The Court of Appeal has dismissed a patient’s appeal against the dismissal of his negligence claim over bladder surgery at Mercy University Hospital in Cork in 2006. The court left the High Court’s order in place and did not direct a retrial.
The patient, Denis O’Leary, argued that the augmentation cystoplasty performed by urologist Khalid M. Ali Chiad Al-Safi was inappropriate and that he had not been properly informed of its risks or possible alternatives. He also alleged that Al-Safi had assured him the operation would be “100% successful” and lacked the qualifications or experience to treat him. These were allegations advanced in the case, not findings by the appeal court.
The High Court had dismissed the claim after a 22-day hearing. The Court of Appeal noted that the trial judge found there had been no recoverable function in O’Leary’s left kidney by January 2002; that finding was not appealed. The appeal concerned, among other matters, the surgery carried out on 16 May 2006 and the consent process.
The appeal court rejected O’Leary’s challenge to the trial judge’s assessment of his credibility. It accepted that the judge had mistakenly said O’Leary’s sister witnessed a pre-surgery conversation. But the court said the record contained other grounds for the judge’s assessment and that credibility was primarily for the trial judge, who had heard the evidence. It found no basis to interfere with that assessment.
O’Leary also argued that evidence about cancer, stone formation and mucus risks went beyond the risks specified by the defence and made the trial unfair. The appeal court said it would have been preferable for some of that evidence to have been put to him in cross-examination. However, it concluded that the omission did not make the hearing so unfair as to require a retrial. The trial judge was entitled to consider the evidence and decide what weight to give it.
On the disputed alternative procedures—a urinary diversion using an ileal conduit and a substitution cystoplasty—the appeal court upheld the trial judge’s conclusion. The treating surgeon and defence experts considered augmentation cystoplasty the appropriate treatment in the circumstances; the patient’s experts took a different view. The trial judge was entitled to accept the defence evidence that the alternatives were not procedures the surgeon was recommending.
The court also rejected a new appeal ground based on fees paid to defence experts, saying the serious allegations about their independence could not fairly be decided on appeal when the experts had not had an opportunity to answer them at trial. It dismissed the remaining grounds and, on 12 March 2018, dismissed the appeal.