he put it “you can readily check that all of the large structures are present, that you have taken them out.   You look at them as you remove them and you say ‘right, we have that, we have that, what else do we need to get’?   That is where this case is different from the statistical instance of retained products which are not substances that you can check are out, because they are not recognisable in the same way that bony structures are.”   It further emerged that Mr. Clements was not insisting on the surgeon actually reconstructing the body but what he was insisting on was that there be some kind of checking process mental or otherwise to ensure that the main bones had been taken out.
	
	It was then put to Mr. Clements that Dr. Patton would say that she did check the foetal parts and that she did believe, on the basis of what she saw and did, that she had, in fact, effected a complete evacuation.   Mr. Clements replied that if she did believe that, her belief was ill-founded because there was a significant bony part left behind and she was wrong.   There was, in fact, no evidence that the appellant checked individually the foetal parts.   Mr. Clements went on to say that it was not “at all difficult to tell when you are missing a piece of bone in excess of  5 cms. in a foetus of this size because it is such a significant part of the foetus’s body that you can’t possibly miss it if you do the job properly.” 

Mr. Clements was then referred to a report by Dr. Turner which had indicated that foetal bone might be left behind in about two to three per cent of patients.   Mr. Clements strongly expressed the view that if that is what Dr. Turner literally meant as distinct from soft tissue etc. being left behind it simply was not correct.   At that point, Mr. Clements reiterated that leaving a small piece of membrane or decidua or placenta behind was within the spectrum of normal competence but that leaving pieces of foetal bone behind was not.   On this particular relevant issue the cross-examination began to go round in circles in that it was put to Mr. Clements that it was surely reasonable for a gynaecologist who believed that she had in fact, succeeded in evacuating the retained products but who would be aware of the possibility that she might not be correct that she would know if there were any problems if the patient would come back.   Mr. Clements said that that course was quite unacceptable because if the doctor was aware that there were retained products she had a clear duty to investigate that and that she could not say to the patient “go home and tell me if bits of the baby keep coming out”.   The question was then repeated in another form and Mr. Clements gave a reply completely consistent with the rest of his evidence.   He said: “Well, this brings us to the central point in the case.   I don’t believe that a competent gynaecologist can leave significant bits of bone in the uterus having taken proper care and that is, of course, the central issue in the case.”   I do not want to fill up this judgment with repetitive evidence of Mr. Clements.   It is sufficient to say that in answers to questions from three different sets of counsel, he consistently expressed the view that it was unacceptable that the gynaecologist performing such a procedure should permit bone and certainly bone of 5.5 cms. long to be retained in the uterus and he explained why.   His evidence was that irrespective of whether the foetus was macerated or not it was a relatively easy matter to check out that the major bony parts had been removed.   A point that he constantly emphasised in his evidence was that the bones do not reduce in size.   

Dr. Griffiths’ evidence

	The evidence of Dr. Griffiths also called on behalf of the respondent was in substance to the same effect as the evidence of Mr. Clements.   Dr. Griffiths was asked what should the doctor do having completed the procedure, if acting properly and carefully, and in accordance with proper standard.   His reply was as follows:

“You obviously want to make sure that you have removed as far as possible all of the foetal parts and you would have an eye on what was being removed as the process was being carried out.  In my practice I would just count down the limbs, make sure that I have the trunk, which may come away in one or more pieces but the ribs are usually recognisable, and the skull is usually very characteristic, partly because when the skull is breached, the brain contents tend to drain and also because the bones of the skull are very characteristic, they are almost flat thin membrane bones with a sort of serrated edge to them so they are very characteristic.”

Dr. Griffiths was then asked whether it was obvious or possible to discern the limbs or to count them out and he answered that you could usually identify what was left and right and that these would be arms and legs.   He was later asked what he had to say about the procedure carried out which leaves bone of 5.5 cms. long behind.   His answer to that question was as follows:
	
“Then it mustn’t have been adequately performed because it fails to remove at least one of the major bony structures that should have been accounted for.  I am not entirely sure that the ultra sound scan solely shows a single bony structure in any case.  There are a number of complex echoes there which would allow for other parts.”

He went on to say that the failure to account for limbs reflected substandard care.   
	
