Gemma Lynch (a minor) suing by her mother and next friend Patricia Lynch (plaintiff) v Hubert O'Connor, Brian Denham and Michael Dowling (defendants).
Negligence - Personal injuries - Duty of care - Plaintiff disabled by spina bifida - Whether obstetrician, hospital and paediatrician negligent
The High Court (before Mr Justice Kinlen): judgment delivered 28 June 1996
A DOCTOR cannot be blamed for a defect which has been there from birth but was not really ascertained until the complainants was six years old. Even if it had, been ascertained, no treatment available in 1980 or indeed since would have altered the physical condition from which the plaintiff suffered.
The High Court so held in dismissing the plaintiff's claim.
Martin Giblin SC, Colm Allen SC and Colman Fitzgerald BL for the plaintiff Murray McGrath SC and Michael O'Donoghue BL for the defendants.
MR JUSTICE KINLEN said that the plaintiff in this case claimed damages against the first named defendant, her mother's obstetrician, the second named, defendant who was the paediatrician who attended her immediately after the birth, and the third named defendant who was a nominee of the owners of Mount Carmel Hospital where the plaintiff was born.
Mr Justice Kinlen said that Mr and Mrs Lynch were and are loving and caring parents. They had married in 1968 and a daughter and son were born in 1970 and 1971 respectively. A third child was born in February 1979 but he was appallingly disabled with an extreme case of spina bifida and he died in March 1979. Despite their concerns about having any further children, a fourth child, the plaintiff, was born in July 1980 in Mount Carmel Hospital. The first defendant told Mrs Lynch that she had a lovely perfect little girl. However, he told her that there was a skin tag. Mrs Lynch was perturbed by the statement of the first defendant who said that the paediatrician would have to look at it in the morning.
The second defendant assured Mrs Lynch that the child did not have spina bifida. He ligated the skin tag and said that it would fall way naturally, which in fact happened a few days later when the child was being bathed. Mr Justice Kinlen said that there had been a great deal of evidence as to whether or not the second defendant acted correctly in ligating the skin tag or whether he should have sought advice and possibly assistance from a neurologist or neurosurgeon or an orthopaedic surgeon, or whether he should have taken an X ray at that time. It was extremely doubtful whether anything material would have been discovered by the use of such expertise.
Mr Justice Kinlen said that the second defendant had, on the hospital chart, entered that the last child was spina bifida and died at one month old. He also mentioned that he had ligated at the large tag, mid line. Under that he had written "? X-ray", later "RV 6/52". Mr Justice was satisfied that this meant that he was going to consider an X ray six weeks later. The second defendant did not accept that the plaintiff was born with spina bifida in any ordinary sense of the word. She might have had a minor form of spina bifida occulta in the cervical region. The second defendant drafted a letter to sent to the first defendant and to Doctor Flynn who was Mrs Lynch's general practitioner. The first draft was sent to the first defendant and subsequently, when Mrs Lynch, years later, asked the first defendant's secretary for a copy, she had sent the first draft. The second defendant sent Mrs Lynch an amended draft which he accepted should have been the one sent to the first defendant and which he was satisfied was the one sent to the general practitioner. Doctor Flynn did not remember which letter he received and did not have them on file. The first letter drafted by the second defendant read in the relevant part that the infant was healthy at birth and weighed 3.37 kgs, that there was no neo natal problems and physical examination revealed only the presence of a pedunculated haemangioma on her neck. The letter continued that the second defendant had ligated the stork of this and that no further attention was to be required. This was the letter sent to the first defendant. However, the second defendant was positive that he amended the letter before it had been dispatched. The letter received by the first defendant was in error. ,The amended letter stated that the second defendant had ligated the stalk of this and no further attention should be required. Further, the amended letter ended with a statement by the second defendant that he would review the baby again and would consider an X ray at that time.
Mr Justice Kinlen said that the first defendant did not get that amended letter. The general practitioner did not know what letters he got. The second defendant gave very clear and positive evidence about warning Mrs Lynch to return for the six weeks examination to him and that the nurses would also have told her. She had no recollection of any such conversation. However, Mr Justice Kinlen said that the court did not have to resolve the problems raised by the two letters or the conflict of what was said or not said.
Mr Justice Kinlan said that Mrs Lynch already had two normal children. He said that she would have known that it was normal to have a six weeks test. The plaintiff was brought at six weeks to the post natal clinic run by the Eastern Health Board, and associated with Loughlinstown Hospital, at Ballybrack which was apparently long established and well respected. Nothing untoward was detected. The same applied to the ten month examination.
