Ipsofactoj.com: International Cases [2003] Part 2 Case 6 [SCIre]


SUPREME COURT OF IRELAND

Coram

St. James' Hospital

- vs -

Wolfe

GEOGHEGAN J

FENNELLY J

MURRAY J

20 FEBRUARY 2002


Judgment

Geoghegan J

  1. This is an appeal arising out of a judgment and order of the High Court (Barr J.) in a fatal injury medical negligence action. The action against the third-named defendant Dr. Donald Weir was withdrawn in the High Court on consent and although he remained an important witness in the case his liability is not in issue.

  2. The case related to a most unusual medical condition known as a "phaeochromocdoma" and referred to by way of shorthand in medical circles and hereinafter in this judgment as a "phaeo". Broadly speaking a phaeo is a tumour which if left undetected has the effect of releasing an excess of adrenaline resulting invariably in death. If once considered as a serious possibility there are tests which render it relatively simple to discover whether it exists or not. If it is proved to exist it is a relatively simple surgical procedure to remove it and the patient is then cured.

  3. The plaintiff's husband died in November, 1991 in the first-named defendant's hospital. As a result of a post mortem it was discovered that a phaeo was the cause of his death. The plaintiff claimed in the High Court that having regard to a particular combination of symptoms which her deceased husband had had, the condition ought to have been diagnosed. It is only fair to say that that was the main plank of the plaintiff's case. A secondary allegation of negligence however was that one of the several symptoms was so called "panic attacks" which in all the circumstances of the case and above all having regard to one particular circumstance which I will be explaining, ought to have been investigated but were not (it being suggested that had such an investigation taken place the phaeo would have been discovered as a matter of probability. The plaintiff failed against both defendants on the first allegation but succeeded as against the first-named defendant St. James' Hospital only in relation to the second. The first-named defendant has appealed against the finding of negligence against it and the consequential judgment for damages. The plaintiff has cross-appealed both against the finding by the learned High Court judge against her in respect of her first and main allegation of negligence and also against the dismissal of the action as against the second-named defendant Dr. Buckley, it being asserted that under both headings of negligence he should be liable.

  4. Before summarising the facts of the case there is one other introductory matter which should be referred to. Although the failure to investigate the panic attacks was regularly raised and probed by counsel for the plaintiff/respondent in cross-examination at the trial it is fair to say that at the end of the evidence the plaintiff primarily relied on a failure to diagnose. Between reserving his judgment and the delivery of that judgment the learned trial judge put the case in for mention again and prepared a detailed memorandum in which he expressed concern that what I have ultimately described as the second heading of negligence was very much open. At that stage counsel for the plaintiff readily and, indeed, understandably agreed with the trial judge and sought permission to call a psychiatrist, the only psychiatric evidence having been called on behalf of the defendants, albeit in the special context that the psychiatrist called was also an endocrinologist. The learned trial judge rejected that application but permitted both sides to draw his attention in a written memorandum to the parts of the transcript that dealt with the point which was concerning him. It was not seriously disputed nor could it be that counsel for the plaintiff/respondent had throughout the trial raised the issue of the failure to investigate separately the panic attacks. The only purpose of cross-examination along those lines could conceivably have been that had such investigations occurred it would have been discovered that the so-called panic attacks were not in fact panic attacks and that the possibility of a phaeo would, as a matter of probability, have been considered and that once considered it would have been discovered.

  5. One of the grounds of appeal of the first-named defendant is that the learned High Court judge permitted "extensive submissions" after the termination of the trial by and on behalf of the plaintiff/respondent. I would reject that ground. The judge was acting within his discretion.

  6. The relevant facts are fully set out in the judgment of the learned High Court judge. The summary which I will give at this stage of the judgment will essentially relate to the actual heading of negligence so found and, therefore, the matter of appeal by the first-named defendant. On the 11th of February, 1989 Mr. Joseph Wolfe, the plaintiff's late husband, presented himself in the accident and emergency department of St. Vincent's Hospital, Dublin, having had a particularly bad attack of headache for the whole day and being unable to bear it. He was brought there in an ambulance. Before arriving he had suffered from shaking and sweating but although the sweats and shakes only lasted about half an hour the headaches had lasted all day. The deceased told the hospital that he had suffered from "panic attacks" from time to time over the years which he had ascribed to upset at losing his full-time job with the Dublin Port and Docks Board in 1985. The evidence of the plaintiff however which the trial judge clearly accepted was that these attacks were not of great significance until in or about the later part of 1988. According to the plaintiff, her husband for several months prior to attending at St. Vincent's Hospital had been getting headaches and starting to get shakes but they would come and go. On the 11th of February, 1989 Mr. Wolfe was detained in St. Vincent's Hospital for about three hours as an outpatient. His blood pressure was checked and was normal a fact which is of considerable importance in this case as I will be explaining. Other details of his symptoms were given to St. Vincent's Hospital but it is not necessary to go into them in any detail as that hospital is not concerned in this action. Believing he was suffering from some kind of migraine, St. Vincent's Hospital advised that he should be sent to a neurologist if any further episode occurred. On that basis he was discharged home but told to take Ponstan. It turned out however that Mr. Wolfe's headaches continued on during the following days and he decided to attend the accident and emergency department of the first-named defendant's St. James' Hospital at 10.00 p.m. on the 15th of February, 1989. His complaints were recorded in the hospital notes as being "a severe headache, one last Saturday, vomiting, previous medical history, Vincent's last Saturday, same complaint." Again, his blood pressure was taken and this was normal. He complained of headache which had been severe for several days with intermittent bouts and he had also vomited on that day and was in pain. On foot of a provisional diagnosis of a viral illness he was admitted as an in-patient on the 16th of February. In a document headed "Record of Nursing Care and Patient's Progress" it was stated that he had complained of sudden onset of frontal headache the previous evening while watching TV and that this was associated with severe nausea and shaking. He had experienced a similar headache on the day he had attended St. Vincent's Hospital. Mr. Wolfe told the hospital that he had shaking attacks for three years and he evidently suggested that this might be because being rendered unemployed in 1985. His blood pressure remained normal.

  7. On the next day he still had the headache though less severe and a lumbar puncture was performed which was normal and he was then recorded as having no complaint of headaches. At this point in his summary of the facts the learned High Court judge specifically points out that the severity of the shaking attacks was not investigated and he opines that in the light of the plaintiff's evidence it is probable that they did not become of great significance until the latter part of 1988 i.e. within a few months of his arrival at St. James' Hospital for the first time. The partial significance of this finding of fact by the learned High Court judge is that if it were to be believed that the so called "panic attacks" arose from the plaintiff losing his job with the Port and Docks Board it would mean that these were insignificant attacks for the first three years after losing the job and suddenly in 1988 they became severe. There was undoubtedly some evidence from the psychiatrist called on behalf of the defendants that panic attacks arising out of particular events such as loss of a job can in some instances go on forever. But the learned High Court judge appears to have drawn and correctly drawn a sharp distinction between that situation which presumably is rare in itself and the situation where "panic attacks" only became of any significance three years after the alleged event that might have sparked them off.

  8. Returning to the general narrative, Mr. Wolfe was put under the care of Dr. Keeling, Director of Gastro Enterology in the hospital and a major witness in this case. He investigated the possibility of meningitis and ruled it out. He was then inclined to the view that the deceased's symptoms were caused by a viral type illness but as they had resolved Mr. Wolfe was discharged home. Dr. Keeling had found a raised white cell count which could be indicative of a viral infection. A phaeo was never suspected and I will return to the reasons put forward later. The learned High Court judge refers to the fact that Dr. Keeling and his team never checked out the "panic attacks" the symptoms of which had been going on for three years and which allegedly had become more severe. The judge further adverted to the fact that it was not in dispute that the transient viral infection which was thought to have been found in 1989 could not explain the symptoms which the deceased stated he had had for the previous three years.

  9. Mr. Wolfe returned home on the 20th of February, 1989 and he was symptom free for about two weeks. The usual symptoms of headaches, pains, sweats and shakes returned after that. These might all be symptoms of a phaeo but as all the doctors called on behalf of the defendant emphasised they were symptoms of a large number of other conditions also. Indeed, it is only fair to say that there is nothing on any of the records in St. James' Hospital which indicate that Mr. Wolfe ever told them about the sweating. However, his wife gave clear evidence of the sweating which was not disputed and was clearly accepted by the learned trial judge. The judge clearly took the view that if there ever had been a proper investigation of the panic attacks the sweating aspect would have been discovered.