	Although I have already expressed the view that the appellant should not have been held liable in this action for a failure to do an ultra sound scan, nevertheless some of the answers given by Dr. Griffiths, when questioned on the ultra sound scan issue, are relevant to the heading of negligence which I am dealing with.   After agreeing under cross-examination that he would not routinely do an ultra sound scan after an evacuation procedure, Dr. Griffiths in his answer to question 225 on day 4 expanded on his reason as follows:

“My reason for not doing an ultra sound scan is that I am confident that I am able to mentally reconstruct the foetal parts to establish that I have the whole foetus and I have done a very large number of these procedures without any complications of retaining products of conception at all.  So I would avoid the ultra sound scan because I was confident of my ability to ensure that the uterus was emptied.”

Dr. Griffiths then went on to reiterate that a routine ultra sound scan would not be normal practice but in this connection he was referring in the main to evacuations done before about twelve/thirteen weeks.   At seventeen weeks, Dr. Griffiths went on to say that your have to either be able to satisfy yourself that you have emptied the uterus by mental reconstruction or by an ultra sound scan and to do neither means that you don’t know what you have got out and what you have left behind.   While he agreed with counsel for the appellant that blood clots and little bits of tissue which are of no consequence can show up on the scan and make it confusing, he stated that it would not confuse the picture regarding bony parts.   He went on to repeat his view that confidence that all the foetal parts had been removed was misplaced if no mental reconstruction of the foetal parts had been done.   Dr. Griffiths was asked in cross-examination to confirm that the doctor carrying out the procedure would have a perception of what she was removing and the increasing volume of what she had removed, but he observed nevertheless that to try to assess completeness by a subjective assessment of volume of material was prone to error to an unacceptable degree.   To a suggestion put to Dr. Griffiths that it was a counsel of absolute perfection to suggest that a gynaecologist who conscientiously carried out the procedure, who conscientiously removed as much material as she could reach, reached a conclusion that she had, in fact, succeeded in removing everything that if it emerges that she was incorrect then that ipso facto she had fallen below acceptable standards.   Dr. Griffiths made it clear that he took the contrary view saying that “if you haven’t determined in an objective manner that you reliably removed all of those parts that you sought to remove then you have fallen below an acceptable standard.”

Dr. Turner’s evidence

	Dr. Michael Turner was the first medical expert called on behalf of the appellant.   He was the only Irish independent gynaecological expert witness who gave evidence.   Dr. Turner is a Fellow of the Royal College of Physicians in Ireland and a Fellow of the Royal College of Obstetricians and Gynaecologists as well as being a former Master of the Coombe Maternity Hospital.   Early on in the direct examination, the evidence of the appellant as to how she carried out the procedure was put to him and in particular that she had reached a conclusion that she had succeeded in evacuating the retained products of conception but that it emerged in fact that a piece of bone had been left.   Dr. Turner was then asked whether that indicated to him that the appellant had fallen below an acceptable standard of practice.   His reply which is somewhat lengthy can be summarised as follows.   He first of all said that the retention of the piece of bone did not indicate a fall below an acceptable standard of practice.   He went on to express his fascination throughout his long years of experience with the childbirth process.   He pointed out that nature had designed things so that normally foreign matter would be expelled naturally from the body.   In the second trimester (which was the case here) Dr. Turner said that there may be retained products even after a successful delivery of a healthy mother or when doctors empty the uterus but then he explained what he meant by “retained products”.   He admitted that it was a bit of a catch-all phrase and he went on to say that in 99 per cent of cases the problem of retention is with “the placental tissue because that is stuck to the uterine wall”.   He said that in terms of retaining part of the baby or a piece of bone it was more likely to occur in the middle third of pregnancy especially if a destructive operation had been performed.   Counsel then put to him that the appellant had described that in the operation she had to break down the foetus before removal and remove it in pieces and that she had said that the judgment that she made as to the completeness of the procedure was a combination of visualisation of what had been removed and the question of volume but also the progressive reduction in size of the uterus as the procedure progressed and, ultimately, the feel of the uterus through her instrument and that you then reach a point where you believe that you have succeeded.   Counsel then asked Dr. Turner that having regard to the fact that there was, in fact, retained bone did that mean that the appellant had done something wrong so far as the benchmark of professional practice was concerned.   Dr. Turner replied in the negative and went on to give another lengthy answer in which he explained that the normal clue you would get that there were retained products would be heavy bleeding.   However, it emerged from the later part of his answer that while you might have solely placental tissue or a mixture of placental tissue and foetal parts or you could have solely a bone.   As I understand his answer and as I suspect the learned High Court judge understood his answer an isolated bone would not give rise to any bleeding or haemorrhage.   That seems clear from his answer.   But Dr. Turner would then appear to have given a somewhat inconsistent answer to the next question which was put to him by the learned trial judge.   The question and answer read as follows:

“Mr. Justice O’Donovan:  Mr. Clements said ‘I don’t think leaving bone is ever excusable, because it is so easy to check that you have got it all out, that you have got all bone structures out”?

