Court of Appeal: €100k negligence claim against Tallaght Hospital upheld

About this case:

• Judgment:
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Background

In November 2007, Mr Leo Green was diagnosed with diverticular disease, and a CT scan confirmed that he had a colovesical fistula. It was recommended that Mr Green should have a laparotomy, which was undertaken at Tallaght Hospital in December 2007 by a “widely respected expert surgeon”.

During the surgery, Mr Green’s small bowel accidentally suffered a full tear, which allowed faecal matter to enter the abdominal cavity. Within a few days, Mr Green was “very unwell” and had an infection. The surgeon believed that the injury to the small bowel was a serosal tear and not a full tear, and he closed this defect with 3/0 suture material.

High Court

In the High Court in January 2017, Justice Cross accepted that prior to the completion of the surgery, the surgeon had palpated the small bowel to ensure there was no escape of gas indicating a full tear. Whether the surgeon had palpated properly was contested by Mr Green’s expert, however Justice Cross said that he could not conclude that the failure by the Surgeon to detect the full tear by his palpation of the small bowel amounted to negligence.

Justice Cross said that the failure to carry out a CT scan or other imaging of Mr Green’s small bowel given the level of infection was negligent. This failure to appropriately investigate the cause of the infection caused continuing leakage of faecal material in to the abdominal cavity and led to wound sepsis, peritonitis and a ventral hernia. Furthermore, Justice Cross said that if a scan had been performed, Mr Green would not have had to undergo a further two operations.

Since Mr Green had issued his personal injury summons in August 2012, there was some dispute as to whether he was statute barred pursuant to the two year limitation provided by s. 3 of the Statute of Limitations (Amendment) Act 1991, as amended by s. 7 of the Civil Liability and Courts Act 2004. Applying the “date of knowledge’ test pursuant to Section 2 of the Statute of Limitations (Amendment) Act 1991 Justice Cross concluded that Mr Green’s claim was not barred as the proceeding were commenced within two years from the date when he first had the requisite knowledge for the purposes of s. 2.

Justice Cross was satisfied that Mr Green had been an “honest and truthful witness who though extremely angry at what occurred to him did in no way exaggerate his symptoms or deviate from the truth as he saw it”, and awarded Mr Green a total of €96,403 in general and special damages.

Court of Appeal

In the Court of Appeal, Eilish Hardiman (former CEO of Tallaght Hospital) sought to appeal the determination on the statute issue. Delivering the judgment of the Court of Appeal, Mr Justice Michael Peart said that the question for the Court was when Mr Green first had knowledge of the act or omission alleged to constitute negligence.

Mr Green’s case was that he acquired sufficient knowledge to be able to attribute his injuries to the negligence of the defendant only when his solicitor received an expert report in May 2012, as this was the first time that he was aware of the omission to perform a scan to establish the cause of his infection.

Justice Peart agreed with the trial judge, who rejected the submission that time should be deemed to have run from his knowledge that he had a significant injury or at the latest from the date on which he first contacted his solicitor. Justice Peart agreed that the significant injury complained of (i.e. a hernia) had been caused by the second surgery performed on Mr Green, which was as a result of the omission identified as negligent in the May 2012 report.

Justice Peart said that the trial judge was entitled on the evidence to conclude that Mr Green did not and could not have known that such a scan had not been performed after his first surgery.

Distinguishing the present case from Farrell v Ryan IECA 281, Justice Peart said that Mr Green’s case was “very different” as he did not know the essential fact which grounded his allegation of negligence until his solicitor had received his hospital records in March 2011, and an expert report was received in May 2012.

For the foregoing reasons, the appeal was dismissed.

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