  10. The evidence established that Mr. Wolfe did occasionally visit the Outpatients' Department of St. James' Hospital when he would have intermittent symptoms but he did not return there with serious symptoms until the 5th of April, 1991. Barr J. sets out in his judgment the relevant section of the plaintiff's evidence at this point. It reads as follows:-

    It was grand, they were gone for a while and then they started coming back more often and he started getting worried again and that is when he went back. The shaking started and pains in the stomach and headaches. He was also complaining of the stomach with the shakes since before he went to St. James' in 1989. The shaking, the stomach pains, the sweats and the headaches were back and getting worse, he was worried about the shaking and the stomach pains and he went back to the hospital.

  11. On this occasion Mr. Wolfe came under the care of the second-named defendant Dr. Buckley, a senior consultant physician in the hospital. On the 23rd of April, 1991 Dr. Buckley wrote a letter to Dr. Carthy, the deceased's general practitioner. From the plaintiff's point of view this letter, in my opinion, is the most important document in the case and like the learned trial judge does in his judgment I intend to cite it in full. It reads as follows:

    Dear Dr. Carthy

    Unfortunately I was unable to read your referral letter and Mr. Wolfe proved himself to be a rather poor historian. Initially he admitted to intermittent abdominal pain of uncertain character for two years, accompanied at times by nausea and vomiting. He gave a past history of chest surgery at the age of nineteen when serving in the Army. There was no localising features on examination other than the fact that he is somewhat overweight.

    I think the safest thing here is to get an upper GIT endoscopy x-ray as well as routine haematology and biochemistry. My feeling at the moment is that these tests will be normal. At the end of the interview Mr. Wolfe reported recurring panic attacks and that his abdominal discomfort was associated with these rather than occurring in isolation.

    He stated that he had come seeking treatment for these attacks and not for abdominal pains. Nevertheless, I feel we should proceed with the screening tests and review the situation thereafter when the results come to hand.

  12. The emphasis on certain words in that letter is mine because I think it important to highlight that here is a somewhat unusual case where the patient complaining of a number of symptoms specifically earmarks what he considers he requires treatment for. It is, of course, common case that the attacks were never investigated and still less treated. I will return to the significance of this later on in the judgment.

  13. What then happened was an unfortunate series of events. It is quite obvious that Dr. Buckley never thought that anything would come of the screen tests which he was directing but Mr. Wolfe was returned to the care of the Dr. Keeling for this purpose. It then emerged that Mr. Wolfe was in fact suffering from a substantial wall peptic ulcer. His stomach pains but certainly not the other symptoms and particularly not the so called "panic attacks" could be explained by that finding. The ulcer was cured after the deceased agreed to take part in drug trials for some weeks and Mr. Wolfe was returned to the care of Dr. Buckley's team. At that stage however Mr. Wolfe was not examined by Dr. Buckley personally but rather by his Senior House Officer, Dr. Aidan Quinn. This fact in itself was not in any way unusual and could not give rise to any heading of negligence. But unfortunately Dr. Quinn took the view that Mr. Wolfe's problems had been solved and discharged him back to the care of his ordinary general practitioner. He did this without any reference to Dr. Buckley. It is clear, however, from the evidence of Dr. Quinn that he would have had before him and would have read the important letter of the 23rd of April, 1991 written by Dr. Buckley to Dr. Carthy. It appears from that letter that Dr. Buckley was intending to consider what should be done about the panic attacks after the screening test had been completed. If I am right in interpretation of the letter then Dr. Quinn was negligent in discharging the deceased without either himself organising steps to investigate the panic attacks or referring him back to Dr. Buckley. Alternatively, even if I were wrong in my view that the letter was reasonably clear in this regard there was some negligence because in that event Dr. Buckley should have made that clear in notes which would be available to any senior house officer dealing with the patient. But in my view it was clear from the letter. And this is obviously the view taken by the learned High Court judge. The discharging letter from Dr. Quinn to Dr. Carthy is also cited in the High Court judgment and reads as follows:-

    I reviewed this patient in the Outpatients. As you know, this man has an interior wall duodenal ulcer which is helicopractor positive. He is now attending Dr. Keeling's team on an ulcer drug trial. We can now safely discharge him to your and their care.

  14. There is no doubt that the finding of the peptic ulcer provides at least an understandable reason why he was discharged home without further investigation. But although it was understandable one must ask was it excusable? Clearly, the learned High Court judge did not think so and in my opinion it was open to him to take that view. I would slightly differ from the learned High Court judge however in his treatment of the question as to whether the "panic attacks" ought to have been investigated. He clearly took the view that this should have been done by Dr. Keeling in 1989 and/or by Dr. Buckley in 1991. I would take the view that Dr. Keeling cannot be faulted for not separately investigating the panic attacks in 1989. At p. 102 of Book 4 of the transcript the learned trial judge himself asked Dr. Keeling the following question:-

    What did you conclude about these panic attacks as to why they were happening?

    Dr. Keeling replied as follows:

    At that moment in time the weight on the panic attack did not defer us from the investigation of the severe headache associated with the nausea so we didn't put very much weight on it at that point in time. In other words, what I am saying is that if we felt the symptoms were primarily driven by a panic episode we wouldn't have progressed with the series of investigations for the headache, such as the lumbar puncture.

  15. At p. 114 Q. 436 in the same transcript Dr. Keeling was asked why he did not refer the patient to a psychiatrist in respect of the panic attacks and his answer reads as follows:-

    Because his symptoms as he presented to us were not driven by the panic attacks. The symptoms as we saw it was related to what we considered to be a viral illness with meningeus and headaches and nausea.

  16. De. Keeling goes on to develop the theme and emphasises that as far as he and his team were concerned Mr. Wolfe was a patient presenting himself to the hospital with severe headache and that the panic attack was a side issue. If it had been a serious issue he would have been referred to a psychiatrist.

  17. In short it is quite clear from Dr. Keeling's evidence that he considered he was treating abdominal pain and that the so-called panic attacks were not a serious symptom that required some independent investigation. It certainly would never have occurred to him that such investigation would be desirable because of the possibility of a phaeo. This was because at all material times Mr. Wolfe's blood pressure was normal, that is to say he was in medical terms "normotensive". I will explain in more detail the importance of this when I deal with the cross-appeal but it is important even at this stage that I very briefly explain the context in which this factor had significance.

  18. A phaeo is an extremely rare condition. In at least 90 per cent of all "attacks" associated with a phaeo the patient is hypertensive. But approximately 40 per cent of the attacks are paroxysmal which means that the blood pressure is raised only at the time of the attack though there was some evidence to suggest that it would continue somewhat raised for a period thereafter. It was very much part of the plaintiff's case that although the deceased may have presented himself following on the attacks as normotensive that is to say with normal blood pressure, the attacks were nevertheless paroxysmal but the blood pressure had gone down at the time he presented himself to the hospital. It was obviously to the plaintiff's great advantage if she could establish this as 40 per cent of all cases come within that category whereas if her late husband was completely normotensive during the attacks there are not more than 10 per cent in that particular category and obviously a failure to diagnose is much more understandable. As I will be pointing out when I am dealing with the cross-appeal it is clear that although there was conflicting expert evidence in this matter the learned trial judge accepted the view of Professor Wass, an English expert that because of continuing headaches at the time of presentation, the attacks were still in being and that therefore if they were paroxysmal rather than normotensive there would still have been raised blood pressure. It was the view of all the doctors called on behalf of the defendants that if Mr. Wolfe was of the normotensive category no physician could reasonably have been expected to have thought of a phaeo on foot of the other symptoms.

  19. It is in that context therefore that Dr. Keeling was of the view that it would have been absurd for him to have thought of a phaeo and, therefore, on that account to have pursued further investigations of the panic attacks in 1989. The views of Dr. Weir were even stronger in this regard. Given that Mr. Wolfe was himself attributing the panic attacks to loss of employment I do not think it reasonable to find negligence on the part of Dr. Keeling for not separately investigating the panic attacks in 1989.

