Bridget Byrne (plaintiff) v John Ryan (defendant); Daniel Byrne (plaintiff) v John Ryan (defendant)
Medical negligence - Damages - Claim for physical consequences of failed sterilization - Vicarious liability - Contract between consultant and hospital - Degree of control - Whether public hospital vicariously liable for negligence of consultant doctor - Issue of consent - Whether entitlement to damages in respect of cost of rearing children born subsequent to failed sterilisation - Whether law should be extended so as to allow recovery of such damages - Whether court entitled to decide recoverability of damages as a matter of principle or legal policy.
The High Court (Mr Justice Kelly); judgment delivered on June 20th, 2007
Whilst the issue of whether a person is liable in law for the wrongdoing of another is determined by reference to the element of control that is exercised regardless of the nature of the contract which governs those persons, that control test is not of universal application and hospital cases are to a considerable extent sui generic. A hospital authority is vicariously liable for a consultant that is employed and paid, not by a patient, but by the hospital. In the instant case, the plaintiff was referred not to a particular surgeon but to the hospital. The performance of the operation was part of a service provided by the hospital to the plaintiff.
The court is entitled to decide on the recoverability of damages as a matter of legal principle or legal policy. The law in this jurisdiction should not be extended to allow the recovery of damages for the cost of upbringing two healthy children. It would not be fair or reasonable that damages payable by a negligent doctor should extend to the cost of rearing an unintended healthy child. The value which the Constitution placed upon the family, the dignity and protection it afforded to human life was better served by a decision to deny rather than allow damages of the type claimed.
The High Court so held in awarding damages for negligence but dismissing the claim for damages for upbringing children and dismissing the second plaintiff's claim.
John Finlay, SC, Harry Whelehan, SC, and Agnes Ann Romeril, BL, (for the plaintiff); Patrick Hanratty, SC, and Adrienne Egan, BL, (for the defendant).
Mr Justice Kelly commenced by stating that his judgment in Daniel Byrne v John Ryan [2003 No. 14595P] must be read in conjunction with his judgment delivered in this case, Bridget Byrne v John Ryan. The plaintiff in Daniel Byrne v John Ryan was the estranged husband of Bridget Byrne who also sought to claim to recover the costs of rearing two children born subsequent to a failed sterilisation which had been carried out on his wife. In Bridget Byrne's case Mr Justice Kelly awarded damages for medical negligence but declined to award damages for the cost of rearing the two children. For the reasons stated in his judgment in Bridget Byrne's case, Mr Justice Kelly held that there was no entitlement on the part of Daniel Byrne to recover such damages either.
Mr Justice Kelly then commenced his judgment in the case of Bridget Byrne v. John Ryan. The claim was for damages for negligence arising out of a failed sterilisation of the plaintiff. That sterilisation was sought to be achieved by a tubal ligation which was carried out in the Coombe Hospital on December 16th, 1999. Subsequent to it, the plaintiff bore two children. The claim was brought against the defendant who was a nominee of that hospital. The plaintiff sought damages under two headings. The first was for the physical consequences of the failure of the operation. The second was for the recoupment of the cost of rearing the two children until such time as they ceased to be dependant on their parents. Mr Justice Kelly stated that apart from the usual difficult questions which a court had to deal with in any medical malpractice suit, this case had raised two others, neither of which had been the subject of judicial determination in this jurisdiction. The first was the vicarious liability, if any, of a public hospital for the negligence of a consultant doctor on its staff in treating a public patient. The second was the entitlement to recover damages for the cost of rearing a healthy child born subsequent to a failed sterilisation.
The first issue for the court to determine was whether the operation was a failure and whether the failure was as a result of negligence. The plaintiff was referred to Dr Murray who was a consultant at the Coombe until his retirement in 2001. He had extensive experience of performing tubal ligations. The plaintiff's operation was carried out on December 16th, 1999. Dr Murray discovered that there were multiple adhesions from the anterior abdominal wall present. He said there was a little difficulty because of the adhesions but he was satisfied that he had clipped the tubes. It was quite clear that Dr Murray believed that he had carried out an effective tubal ligation. Mr Justice Kelly stated that unfortunately Dr Murray was wrong in that belief. It was common case that a second tubal ligation was carried out on the plaintiff in December, 2002, by Dr Boylan who made a video recording of the procedure. The video was seen by Dr Murray and he accepted that, rather than clipping one of the plaintiff's fallopian tubes, he in fact attached the clip to tissue just beside it. Mr Justice Kelly considered next whether this constituted negligence. Evidence was heard from Dr Boylan and Dr McKenna for the plaintiff. There were three reasons why a woman could have a baby after tubal ligation. The first was that she was pregnant at the time of the procedure, the second was that the clip was not put in the right place, the third was that the clip was put in the right place but through the passage of time it eroded. Dr McKenna told the court that " . . . if the woman is pregnant at the time of the surgery, that is her look out. If you put the clip on the right place and it wears through, nobody was to blame. But if you put the clip on the wrong place and there were no extenuating circumstances, the operator has got to face the music for that."