Mr Justice Kinlen said that Mrs Lynch, once again, went to Mount Carmel for her next child where the first defendant was her obstetrician and the second defendant was the paediatrician. On the chart, he had noted that the plaintiff was well, which he had underlined. Certainly, Mrs Lynch did not suggest for a moment, or, made any complaint at the birth of this child that there was anything wrong with the plaintiff. This child happily was healthy and had no significant abnormality as was stated in the letter to Doctor Flynn from the second defendant on 8 July 1982. So, nearly two years later, the plaintiff had been examined at two clinics and as far as Mrs Lynch was concerned there were no problems.
Mr Justice Kinlen said that the medical experts gave detailed evidence on what would be expected from a skilled consultant paediatrician such as the second defendant in the year 1980. Some experts spoke of spina bifida, others of neural tube defect and others cervical spinal dysraphism. One expert claimed, that these three terms were really, interchangeable but other experts were happier to stick to one or other when dealing with the present case. Neural tube defect was also defined as a congenital abnormality of the spinal column and its contents. There is an aspect of spina bifida known as spina bifida occulta or hidden. If the fistula from the spine is open to the air when it reaches the skin, it can be used as a conduit for meningitis. However, neither the first nor the second defendants, who saw it first, accepted it was open to the air. Some of the eminent experts called, criticised the second defendant for not involving other experts and taking other steps.
Mr Justice Kinlen said that it was conceded during the course of the trial that the ligation of the skin tag was no longer of relevance. It was also conceded that there was no case against the first defendant who indeed was the obstetrician of choice for her next child. Counsel very properly pointed out why he had been joined and proceedings were commenced against him. However, it was accepted that he was excellent doctor and that Mrs Lynch was grateful to him and all allegations of negligence against him were withdrawn. The first defendant did not seek his costs and he was struck out of these proceedings after a few days of hearing.
When the plaintiff was about four and a half years of age, her teacher informed her mother that she seemed to have some problem with the grip in her hand in relation to pens. She went to see Doctor Flynn, her general practitioner. He maintained that he had never received either of the letters from the second defendant. He sent Mrs Lynch to Professor O'Donoghue who was asked to give the family doctor an explanation as to why she had awkward hands. Three things led him to his diagnosis. Firstly, the family history; secondly, the history of the lesion in the mid line of the neck posteriority and thirdly that this was a neurological lesion, it was a bilateral neurological lesion, and that because of the supply of those areas from that part of the cord that it had to be related to the neck and tied up. He saw the plaintiff on 3 March 1986 for the first time and he was concerned about the need for further investigation. An MRI scan was not available at that time and he decided to refer her to an orthopaedic surgeon to arrange a level of spinal X rays and to advise on what type of X rays she would need. In his letter of reply to Doctor Flynn, he stated that there was no doubt the small sinus in the neck posteriorly at the level of C4 was a manifestation of spina bifida. There was also no doubt the poor motor function in the fourth and fifth fingers bilateral was related to that lesion, otherwise she was normal. Problems concerned whether or not one should do a myleogram and secondly what should be done with the lesion itself.
The plaintiff was referred to Mr Fogarty and had a myelogram, and a tomogram which made the position clearer and no other abnormality was shown. Mr O'Donoghue saw her again in June and suggested that she might go for occupational therapy. However, he did not think that surgery would clear the situation at that time. Indeed, the plaintiff's own expert witnesses doubted whether surgery would have helped her to recover from her present position. They condemned the second defendant's decision because it might have led to meningitis. Mr Rawluk performed the operation. He saw her first on 31 August 1994. He got a history which was cited earlier in this judgment and also that she had a localised infection in the pit of small sinus of her neck in 1991 which was dealt with by conservative treatment. He used a MRI scan which was not available in 1980. He felt that the plaintiff was born with congenital abnormality in the cervical spine. He believed that there was a neurocutaneous fistula which, there was some continuity between the surface of the skin and the membranes surrounding the spinal cord which was extending from a C2/3 level to the mid line of the back of her neck. In addition, there was further evidence of mal development of the spina cord and abnormalities in the surrounding membranes and a syrinx on the spinal cord. He formed the opinion that surgery was advisable but there would be no communication between the surface of the skin and the spinal capreolus. That would be achieved by performing an operation to explore the pit in the skin to follow it down to the spinal cord as far as possible and to amputate it as close as possible to the covering layers of the spine. This operation did not change her neurological condition. Mr Rawluk said that the risk of her having meningitis in the future was now abolished by this surgery. However, she would still require a follow up, still had a defective spinal condition with a very small potential risk of developing problems in the future. The plaintiff did not want the operation at first as she did not want a scar but she was pleased after it as the pit in her neck had gone and that the scar was acceptable and was not a disfigurement.