A.	I disagree with him, it is not easy to detect, particularly in circumstance where there are no clinical signs such as haemorrhage or a uterus that has not involuted.”

In that answer, Dr. Turner seems to be bringing back in other forms of tissue that might be retained that were not bony because the retention of bone as such would not have given rise to haemorrhage or, if I understand the evidence correctly, a uterus that had not involuted.   The following dialogue then took place at Q. 63ff on day 7:

“Q. Mr. Justice O’Donovan:	Forget about the clinical science, you have got what you have taken out?

 A. 	Okay.  Then we are moving to a separate issue.  We are talking about first of all visualising what you have removed.  Again, it is difficult in circumstances where the baby has died four weeks previously …

 Q.  Mr. Hanratty:	Three weeks.

 A.	Three weeks previously and where the body has started to shrink and where you have done a destructive procedure.  It is difficult in those circumstances visually to confirm that you have removed every single part of the baby.”

I am deliberately omitting the next few questions and answers because they contain what in the event, as I would read the evidence, proves to be an irrelevant semantic argument.   I, nevertheless, should briefly explain it.   In his original report as distinct from his evidence, Mr. Clements had to some extent at least given the impression that counting the bony body parts involved “reconstructing the baby on the trolley”.   It subsequently became clear in the evidence of Mr. Clements and Dr. Griffiths that nobody would have meant that literally but the unfortunate expression “mental reconstruction” was used.   Dr. Turner scathingly said that he had never read or heard anybody doing “mental reconstructions” and that he did not know what was meant by that.   Another of the experts, Mr. Jarvis, did speak of a “grizzly jigsaw”.   But none of this appears to be relevant.   All the medical experts were agreed that there is a duty to remove all the parts and especially the bony parts.   A more sensible expression “ticking off the main parts of the body” was ultimately adopted by Mr. Jarvis and that really is the exercise.   Returning to the same part of the questioning on day 7, I would quote the following bit of transcript:

“67 Q.	If I might just frame the question in this way.  Would a gynaecologist of similar qualifications and experience to Dr. Patton, using ordinary care in the evacuation of the retained products of uterus be guaranteed that they have got everything out?

     A.	No, there are no guarantees in such a situation.  It is well described that whether you have to do an evacuation of retained products of conception following pregnancy loss or in a situation that you are doing a legal termination that approximately 0.5 per cent to 1 per cent of women require a second procedure.  This is well accepted.  It does not, in any way imply that the first procedure was not done properly.  In fact what it implies and again, as a surgeon, you are in a very difficult dilemma, because you have to walk a fine path.  On the one hand, you want to get all of the contents of the uterus and the afterbirth out but on the other hand, if you are too gung-ho about it, if you are too aggressive about it, you may damage the uterus.  Bear in mind that the pregnant uterus is a lot softer than the non-pregnant uterus and if the surgeon is too vigorous in her attempts to evacuate the uterus, she runs the risk of perforating the uterus, which is a far more serious complication than simply just repeating the E.R.P.C. subsequently.  Life is not black and white, okay.  As a doctor, you sometimes have to make judgment calls as best you can, taking the overall interest of the patient into account.”

It seems to me, as I expect it may have done to the learned trial judge, that that answer contains the same infirmity as a number of the answers of Dr. Turner.  The case of negligence only related to the retention of a lengthy bony piece.  In so far as there were any other products retained there is no liability suggested for that but it seems clear from the answer which I have just quoted the percentage statistic relates to retention of products generally.  The appellant in describing the procedure made it clear that if you went too far with evacuation there would be possible problems of perforation of the uterus.   There was no evidence however that the appellant when carrying out the procedure in this case was consciously concerned that she might damage the uterus if she went further and that that was why the limb was missed out.
	