Mr Justice Kelly stated that the appropriate legal test by which Dr Murray's conduct of the tubal ligation procedure had to be judged was that prescribed by the Supreme Court in Dunne v. National Maternity Hospital I.R. 91. Mr Justice Kelly concluded that the failure on the part of Dr Murray was one which no medical practitioner of equal specialist status and skill would have been guilty of if acting with ordinary care. The presence of adhesions did not in the court's view constitute an extenuating circumstance such as would excuse what occurred. There was a breach of duty of care owed to the plaintiff. The defendant contended that the plaintiff consented to the risk of failure of the operation and this relieved Dr Murray of any liability. Mr Justice Kelly did not accept such a proposition. The consent document was a consent to the operation being carried out and the administration of an anesthetic. It was not a consent to the carrying out of a failure; still less was it a consent to the carrying out of the operation in a negligent fashion. It merely recorded that there was a possibility of failure. In Mr Justice Kelly's view, the consent executed by the plaintiff could not be regarded as one which exonerated Dr Murray in respect of his failure to effectively clip both fallopian tubes.
Mr Justice Kelly turned next to events after the sterilisation operation of December, 1999. A question arose as to whether the plaintiff was pregnant before the operation or became pregnant after it. The plaintiff came under the care of Dr D'Arcy who came to the conclusion that it was more than likely that the plaintiff had conceived after her sterilisation. In Mr Justice Kelly's view, Dr D'Arcy was correct in his conclusion that the sterilisation had failed.
The question then arose as to whether the plaintiff was informed of this. She had no recollection of being told and she ought to have been so informed as the plaintiff had been under the mistaken impression that she was pregnant at the time of the sterilisation. If the plaintiff had been so informed it was likely that she would have behaved in a manner other than she did following the birth of her sixth child. Dr Boylan was clear that if an appropriate conversation had taken place with the plaintiff on this topic it would have been in her chart. His view in that regard was shared by Dr Murray himself who said that he would expect a doctor to generally write in the chart that a patient had been informed of a failed ligation and given advice. The evidence of Dr D'Arcy was that he came to the clear conclusion that the tubal ligation had failed, but there was no unequivocal note to that effect on the chart. The plaintiff's sixth child was born on September 11th, 2000. At the time of her discharge from hospital she was seen by Dr Lynch. Dr Lynch recorded that the plaintiff had become pregnant post tubal ligation. She required the plaintiff to come back to hospital to discuss this. However, it was clear that Dr Lynch did not make any comment on whether the plaintiff's tubal ligation was successful. The plaintiff was discharged and no contraceptive was prescribed. Mr Justice Kelly was satisfied that it was not up to Dr Lynch to make such a finding of failed tubal ligation and that she was a competent and conscientious doctor. Dr Lynch told the plaintiff to return to the hospital for a check-up six weeks subsequent to the discharge and she made it clear to the plaintiff that there was uncertainty about her fertility and it needed to be checked. She was for reasons outlined by Mr Justice Kelly unable to say to the plaintiff that the sterilisation had failed. Mr Justice Kelly concluded that at no stage during her pregnancy or after delivery was the plaintiff clearly informed by any doctor, nurse or other personnel employed by the hospital that her tubal ligation had failed. That obligation was not discharged and there was a breach of the duty of care owed to the plaintiff in that regard. To have ignored the advice given to her by Dr Lynch was negligent on behalf of the plaintiff. However, no case of contributory negligence was pleaded against the plaintiff, accordingly no further consideration was given to the matter by the court. While the plaintiff was pregnant with her sixth child she was also attending Dr Dunne for antenatal care. He had told the plaintiff to enquire in the Coombe as to the success or otherwise of her tubal ligation. The plaintiff told him that she was pregnant before she had the sterilisation. It again underscored the failure to tell her in unequivocal terms that her pregnancy arose subsequent to the sterilisation. On the basis of what Dr Dunne was told, he offered her no advice on any form of contraception. In March, 2001, he was asked by the plaintiff to conduct a pregnancy test on her. He did so and it was positive. The plaintiff's seventh child was born prematurely in October, 2001. The second tubal ligation was performed in December, 2002.