  20. With regard to his position in 1991 it appears to be unclear on the evidence as to whether Dr. Keeling ever had sight of Dr. Buckley's famous letter to Dr. Carthy, but even if he had Mr. Wolfe, at that stage, was for general purposes under Dr. Buckley and not under Dr. Keeling. Dr. Keeling was only brought in to carry out the tests which in the event showed that he had a peptic ulcer. In my view there is no prima facie case of negligence against Dr. Keeling. There is a finding by the learned High Court judge that in his view no clinician of comparable status and skill if acting with ordinary care would have failed to investigate "panic attacks" having such severe associated symptoms. But it does not seem to me that the evidence supports that finding. Nor in my view can such a finding be justified against Dr. Keeling in 1991. At that stage he was only dealing with the peptic ulcer. Effectively, Mr. Wolfe was Dr. Buckley's patient. It had been intended by Dr. Buckley that following on the investigations by Dr. Keeling, Dr. Buckley would review the position relating to the panic attacks. It was to Dr. Buckley that Mr. Wolfe made clear that his real complaint was the panic attacks. I entirely accept, of course, the view of the learned High Court judge that in a busy hospital such as St. James', medical consultants are obliged to rely on their senior house officers to assist them with their workload and to take many routine decisions on their behalf. But in this case the liability of Dr. Buckley cannot be absolved on that account. If the plan was that Mr. Wolfe was to be reviewed in relation to his complaint of panic attacks after the investigation by Dr. Keeling then that should have been made absolutely clear on notes which would have been before Dr. Quinn. I have already found that Dr. Quinn should have understood this from the letter to Dr. Carthy, but I do not think that the inclusion of that letter in the file was sufficient. It should have been made crystal clear by Dr. Buckley in a note on the file that the patient was to be referred back to him for consideration of the panic attacks. The reason I take that view is the express instructions which were given by the patient to Dr. Buckley. Dr. Buckley, in his evidence, seems to lay great emphasis on the fact that he was only told by Mr. Wolfe that the panic attacks were his main complaint at the end of an interview. Dr. Buckley mentions this several times in his evidence but I cannot understand the relevance of it. Whether it was at the beginning, the middle or the end of the interview, it was a clear statement coming from the patient. A peptic ulcer could not possibly explain the panic attacks over a long period of time and in my view it was open to the learned High Court judge to find as he did that there was negligence in discharging Mr. Wolfe without the panic attacks being investigated. That negligence must be attributed to the hospital itself, to Dr. Buckley and to Dr. Quinn. I do not think that it can be attributed to Dr. Keeling.

  21. One cannot but have great sympathy with Dr. Buckley. He gave his evidence in an admirable fashion without engaging in too much advocacy or special pleading. Secondly, he frankly admits that the unfortunate event from his point of view was the finding of the peptic ulcer.

  22. In this connection it is important to review some of the evidence of Dr. Buckley. At p. 46 of Book 7 of the transcript there was the following question and answer in the course of Ms. Irvine's cross-examination on behalf of the plaintiff:-

    Q.

    I will come to the blood tests in a moment. But you did not investigate the panic attacks at all with him; is that correct?

    A.

    I arranged for him to come back to my clinic, whenever it was, two weeks later. I did not address it. This was the end of the interview on that day.

  23. The following dialogue then ensued between the learned trial judge an Dr. Buckley:-

    Q.

    Did you form any opinion about what he was telling you about the panic attacks which he was apparently very clearly associating with the abdominal pain? The idea he was trying to get across to you and did apparently get across to you, Dr. Buckley, was that he felt, rightly or wrongly, that if he could have the panic attacks sorted out that he would have no more problems with the pain because the pain in the stomach was associated, was related to the panic attacks, but the prime mover was the panic attack and the other was ancillary symptom that came with it. So he felt that If he could get rid of the prime mover he would not have any more stomach trouble. That seems to be what he was thinking rightly or wrongly?

    A.

    I would agree, My Lord, yes.

    Q.

    That is what he was trying to say to you. What was your reaction to that?

    A.

    My reaction to that, My Lord, at the end of a difficult interview and subject to time constraints, would be to review it on another day.

    Q.

    Did you in fact review it at a subsequent date?

    A.

    I gave Mr. Wolfe an appointment to re-attend my clinic after he had been investigated. The problem then was positive findings came to light as a result of these investigations and it would have been better if the investigations had been negative.

    Q.

    What I would like you to comment on is this, your thinking of time was, when you say Mr. Wolfe at this interview, was that the stomach pains did not have a physical origin, that they had, for want of a better word, a mental origin. That was your thinking at the time. He then at the end of the interview gave you this information about panic attacks which of course could well have a mental origin, and associated with it he said abdominal pains; did that confirm your thinking that the problem was not physical, probably not physical, but was mental in origin, or did you take it into account at all one way or another?

    A.

    I would have to say, My Lord, that at the end of the interview and after this statement had been made by Mr. Wolfe, I was still not concerned about his health or safety to the extent that I should have done something else on that day other than what I did do. But I did erect a safety net to a certain extent by getting them back.

    Q.

    In the meanwhile although you did not think that in fact any symptoms would emerge, any discovery would be emerged, you thought nonetheless it would be wise to have this stomach examination carried out by Dr. Keeling's team. It was carried out, as we know, and contrary to your expectation a peptic ulcer was discovered. Is it the position then that that, so to speak, took over now as the source of the problem as being identified, it is the peptic ulcer and the peptic ulcer was duly treated, as we know, and ultimately Mr. Wolfe was discharged as an outpatient from St. James' Hospital?

    A.

    That is exactly the position, My Lord.

  24. The learned trial judge at that point checked out that Dr. Buckley had not in fact seen Mr. Wolfe again and he was duly reminded of the evidence that Mr. Wolfe was seen by Dr. Quinn instead. At that point Barr J. put it to Dr. Buckley that he would be responsible for Dr. Quinn even though it did not follow that he had to personally see him and that proposition was assented to by Dr. Buckley. What seems to clearly emerge from this and subsequent questioning of Dr. Buckley was that he does not seriously dispute that Mr. Wolfe's specific assertion that it was for the panic attacks rather than the stomach pains that he was seeking treatment should have been pursued, but time and again he makes two points which would give a reason why the investigations were not carried out but which would clearly not absolve him from the duty to carry them out if such a duty of care existed. In other words Dr. Buckley's dilemma was understandable but if such duty did exist it was not in the end legally excusable. The two points were that the specific emphasis on the panic attacks by Mr. Wolfe came at the end of an interview in circumstances where some kind of time limit was operating understandably enough for interviews with each patient in the Outpatient's Department. The second point was that everything was effectively derailed by the finding of the peptic ulcer.

  25. At p. 52 of the same transcript the cross-examination by Ms. Irvine continued as follows:-

    Q.

    Now you are at five years with the paroxysmal symptoms and you didn't get them investigated?

    A.

    I did not get them investigated, they are common presentations and I did not dismiss the patient, I arranged for him to return. This is the point I am trying to make.

    Q.

    I know he returned, Dr. Buckley but he only returned in relation to the abdominal pain. The plaintiff's presenting complaint was that he wanted the panic attacks dealt with, they had not been dealt with in 1989 and he is back asking for treatment for his panic attacks. I know you dealt with the abdominal pain, but I am suggesting you never dealt with the panic attacks, which you thought, or you certainly thought his problem was psychological. What you did was you cast out the physical net rather than the psychological net, which is the one you should have cast out?

    A.

    I cast out a safety net and asked him to return in two weeks. The tragedy was the positive findings of the investigation. It would have been much better if I had arranged no physical investigations at all.

  26. At pp. 54 and 55 there was further cross-examination which ended in a rather curious answer. It reads as follows:-

    Q.

    He was never reviewed again from the panic attacks symptoms aspect; isn't that correct?

    A.

    Yes, it is correct. The explanation for that was a cause was found for his symptoms.

    Q.

    No, a cause was found for his abdominal symptoms but not for the persistent shaking panic attacks that he was having for three weeks before 1989; isn't that correct?

    A.

    Yes, it is correct. My response to that would be that it would have been better if we had not done an endoscopy and we had failed to diagnose an ulcer, then we cold have possibly pursued the anxiety. Then he might have died from gastric haemorrhage due to an unrecognised ulcer.

  27. Since the persistent panic attacks over many years could not have been caused by the peptic ulcer it would seem quite clear that if there was a duty of care to investigate those attacks when Mr. Wolfe returned to Dr. Buckley after tests proved negative there must necessarily have been the same duty if as happened, in the event the tests proved positive but in a way that could not explain the panic attacks. It is clear in my view that there was a duty and that Dr. Buckley was in breach of it having regard to the evidence of Dr. Quinn.