	In relation to the ultra sound scan issue which I will not go into for the reasons indicated, Dr. Turner gave one answer which is relevant also to the allegation of negligence which I am considering.   In his answer to a question from the learned trial judge number 85 on day 7, he refers to the fact that “a piece of retained bone isolated is such a rare event after an E.R.P.C. you wouldn’t routinely do an ultra sound examination in the absence of symptoms”.   In my opinion, the trial judge would have been entitled to regard that answer as corroborative of the strong evidence of Mr. Clements in particular but also Dr. Griffiths that it is not acceptable that a piece of bone should be retained.   At a later stage of his evidence, Dr. Turner seemed to challenge the measurement of 5.5 cms.   That challenge was not ultimately endorsed by the appellant’s own counsel but the fact that it was made at all by Dr. Turner might, it seems to me, have  weakened the effect of his evidence before a trial judge.   Mr. Sean Ryan, S.C. in cross-examination on behalf of the appellant put to Dr. Turner that assuming the evidence of the measurement was accepted by the court a bone of that measurement should not have been left.   Again, Dr. Turner’s answer was one which it would have been open for a trial judge to regard as somewhat weak.   His answer was as follows:
 
“I wouldn’t necessarily agree.  These things happen.  They happen in this country and they happen all over the world.”

Mr. Ryan went on to suggest that they should not happen, at which point a further unsatisfactory answer was given.   Dr. Turner said “You will have to blame Mother Nature for that, as I explained this morning, because childbirth, as I highlight it, is not perfect.”   But Dr. Turner’s wider views and philosophising in relation to childbirth and Mother Nature etc. went way beyond a piece of bone being left in the uterus.   He was dealing with retained products generally such as placenta etc.   Mr. Ryan came to the point in the next question.   The question and answer read as follows:

“Q.	How could you leave a limb behind and not know it.  There is only four of them. 

 A.	First of all, you have assumed that it is a limb.”

It seems to me that that answer was either irrelevant or a quibble.   Mr. Ryan went on to say that he was assuming it was a limb but that his own expert had thought that it was a spinal bone but that that did not matter.   Dr. Turner said that it was possible to retain such bone, but his answer took a curious form.   It read as follows:

“It is possible to do so.   This happens in this country after an evacuation of the retained products of conception.  It is also a very common event when women have a surgical termination of pregnancy outside this country in the second trimester.  It happens.”

The answer was particularly curious in the light of something which I have not up to now thought relevant to mention.   There was undoubtedly an undercurrent running through the evidence of the respondent’s English medical experts that Irish doctors would not be experienced in this kind of surgical procedure because they did not carry out abortions.   On being pressed as to why such a piece of bone would have been left all the same, Dr. Turner said that it might have been just the bone that was there may have eluded or evaded the forceps that Dr. Patton had introduced into the uterine cavity.   He said that that does happen.   He said it happens to such an extent that in the case of some women who have had an attempted termination of pregnancy, there has been subsequently an ongoing normal pregnancy.   He concluded that it was possible for somebody to attempt to do a procedure which was not a hundred per cent successful and that that was the reality of everyday life.   Again, it would seem to me that Dr. Turner, in the latter part of that answer, was straying beyond the narrow issue of the retention of a piece of bone.   Following a further attempt by Mr. Ryan to pin Dr. Turner down on the narrow issue, Dr. Turner did say that the forceps might have missed the piece of bone if it was adherent to the uterine wall which was a possibility especially as the baby had started to decompose.   Dr. Turner was then asked whether that was something which should be directing the doctor’s mind in advance given that he was suggesting it was a known risk.   Once again from an evidential point of view, he gave an unsatisfactory answer which was “not necessarily.   It is a known risk in every E.R.P.C.”  

Mr. Ryan further followed the matter up, successfully obtaining confirmation from Dr. Turner that one way or another the obstetrician had to satisfy herself that she had all the foetus out.   It was then suggested to Dr. Turner that if the court accepted that there was a piece of bone 5.5 cms. long retained, then it followed that the appellant did not satisfy herself that all the foetus was out.   At this point the cross-examination went round in circles because Dr. Turner simply said “not necessarily”.   He went on to say “she may have completed the procedure to her satisfaction at the time.”   That was accepted by Mr. Ryan but he went on to press the point that she should not have been satisfied.   He again put to Dr. Turner that the appellant had left a long piece of bone in the context of a foetal skeleton and that that was the fact.   The doctor simply answered “in retrospect” but then expanded on that by saying that he did not “necessarily” accept she was wrong.   This clearly puzzled Mr. Ryan but Dr. Turner’s response was simply “doctors make assessments every day of the week.   We don’t always get it 100 per cent right.   So I think we have to accept that, that sometimes it is not a precise science.”   One can only assume that Dr. Turner was interpreting the word “wrong” as a synonym of “negligent”.   There was then further unsatisfactory generalised dialogue between Mr. Ryan and Dr. Turner in which the doctor reiterated that what happened can happen and does happen and that everybody makes mistakes and that we all join the human race etc.   He, finally, conceded that the appellant had made a clinical judgment which in retrospect was incorrect.   He balked at using the word “mistake”.   Dr. Turner then conceded that the appellant had “made an error in clinical judgment.”   When he was questioned as to how such an error could arise given that there were only four limbs, if the appellant was acting with a proper standard of care, the cross-examination came full circle because Dr. Turner once again queried that it was a limb of 5.5 cms.   At last, a bit of relevant dialogue then ensued and it is worth quoting, it starts at Q. 371 on day 7:

“Q.	Yes, okay.  So that is alright.   This piece of bone, I am not sure where we are in dispute because I don’t think we are in dispute, I am just trying to get on to your view.  If this is a lower limb, how can it be missed given that there are only four limbs and that had to be accounted for, as the doctor who was doing the procedure, assuming the doctor is acting with ordinary care?  Now that is the question, Dr. Turner?

 A.	It can be difficult to determine, particularly in circumstances where a destructive procedure has been done on a baby where there was a foetal demise three or four weeks before hand, it can be difficult.  Particularly when you are removing the contents of the uterus piecemeal. 

372 Q. Mr. Justice O’Donovan:	But the surgeon carrying out that operation will recognise that difficulty.  

      A.	Correct.

 	373 Q. Mr. Justice O’Donovan: And if you have any doubt you 
						resort to the ultra sound scan?

      A.	If you have doubt, yes.

374 Q. Mr. Justice O’Donovan: But are you entitled not to have a doubt if you recognise that difficulty?

      A.	If you are confident that you have removed everything, well then.”

	Mr. Ryan tried to pin Dr. Turner down then to agreeing that his so called “error of clinical judgment” could only be described as a blameworthy “big blunder”.   Dr. Turner said he did not believe it was something that the doctor should be blamed for but on being pressed he did not give any particular reason except to say that “it does happen when doctors behave or conduct themselves with the highest standard of care”.   
	
	There then followed cross-examination on the ultra sound scan issue which I will skip over except to quote the following question and answer:

“Q.	Do I not have an obligation to use a proper judgment when I am satisfying myself that everything is removed?

 A.	Well, I assume that Dr. Patton exercised her clinical judgment in deciding that she had fully evacuated the contents of the uterus and if she was not satisfied to that extent, yes, I would expect her to go back and clinically reassess the woman in the first place, go back and take a history.  If necessary, examine the woman and if she deemed it necessary do an ultra sound examination.”

I quote that answer because it brings out the assumption on which the whole of Dr. Turner’s evidence is based namely, that the appellant properly exercised her clinical judgment.   But that in turn depends on what she did with a view to ascertaining what she had taken out.   When Dr. Turner was asked whether it should be basic standard practice to make sure that all parts are removed, he gave an interesting answer.   He said the following:

“One of the reasons why it is probably not is that it is very rare for a piece of bone to be retained in the way that it was in this case.  I think if bone was retained more frequently after an E.R.P.C., then you might have to go back and look at your practice, but it is such a rare event.”

This answer would seem to me to be two-edged from the point of view of the appellant.   The trial judge would have been entitled to regard the rarity of the event as corroborative of the evidence of Mr. Clements and Dr. Griffiths.

Mr. Jarvis’s evidence

	Mr. Jarvis is an English consultant obstetrician and gynaecologist who was called as an expert on behalf of the appellant.   I will move straight away to Q. 72 on day 8 because that question and answer encapsulates the essence of Mr. Jarvis’s evidence in relation to the aspect of the case which I am discussing.   The quote is as follows:

“72 Q.	Mr. Clements also criticises Dr. Patton in that having done this operation, which she should not have done, according to him, she did not sufficiently check to satisfy herself that she had completely evacuated the uterus.  Now he started in his report by saying that she should have put it all together again, but in his evidence, in effect he says that she should, have mentally, as it were, put it together again.  Again, I am paraphrasing.  But that she should essentially have reconstructed the shape mentally to satisfy herself.  Can I just ask you first of all if you were doing this procedure or when you were doing a procedure similar to this procedure, what is your practice?

