THE SUPREME COURT
No. 239/98
Denham J.
Keane J.
Lynch J. 

BETWEEN
EILEEN COOKE
PLAINTIFF/APPELLANT
AND

BASIL CRONIN AND MICHAEL NEARY
DEFENDANTS/RESPONDENTS

[Judgments delivered by all 3 judges]

Judgment of The Hon. Mrs. Justice Denham delivered the 14th day of July, 1999.

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I am in complete agreement with the judgment of Lynch J. on this appeal. I wish to add a few observations.

The appeal in this case was dismissed on 23rd June, 1999 after oral submissions had been made. In view of certain matters which concerned the Court it was decided that a written judgment would be given at a later stage.

Communication

The professions provide a service to the public and appropriate information should be given and made available at all times. This may cast a heavier onus on a professional in certain situations as the person receiving the professional care may be in a vulnerable, situation and may be unable, because of illness, trauma or stress, to absorb information offered. It is often necessary to repeat and explain information more than once.

There is no suggestion that the Appellant was other than a truthful witness. It is accepted that she suffered symptoms. The Learned Trial Judge held at page 12:

“Ms. Cooke has clearly suffered for some years from painful and stressful symptoms. It is clear that she is quite satisfied, on her own account, that these very painful and unpleasant symptoms were caused by this particular incident.”

Many of the symptoms of which the Appellant complained when the Statement of Claim was delivered in 1994 were not proceeded with in the High Court. The sole issue in the High Court and on this appeal was the suturing of four of the stitches in the episiotomy. Whilst this is an important matter it is less important than some of the matters set out in the Statement of Claim and which were not proceeded with.

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It is unfortunate that the Appellant was not in a position to take appropriate medical action previously. The Learned Trial Judge stated at page 14:

“I cannot explain Ms. Cooke’s symptoms and I hope that she recovers from them. I think that she -- it is not for me to give advice, but she might be better advised to seek remedy with a medical authority and it might have been helpful if she had pursued that option from the outset.”

Communication between hospitals and patients aid and protect the public. Such communication should be maintained and information should be given and available to patients and not excluded for unreasonable reasons founded on commercial considerations. There are a wide variety of reasons why professionals, hospitals or insurance companies may be reluctant to provide information. However, it is in the public interest that information be provided to patients and not impeded.

Legal Professional duty

Counsel for the Respondents submitted that this case was run on a wing and a prayer. He informed this Court that he had brought to the attention of the Learned High Court Judge the statement of Barr J. in Reidy v. The National Maternity Hospital, unreported judgment delivered on 31st July, 1997, where he stated at page 15:

“It is irresponsible and an abuse of the process of the court to launch a professional negligence action against institutions such as hospitals and professional personnel without first ascertaining that there are reasonable grounds for so doing. Initiation and prosecution of an action

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in negligence on behalf of the plaintiff against the hospital necessarily required appropriate expert advice to support it.”

He pointed out that this had been endorsed by Kelly J. in Connolly v. James A. Casey and Laura Murphy (Trading under the style and title of Casey and Murphy) and Michael Fitzgibbon, unreported, High Court, Kelly J., 12th June, 1998. That was an action where the Defendants, who were solicitors, were sued for damages for professional negligence. Kelly J. stated at page 19:

“I have no difficulty in endorsing the views of Barr J. that the commencement of proceedings alleging professional negligence is irresponsible and an abuse of the process of the Court unless the persons advising such proceedings have reasonable grounds for so doing.”

While bearing in mind the important right of access to the Courts I am satisfied that these statements of law are correct. To issue proceedings alleging professional negligence puts an individual in a situation where for professional or practice reasons to have the case proceed in open Court may be perceived and feared by that professional as being detrimental to his professional reputation and practice. This fear should not be utilized by unprofessional conduct.

Party

The claim against the second named Defendant in the case was dismissed by the Leamed High Court Judge during the hearing of the action. He stated in his judgment at page 5:

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“Dr. Neary first encountered Ms. Cooke some five days after the birth after he was consulted by Dr. Morris about the fact that one suture had come loose. In the light of that, it is clear, and acknowledged on behalf of Ms. Cooke, that the claim against Dr. Neary should be dismissed, and I have already dismissed that claim without objection, and quite rightly so.”

