Troute v. Brassil [1999] IEHC 30 (1st October, 1999)

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1. This is an action for damages and negligence in breach of duty which arises out of the medical treatment of the Plaintiff at or immediately after the birth of her fourth child on the 13th of October, 1995 at the Portiuncula Hospital, Ballinasloe in the County of Galway.

2. At the commencement of the trial the Defendants conceded the issue of liability so the matter proceeded as an assessment of damages only.

3. The Plaintiff was born on the 20th of October, 1961 in London where she was raised. She is an only child. She tended a local primary school until the age of eleven, she passed her eleven plus examination and attended grammar school until the age of sixteen. She did five O Levels and passed three. She left school at that point and joined Barclays' Bank and worked for this bank as a bank official for some twelve years. In 1985 she met her husbandAidan Troute and they were married some fifteen months later. They have four children namely Johathan born on the 16th of May, 1987, Rachel born on the 31st of December, 1990, both of whom were born in England, and Emma born on the 13th of April, 1994 and Daniel born on the 13th of October, 1995 both these later children having been born on Portiuncula Hospital in Ballinasloe.

4. The Plaintiff and her husband who is from Athlone returned to Ireland in 1990. From 1990 until 1993 the Plaintiff worked in various part time jobs and from May 1993 until April 1995 worked for the Ulster Bank in Athlone as a cashier on a temporary contract. With Ulster Bank her normal working pattern was three days a week from 9.00am to 5:00p.m. and occasionally five days a week. She gave up work in April of 1995, in anticipation of the birth of her son Daniel.

5. The Plaintiff's husband, Aidan was born on the 21st of July, 1960 and grew up in Athlone. He attended the Mars College there and did his leaving cert in 1979, he then studied for a Diploma in Business Studies in AthloneRTC and took a B.Comm Degree in University College Galway in 1984. He worked in England from 1986 until 1990 and obtained Teacher's Certificate in 1987. Since returning to Ireland in 1990 he has had a number of teaching positions. Since 1994 he has worked with Capitals of FÁS and holds a permanent position with FÁS in Athlone teaching sales and marketing.

6. In the early 1990s anticipation of settling down in the Athlone area the Plaintiff and her husband purchased a 1.75 acre site at Bog Road, Coosan, Athlone and built a house on it into which they moved in 1994 and where they continue to reside.

7. On the morning of the 13th of October, 1995 the Plaintiff having started labour was admitted to Portiuncula Hospital at 5:08a.m. She had had a normal pregnancy. She was noted on admission to be in labour. At that time she was described as being "well" at 5:35a.m. she was noted to have two to three centimetres dilation. At about 9:50a.m. an examination was carried out the purpose of which was to rupture the Plaintiff's membranes. This procedure was described by Dr. Clemens in his evidence as the single best way of stimulating labour. At or about the same time the Defendants began to administer to the Plaintiff a drug called Syntocinon. The purpose of this drug was to either stimulate or augment labour. This drug was administered by a drip and from then until approximately 14:10 the drug was continued to be administered but in varying dosages in response to the proceed progress of the labour and reaction of the baby. By 15:00 the first stage of the labour was over, dilation having reached ten centimetres. At 15:25 the Plaintiff gave birth by spontaneous virginal delivery. There is no record in the hospital notes of what happened between 15:25 and 16:00 which is the time of the next entry in the hospital notes. At this point the Plaintiff was continued on the fore mentioned drugs in . At this stage in the process as was explained by Dr.Clemens the purpose of the administration of the drug is to contract the uterus so as to prevent bleeding. Dr. Clemens was adamantly of opinion that having regard to the risk of rupture of the uterus in later births this should not be given to aliment labour and it was his opinion that the administration of this drug at or about the same time as the rupture of the membranes was an excessive stimulation of the uterus which caused it to rupture.

8. For the next four hours that is to say from 4:00 until 8:00 the Plaintiff's condition deteriorated remarkable. It was noticed at 17:00 that the Plaintiff was very pale, that her blood pressure had dropped very significantly, the pulse rate was high at 120 and that she was weak and dizzy. It was Dr. Clemens opinion that at this point that the indicators above described showed that there was decompensation taking place that is substantial blood loss had taken place resulting in a severe drop in blood pressure in consequence of which there was a much higher heart or pulse rate to compensate for these features. The next record at 17:35 shows that an attempt had been made to establish venous line and that this had failed and at that point in time there was nothing getting into the Plaintiff. Dr.Clemens found the record for 17:50 as misleading in that whereas it is recorded that the Plaintiff's pressure was improving at that point in time, nothing had been done to the Plaintiff to have brought about such an improvement. This point in time the Plaintiff had been bleeding for two hours and had received no blood or colloid. It was Dr. Clemens opinion that at this point in time the Plaintiff was in danger of death. At 18:45 the Plaintiff was commenced on blood for the first time.