  28. None of this, however, is relevant unless the learned trial judge was entitled to draw the inference which he did that had the panic attacks been investigated it would have been discovered as a matter of probability that Mr. Wolfe was suffering from a phaeo. In my view, the trial judge was entitled to draw this inference. First of all the only explanation for the so called panic attacks which had ever been put forward was one which to a lay man at least would seem inherently unlikely, that is to say that they arose because of Mr. Wolfe losing his job with the Port and Docks Board as far back as 1985 notwithstanding that the serious panic attacks did not really commence until 1988 and notwithstanding that they persisted until 1991. There was no evidence that any doctor or expert of any kind had ever determined that he loss of job was the reason for the panic attacks. The suggestion came from Mr. Wolfe himself, though it is clear from the transcript that the trial judge was of the view that this was suggested to him by somebody and probably by his general practitioner. The neat theory put in cross-examination that had he been sent to a psychiatrist, a psychiatrist would have ruled out this explanation or any other psychiatric explanation and would have considered the possibility of the phaeo was rubbished (perhaps correctly) by Dr. Keeling and Dr. Buckley. But this appeared to be partly on the basis that in general psychiatrists were not know for disclaiming reasons connected with their own speciality and attributing physical reasons for symptoms that might otherwise be regarded as psychiatric. It would seem to me that the real question which had to be addressed by the trial judge was whether if a psychiatrist, as seems likely, ruled out or even expressed scepticism as to the loss of job explanation and could come up with no other explanation a consultant physician to whom Mr. Wolfe would have been returned would have then considered the question of a phaeo having regard to the combination of symptoms and notwithstanding the normotensive presentation. Barr J. at p. 26 of his reserved judgment says the following:

    There is no evidence or expert testimony to connect the time lag between the onset and continuance of severe symptoms in 1988 and the loss of employment in 1985, in my view no clinician of comparable status and skill if acting with ordinary care would have failed to investigate 'panic attacks' having such severe associated symptoms. Having done so, he/she would have contemplated at least a possibility that the attacks from late 1988 were unrelated to the plaintiff's loss of employment in 1985 and that in fact they may have been caused by an as yet unidentified abdominal ailment. Once that possibility presented itself prudence would indicate that appropriate abdominal tests should be carried out. If that had been done in the instant case Mr. Wolfe's phaeo tumour would have been discovered and surgically treated with probable success.

  29. I think that the learned trial judge was clearly entitled to draw those inferences. I would, therefore, dismiss the appeal.

  30. Turning now to the cross-appeal it must logically follow from the views which I have expressed that I would allow that part of the cross-appeal which relates to the dismissal of the action against Dr. Buckley in that the heading of negligence under which the plaintiff/respondent was successful in the High Court necessarily involves a liability in him.

  31. Altogether different considerations apply to the rest of the cross-appeal. It is not necessary to go into them in any detail. The position can be summarised as follows. It was at all times the plaintiff/respondent's case that having regard to the particular combination of symptoms which Mr. Wolfe had a phaeo ought to have been diagnosed notwithstanding the absence of one of the most usual symptoms in that connection namely hypertension. It was never in dispute that the symptoms complained about by the late Mr. Wolfe were undoubtedly symptoms commonly associated with a phaeo, but a phaeo is an extremely rare condition and those same symptoms were associated with numerous other medical ailments. Furthermore, one important symptom which would generally be a feature of a phaeo namely, sweating was not complained about in the hospitals by Mr. Wolfe. Indeed at one stage when he was asked was there night sweating he answered in the negative. However, his wife's evidence was that sweating was a regular feature and it is part of the plaintiff's case that had there been any proper consideration of the other symptoms when taken in combination the existence of the sweating would have been discovered. As I have already indicated earlier on in the judgment it was an important part of the plaintiff's case that although her deceased's husband's blood pressure was normal upon presentation as a matter of probability that was because the attacks had then come to an end and that he was in the 40 per cent category who have paroxysmal attacks, that is to say have raised blood pressure during the attacks but not afterwards. It is true that the plaintiff/respondent as a fall back case also claimed negligence in failure to diagnose the phaeo even if the court found that the deceased was at all times normotensive and, therefore, within the category of 10 per cent or in the view of some less.

  32. On this issue the learned trial judge was faced with the difficulty that he had entirely conflicting evidence from well known Dublin consultant physicians who gave evidence on both sides. Dr. Buckley, Dr. Keeling and Dr. Weir in particular were strongly of the view that it would have been wholly unreasonable and wholly impracticable to expect any physician to have thought of, never mind, diagnose a phaeo in the absence of hypertension though they did acknowledge the textbook cases of phaeos without hypertension even at the stage of attack, that is to say completely normotensive. Dr. Barniville and Professor Seán Blake however who were called on behalf of the plaintiff/respondent gave very strong evidence to the opposite effect. All of this was somewhat unusual in that there inevitably tends to be a pattern in medical negligence actions of plaintiffs relying on specialists brought in from outside the jurisdiction, some of them in retirement or semi-retirement and regularly giving expert evidence in court. But in this case there was a clash of opinion between leading practising or retired practising physicians in the well known Dublin hospitals. It is not very easy for a layman to understand how this can happen and it certainly makes it very difficult for a trial judge. But in addition to the Irish consultants the defendants relied heavily on a Professor Wass from the Radcliffe Infirmary in Oxford who was an acknowledged expert on this branch of medicine and was not only a professor but was a practising physician also. He was very strongly of the view that it would have been unreasonable to have expected diagnosis and furthermore he was strongly of the view that on the occasions when the deceased presented himself with the symptoms his attacks were not over particularly having regard to the headaches and that therefore he came within the 10 per cent category of completely normotensive patients with phaeos.

  33. With this range of views it was open to the learned trial judge to come down on either side. This is what Barr J. in fact said at p. 34 of his judgment:-

    I accept the evidence of Professor Wass which was supported by other defence experts that in all probability Mr. Wolfe was one of those very rare phaeo sufferers who remained normotensive during attacks. The opinion has been expressed that he was suffering the tail end of such attacks when his blood pressure was checked in hospital and found to be normal on both occasions after his arrival there with severe headache which had not yet subsided. In the absence of the primary phaeo symptom of hypertension on those occasions the possibility that such a tumour may have been the cause of Mr. Wolfe's condition was too remote to be checked out by a competent clinician. I accept that opinion. Having regard to the probable normotensive nature of Mr. Wolfe's tumour I am not convinced by the opinions expressed by Dr. Barnable and Professor Blake that the cluster of symptoms which were known to or which ought to have been ascertained by the treating doctors at St. James' Hospital, including severe sweating during attacks, should have put them on notice that there was a real possibility that the cause of the deceased's symptoms was a phaeo tumour. As I have already stated, I am satisfied that the evidence of hypertension when his blood pressure was checked at anytime in hospital while the severe attacks were continuing would rule out in the mind of a competent clinician a phaeo tumour as a realistic possibility which ought to have been investigated.

  34. It was perfectly open to the learned trial judge to make that finding on foot of the evidence before him and it cannot be interfered with by this court. Except to the limited extent to which I have already indicated in relation to Dr. Buckley I would hold that the cross-appeal should fail. But it should be allowed to the limited extent of substituting a finding of negligence against Dr. Buckley for the failure to investigate the panic attacks.

  35. It may seem surprising that so far I have not referred to the legal principles laid down by this court in relation to medical negligence and particularly the principles enunciated by Finlay C.J. in Dunne (an infant) v The National Maternity Hospital [1989] I.R. 91 as referred to by the learned trial judge. I will now put that omission in context. The former Chief Justice in that judgment set out a number of principles but the relevant one for the purpose of this case as pointed out by the learned trial judge is the following:-

    The true test for establishing negligence in diagnosis or treatment on the part of a medical practitioner is whether he is bring proved to be guilty of such failure as no medical practitioner of equal specialist or general status and skill would be guilty of if acting with ordinary care.

  36. The formulation of this test has been carefully thought out with a view to achieving a proper balance between two legitimate concerns. This is illustrated by the further passage from the judgment cited by Barr J. and which I think it useful to cite again in this judgment:-

    In order fully to understand these principles and their application to any particular set of facts it is, I believe it helpful to set out certain broad parameters which would appear to underline their establishment. The development of medical science and the supreme importance of that development to humanity makes it particularly undesirable and inconsistent with the common good that doctors should be obliged to carry out their professional duties under frequent threat of unsustainable legal claims.