Mr Justice Kinlen said that the court was satisfied that while other specialists of 1980 might have dealt with the matter in a different fashion the second defendant (as was conceded by the plaintiff) did nothing wrong in ligating the tag. Should he have done anything about the blind sinus which was left? Should he have sent a reminder to Mrs Lynch when she failed to turn up for her six week test? There was in 1980 and there was no such follow up procedure and apparently there is not to this day. However, Mrs Lynch knew about the six weeks and the ten months examinations and they were carried out and no irregularity discovered. Mr Justice Kinlen said that it would be an unjustified mental leap to suggest that the second defendant would have found differently on these occasions from the trained specialists who deal with these clinics. Indeed, he said it appeared from the evidence that many of these cases are not noticed until the child goes to school. There was conflicting evidence as to whether the provision of occupational therapy at an earlier stage would have helped. The second defendant had stated that what was presented to him was not a meningocele and this was supported by a number of witnesses.
It was a blind sinus. The question was as to whether or not there should be follow up in hospitals not arise because the child as seeing competent people at the appropriate times. The question regarding time submitted to occupational therapy was to a great extent answered by, Professor O'Donoghue who was the only expert in his field in 1980 in Ireland. He said that in 1980 he would not have referred such a child to occupational therapy. He would have at the age of six, making the point that at that age he would expect her to be able to cooperate. In 1980, a child of that age would not have been treated with occupational therapy and this was borne out by Professor Matthews who said he would not refer such children at such an early age in the 1980s. Nowadays, undoubtedly there are occupational therapists on the whole, who would like to take the child at an early stage, but they cannot take the child until the problem is diagnosed. It was not diagnosed in the present case until she was six. Unfortunately, she did not relate well to therapists. Ms Murray who saw her this year suggested she could still improve if she was prepared to operate with a trained occupational therapist and counsellor. Mr Justice Kinlen said that the plaintiff does have psychological problems. However, since she presented herself as a very bright and charming young lady, has many friends and got an A in maths and a B in a further eight subjects during her examinations last year, all of which proved that she is coping with what has been described as a minor or intermediate disability.
Mr Justice Kinlen said that it appeared to him that the following question had to be determined: Was the second defendant negligent as defined in Dunne (an Infant) v National Maternity Hospital [1989] IR 91. He said that for the reasons already advanced in his judgment, he did not think as of 1980 that the second defendant was negligent. It was now conceded that although his treatment of the skin tag did not have universal support and indeed, was criticised was not in itself negligent and it was now conceded that was out of the case. The only criticism about leaving the matter for six weeks was that the child might have developed meningitis. Fortunately, it did not and there was no suggestion that it was probably more than a possibility. There was no scheme of recall (although perhaps there should be) and indeed Mount Carmel was the only hospital in Dublin at the time which sent out letters to the GP and obstetrician of the findings of the paediatrician. Mr Justice Kinlen said that he had already found, that the second defendant would probably have come to the same conclusions as those reached by other medical people for the six week and ten month examinations. Neurological deficits are certainly something which would and should be noted at such clinics. He said that the delay in receiving occupational therapy produced a clash of conflicting expert evidence. However, was the second defendant to be blamed because the deficit was not noted until spotted by a teacher when the plaintiff was about four and a half years old?. The answer must be no. Everyone agreed that no amount of occupational therapy executed at any stage could have had any effect on improving the underlying physical disability which there was. The case now became one that the injury suffered by the plaintiff was a psychological one. That if she had been offered the treatment at the age of one or two she would not have shown resistance to treatment which she manifested for her first treatment when she was six. Dr Hensey who is the head of the Central Remedial Clinic said that it was very unusual to find resistance in a child of six but much more usual in a child of two or three and also children in their teens. The occupational therapy was done in isolation without counselling. The child was not referred back to Professor O'Donoghue. The Court had the deepest sympathy for the plaintiff's parents who had suffered a very great deal and obviously anguished in the course of this long and difficult trial. However, Mr Justice Kinlen said that he could not find any grounds which would justify the award of any damages.
Mr Justice Kinlen therefore dismissed the plaintiff's claim.
Solicitors: Harold Waterman & Co. (Dublin for the plaintiff); Hayes & Sons (Dublin) for the defendants.