9. It was Dr. Clemens opinion that by this time if not much sooner should have been apparent that the Plaintiff's blood loss was not coming from her uterus which by now had contracted from another source.

10. The Plaintiff's condition continued to deteriorate and by 7:30 the Plaintiff had no of blood pressure and her pulse rate had dropped to 80 indicating heart failure. Extendery at 7:35p.m. in the hospital notes showed the Plaintiff's pulse up to 120 with the blood pressure still unreadable.

11. The Plaintiff was brought back to the operating theatre at 8:00 the Anethiast note at that time is stark and revealing and is as follows:-

12. At operation it was discovered that the Plaintiff had an 8 centimetre rupture of her uterus and was bleeding heavily. There was a large amount of blood in the peritoneal cavity. At that point in time it was the opinion of Dr. Clemens that the first named Defendant had two options. First of these was that he could repair the uterus but at that point in time he would be uncertain as to whether it would work. The second option was the removal of the uterus. In Dr. Clemen's opinion the first named Defendant was correct in choosing the latter option given that he was faced with a dying woman and the quickest and safest procedure was the removal of the uterus. The procedure carried out was to continue the tear right around the uterus so as to remove the large part of the uterus. The result was that the Plaintiff was left with a small portion of the uterus which is sufficient to continue menstruation but not to carry a baby thus the Plaintiff was left infertile.

13. It was Dr. Clemen's opinion that the response to the Plaintiff's bleeding which was apparent as early as 16:00 was totally inadequate. He was of the opinion that had there being an appropriate response the Plaintiff would have been resuscitated at a much earlier stage and while the operation to deal with the rupture of the uterus was inevitable had the procedure been carried out much earlier, the Plaintiff having been resuscitated the surgeon would have had the opportunity of repairing the rupture to the uterus and thus saving the uterus.

14. Dr. Clemens was not challenged at all by the Defendants and I accept his evidence in its entirety. I am satisfied that as a result of the inappropriate administration in the first instance of the drug Sentosinum thus causing the rupture of the uterus and secondly the wholly inadequate response to the Plaintiff's bleeding between 16:00 and the time the operation was carried out, there is a direct causel link between these failures and the almost total loss of the Plaintiff's uterus.

15. As a direct consequence of this loss the Plaintiff in addition to being infertile has for all practical purposes totally loss of the enjoyment of the immunity of sexual relations with her husband, which in turn has impaired and caused strain in their relations with each other. While it is the case as Dr.Clemens so described that the Plaintiff is still left with organs that are physically capable of sexual intercourse but that not withstand on his examination of her he found her to be suffering from a condition known as Vaginissmus, which involves contraction of the virginal muscles, a condition which he said was common in women who have suffered severe genital injury as a result of which they cease to think of themselves sexual confident. It is his opinion that this muscle spasm causes a functional obstruction and in his opinion that Plaintiff in the light of her impaired mental capacity was unlikely to benefit from counselling or any other form of psycho sexual therapy.

16. Dr. Clemens also describes to me the Plaintiff's abdomable operative scar as being extremely large extending from the rib cage down to the hair line.

17. Returning to the events as they unfolded on that night and subsequent days the Plaintiff remained comatose after her operation and in the notes from 1:00 in the morning it was noted significantly that the Plaintiff's blood pressure was still unreadable. Thus the Plaintiff's blood pressure had been unrecordable for a period of at least five hours by this time.

18. At 2:15a.m. her blood pressure is recorded as "still decrease in blood pressure" the notes for 3:15a.m. make no mention of blood pressure, the entry for 4:45a.m. records the following "blood pressure 150/100." However by 10:30a.m. the note records "BP unrecordable". By 2:00p.m. that day the note describes the Plaintiff as "hypo tensive".

19. It was the opinion of Dr. Celems and also Dr. John Oxbury that the prolonged period of very low pressure would have resulted in under perfusion of her brain with blood thereby resulting in the death of cells or neurones and creating the risk that the Plaintiff's brain would be damaged because of a shortage of oxygen and other metabolic consequences.

20. I accept the opinions of both these doctors on this point and hold that the Plaintiff's brain was in fact damaged as a result of the under perfusion of blood to it during the long periods of very low blood pressure as described above.