Yet, the second named Defendant’s name remained in the appeal and on the appeal papers. It was in oral submissions in Reply that Counsel for the Appellant said that it was through inadvertence that Dr. Neary’s name was still on the heading of the appeal and he apologised to Dr. Neary. This approach to legal proceedings, which challenge the professional competence upon which a defendant’s reputation and career is based, is, to say the least, inappropriate.

Medical Evidence

Lynch J. in his judgment sets out the circumstances in this case where shortly before the case commenced the Appellant’s solicitor introduced the Appellant to his personal medical advisor. This doctor, a General Practitioner, then agreed to become the medical witness for the Appellant in this case.

There may be difficulties in obtaining professional evidence; for example, a siege mentality may be encountered, which is inappropriate professional behaviour. The need for evidence should be met by appropriate professionals who are willing to give evidence of standards of care, whether the witness be from this jurisdiction or elsewhere.

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Practice and Procedure

The event giving rise to the action occurred in 1990. Legal proceedings were commenced in 1993, the Statement of Claim was delivered on 4th May, 1994, the defence for the first named Defendant was delivered on 9th September, 1994 and for the second named Defendant on 19th July, 1994. The Notice of Trial was dated 23rd September, 1994. The trial was held in the High Court on 8th and 9th July, 1998 and judgment given on 10th July, 1998. A Notice of Appeal was dated 6th August, 1998 and a Notice to Dismiss for Want of Prosecution was filed dated 16th November, 1998. Whatever the reasons for the delay in this case it has served no one; not the Appellant and certainly not the Respondents. Whilst professional negligence cases are often complex, modern case management procedures would help to eliminate delays, identify issues, confirm parties and promote justice. Similar problems have evoked responses in other jurisdictions. In England and Wales Lord Woolf, Master of the Rolls, advised the Lord Chancellor on practices and procedures in relation to medical negligence cases and made twelve specific recommendations. (“Access to Justice, Final Report” by The Right Honourable The Lord Woolf, Master of the Rolls, London, 1996, Chapter 15 at pp. 195-196)

There has been a move in this jurisdiction towards developing modern practices as to reports of expert witnesses. However, this case illustrates the need to consider developing a modern case management process for professional negligence cases.

THE SUPREME COURT
Denham; J.
Keane, J.
Lynch, J.

BETWEEN
EILEEN COOKE
Plaintiff/Appellant
AND

BASIL CRONIN & MICHAEL NEARY
Defendants/Respondents
JUDGMENT delivered the 14th day of July, 1999 by Keane, J.

I agree that this appeal should be dismissed for the reasons set out in the judgment of Lynch J.

I also agree with the observations of Denham J. and Lynch J. as to the serious responsibility which rests on both branches of the legal profession in the institution and conduct of proceedings for negligence against professional persons. It is most regrettable that those standards were not met in the present case.

THE SUPREME COURT
DENHAM J 
KEANE J
LYNCH J‘

BETWEEN:
EILEEN COOKE
APPELLANT/PLAINTIFF
AND

BASIL CRONIN AND MICHAEL NEARY
RESPONDENTS/DEFENDANTS

JUDGMENT DELIVERED THE 14th DAY OF JULY 1999 BY LYNCH J

This is an appeal by the Plaintiff against an Order of the High Court (Quirke J) made on the 10th July 1998 dismissing her claim for damages for personal injuries allegedly due to the professional negligence of medical practitioners in Our Lady of Lourdes Hospital Drogheda, County Louth who are sued through their nominee, the first Defendant.

The Plaintiff was born on the 9th September 1967. She was admitted to the hospital on the 12th February 1990 then aged approximately twenty-two and a half years in the expectation of the imminent birth of her first child. A healthy child was born to the Plaintiff on the 13th February 1990 during the course of which an episiotomy cut was required. Following the birth, the episiotomy cut needed as usual to be stitched. Eight catgut soluble stitches were inserted in the internal muscular parts of the vagina and four nylon non-soluble.n stitches were inserted in the outer skin. One of the nylon stitches fell out on the fifth day after the

birth: two fell out on the sixth day after the birth and the fourth was removed on the seventh day when the nylon stitches were scheduled to be removed in any event. It is in relation to the fact that three of the four nylon stitches fell out as aforesaid that the Plaintiff alleged negligence against the medical practitioners in the hospital. She had also complained in her Statement of Claim of difficulties in inducing labour: of difficulties in inserting a drip after labour was induced: and of difficulties in administering an effective local anaesthetic for the purpose of stitching the episiotomy cut but none of those complaints was pursued at the trial in the High Court. The sole issue in the High Court and on this appeal was an allegation that the four nylon stitches had been sewn too tightly and as a result fell out leaving the outer aspect of the episiotomy cut to heal by secondary intention and thus allegedly causing a tenderness, discomfort and a lack of elasticity in the vagina.