    The complete dependence of patients of the skill and care of their medical attendants and the gravity from their point of view of a failure in such care makes it undesirable and unjustifiable to accept as a matter of law a lax or permissive standard of care for the purpose of assessing what is and is not medical negligence. In developing the legal principles outlined and in applying them to the facts of each individual case the courts must constantly seek to give equal regard to both of these considerations.

  37. The learned trial judge took the view that there was actionable negligence by reason of the failure to investigate the panic attacks in 1989 and 1991. In relation to 1989 the above cited test of "no medical practitioner of equal specialists or general status and skill" would be the appropriate test. I applied that test on foot of the evidence contained in the transcript and for the reasons which I have indicated came to the conclusion that the learned trial judge was not entitled to make a finding of negligence in 1989. On the other hand, I believe that he was fully justified in making a finding of negligence in relation to the failure to investigate the panic attacks in 1991. But in my view in making that determination the "medical practitioner of equal specialist or general status and skill" is of very little relevance. In relation to 1991 it is not a question of the deceased's medical advisors being obliged to use their professional skills and thinking up some test which ought to be carried out. At that stage the patient himself, Mr. Wolfe, was telling Dr. Buckley that he was seeking treatment not for the abdominal pains but for the panic attacks. He may well have mentioned this at the end of an interview but the panic attacks had featured in earlier complaints and the medical records show that he had had them for some years. If this was his major concern in 1991 and that concern was expressed to his doctors I see no reason why one has to apply some artificial test as to what the doctor's duty was. Expert evidence is never necessary to prove the obvious. The learned trial judge was entitled to take the view that there was a clear duty on Dr. Buckley to see to it that the panic attacks would be investigated as required by the patient. As I have already indicated it is perfectly understandable (though not excusable) why in the end this did not happen and Dr. Buckley in his evidence very fairly admits that the finding of the peptic ulcer effectively caused the distraction. The duty remained and the defendants were in breach of it. I have also indicated that in my view it was fully open to the learned trial judge to draw the inference that had the panic attacks been investigated the phaeo, as a matter of probability, would have been discovered. The Dunne v. The National Maternity Hospital test was correctly applied by the learned trial judge in relation to the first heading of negligence that is to say the failure to diagnose. But that test would seem to me to be of only marginal relevance to the question of whether the panic attacks should have been investigated in 1991 for the reasons which I have given.

  38. In short therefore, I would propose the following orders:-

    1. That the appeal be dismissed.

    2. That the cross-appeal be allowed to the limited extent that there be substituted a finding of negligence on the part of the second-named defendant and that therefore the judgment in favour of the plaintiff would be against both the first and second-named defendants.

    Fennelly J

    (with whom Murray J concurred)

  39. Mr. Joseph Wolfe died in November 1991 at St James’ Hospital at the tragically early age of 33. The cause of death was an extremely rare condition. He had a tumour called a phaeochromocytoma. It became the practice to call it a "phaeo". It was not diagnosed in the hospital when the deceased attended there either in 1989 or 1991. It was only discovered on post-mortem. If it had been diagnosed, it could have been treated. Not having been diagnosed, it was fatal. When he returned to the hospital in November 1991, it was too late.

  40. The plaintiff brought a fatal injuries action against St James’s Hospital, (“the hospital”), Doctor Michael Buckley, a senior consultant physician at the hospital, (“Dr Buckley”) and Doctor Donald Weir, also a consultant. The claim against Dr Weir was withdrawn at the outset.

  41. The action was at hearing for ten days before Barr J in the High Court. Barr J found that the hospital was negligent but that Dr Murphy was not. The principal if not the sole basis of the claim was that the hospital and/or its consultants had been negligent in failing to diagnose that the deceased was suffering from a phaeo and consequently failed to treat him appropriately. The plaintiff relied on the evidence of two eminent consultants, Dr Harry Barniville, M.D., F.R.C.P.I., a former consultant physician attached to the Mater Hospital in Dublin and other hospitals and Professor Sean Blake, M.Sc., F.R.C.P., professor of clinical cardiology at University College Dublin and also a former consultant to the Mater Hospital, in his case as a specialist cardiologist. It is not unfair to say that the opinions of these two eminent physicians were predominantly, if not entirely, based on the failure to consider the possibility of a phaeo, with consequent fatal results. The learned trial judge rejected this allegation of negligence. He preferred the evidence of Professor James Wass, Professor of Endocrinology at Oxford and consultant physician at the Radcliffe Infirmary in Oxford, who was called as a witness by the defendants.

  42. In spite of this, however, he found that there had been negligence on the part of the hospital, though not of Dr Buckley, the second-named defendant, in failing to investigate panic attacks of which the deceased had complained, specifically failing to conduct appropriate abdominal tests, which would have led to the discovery of the phaeo. He made an award of £112,429 to the plaintiff.

  43. I should explain briefly the procedure by which the learned trial judge came to arrive at this conclusion. Having concluded the hearing and reserved judgment, he thought that the plaintiff’s case could be made out without relying exclusively on the phaeo issue. At a resumed hearing, he provided the parties with a memorandum which he had prepared. In essence, this document stated the following. Firstly, the root question to which the parties had addressed their attention at the hearing was whether the medical experts treating the deceased should have directed their attention to the possibility of a phaeo. However, the essence of the liability issue might, he suggested, be different, namely whether a consultant physician of comparable status and experience to the consultants who treated the deceased would have investigated the panic attacks of which the deceased had been complaining for some years on the basis that they might be indicative of a physical abdominal problem as yet undiagnosed. The learned trial judge heard argument on the issue thus defined but did not permit the plaintiff to call further evidence. Having done so, he gave judgment for the plaintiff.

  44. There is an appeal by the hospital against this finding and a cross-appeal by the plaintiff, against the failure to find negligence generally on the phaeo issue and, in any event, failing to find that Dr Buckley was negligent.

  45. Geoghegan J, in his judgment, gives reasons why the cross-appeal should not be allowed. He rightly says that it was perfectly open to the learned trial judge to make the finding he did on the evidence before him. He was confronted not only by a conflict of evidence between the plaintiff's two experts on the one hand and Professor Wass on the other, but also between them and Dr Buckley, Dr Keeling and Dr Weir. Although the last-named experts could be said to have had an interest in the outcome of the case (even if the case against Dr Weir had been withdrawn), as Geoghegan J says, they were strongly of the view that it would have been wholly unreasonable and impracticable to expect a physician to diagnose a phaeo in the absence of any evidence of raised blood pressure. Their evidence, though not technically independent, was that of experts. I agree with Geoghegan J that the cross-appeal should not be allowed in this respect. I do not, however, for reasons which will become apparent, agree that the appeal plaintiff’s cross-appeal should be allowed in the case of Dr Buckley. Geoghegan J. is, of course, correct insofar as, having determined that there was negligence on the part of the hospital, because of a failure by Dr Buckley, there should also have been a finding against him. My disagreement is with the determination in respect of the hospital.

  46. The balance of this judgment concerns the appeal by the first-named defendant, the hospital.

    THE PHAECHROMOCYTOMA

  47. The phaeo is a rare condition of abdominal tumour occurring in between 1 and 4 per million of the population. The phaeo found in the deceased on post-mortem examination was of significant size. It was situated behind the liver. The phaeo excretes catecholamines (adrenaline and noradrenaline), usually paroxysmally, which ultimately affect the heart and cause cardiac arrest. The typical range of symptoms consists of attacks of severe abdominal pain and headaches as well as vomiting, sweating, and shaking. The shaking is caused by the excretions. Two aspects of the symptoms are highly material to this case. The deceased, in 1991, spoke of himself as suffering from “panic attacks” associated with the abdominal pain. The failure to investigate this complaint was central to the finding of Barr J. In the great majority of cases, the patient is hypertensive (has high blood pressure). Some of these, about 40% of the total, have high blood pressure only during attacks. A small minority, less than 10%, do not even manifest this symptom during attacks. This appears to have been the case with the deceased, which made him, as was said in the evidence, and accepted by the learned trial judge, “a rarity within a rarity.” A normal blood pressure reading makes the diagnosis of a phaeo much less likely.

  48. It was accepted by all the experts that the condition is very difficult to diagnose, and it is especially so when the patient is normotensive. It was also common case that the range of its symptoms are, to a large extent, referable to many other more common medical conditions. It was said that it is “a great mimic.” For all these reasons, it is very often either discovered on post-mortem or serendipitously on investigation of some other matter. As against all of these problems in its diagnosis, it can be readily detected by means of ultrasound scanning, which will be carried out only if the physician suspects it is present.

