High Court: Man awarded €700k for negligent operation performed nearly 20 years ago

About this case:

• Judgment:
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In the High Court, Mr Justice Cross accepted evidence from the man’s experts who suggested that the large tear should have been noticed in the immediate aftermath, and damage could have been considerably mitigated against at this time.

Background

Up to the incident complained of, Mr Thomas Hill, 58, worked all his life after leaving school at 18 and provided for his family. Generally, his health was good, and he had a previous kidney stone which passed naturally in 1989. In September 1998 however, Mr Hill began to experience pain in his lower left back, stomach and indeed groin.

On 29th September 1998, Mr Hill’s GP referred him to the Emergency Department of the HSE’s hospital in Portlaoise where tests revealed a “high grade obstruction to his left ureter secondary to a stone at the left PUJ”.

Mr Hill was initially managed conservatively in the hopes that the stone would pass but on 5th October 1998, x-rays revealed that the stone was trapped and he came under the care of a consultant surgeon with a special interest in urology.

The surgeon performed an operation to extract the stone which was removed intact with what is known as a “dormia basket”.

Justice Cross accepted that although it was not evidenced in the notes, after this operation the surgeon said that he re-entered Mr Hill’s ureter with his ureteroscope in order to check that there was not a second stone, that the stone had not fragmented, and that no damage had been caused in the original procedure.

On 6th October 1998, Mr Hill was discharged home on oral analgesia but was readmitted the following day as an emergency with symptoms consistent with infection. At this time, a renal ultrasound revealed a perforation of his distal left ureter post stone extraction.

After several months of treatment involving the insertion and removal of stents; in February 1999, a “Boari flap” procedure was performed in Adelaide and Meath Hospital (Tallaght), bypassing the non-functioning ureter.

Negligence

It was claimed that the HSE in their care of Mr Hill in Portlaoise were negligent in:

Mr Hill contended that had the tear been discovered either on the original procedure or in the checking on the day of the operation, or even had it been discovered when he re-presented on 8th October in pain, or in the next few days after 8th October; that the problem could have been dealt with by a simple application of a stent which would have allowed the ureter to heal naturally and Mr Hill would not have had to have the procedure in Tallaght of the Boari flap inserted and that this operation which involves operating close to a nerve caused damage to this nerve.

As a result, Mr Hill was in fairly constant pain in his side and testicles and as a result of this had not been able to work, has been in a psychologically low mood and that his life has been significantly ruptured.

It was conceded on behalf of Mr Hill that the last number of years, Mr Hill has also developed coincidental back pain radiating down his leg which has required treatment.

The HSE denied each of the allegations of negligence.

The High Court

Considering each of Mr Hill’s claims in turn, Justice Cross rejected arguments 1, 2 and 4 – regarding consent, the original operation, and the care after being readmitted on 8th October respectively.

In relation to the follow-up procedure, given the fact that “the ureter was significantly holed” Jusitce Cross accepted Mr Hill’s experts’ suggestion that this would have been “readily visible” and that the failure of the surgeon to notice the damage was below the standard of care so as to be a breach of duty to Mr Hill, and negligent within the terms of Dunne v. National Maternity Hospital.

Regarding the injuries claimed, Justice Cross accepted that Mr Hill was “a pleasant and honest witness who did not in any way exaggerate his injuries”, but that some of his symptoms were related to a coincidental back problem caused by age relation degeneration which manifested itself at least ten years ago.

While it was accepted that Mr Hill’s unrelated back problems would have contributed to his inability to work, Justice Cross was satisfied that Mr Hill would still be unable to work had there been no back problems.

Further, Justice Cross accepted that into the future Mr Hill, as a result of the indexed event, would be significantly disabled.

Awarding damages totalling €701,288.66; Justice Cross stated that the parties had agreed special damages at €8,500, and allowing Reddy v Bates reductions calculated loss of earnings to date as €312,788.66, loss of earnings into the future as €130,000, and general damages as €250,000.