The Supreme Court has dismissed a surgeon’s appeal against a High Court finding that she was negligent in checking whether a uterine evacuation procedure had removed the major bony structures of a foetus. The Court rejected a separate finding that she was negligent for not arranging an ultrasound scan.
The case concerned surgery performed by consultant obstetrician and gynaecologist Rachel Patton at the Bon Secours Hospital in Cork on 23 January 1998. Fiona Griffin was 17 weeks pregnant when her unborn baby died, through no fault of anyone, the judgment said. Medication intended to induce evacuation did not work, and Patton carried out a procedure to remove the foetus through the vagina.
A piece of bone measuring 5.5 centimetres was later found to have been left in the uterus. The High Court found it was probably a lower limb. The Supreme Court said medical experts agreed that the surgeon had to take steps to ensure, as far as possible, that the uterus was evacuated, particularly of major bony structures. It upheld the trial judge’s finding that Patton’s visual check was insufficient to identify those structures and that she had negligently left the bone behind.
The appeal concerned liability only. The High Court had awarded Griffin €100,000 in damages and costs. The Supreme Court judgment did not alter that award; it dismissed the appeal against the negligence finding.
The Court overturned the High Court’s separate finding that Patton should have arranged an ultrasound scan. The trial judge accepted that scans were not routine where the doctor was satisfied the uterus had been fully evacuated. The Supreme Court said there was no evidential basis for requiring a scan in these circumstances, and that a special case for such a requirement had not been made in the pleadings.
The Court also clarified that a disagreement between experts about whether a doctor was negligent did not prevent a judge from deciding the factual question. The experts agreed on the need to check for major bony structures; the trial judge was entitled to find that Patton had not done so adequately.
The action against Tim Tyndale, named as the hospital’s representative, had been dismissed by the High Court. There was no appeal against that order. The Supreme Court’s judgment was delivered by Justice Geoghegan on 27 July 2004.