Mr Justice Kelly stated that there was a breach of the duty of care owed to the plaintiff by Dr Murray in carrying out the tubal ligation. A second breach occurred by the hospital personnel failing to clearly tell the plaintiff of the failure of the sterilisation and to offer appropriate treatment to rectify that position. The court then had to consider whether the defendant hospital was vicariously liable for any damages which arose as a result of the first breach. The hospital contended that it was not. The defendant referred to many aspects of Dr Murray's contract in arguing against vicarious liability and also contended that ultimately the test to be applied is one of control. Mr Justice Kelly considered the contract in detail.
The defendant submitted that the hospital was not vicariously liable for Dr Murray's breach of duty. The extent of control exercised by the hospital over the actions of the consultant is the correct legal criterion. This was so whether or not the consultant was an employee under a contract of service or an independent contractor under a contract for services. The consultant was not an employee, rather his contract was a contract for services. Furthermore, the defendant submitted, the hospital was not in control of the actions of the consultant in carrying out the plaintiff's tubal ligation procedure. The defendant asserted that the issue of whether a person is liable in law for the wrongdoing of another is determined by reference to the element of control that is exercised regardless of the nature of the contract which governs those persons. The defendant referred to the decision of the Supreme Court in Moynihan v. Moynihan 1 I.R. 192 and the High Court in Holohan v. Minister for Defence and others (Unreported, Kinlen J. July 30th, 1998). The defendant also referred to McMahon and Binchy's Law of Torts which stated "since the Supreme Court decision in Moynihan v. Moynihan however the degree of control which the principal exercises seems to be emerging as the single most important, if not the crucial factor in establishing liability".
Mr Justice Kelly identified a point later the same text as regards the issue of control and in Mr Justice Kelly's view the authors were correct in identifying that the control test was not of universal application and that hospital cases were to a considerable extent sui generis.
Mr Justice Kelly quoted illustrative cases where a hospital may be found to have been in breach of its own primary duty of care to its patients. It was suggested on the evidence in the present case no issue arose as to any alleged breach by the hospital of its primary responsibility to its patient and the only possible basis for a finding of liability against it was on the basis of vicarious liability in respect of the performance of the sterilisation. Mr Justice Kelly stated that that was not correct. There was a breach of the hospital's primary duty to inform the plaintiff of the failure of the sterilisation so the question of vicarious liability did not arise on that issue. On the question of the failed sterilisation there was also a breach of primary duty given the fact that the plaintiff was a public patient referred to the hospital and not to an individual consultant. Mr Justice Kelly cited with approval the views of Denning LJ in Cassidy v. Ministry of Health (1951) 2 KB at p.362 where he stated " . . . where the doctor or surgeon, be he consultant or not, is employed and paid, not by the patient, but by the hospital authorities, I am of the opinion that the hospital authorities are liable for his negligence in treating the patient." Mr Justice Kelly also cited with approval Roe v. Ministry of Health (1954) 2 QB 66. Both cases appeared to be correct to this day and of application in the instant case. In these circumstances, it mattered not whether Dr Murray was employed under a contract of service or a contract for services, the hospital was liable for any want of care on the part of Dr Murray.
Mr Justice Kelly next considered the issue of damages for pregnancy, birth and sterilisation. The defendant conceded that in the event of a finding of negligence the plaintiff was entitled to damages for the pain and suffering and inconvenience of pregnancy and childbirth and of course for having to have the sterilisation repeated. These concessions were made by reference to McFarlane v. Tayside Health Board (2000) 2 A.C. 59. In light of those concessions, the court was not called upon to consider whether as a matter of principal it was open to the plaintiff to recover damages arising from her pregnancy.
Mr Justice Kelly turned then to consider the issue of damages for rearing the two children born subsequent to the failed sterilisation operation. The court noted that in McFarlane's case Lord Gill disallowed the claim for damages for the costs of rearing the child that was born following the failed vasectomy of the father. Lord Gill stated "I am of the opinion that this case should be decided on the principle that the privilege of being a parent is immeasurable in money terms; that the benefits of parenthood transcend any patrimonial loss, if it may be so regarded, that the parents may incur in consequence of their child's existence and that therefore the pursuers in a case such as this cannot be said to be in an overall position of loss". Mr Justice Kelly noted that throughout the present case the plaintiff was at pains to make it clear that both children were welcomed into her family by both parents and siblings and that the parents, no more than any other parents, do not assess their relationship with the children in terms of profit and loss. The court stated that there was a certain incongruity in this position given the plaintiffs claim and Mr Justice Kelly stated that there was much to be said for the observations of Lord Gill in this regard. Mr Justice Kelly stated that in his opinion in essence the conclusion in McFarlane's case was that fairness and reasonableness do not require the damages payable by a negligent doctor should extend so far as to require him to pay for the cost of rearing an unintended healthy child. The court stated that it was fortified in this expression of opinion by reference to the later case of Rees v. Darlington Memorial Hospital NHS Trust 1 A.C. 309. That was a case which resulted in seven Law Lords being assembled since they were asked to reconsider McFarlane's case. By a majority the decision in McFarlane was applied.