       A.	I preface my answer with stating the obvious, which is that the surgeon must make an attempt to assess that the procedure is complete.  I do that by, I believe, a combination of three different things.  Number one is observation of the tissue which I remove.  I stick with Mr. Clements in his evidence of intellectual reconstruction.  I don’t want to paraphrase but I think he was ticking off in his mind as pieces came out and I would agree with that view.  And I have heard Dr. Patton’s evidence on that point.  Secondly, I have a feel inside the uterus not with my finger but with a curette and I go down the walls of the uterus.  They are not totally regular but if one felt sort of catching a piece of tissue or a bump, that might make one feel that there was tissue left inside.  Thirdly, I would want to ensure that the uterus had contracted down and that there was modest, at the lowest, blood loss at the end of the procedure.

	So I use a combination of three things; observation, feel and condition at the end to form an overall clinical judgment.  If I believe in my judgment from those three things that the evacuation is not complete I would not perform a scan.  If I was uncertain, I would perform a scan….”.

 In the direct examination it was put to Mr. Jarvis that Dr. Clements had said that the very fact that the appellant left a piece of bone illustrated the fact that it was doomed to failure and that she did not take sufficient care to ensure that her evacuation was complete.   Mr. Jarvis said that he did not think that that was a logical conclusion but he then went on to expand on that answer by explaining that it frequently happened that “tissue” is left inside the uterus.   He did not think it reasonable to say that the fact that tissue had been left behind necessarily meant that the doctor fell below the standard to be expected.   He thought that that factor alone would be a “harsh call”.   

The problem with this answer, however, was that it referred in general to “tissue” and there was abundant evidence already that placental and other material might be left behind without negligence.   The issue that had to be considered was whether the leaving behind of a bone of the size which was left must necessarily be blameworthy.   Even if, as indeed, was explained by one of the doctors the word “tissue” could be taken to include bony items as well as soft items, the answer still does not seem to be confined to bone.   Mr. Jarvis went on to say that while he did not have the appellant’s evidence in front of him he had read it and found that in the examination in chief six different descriptions had been given as to how the call of completeness was made but that having read those, he believed that Dr. Patton fulfilled his three criteria for judging completeness.   Mr. Jarvis also said that it was possible for somebody exercising his triad of criteria to miss an entire lower limb if they are doing it competently.   When asked how that was possible, he answered as follows:

“Again I am sensitive of Mrs. Griffin’s sensitivities and I hope she will forgive me.  This is not the evacuation of a recently live foetus undergoing a termination of pregnancy.  This is a macerated foetus of at least three weeks standing.  The tissue is less easy to recognise.  It comes out piecemeal rather than in an intact limb.  The description which is put forward as to making, for want of a better word, a sort of intellectual reconstruction as pieces are pulled out is a subjective judgment and no matter how careful any individual is, there will be occasions when one’s subjective judgment is wrong.  It is for that reason why I also use the curette to try and identify a bump or a catch within the uterus and despite that, all gynaecologists are aware that from time to time they leave tissue inside the uterus.  I believe it is compatible to display an appropriate level of care in making the judgment that evacuation is complete, yet that judgment be erroneous for reasons that are inherent with the technique rather than in the competence of the operator.”

He expands a bit further on this explaining the effect of maceration.   In that connection, he gave another relevant answer which is worth quoting:

“I think there may be a view that the four limbs come out as four pieces and you count one to four.  That is not the situation with a macerated foetus.  The limbs may come out, they may well come out as one, but they may also come out in two or three different pieces.  The pieces do not necessarily come out in the same order as your mental check list.  You have to make your mental check list, you have to observe that which is removed, but at the end of the day it is a subjective judgment, not an objective one.”   

In relation to Mr. Clements’s evidence that he had never left a piece of bone behind at evacuation of the uterus Mr. Jarvis commented that he thought not many gynaecologists would be able to give the same evidence, but he did not clarify to what extent it could happen without negligence.

