The Supreme Court has dismissed Orla McCann’s appeal in a medical negligence case against consultant plastic surgeon Thomas O’Reilly, affirming the High Court order that dismissed her claim.
In a judgment delivered by Denham J. on 18 December 2002, the court said the High Court judge was entitled to resolve conflicts in the evidence in favour of the defendant. It found no basis to interfere with the trial judge’s decision or to conclude that the trial had been unfair.
McCann’s claim concerned the excision of a mole on her right thigh. She alleged that O’Reilly had told her she would be left with a thin white scar about an inch long, had not properly obtained consent immediately before the procedure, and had performed the operation improperly. Her appeal also challenged the conduct of the High Court trial, including the judge’s interventions, the decision to end the hearing without further evidence or submissions, and the absence of a reasoned judgment.
The Supreme Court noted that McCann and O’Reilly gave conflicting evidence about what she had been told about the likely scar. O’Reilly said he would have explained that it could be wider than the mole and might stretch. The court said the trial judge was entitled to prefer his evidence. It also referred to evidence from McCann’s expert, consultant plastic surgeon Henry Goldin, who said the scar was not far from what he would have expected for an excision at that site. Goldin also accepted that a wound could break down without fault by the surgeon.
On consent, the court said it was not disputed that McCann had consented to the procedure. The further argument that she should have given consent again immediately before surgery was not a basis to overturn the High Court decision, which had sufficient evidence to support it.
The court addressed a separate issue about warning of infection, saying it had not been specifically pleaded, no evidence on the issue had been given by McCann or her expert, and there was no evidence that O’Reilly fell below the standard of care in giving such a warning.
The Supreme Court acknowledged that the trial judge’s interventions were not always ideal, but concluded they did not make the trial unfair. It held that McCann had the opportunity to present her case and cross-examine the defendant. The appeal was dismissed and the High Court order affirmed.