    THE HISTORY

  49. The deceased served in the army from 1977 to 1982. He married in 1979 and had three children. He was employed by Dublin Port and Docks Board after leaving the army, but lost this full-time job in 1985. The extent to which he suffered distress as a result of this unfortunate event was debated for its materiality to the panic attacks, which will need to be considered.

  50. From some time prior to 1989, the deceased commenced to suffer from intermittent attacks of headaches accompanied by shaking and sweating. The headaches were so severe that he would, according to the evidence of the plaintiff, his wife, sit in a room holding spectacles to his head to see if he could stop the headaches. This had gone on for several months before he admitted himself to St Vincent’s Hospital Accident and Emergency unit on 11th February 1989. The notes of that hospital indicate that the deceased was complaining of bursting occipital and then frontal headache, vomiting and “involuntary shaking of his head hands etc. x 3 yrs,” meaning that this had been going on for three years. His blood pressure was normal. He spent three hours at the hospital. He was seen by a Senior House Man whose impression was that he had a “probable migrainous event.” Simple analgesics were prescribed and he was to be reviewed by his GP. The final note records: “Says pain is much better now, almost gone.”

  51. However, the headaches continued in the following days and he presented himself at the Accident and Emergency department of St James’s Hospital at 10pm on 15th February 1989. St James’s was nearer his home. The hospital notes record him complaining of severe headaches for the previous four to seven days as well as vomiting. On examination he was distressed with pain but, in respect of his abdomen the notes say: “nothing abnormal detected.” He was admitted as an in-patient. The nursing notes in respect of his time as an in-patient record his complaints of recurrent headaches over the previous days and that these were associated with nausea and shaking. The medical notes also refer to his shaking attacks over the past three years put down to anxiety in the following note: “Onset since lost job x 3 yrs.” As already noted, he had lost his job in 1985. Again his blood pressure was normal. The headaches eased.

  52. The deceased came under the care of Doctor Keeling, director of gastro-enterology at the hospital. Investigation disclosed a raised white blood cell count. He had a lumbar puncture and other tests including a brain scan. The results were normal. Dr Keeling was of the opinion that these findings confirmed his own provisional diagnosis of a viral type illness. The shaking attacks were not specifically investigated. Dr Keeling said, in evidence, that he had no reason to suspect a phaeo.

  53. The deceased was discharged from hospital to out -patient care. I will come to deal later with the learned trial judge’s finding that Dr Keeling was at fault in failing to cause an investigation of the shaking attacks recorded at this time. Barr J uses the expression, “panic attacks,” though that was not the expression used at that time. In his judgment he also describes these attacks as having become more severe in the latter part of 1988. This latter aspect does not appear from the hospital notes made in February 1989. Both the medical and nursing notes record his complaints of shaking attacks as dating from three years back and as being connected with his loss of job at that time. I must digress to refer to this issue in a little detail, as it became highly material to the decision of the learned trial judge. An excerpt from the medical records reads as follows:

    Has been having shaking attacks x 3 yrs

    Associated nausea and palpitations

    Put it down to anxiety

    Onset since lost job. 3 yrs ago..

  54. As explained in evidence, these notes represent what was taken down as the patient’s account of his complaints. Barr J appears to have based his very important qualification of the commencement of the attacks to 1988 on the evidence given by the plaintiff at the trial in the High Court. Firstly, in reference to the headaches, she said she could not really remember how long they had been going on and then said: “months I would say.” She then agreed that the shakes and sweats had been going on “for a number of months.” The following exchange took place in cross-examination:

    Q.

    Your husband had informed the doctors that these panic attacks or shaking, or whatever you want to call it, that these symptoms he had started around the time he became unemployed?

    A.

    They started in 1988 I think.

    Q.

    Well, is it not the fact that they started around that time?

    A.

    Probably did, yeah.

  55. Although the plaintiff also said the shaking attacks had started either months or a year before February 1989, there does not appear to be any evidence of the shaking attacks becoming more severe in the latter part of 1988. The plaintiff was asked about their commencement. She appears to have agreed in the passage quoted above that they probably commenced about the time the deceased lost his job. In any event, what is important is whether the defendants were on notice or should have been on notice of any radical change in 1988. The patient, the deceased, appears to have given an account of his shaking attacks as dating from three years before his first attendance at hospital in 1989 which is consistent with their being related to the loss of his job. The defendants were not informed of any change in the severity of the attacks in the latter part of 1988. Most strikingly, the entire of the evidence of the plaintiff’s experts was given on the basis that the attacks had been going on for several years.

  56. Following his discharge from St James’ in March 1989, the deceased got better for about a year, but gradually the symptoms came back. They got progressively worse. The plaintiff gave evidence that her husband had suffered from shakes associated with severe stomach pains, though, it will be noted, he had not himself complained of stomach pains in 1989.

  57. The deceased went back to St James’s on 5th April 1991. He then came under the care of Dr Buckley for the first time. He complained of having suffered stomach pains for two years. His complaints, at that time, are recounted in a letter written by Dr Murphy on 23rd April 1991 though possibly dictated earlier, to the deceased’s GP. This letter was crucial to the decision of the learned trial judge. I will quote it in full:

    Dear Dr Carthy

    Unfortunately, I was unable to read your referral letter and Mr. Wolfe proved himself to be a rather poor historian. Initially, he admitted to intermittent abdominal pain of uncertain character for two years, accompanied at times by nausea and vomiting. He gave a past history of chest surgery at the age of nineteen when serving in the army. There were no localising features on examination other than the fact that he is somewhat overweight.

    I think the safest thing here is to get an upper GIT endoscopy, chest x-ray as well as the routine haematology and biochemistry. My feeling at the moment is that these tests will be normal. At the end of the interview, Mr. Wolfe reported recurring panic attacks and that his abdominal discomfort was associated with these rather than occurring in isolation. He stated he had come seeking treatment for these attacks and not for abdominal pain. Nevertheless, I feel we should proceed with the screening tests and review the situation thereafter when the results come to hand.

  58. The illegible referring letter from the GP was dated 15th April 1991 appears merely to have said that the deceased was “complaining of abdominal pain and was currently being treated with [.... illegible]".

  59. Dr Murphy referred the deceased to Dr Keeling, a consultant gastro-enterologist, who performed an upper genito-urinary endoscopy. This, contrary to the expectations expressed by Dr Buckley in his letter, revealed an active duodenal ulcer and helicobacter (bacterial) infestation. This discovery may, in retrospect have had the unfortunate effect of distracting attention from investigation of the associated symptoms. It certainly provided an explanation for the stomach pain. A drug trial regime was prescribed and it appears clear that the duodenal ulcer was successfully treated. His ulcer healed. The deceased was discharged from the hospital. On 9th May 1991, Dr Aidan Quinn, Senior House Officer to Dr Buckley wrote to the GP referring to the finding of the duodenal ulcer and to the fact that the deceased was attending an ulcer drug trial. The letter concluded: “We can now safely discharge him to your and their care.”

  60. Tragically, the true cause of the deceased’s complaints, the phaeo, had not been diagnosed when he was discharged. On 9th November 1991, he was taken ill and brought to St James’ Hospital. It is common case that it was then too late to save him. He died on 11th November 1991.

    THE HIGH COURT DECISION

  61. The finding of negligence, made by the learned trial judge against the hospital, turns essentially on the discharge home of the deceased without investigating the complaint of “panic attacks,” mentioned in Dr Buckley’s letter. Firstly, it is important to recall that the primary case made by the plaintiff is that the defendants were negligent in failing to diagnose and, having diagnosed, to treat the phaeo. The learned trial judge found against the plaintiff on that point. However, he found the hospital, but not Dr Buckley, negligent in failing to investigate the panic attacks. The relevant parts of the judgment read as follows.

  62. He referred to the test laid down by the decision of this Court in Dunne (an infant) v National Maternity Hospital [1989] I.R. 91 (“Dunne”). He then formulated the question which he had to decide in the instant case (at page 14):

    Was Doctor Keeling and/or Doctor Buckley at fault in failing to discover by diagnosis, or in consequence of investigation of Mr. Wolfe’s symptoms, that he was suffering from the phaeo tumour from which he died? If so was such a failure of duty that no medical practitioner of equal status and skill would be guilty of if acting with ordinary care?

    (Note: clearly a word such as “a fault” has been inadvertently omitted from the last sentence.)