Dr. Patton’s emotions

	As is clear from the passage cited at the beginning of this judgment, the learned trial judge, towards the end of his judgment, stated that he was “was persuaded” that Dr. Patton’s emotions clouded her judgment to the extent that, when treating Mrs. Griffin on that occasion, she fell below the standards which one would expect a gynaecologist of her training and experience exercising ordinary care.   Counsel for the appellant are critical of the judge for making that statement especially in so far as it suggested that Dr. Patton’s emotional state contributed to her being negligent.   It is important, however, to put this statement of the learned trial judge into perspective.   He had already rejected what he considered were incorrect assumptions made by Dr. Turner and Mr. Jarvis that the appellant had had regard for the presence among the removed pieces of all major bony structures.  The judge correctly pointed out that the appellant had made no mention whatsoever of major bony structures.   Still less, of course, did she have any notes indicating that she had had regard to them.   The judge went on to point out that she had referred to “bits of tissue”, “bits of body”, “bits of bone”, “bits of everything” and to “a jingle-jangle of bits” and she had said that “you look at the volume, you assess it.”   The learned trial judge said that he was not persuaded that the appellant had carried out a visual check of the pieces of foetus which she had removed which was sufficient to identify the major bony structures of the foetus much less to satisfy herself that the entire foetus had been removed.   He found that in that respect she had fallen below an acceptable standard of care.   In so far as he added at a later part of the judgment a further point that he was persuaded that the appellant’s emotions clouded her judgment, this was I think what he perceived as an explanation as to why she did not do the job in accordance with the correct standards.   Before I comment on whether the learned trial judge was entitled to bring into the judgment that element at all, I think it necessary to outline the evidence on which it was based.  
	
	On day 1 the respondent described waking up after the operation and seeing the appellant and the night sister.   She described how the appellant was on the phone but that she could see her very clearly.   When asked what was the condition of the appellant the respondent replied that she was “weepy-eyed” and she said that the nurse was also distressed in that she was silently crying.   The appellant said that down by her feet on the right-hand side there was green towelling or green material and there was a lot of bloody stuff on it.   When the appellant was asked about this in direct examination she said that she had no recollection of it but that she did tend to get a bit weepy occasionally and she thought that giving a patient news that it was all over and that the baby and the pregnancy were no longer was a situation which could have caused tears in her eyes.   She said that she had no problem admitting to that at all, that she was normal, human and a woman.   On day 6 under cross-examination in answer to Q. 175 the appellant said the following:

“I would weep and certainly produce tears when I have to tell somebody something that is sad, yes, unfortunately, I am one of those women who do that.  I would do that in lots of circumstances, not just in a circumstance like this.  If I have to tell a patient that she has cancer, a young mother that she has cancer, a young mother whose baby is dead, yes, I would weep.”

It was then put to her that if she had been shedding tears in the way she described that would be a pretty strong indicator of distress.   She answered that she shed tears very easily and added “that is one of my problems”.   It was then suggested to her that somebody shedding tears who had just performed an operation might not be in the best position to make a judgment as to how one should check that the operation had been carried out correctly.   She disputed that she would be any less competent because of being upset.   

Before the abolition of civil juries, I am satisfied that a trial judge correctly charging the jury and reviewing the evidence for them would have been perfectly in order in telling them that if they believed the evidence that the doctor was in tears and emotionally upset, it would be a matter entirely for them to consider the relevance (if any) of this fact in arriving at a determination as to whether the doctor was negligent or not.   If such a direction was given in the charge, I believe that no requisition could have been legitimately made to the trial judge to rescind that direction.   Still less could a new trial have been ordered on the basis that the judge ought not to have given such a direction and that the jury might have been wrongly influenced by it.   Quite obviously, it would not have been open to the trial judge to have decided this case against the plaintiff on inferences drawn from that evidence alone but he was entitled, in my view, to have put it into the melting pot when considering all the facts of the case as he seems to have done.   

The law

	On foot of the ordinary principles that might apply to any negligence action whether medical or otherwise, I find myself in no doubt that there was ample evidence to support the finding of the learned High Court judge that the appellant was as a matter of probability negligent in causing or permitting a piece of bone (found by the trial judge as probably a limb) of 5.5 cms. long to be left behind in the uterus after the evacuation procedure.   It was clear even from the evidence of the appellant’s own medical experts that the retention of a piece of bone was a very rare occurrence.   Dr. Turner said that in 99 per cent of cases the problem of retention was with placental tissue because that stuck to the uterine wall.   As I have already indicated in this judgment, Dr. Turner at a later stage in his evidence said that “a piece of retained bone isolated is such a rare event after an E.R.P.C. you wouldn’t routinely do an ultra sound examination in the absence of symptoms.”   It is clear from the evidence of Mr. Jarvis also called on behalf of the appellant that while there may be some difficulty in identifying the bones where the foetus is macerated, extra care is required in that instance in doing so and he still speaks of ticking off the important pieces.   The appellant herself, as the learned trial judge pointed out in his judgment, “made no mention whatsoever of major bony structures”.   Rather she referred to “bits of tissue … bits of body … bits of bone … bits of everything… a jingle-jangle of bits”.   She said that you look at those bits and the volume involved and assess it.   The trial judge, accordingly, was not persuaded that the appellant had carried out a visual check of the pieces of foetus which she had removed which was sufficient to identify the major bony structures of the foetus much less to satisfy herself that the entire foetus had been removed.   Finally, the judge, obviously, considered that as a matter of probability her judgment became somewhat clouded because of the emotional state she was in.   In these circumstances, the judge’s finding appears entirely logical.   The only question is whether there is anything in the decided cases and jurisprudence of this court which would lead to a contrary view.
	
