The High Court has dismissed a patient’s claim against the Health Service Executive and consultant urological surgeon Khalid M. Ali Chiad Al-Safi over his kidney treatment and bladder surgery at Cork’s Mercy University Hospital.
In a judgment delivered on 20 May 2010, Mr Justice John Quirke found that the hospital’s use of incorrect software for a February 2002 kidney scan was negligent. But he accepted that the patient’s left kidney had no recoverable function when he first attended hospital in January that year. The patient therefore did not prove that the scan error caused injury, loss or damage.
The patient had argued that a stent should have been inserted during treatment for genitourinary tuberculosis to preserve kidney function. Several experts called for him supported that position, relying on the scan’s reported finding of 31 per cent function. The experts later agreed that the scan result was erroneous because incorrect software had been used. The judge said he did not need to decide other disputed questions about the investigations and treatment in early 2002 once he found there was no recoverable kidney function.
The patient also claimed he had not given informed consent to an augmentation cystoplasty performed by Mr Al-Safi in May 2006. He said he was pressured into surgery and had not been told about its risks. Mr Al-Safi said he had explained the procedure, possible complications and the need for intermittent self-catheterisation, which might be lifelong.
The judge found the patient was not a reliable or credible witness and accepted Mr Al-Safi’s account as probably accurate. He found that the surgeon had explained the operation and warned about self-catheterisation, possible further surgery, night-time wetness, infection, stones and mucus. The judge considered it probable that Mr Al-Safi also warned of a small cancer risk and that success could not be guaranteed. He rejected the claim that the surgeon had to offer other operations he did not consider appropriate.
The court also rejected claims that Mr Al-Safi lacked the qualifications or experience to manage the patient, or acted negligently by recommending the surgery. Experts disagreed about whether conservative treatment or another operation would have been preferable. Applying the principles in *Dunne v National Maternity Hospital*, the judge said the court could not choose between genuine expert opinions; the question was whether the course taken was reasonable and consistent with accepted medical practice. He found the evidence did not establish negligence in the patient’s management, the recommendation for surgery or its performance.
The judge concluded that the patient had not established negligence causing damage or any other basis for the claims. The action was dismissed.