Mr Justice Kelly next considered whether as a matter of policy or principle whether damages could be awarded in a case such as this. The decision in the Supreme Court in Fletcher v. The Commissioners for Public Works 1 I.R. 465 made it plain that it is proper to exclude an award of damages in certain circumstances on the grounds of policy. That case recognised that a question of policy fell to be decided by the court wherein Geoghegan J. stated that a control mechanism "which the court may impose is in relation to particular heads of damage or . . . expressly deny a claim on grounds of public policy". Geoghegan J. further stated in that case that he agreed "that pragmatic control mechanisms must be applied in actions for pure psychiatric damage and, in many instances, even in the interests of distributive justice". Mr Justice Kelly stated that those observations of the Supreme Court appeared to entitle him to decide on the recoverability of damages as a matter of principle or legal policy since the question has never heretofore been considered by courts in this jurisdiction. In making that decision the court was entitled to have regard to concepts of reasonableness and distributive justice.
Mr Justice Kelly concluded that it was not open to the plaintiff to recover damages for the cost of upbringing the two healthy children which she bore subsequent to her failed sterilisation. Mr Justice Kelly stated that he did not believe that the law in this jurisdiction should be extended so as to allow the recovery of such damages. Mr Justice Kelly was of the opinion that it would not be fair or reasonable to visit a doctor who negligently performed a sterilisation procedure with the cost of rearing a healthy child that was conceived and born subsequent to the failure of such procedure. Even if one disagreed with that approach, the refusal to award damages in circumstances such as this could equally be justified by considerations of distributive justice. Alternatively the view could be justified that the benefits of a healthy child outweigh any loss incurred in rearing the child. A decision in favour of the claim would open the door to a limitless range of claims related to every aspect of family life. Mr Justice Kelly stated that he obtained some comfort that in arriving at his decision, the court was in harmony with the majority of decisions in the common law world. Furthermore, the conclusion blended more harmoniously with the constitutional order which obtained in this jurisdiction than would a decision to the contrary. The value which the Constitution placed upon the family, the dignity and protection it afforded to human life were matters which, in the view of Mr Justice Kelly, better served by a decision to deny rather than allow damages of the type claimed. Accordingly, damages in respect of the costs of rearing the children were refused.
Mr Justice Kelly turned then to consider assessment of damages. He stated that there was no doubt but that the plaintiff was entitled to recover damages for having to undergo a second tubal ligation. The operation was quite straight forward and did not involve overnight hospitalisation, but the plaintiff must also have had the usual anxiety that accompanied any surgical procedure and was entitled to be compensated for that. Mr Justice Kelly awarded the sum of €10,000 damages to compensate having to undergo that second operation. Mr Justice Kelly had already pointed out that the defendant had conceded that in the event of a finding of negligence the plaintiff was entitled to damages for the pain, suffering and inconvenience of pregnancy and childbirth. Mr Justice Kelly stated that the question of principle as to whether there was in law an entitlement to such damages would have to await another case where a concession such as the one made in this case was not forthcoming. It was sufficient to record that there was no unanimity of judicial opinion throughout the common law world on the topic.
Mr Justice Kelly stated that pregnancy was not an illness or disease. It did cause pain, sickness and distress. It was an entirely natural process. In the present case it resulted in the births of two unique human beings who were both healthy. In assessing damages, Mr Justice Kelly took into account the shock and emotional distress caused to the plaintiff when she discovered that she was pregnant. She did not want either pregnancy and would not have had them but for the defendants breaches of duty. Accordingly, the plaintiff was awarded a total of €90,000 in respect of the second tubal ligation and the pregnancy and birth of both children. Mr Justice Kelly dismissed the claim for agreed damages in the total sum of €381,678 for the upbringing of the two children.
Solicitors: Patrick V. Boland & Son (Kildare) for the plaintiff; Arthur O'Hagan (Dublin) for the defendant.
Kieran O'Callaghan, barrister