21. The Plaintiff was admitted to Beaumount Hospital on the 16th of October, 1995. At the time of her admission as was made clear in the evidence of Dr. Carmody she was in a very poor condition indeed and close to death. She had aceptus, metabolic derangement, and acute renal failure and perhaps more importantly of all she was suffering from disseminated intra vascular coagulation, a condition which Dr. Carmody described as pre terminal. Dr. Carmody described her as being from multi organ failure and being inseptic shock. In addition to the fact that she had kidney failure having virtually no kidney function he described her as having very wet lungs with fluid leaking into all the spaces as a result which he could not maintain oxygen. Dr. Carmody's evidence was that more than 80% of patients presenting with the set of complications that the Plaintiff had would not have survived. On admission to Beaumount she was put on a ventilator to restore lung function, dialysis to restore the kidneys function, medication to raise her blood pressure and medication to break up the DIC clotting. The Plaintiff remained unconscious and the foregoing multiplicity of drugs together with antibiotics and muscle relaxants.

22. When the Plaintiff arrived in Beaumount she was suffering from a high fever that they were unable to identify the precise organism so she was treated with a broad spectrum of the most recent generation of antibiotics. In her first week in Beaumount she developed what Dr. Carmody described as an acute abdomen. Necessity her being brought to the theatre on the 20th of October, 1995 for a further laparotomy At this operation she was discovered having a bleeding and inflamed pancreas resulting from sepsis. After this operation her liver or sepsis began to settle down. After about a week in Beaumount her lung function began to improve and she was taken off the ventilator on the 25th of October, 1995. From the 25th of October, 1995 she continued to receive supportive therapist and relied on the kidney machine. She was removed from the intensive care unit on the 25th of October to a high dependency ward where she remained until the 3rd of December, 1995. As she recovered consciousness towards the end of October 1995 it became clear that she had a number of mental deficits. She was found to have a global amnesia i.e. loss of memory capacity, Cat scan andM.R.I. Scans done during November 1995 showed evidence of cerebral atrophy and hippo campal damage. She was very confused and disoriented. She was described by Dr. Carmody as being very slow having no memory, could not do simple maths, could not remember dates.

23. Dr. Carmody's evidence in relation to the effect and in particular the long term effect of the Plaintiff's illness on her kidneys gave rise to one of the very few areas of dispute or conflict in the case. Dr. Carmody expressed the view that during her period of clotting that 50% of the filters in her kidney had been irreversibly damaged and that she was now left in the position of having only 50% of normal kidney capacity. In cross-examination he described her as having lost her renal reserve and whereas she should have 100% she now only has 50%. He likened her present kidney function to that of a person in their late sixties. He was of the opinion that after a period of about ten years there was a risk of kidney failure but that this would not arise until the function of the kidney declined to 10%. He said that until your lose 75% the person will not become symptomatic.

24. This evidence was disputed by the Defendants who relied upon the evidence of Professor Brian Keogh. Professor Keogh disagreed with Dr. Carmody's evidence specifically on two points:-

25. Professor Keogh in his evidence was of the opinion that the Plaintiff's kidney function was now normal and that she had made a full recovery in that regard. He based this opinion on the tests which he carried out as on the 1st of December, 1988 which established to his satisfaction that there was no evidence of proteinuira or red cells in the Plaintiff's urine and the performance or function of the Plaintiff's kidneys as evidence by the tests he carried out was normal. However say that the function of the Plaintiff's kidneys was in the 70%-80% range, and that the Plaitniff was at a higher risk of having problems in the future but that one couldn't say that it would be in ten years time. He put the time scale of such a risk as twenty to twenty five years from now. The risk he envisaged was of developing high blood pressure. But this risk in the context of normal loss of kidney functions at about the rate of a percent per year up to age seventy. In answer to the point made by Dr.Carmody that there was irreversible damage to the Plaintiff's kidneys during the acute period of her illness, it was Professor Keogh's opinion that these damaged cells normally regenerated and in the case of the Plaintiff had regenerated. And that having regard to results of the test carried out by him the Plaintiff's kidney had recovered.

