High Court: Woman who had swab left in situ after giving birth is awarded €40,000

About this case:

• Judgment:
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Finding that the woman did not have a depressive disorder as a result of the sequence of events, Mr Justice Barr accepted evidence on behalf of the Health Service Executive that her “emotional reaction of distress was within normal limits”.

Background

The plaintiff gave birth to her second child on 30th August 2013, which was a difficult birth and required an episitomy for ventuse delivery. The plaintiff required stiches and a vaginal pack to stem the bleeding, which were removed the following day – however a swab was accidentally left.

Over the following days, the woman developed lower back pain, stinging in the vaginal area, and there was a foul smell. By 5th September she was not able to move, could not lift her baby, and upon attending her GP was told that she had an infection for which she was referred back to hospital. The hospital examination confirmed the presence of E. coli, and she was placed on intravenous antibiotics. It was not until 8th September that an internal examination was carried out – at which point the swab, which had been left in situ since 30th August, was retrieved.

While the plaintiff’s symptoms eased soon after, her son was exhibiting “worrying signs in relation to his general colour and breathing patterns”, and was diagnosed with having a hole in his heart.

The plaintiff stated that “she tended to blame herself” for being unwell and unable “to spot the signs of his distress, earlier than had been done”, and “for not having been in a position to properly care for her baby immediately after his birth”. These feelings of guilt and self-blame caused her to have depressive days.

High Court

In the High Court, the plaintiff claimed that as a result of the sequence of events, she suffered physical and psychiatric injuries.

Justice Barr said that he entirely accepted the plaintiff’s evidence which was straightforward and not exaggerated. This was supported by the Consultant Psychiatrist who gave evidence on behalf of the Health Service Executive, who said that the plaintiff was “not a malingerer”.

Noting comments in Dardis v. Poplovka IEHC 249 and Fogarty v. Cox IECA 309, Justice Barr levelled criticism of the fact that the plaintiff was sent to see another Consultant Psychiatrist by her solicitor – saying that it was not “good practice for solicitors to take it upon themselves to decide that their client needs evaluation by a particular medical specialist”. Justice Barr said these were medical questions which should be decided upon by medical specialists.

Justice Barr said that the only real issue was whether the plaintiff suffered a depressive disorder as a result of the events. Justice Barr said that he preferred the evidence of the Consultant called on behalf of the HSE, that “the plaintiff suffered an emotional reaction due to the distressing circumstances” which “were superimposed upon the very difficult circumstances surrounding the health of her son, but that that emotional reaction of distress was within normal limits, rather than tipping over into a full blown mood disorder or psychiatric illness”.

Justice Barr said that this was supported by the fact that if the plaintiff’s own GP had thought she was suffering from depression, she would have said so in her report. The diagnosis of psychiatric injury from the Consultant called on behalf of the plaintiff was disadvantaged by the fact that it was “based entirely on the history which had been recounted to her by the plaintiff”.

Awarding the plaintiff €40,000 in general damages, Justice Barr said that he was assisted by the guidelines in Nolan v. Wirenski IECA 56 and Shannon v. O’Sullivan IECA, and also had regard to the dicta in Fogarty v. Cox IECA 309.

Together with agreed special damages of €160, the plaintiff was awarded a total of €40,160.