For the defence it was accepted that if the nylon stitches had been sewn too tightly and as a result thereof had fallen out and had caused to the Plaintiff the tenderness, discomfort and disability complained of, that would amount to actionable negligence. It was however vehemently denied that the stitches had been sewn in too tightly and further denied that the Plaintiff suffered the alleged tenderness, discomfort or lack of elasticity in the vagina.

The Plaintiff’s case was sought to be established by calling as witnesses only the Plaintiff herself and a general medical practitioner namely Dr Dermot Halpin. Dr Halpin was the Plaintiff’s solicitor’s own personal general practitioner. He was not the Plaintiffs general practitioner. He saw the Plaintiff for the first and only time on the 15th June 1998 and reported on the 16th June 1998 the case being then scheduled to commence on the 17th June 1998. It was explained on behalf of the Plaintiff that her usual general medical practitioner was unavailable because he was on holidays and hence the referral to Dr Halpin. However
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the case did not go on the 17th June. It was adjourned for three weeks to the 8th July and it went on on that day and the following day and judgment was reserved overnight and delivered on the 10th July 1998. Presumably by the 8th July the Plaintiff’s own general medical practitioner was available, but if he was, he was not called as a witness.

The Plaintiff said that she was told by Dr Neary that the stitches fell out because they must have been sewn in too tightly. Dr Halpin said that the only reason why the stitches would have fallen out in the case of the Plaintiff was because they were sewn in too tightly in the first place.

Dr Pauline Morris who had done the stitching gave evidence on the 9th July 1998 as follows:

 “170	Q	Would you use any instruments when you are suturing?

A	Yes you would. You would have the needle and the material and you would have the forceps to hold those. You would stitch the two pieces of muscle or vaginal wall together with the suture and you would tie the knot. After completing that you would hold up the knot and with closed scissors you insert them between the skin and the knot to ensure that there was adequate space.

171	Q	When you finish you hold up the knot to slide the scissors under?

A	The closed scissors underneath.

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172	Q Closed scissors? A Yes.

173 Q Whydoyoudothat?

A	To ensure that the stitches are not pulling too tightly.”

And again at questions 199 to 204:

“199 Q	In your experience from putting in sutures and in your time in the hospital was it unusual for sutures to fall out?

A	They do fall out on occasions yes.
	200 Q	So it is not an unusual occurrence?

A	It is not an unusual occurrence no.

201 Q	You heard the evidence I think of the plaintiff that she alleged that Dr Neary had told her that the sutures were put in too tightly?

A	Yes.

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202 Q	From your experience in the hospital and dealing with Dr Neary if that had happened would you have heard anything from Dr Neary?

A Of course. Yes. He would have said it back to me.

203	Q	What would he have done?

A	He would have indicated that the stitches were incorrectly put in and would have shown me and instructed me how to do them correctly if that was the case.

204 Q Would he have in a sense had you back for retraining?

A He would yes.”

Dr Neary gave evidence of being asked to examine the Plaintiff after the first stitch had fallen out and of doing so and he continued as follows:

“335 Q You had to examine Ms Cooke, obviously, on this occasion?

A	Idid, yes.

336 Q	Would you have had an opportunity of observing the three stitches which were still in position?

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A	Oh I did. They appeared perfectly normal.

337	Q	If there had been anything abnormal about them such as they were too tight or were biting into the skin or something of that sort would you have recorded it?

A	I would yes.

338	Q	Would you have done anything about it?

A	I would have removed them.

339	Q	That is what this case is about, the suggestion being that these stitches had been put in too tightly. As far as your records go, did you see anything of that sort?