26. I have a great difficulty in resolving what appears to be a clear conflict between two experts as to the current state of the Plaintiff's kidney and what is likely to happen in the future. However, notwithstanding Professor Keogh's taking iffier with Dr. Carmody as to the current status of the Plaintiff's kidneys and their future he does describe her kidney function at the moment as being in the 70%-80% range. And of there being some risk in the future all be it at a somewhat later time than that envisaged by Dr. Carmody. I have come to the conclusion as a result of the acute illness suffered by the Plaintiff her kidneys are not now in as good a condition as they would have been had this not happened to her. I am satisfied that there has been a deterioration in the condition of her kidneys but not to an extent which his demonstrable functionally at present. And also of the view that there is a risk at some point in the future that deterioration in her kidneys occasioned by her illness will result in some degree of impairment of her health. I am not convinced on the evidence before me that such impairment is likely to result in kidney failure. From the point of view of the assessment of damage in respect of this aspect of the case it would appear to me that what the Plaintiff has to be compensated for is having to live with whatever fear or anxiety the risk in respect of her kidneys may occasion to rather than anticipating as a probability that the risk is likely to occur.

27. Returning to the narrative of events, on the 3rd of December, 1995 the Plaintiff suffered a number of fits or seizures described as grand mal type seizures. She had five in all relatively quick succession. The Plaintiff was returned to the intensive care unit but not put back on a ventilator. She came under the care of Dr. Sean Murphy and the opinion of the time appears to have been that the Plaintiff had suffered from a condition known as Status Epileptics. The Plaintiff was commenced anti epilepsy medication and indeed has continued taking an anti epilepsy drug known asEpilm since that time. Dr. Oxbury in his evidence cast some doubt on whether fact what had happened to the Plaintiff was Status Epilepticus or what he described as Cortical Venous Thromboses that he described as a transient condition. Notwithstanding this however it was Dr. Oxbury's opinion that the Plaintiff needed to be on anti epilepsy medication and that this should continue. At the time of their occurrence on the 3rd of December, 1995, the Plaintiff's seizures were treated as a emergency. On the Glasco Coma scale she registered at less than five putting her in the danger zone as the danger of stopping breathing and requiring a ventilator. She was not fully conscious during these episodes.

28. As already said the Plaintiff has been on the drug Epilm since late 1995 and is obliged to take a dosage of three tablets per day. While this drug has successfully prevented any further seizures since that time an unpleasant side effect of it is weight gain, and indeed the Plaintiff's weight has increased significantly. She is now said in evidence to be approximately 121/2 stone and at a height of 5 foot 4 inches as being described as overweight.

29. During her time in Beaumount Hospital the Plaintiff developed drug related skin rashes that were very unpleasant for her. The Plaintiff's overall condition improved slowly during the months of December. Her severe memory deficits however were not resolving, and she remained to some extent confused and disorientated.

30. On the 16th of January, 1995 the Plaintiff was discharged from Beaumount Hospital into the care of the National Rehabilitation Hospital at Rochestown Avenue in Dun Laoghaire. There she came under the care of Dr. M.A. Delargy. Dr. Delargy had first assessed the Plaintiff in Beaumount Hospital on the 5th of January, 1996. At the time of his initial assessment the Plaintiff was physically disabled in that she was not yet walking and was reliant on a wheelchair. She had very little energy. She required artificial naso-gastric feeding. She has severe memory and cognitive deficits.

31. By the 7th of February, 1996 the Plaintiff's rehabilitation had progressed to the stage of being able to walk independently for short distances but she remained still reliant to a certain extent on a wheelchair due to her fatigue and a pressure sore on her heel. She gradually returned to a normal diet. She remained disorientated in time. She had dysphasia and her memory difficulties continued. As a result of her fatigue her periods of rehabilitation activity had to be kept short. During this time she continued to have some difficulty with incontinence so clearly this was improving.

32. By mid March 1996 she became mainly independent with activities of daily living and remained somewhat disorganised. Her memory continued to be a major problem. Her stamina remained low and she continued to fatigue easily by this time the Plaintiff had a number of weekend stays at home. When initially she went home she did not remember having given birth to her son Daniel and had no memory of her pregnancy. She also had no memory of the layout of her house. As part of her rehabilitation programme the Plaintiff was trained in the use of a diary so as to remind herself of tasks to be accomplished during the day.

33. The Plaintiff had physiotherapy to increase the power in all of her four limbs for her to increase her endurance's and to improve her balance and coordornation.

34. By mid April 1996 the Plaintiff had made significantly physical progress. She was able to walk without aids or assistant, she was able to manage stairs, slopes, rough ground with good balance. She continued to have problems with stamina and endurance.

35. Her memory difficulties persisted. The panic attacks from which she had been suffering had become less frequent and although she had progressed in her ability to accomplish domestic tasks she needed supervision and encouragement in these activities.