  63. The learned trial judge then drew attention to two important problems on the facts of the case:

    Two facts of major importance which have been established in evidence created particular difficulty regarding the diagnoses of Mr. Wolfe's phaeo tumour. The first was present at all material times. I accept the evidence of Professor Wass that in all probability Mr. Wolfe's tumour was a rarity within a rarity in that he remained at all times normotensive. It has emerged that he did not have an actual attack in hospital such as those described by his wife as having occurred at home. However, he was still having severe headaches in hospital which probably indicated the tail-end of attacks and he ought to have been found to be hypertensive on those occasions unless he was one of the minute number of phaeo sufferers who are normotensive. It is common case that hypertension, either continuous or during attacks, is normally the primary symptom of a phaeo tumour.

  64. The learned trial judge then summarised the facts as he saw them. I will return to this summary when I come to state my own conclusions. Firstly, he dealt with the issue of the phaeo (at page 25) and said:

    I accept the evidence of Professor Wass, which was supported by other defence experts, that in all probability Mr. Wolfe was one of those very rare phaeo sufferers who remained normotensive during attacks. The opinion has been expressed that he was suffering the tail-end of such attacks when his blood pressure was checked in hospital and found to be normal on both occasions after his arrival there with a severe headache which had not yet subsided. In the absence of the primary phaeo symptom of hypertension on those occasions, the possibility that such a tumour may have been the cause of Mr. Wolfe's condition was too remote to be checked out by a competent clinician. I accept that opinion. Having regard to the probable normotensive nature of Mr. Wolfe's tumour, I am not convinced by the opinions expressed by Doctor Barniville and Professor Blake that the cluster of symptoms which were known to or which ought to have been ascertained by the treating doctors at St. James' hospital, including severe sweating during attacks, should have put them on notice that there was a real possibility that the cause of the deceased's symptoms was a phaeo tumour. As I have already stated, I am satisfied that the absence of hypertension when his blood pressure was checked at any time in hospital while the severe headaches were continuing would rule out in the mind of a competent clinician a phaeo tumour as a realistic possibility which ought to have been investigated.

  65. I break the quotation at that point, as it is the end of the phaeo issue. The deceased's condition was "a rarity within a rarity" and the possibility of a phaeo was "too remote to be checked out." The learned trial judge continued immediately:

    However, in my view that is not an end to the matter, I accept the opinion that a clinician of equal specialist status to Dr. Keeling if acting with ordinary care would have investigated in February, 1989 or subsequently in April/June, 1991 the so called "panic attacks". The symptoms which were known to Dr. Keeling and his team in 1989 and 1991 and to Dr. Buckley and his team in 1991 are serious and, as previously stated, included nausea, vomiting, abdominal pain, headaches, shaking and loss of normal pallor. If they had been investigated it would have been discovered (a) that the attacks also included severe sweating; (b) that they had been happening in severe form regularly since late 1988 and, crucially, (c) that they had become acute three years after Mr. Wolfe lost his permanent job in 1985. There is no evidence or expert testimony to connect the time lag between the onset and continuance of severe symptoms in 1988 and the loss of employment in 1985. In my view no clinician of comparable status and skill if acting with ordinary care would have failed to investigate "panic attacks" having such severe associated symptoms. Having done so, he/she would have contemplated at least a possibility that the attacks from late 1988 were unrelated to the plaintiff's loss of employment in 1985 and that in fact they may have been caused by an as yet unidentified abdominal ailment. Once that possibility presented itself prudence would indicate that appropriate abdominal tests should be carried out. If that had been done in the instant case Mr. Wolfe's phaeo tumour would have been discovered and surgically treated with probable success.

    In 1989 Dr. Keeling's tentative diagnosis of a viral infection did not explain the known symptoms of the attack which the patient had suffered - far less the full nature of such attacks if investigated. In my view he or his team should have investigated the attacks and, if so, would have discovered that they were unlikely to have any connection with the patient's loss of employment in 1985 and may have had a purely physical cause associated with the abdomen. It was negligent as defined in Dunne's case not to carry out that investigation, or to have it carried out by some other appropriate expert. Likewise, when Mr. Wolfe returned to Dr. Keeling's care in 1991 the "panic attacks" from which he was suffering ought to have been investigated - all the more so as they were similar to those with which he had presented in 1989. If that had happened it would have been found that the peptic ulcer which was then discovered, though explaining abdominal pain at that time, did not explain the onset of severe intermittent attacks from 1988. The nature and severity of such attacks suffered by Mr. Wolfe since their onset in that year ought to have been investigated by Dr. Keeling and/or his team in 1991 as in 1989. That obligation is unrelated to the possibility that the patient might have been suffering from a phaeo tumour. If the so called panic attacks had been investigated by Dr. Keeling or anyone else at St. James' hospital their actual history as it has emerged in evidence at the trial probably would have been ascertained and an abdominal problem would have been suspected as a likely or at least a possible source thereof - thus giving rise to an abdominal investigation and the discovery of a previously unsuspected phaeo tumour. (That discovery would have been similar to two of the three phaeo tumours being treated by Prof. Wass at the time he gave evidence). It seems to me that no clinician of equal professional status and skill as Dr. Keeling if acting with ordinary care would have failed to investigate the purported severe "panic attacks" suffered by Mr. Wolfe - even on the basis of the information which was actually known to the medical staff at the hospital. Furthermore, it seems to me in all the circumstances that no clinician of equal specialist status if acting with ordinary care would have discharged Mr. Wolfe in July, 1991 without any follow-up arrangement and without carrying out any investigation of the so called "panic attacks". If Mr. Wolfe's subsequent history after discharge had been monitored it would have been discovered that his symptoms deteriorated still further in the ensuing months leading ultimately to the fatal attack from which he died in the following November. I cannot envisage any possible justification for leaving major so called "panic attacks" as a loose end without any investigation. In short, I find that Dr. Keeling was negligent in his treatment of Mr. Wolfe in 1989 and again in 1991.

    THE APPEAL

  66. Finlay C.J., in his judgment in Dunne expounded the approach to be adopted by the courts in dealing with allegations of medical negligence under a number of headings. The parties to this appeal made no submissions as to the inappropriateness of these tests. In the event, only the first proposition of Finlay C.J. was mentioned. It was accepted therefore that “the true test for establishing negligence in diagnosis or treatment on the part of a medical practitioner is whether he has been proved to be guilty of such failure as no medical practitioner of equal specialist or general status and skill would be guilty of if acting with ordinary care.”

  67. The submissions of the defendants on the appeal can be summarised as follows:

    1. the finding of negligence in failing to investigate is a “non-sequitur” in view of the rejection by the learned trial judge of a like contention regarding the failure to diagnose the phaeo; the finding that the absence of hypertension rendered the possibility of a phaeo to remote to be checked out by a competent clinician should have been the end of the matter;

    2. the central conclusion on this point is based on mere supposition and speculation, is not supported by evidence and would impose a standard of care going well beyond that laid down in Dunne, amounting in effect to strict liability;

    3. the learned trial judge relied on the evidence of Dr Barniville, the plaintiff’s expert, in this crucial respect, but he had said that the matter should have been referred to a psychiatrist as “a person who sees a lot of panic attacks”; the only psychiatrist called was the defendants’ expert, Professor Ted Dinan, an expert in the field of neuro-endocrinology; the latter, in evidence did not agree that further stomach investigation would have been indicated and thought that a phaeo would have been “very, very low in any differential diagnosis”;

    4. the learned trial judge criticised Dr Buckley’s SHO for not referring the deceased back to the specialist when discharging him, though no criticism was made of this doctor in the pleadings or at the trial.

  68. The plaintiff fully supports the conclusions of the learned trial judge, says they were supported by the evidence.

    CONCLUSIONS

  69. It seems to me that, once the learned trial judge reached the conclusion that the defendants or any of them were not negligent in failing to diagnose a phaeo, it is very difficult to defend his alternative conclusion. This conclusion is heavily, one could say, exclusively founded on the presence of symptoms of “attacks of shaking” as they appear to have been called up to 1989 or “panic attacks” as they were described in 1991 and by the learned trial judge in his judgment. Dr Barniville was of the opinion that the hospital and/or its consultants should have considered a phaeo as a possibility from 1989. He repeatedly emphasised that the symptomology was strongly indicative of the possibility of a phaeo. It is quite clear that his evidence regarding the duty to investigate the panic attacks flowed from his view that there was a need to investigate for the presence of a phaeo. He acknowledged, of course, that the fact that the deceased was normotensive rendered the phaeo much less likely, but he held firmly to his view that it was this condition that the medical experts should have foreseen. In the result, of course, the learned trial judge, as we have seen, preferred the evidence of Professor Wass, the defendants’ expert. He accepted Professor Wass’ view that the absence of a finding of hypertension rendered the possibility of a phaeo “too remote to be checked out by a competent clinician.” Expressing himself in other words, he thought the same fact “would rule out in the mind of a competent clinician a phaeo tumour as a realistic possibility.”