	The leading case is the well known case of Dunne v. The National Maternity Hospital [1989] I.R. 91.   The principles established from the unchallenged case law at that time i.e. Daniels v. Heskin [1954] I.R. 73; O’Donovan v. Cork Council [1967] I.R. 173; and Reeves v. Carthy and O’Kelly [1984] I.R. 348 were set out by Finlay C.J. in his judgment with which the other members of the court agreed and set out at p. 109 of the report.

“1.	The true test for establishing negligence in diagnosis or treatment on the part of a medical practitioner is whether he has been proved to be guilty of such failure as no medical practitioner of equal specialist or general status and skill would be guilty of if acting with ordinary care.

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

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

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

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

 6.	If there is an issue of fact, the determination of which is necessary for the decision as to whether a particular medical practice is or is not general and approved within the meaning of these principles, that issue must in a trial held with a jury be left to the determination of the jury.”

The issue which O’Donovan J. had to consider in this case and which led to his finding of negligence was essentially a factual issue to which he had to apply the same principles as he would have done in any kind of negligence action whether professional negligence or otherwise.   It was not complicated, in my view, by the special principles set out by Finlay C.J.   Where two professional expert witnesses have an honest difference of opinion of what ought to be done in, say, diagnosing or treating then the judge is not entitled to prefer one view to the other and if the defendant complied with one of those courses of action, he could not be found to be negligent.   But that does not seem to me to be of the essence of the matter in this case.   Here, it was common case among all the medical experts that a gynaecologist carrying out the procedure which the appellant did carry out had to take all the correct steps to ensure as far as possible that the uterus was properly evacuated and especially of the major bony structures.   It was for O’Donovan J. to decide on the issue of fact as to whether the appellant did that or not.   He found that she did not, as he was entitled to do, in my opinion, for the reasons which I have indicated.   The fact that one doctor may say in the witness-box that in his opinion, the appellant was not to blame does not in any way oust the normal function of the trial judge on the issues of fact even if the judge takes the view that the doctor giving evidence was giving an honest opinion.
	
	I mentioned as one factor which would have been legitimate to take into account the fact that in 99 per cent of cases of retained tissue it would not be isolated bone.   I would like to expand on that point having regard to dicta of Lavery J. in Daniels v. Heskin cited above.   In that case, it was held (inter alia) by the Supreme Court that there was no evidence to support a finding by the High Court that the breaking of a needle in the course of an operation was caused by negligence.   Lavery J. who delivered the main judgment had this to say:

“It is certainly not open to a jury, in my opinion, in that state of facts to hold that the breaking was caused by imperfection of technique on the ground that say in 60 per cent of cases of broken needles it is so caused, and the same is true of any other statistical record of such happenings until the point is reached where the preponderance is such as to make it a case of res ipsa loquitur shifting the burden of proof to the defendant to give an explanation and to establish that the mishap was not due to his negligence.”
Using the same percentage sample, I would entirely accept, of course, that if the evidence before the learned High Court judge had established that in 60 per cent of all instances where a limb of a foetus is mistakenly left behind in the uterus there would have been fault on the part of the operating surgeon whereas in 40 per cent of the cases there would not,   there could not on that evidence alone be a finding that as a matter of probability there was negligence.   Indeed, percentages of that kind would probably have to be disregarded altogether.   But this does not mean that in a case where the evidence established that it would be rare in the extreme for a piece of isolated bone to be left behind, that fact would not be relevant combined with all the other evidence in the case in a judge arriving at a finding of negligence.     
	
It is clear that the trial judge paid particular attention as he was bound to do to the appellant’s own evidence and he then found as a fact that as a matter of probability, she did not carry out the assessment of what had been taken out correctly.   I cannot see any argument based on the medical negligence jurisprudence of this or any other court which disentitled the learned High Court judge from adopting that course.  
	
I would, therefore, dismiss the appeal.