36. The Plaintiff was readmitted to the National Rehabilitation Hospital on the 19th of November, 1996 and subsequently discharged on the 28th of November, 1996. At that time vestment of her memory showed that there had been a slight improvement but she was still in the category of poor memory function. During the period of seven months or so that the Plaintiff was at home it was clear that she had been unable to resume her role as a mother, wife or manager of her home. Her memory difficulties prevented her from any form of planning of domestic activity and where she did undertake domestic tasks frequently prevented her from completing these tasks she was unable to look after her children either in attending to their physical needs or in supervising their activities and behaviour. She was unable to relate to her husband and he described her as being a different person. She was unable independently to undertake any activity outside of the home. The upshot of the Plaintiff's disabilities was to throw upon the Plaintiff's husband entire burden of responsibility and management of domestic activity and family affairs. In addition to this burden he found himself deprived of the personality he had grown to know and cherish in his wife. As can well be imagined all of this was and unfortunately continues to be a very stressful experience for him. There does not appear to have been any significant improvement in the Plaintiff's overall condition since that time.

37. In his evidence to me Dr. Philip Onslo a Consultant Neuro-Radiologist described his analysis of the various M.R.I. and CT Scans of the Plaintiff's brain. The essential feature of his analysis was a description of two types of damage to the Plaintiff's brain. The first of these instances of damage was to the hippocampus. Dr. Onslo explained that the hippocampus is the critical part of the brain for the purpose of laying down a retrieval of information and for the storage and retrieval of new information, in his opinion the scans of the Plaintiff's brain indicate was severely damaged being much smaller than it should be, he estimated that 90% of the nerves cells in this region of the brain had been lost and would not be replaced. He described this as permanent damage. He also described similar damage to the fornix. This is the part of the brain which connects thehippocampus to the rest of the brain and he likened it to a cable. In Dr. Onslo's opinion the size of the Plaintiff's fornix was only 50% of normal . He found this to be consistent with the damage to the hippocampus on the basis that with the demise of e fibres connecting from the hippocampus to the fornix was a consequent death of cells in the fornix.

38. Dr. Onslo expressed himself of opinion that while it was difficult to make a precise statement about damage to the brain and consequent loss of function, in the light of the fact that there is a lot of redundancy in the brain, he was of the view that the hippocampus was particularly eloquent from the point of view of relationship between damage and consequences. He expressed the view that though he had not personally seen the Plaintiff his reaction to his analysis of the scans was that the Plaintiff was a person who would have no useful working memory.

39. In addition to the foregoing damage Dr. Onslo also noted in the scans what he described as a significant degree of diffuse cerebral loss or cerebral atrophy. Akin to a much older person. It was his evidence that changes of this kind could generally result in subtle psychological consequences in terms of behaviour, motivation and personality. He accepts they were difficulty to define. Dr.Onslo's analysis of a scan done on the 3rd of December, 1995 lead him to the conclusion that the presence of water indicated in that scan in a number of areas in the brain indicated that the brain was reacting to a prolonged period of low blood pressure.

40. I accept Dr. Onslo's evidence and linking that to the evidence given by Dr. Oxbury who was infactically of the view that the damage to the Plaintiff's memory was caused by the damage to the hippocampus and the Plaintiff's other cognitive intellectual and personality changes were entirely consistent with the generalised cerebral actriby demonstrated on the MRI.. and CT Scans. I am driven to the conclusion that the memory difficulties, congenant impairment, and personality changes which were amply described to me in the evidence of the Plaintiff, the evidence of her husband, the evidence of Dr. Delargy, of the Psychiatrist, Dr. McLoughlin of the Psychologist, Mr. Scallan, where the inegrable consequence of the negligence of both Defendants in respect of which they have conceded liability.

41. As a consequence of the damage suffered by the Plaintiff, I am satisfied on the evidence that she will never again be able to have an independent existence, she will never be able to obtain remunerative employment. She is unable to look after and supervise her own children and will require somebody to assist in that task until such time as her children are no longer dependant. While she can assist in the doing of domestic tasks she is unable to take responsibility for completion of tasks and cannot take on responsibility for planning of domestic activities or responsibility for the carrying out of domestic tasks. She will require assistance in this regard for the rest of her life. Because of the disability she had suffered she herself requires some rehabilitation. I am satisfied from the evidence that may reliance on a local resource centre will not be sufficient to achieve any degree of sustained rehabilitation and she will require the assistance of a carer for herself in this regard

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	High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Troute v. Brassil [1999] IEHC 30 (1st October, 1999) URL: http://www.bailii.org/ie/cases/IEHC/1999/30.html Cite as: [1999] IEHC 30

High Court of Ireland Decisions

Troute v. Brassil [1999] IEHC 30 (1st October, 1999)