A	I saw no evidence of that at all   

370	Q	Had you at any stage mentioned anything to Ms Cooke about the stitches having been put in too tightly?
A	No.

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371	Q	Had you found anything to suggest that they had been put in too tightly?

A	No.

441	Q	Is there any particular reason why that particular stitch would be the first to give?

A	Not really. Any of the. sutures can fall out at any time and indeed do. We do not have a particular reason for it. It is not something that we particularly worry about.

442	Q	When that stitch had fallen out you had no reason to suspect that the other stitches were suspect or liable to –

A	No. The other stitches looked to be perfectly well inserted and looked entirely normal.

443	Q	Can you give an explanation to the Court how those stitches fell out within the next eighteen hours of you inspecting the wound, how they would have fallen out and why they had fallen out?

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A	I have no idea. Absolutely not. Stitches sometimes fall out. Five/Six days after delivery it is not something we particularly worry about, because the majority of healing has taken place at that time. We would have taken the sutures out on the following day anyway.

449	Q	Would you agree or disagree with that?

A	We never really know why sutures sometimes fall out. Even if I put in sutures, they can fall out and they wouldn’t be too tight or too loose. It is just that individual bodies vary and stitches just can fall out.”

Finally Dr Dermot MacDonald who was called on behalf of the Defendants as an independent medical expert gave evidence at page 121 and 122 of the transcript of the 9th July 1998 as follows:

“A	That would negative all the research that is going on currently into healing, not just healing of scalp wounds and hand wounds, but healing of episiotomies as well. Because I would go the other way and say maybe we do not know why they break down or separation or why they don’t heal. I would say at present we don’t know why thirty per cent of that happens. We know some of it is related to haematoma formation, bleeding. We know some of it is due to

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qualities in the tissues that impede the healing process. We know some of it is due to infection. We know some of it is due to bowel stool distension and pressure. But there is an enormous amount of work going on to find why all the others don’t heal. Is it a particular suturing matter, is it techniques, is it tissue problems? There is a lot of work going on.

Mr Justice Quirke Why do sutures actually come out as it were?

A	Fall out?

Mr Justice Quirke Yes.

A	That is the same thing. There is a lot of work going on as to why that happens. We do not know is the honest answer.

Mr Justice Quirke
Are you saying that, in fact, it is not that uncommon for stitches to come out in the absence of any plausible explanation?

A	Yes I would say it is.

Mr Justice Quirke
Because Dr Halpin seems to think it should not happen at all unless  

A	Oh no it can happen quite frequently. Certainly in my experience in the National Maternity it is not something that would be brought to my notice. It would be dealt with by somebody else, probably. It is no big

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deal, it is a common event and you would wonder why. There is work going on.”

I now turn to the judgment of the leamed trial Judge which is recorded in the transcript of the 10th July 1998 and I quote from page 9 and pages 11,12, 13 and 14:

“There are conflicts of evidence in the case and the following matters were in issue. Dr Ha/pin stated in evidence that sutures in circumstances like this may fall out for five separate and distinct reasons. Four of those reasons are unrelated to the circumstances which have given rise tQ this claim and the remaining reason, it is relevant, given by Dr Ha/pin for sutures falling out, is that they are inserted either too tightly or too loosely. Dr Halpin gave the view that in this instance having regard to the history recounted to him and to the plaintiff’s complaints and condition he felt that they had been inserted too tightly at the time when they were administered by Dr Morris.

Dr Neary, and in particular Dr MacDonald, agreed that five reasons advanced by Dr Ha/pin as potential causes for sutures falling out and thus added that there was a sixth reason. Dr MacDonald in particular was adamant that sutures can fall out for reasons which are totally unexplained. He says that this is not uncommon and can relate to the character of individual anatomy.

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The onus is on the Plaintif to prove on the balance ofprobabilities that she or he has sustained damage or loss as a result of negligence. In this case, the onus rests with Ms Cooke to prove that on the balance of probabilities the Hospital Authorities through the agency of Dr Morris were negligent in the manner which the sutures were inserted on the 14th February 1990 that they were inserted in a negligent fashion because they were inserted too tightly.

It was claimed firstly that the only plausible explanation to why they fell out was that they were inserted too tightly: and secondly that Ms Cooke ‘s present condition and her symptoms are inconsistent with the proper administration of the sutures and with careful and diligent treatment. The Hospital Authorities say that it is not uncommon for sutures to fall out: and ~they do so that it is not necessarily consistent with negligence. They also say that Dr Morris was carefully trained, very competent and more than sufficiently experienced in what she was doing. They say the Plaintif’s condition and her symptoms are consistent with the proper administration of these sutures and the careful and diligent treatment.

Ms Cooke has clearly suffered for some years from painful and stressful symptoms. It is clear that she is quite satisfied, on her own account, that these very painful and unpleasant symptoms were caused by this particular incident. It is not unusual regrettably, it is not unheard of certainly for patients to receive less than polite treatment in hospitals. There is no evidence of that in this case, but sometimes that can occur and it can give rise to a sense of grievance, which lam sure Ms Cooke feels aggrieved in this case, and I can understand that that would be the case.

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It is also clear that when the Statement of Claim was delivered on her beha lf in May 1994 she clearly attributed her symptoms to the inappropriate suturing of her episiotomy wound. The symptoms of which she complained then at that time were that the wound was unsightly and cosmetically unacceptable, that there was dificulty and pain with sexual intercourse and she complained of bladder and urinary d~fflculties and menstrual problems arising out of the suturing. It has now been accepted by Ms Cooke that what I would have thought were perhaps the more serious aspects the urinary dificulties and the menstrual difficulties that they are entirely unrelated to the suturing. It is clear also that Ms Cooke felt when the Statement of Claim was delivered that they were caused by that, that those matters are unrelated and accepted to be completely unrelated to the suturing in this instance. I do not think that any serious case has been advanced as to the cosmetic aspect of the scar.

There is a clear conflict between the testimony of Dr Halpin and the testimony adduced by Dr MacDonald and by Dr Neary. Dr MacDonald is a consultant gynaecologist with some 35 years standing. He has had the opportunity to examine Ms Cooke both in 1995 and 1997. Dr Halpin only saw Ms Cooke on one occasion and that was in less than desirable circumstances it seems to me. I accept the evidence of Dr MacDonald to intent that sutures may and do on occasion fall out for reasons which are unexplained and that it is not uncommon for that to occur and it can be explained by anatomy in individual cases. I also accept the evidence of Dr MacDonald that when he examined Ms Cooke in 1995 and 1997 that there was no evidence of the raised scar and that the area was as he found it. I cannot explain Ms

Cooke ‘s symptoms and I hope that she recovers from them. I think that she - it is not

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for me to give advice but she might be better advised to seek remedy with a medical authority and it might have been helpful Wshe had pursued that option from the outset. In any event in the circumstances of the case Ifind that the onus ofproof has not been discharged in this and that it must be dismissed.”

The foregoing findings of the learned trial Judge are manifestly supported by the evidence in this case including the few brief extracts from the transcripts which I have quoted. Indeed if the learned trial Judge had found against the Defendants, the circumstances of this case and its manner of presentation, including quite unnecessarily interposing Dr Halpin before the Plaintiff had given any really relevant evidence, are such that I have no doubt that his decision would be reversed if appealed by the.Defendants to this Court in that event.

I regard this appeal as unstateable and I would emphatically dismiss it. In doing so I endorse Counsel for the Defendants criticisms of the manner in which medical evidence for the Plaintiff was procured in this case.

Whatever about suing the hospital there never was any conceivable basis for suing the second Defendant personally. He had nothing to do with the Plaintiffs ante-natal care, nor with her confinement or delivery or episiotomy, nor with the stitching. The first time he saw the Plaintiff was five days after the birth when he was asked by Dr Pauline Morris to examine the Plaintiff after the first stitch had fallen out. He was dismissed from the case by consent at the latter stages of the High Court trial and nevertheless the Notice of Appeal was directed to both Defendants. The joinder of the second Defendant as a personal defendant was at all times wholly unwarranted and his apparent inclusion as a Respondent to the appeal was

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deplorable and is in no way excused or even explained by the apology that his inclusion as a Respondent to the appeal was due to an oversight in drafting the Notice of Appeal.

In all cases of alleged negligence on the part of a qualified professional person in carrying out his professional duties there should be some credible evidence to support the plaintiffs case before such an action is commenced.

As I have said I would dismiss this appeal.

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