  70. He explains his later finding of negligence by saying that the obligation to check out the panic attacks was “unrelated to the possibility that the patient might have been suffering from a phaeo tumour.” At this point of the analysis, the presence or absence of hypertension has become irrelevant. So, at the risk of stating the obvious, has the possibility of a phaeo. The patient is suffering from two relevant symptoms, namely stomach pain and panic attacks.

  71. Taking the stomach pain firstly, the learned trial judge acknowledged that the discovery by Dr Keeling and his team of the peptic or duodenal ulcer “would have appeared to explain some of his symptoms at that time-notably abdominal pain.” This coincides with the evidence of Dr Barniville who agreed that the finding of the ulcer explained the stomach pain. (Day 2 Q 121). Dr Keeling explained the matter in more technical terms. The deceased had a large active duodenal ulcer. The associated helicobacter infestation (bacterial infection) sufficiently explained the ulcer, without the need to look for another, more unlikely, cause, such as a phaeo, which might have been there.

  72. The more difficult issue concerns the failure to investigate the panic attacks so clearly recorded in Dr Buckley’s letter of 23rd April 1991. It will be noted that the plaintiff associated these with the stomach pain and said that it was these that he wanted to have treated. At this point, I recall the history of this complaint, which I have mentioned in some detail in my earlier account of the facts. From his first attendance at St James’ Hospital in 1989, the deceased had recounted that his shaking attacks, which have been assumed to be the same as panic attacks, had been going on for three years and he seems clearly to have associated them with his loss of a job in or about 1985. Yet, the learned trial judge (page 26 of his judgment) recounts that these “had been happening in severe form regularly since late 1988" and that “they had become acute three years after Mr. Wolfe lost his permanent job in 1985.” This account appears central to the following conclusion of the learned trial judge, who says:

    In my view no clinician of comparable status and skill if acting with ordinary care would have failed to investigate “panic attacks” having such severe associated symptoms. Having done so, he/she would have contemplated at least the possibility that the attacks from late 1988 were unrelated to the plaintiff’s loss of employment in 1985 and that they may have been caused by an as yet unidentified abdominal ailment.

  73. This version of the evidence does not appear ever to have been canvassed in the evidence or argument at the trial. It is true that the learned trial judge invited Dr Keeling to speculate that the deceased might have been advised at some time in the past that a panic a attack he had then suffered had been caused by his loss of his job and that he had later attached this explanation in his own mind to the later attacks. But, at no point was it established as a fact, or considered as such by the experts called on behalf of the plaintiff, that the panic attacks had become more severe three years later. Even in his memorandum, the learned trial judge records the attacks as dating from “the loss of his employment .... in 1987 ....” and that they had become more severe in 1990, i.e., between the first and second attendance at the hospital, not in late 1988.

  74. The information which was before the medical staff of the hospital, either in 1989 or 1991, was not as described by the learned trial judge. The account from the deceased was that the attacks started three years before and he associated it with the loss of his job. Whether that could be a sufficient explanation or not does not arise at this point. What is clear is that the finding of negligence in this respect depends on a deterioration sometime in late 1988 in the condition of the deceased. This is, at best, dubiously supported by the evidence of the plaintiff given at the trial. More materially, it was not the account given by the deceased when he gave his history of symptoms nor the version of the facts upon which the plaintiff’s two experts at all times based their opinions.

  75. That is not the only difficulty about the conclusion of learned trial judge. He goes on to postulate that “appropriate abdominal tests should [have been] carried out.” He does not say what those “appropriate” tests would have been. We know, however, that Dr Buckley referred the deceased to Dr Keeling and that the latter did in fact carry out an upper GI endoscopy, which led to the diagnosis of a peptic ulcer. Quite obviously, therefore, Dr Keeling carried out abdominal tests, which were appropriate to the condition of the deceased. What the learned trial judge suggested was that, in order to investigate the panic attacks, these further “appropriate abdominal tests” should have been carried out. He does not, however, refer to any expert evidence to suggest that, independent of the now irrelevant issue of the phaeo, panic attacks should be investigated by means of any other abdominal tests. In essence, the only expert evidence available to him on this issue was that of Dr Barniville and Professor Blake, both of whom were certainly of the opinion that ultrasound examination should have been ordered, but they expressed this opinion only on the basis that the possibility of a phaeo would have called for such investigation and not on the alternative basis adopted by the trial judge. In the specific context of the letter of 23rd April, Dr Barniville said: “... he should have investigated for phaeochromocytoma.” (Day 2 Q 68). Inevitably, given the strong view of Dr Barniville and Professor Blake about the possibility of a phaeo, there was no independent expert evidence that the deceased should have undergone abdominal examination on any other basis. In these circumstances, I have to agree with the submission on behalf of the defendant that the learned trial judge had engaged in speculation and that his conclusion was not founded on evidence.

  76. One is left with the position that the deceased presented with severe stomach pain associated with panic attacks. Not only was the severe stomach pain investigated, but a perfectly good explanation was found for it and it was treated with every indication of success.

  77. In these circumstances, I do not think that the learned trial judge had any basis, in the evidence, for concluding that Dr Keeling and the hospital were negligent in failing to carry out abdominal tests in order to investigate the panic attacks. I agree with submissions of the defendants that the approach he adopted goes well beyond the standard laid down in Dunne. As I have explained, I base this conclusion primarily on the absence of any expert evidence to support the view of the learned trial judge. I would add that, in order to determine whether failure to conduct an ultrasound examination, as distinct from the upper GI endoscopy which was performed, amounted to such “failure as no medical practitioner of equal specialist or general status and skill would be guilty of if acting with ordinary care,” (the Dunne test) one would have to have evidence that, apart from the risk of a phaeo, such a specialist should, as a matter of practice, order an ultrasound in any case where severe abdominal pain was accompanied by panic attacks. There was no such evidence and, leaving aside the evidence of Dr Keeling that it would be completely uneconomical for hospitals to conduct expensive investigations on the basis of the cluster of symptoms exhibited by the deceased, the court would have to consider the practicality and proportionality of ordering such tests in every case.

  78. It remains necessary to consider whether psychiatric investigations should have been carried out which would have led to the discovery of the phaeo. Indeed, when one refers to the evidence of Dr Barniville on this subject, (day 1 page 137), one finds him questioning, certainly, the loss of a job as an adequate explanation for panic attacks going on for some years, but continuing [Day 2 Q 423]:

    I think if you are trying to pin down panic attacks I would think there are two ways to approach it; one has to get confirmation that there are in fact panic attacks, preferably from someone who sees a lot of panic attacks, like a psychiatrist .... If you are still not happy .... then you have to resort to a diagnosis of exclusion and rule out the other causes of very similar symptoms. And the one that you dare not miss is phaeochromocytoma ....” Professor Blake was of opinion that “recurring panic attacks would be reason enough for checking for the possibility of phaeochromocytoma, regardless of anything else.

  79. Here, it has to be said that there are certain difficulties in coming to any conclusion on the state of the evidence. The plaintiff did not call any psychiatric evidence, but relies on a remark made by Dr Keeling, not a psychiatrist, in the course of his evidence to the effect that the deceased did not “get the psychological interview that you would expect somebody who is having difficult panic attacks.” (day 5 Q 98). The apparently available evidence was that the deceased had himself attributed his panic attacks to his loss of employment three years before he first attended the hospital in 1989. The plaintiffs experts, also not psychiatrists, were sceptical about this explanation and Dr Barniville, as I have said, suggested that a referral to a psychiatrist would have been appropriate. This, of course, was not done, but the defendant called, as an expert witness, Professor Ted Dinan, Ph.D., M.D., Professor of Psychiatry at the Royal College of Surgeons in Dublin and consultant at Beaumont Hospital. His main field of specialist interest is neuro-endocrinology. In respect of his evidence the learned trial judge said:

    I accept the evidence of Professor Dinan ... that major adverse events in a persons life, such as loss of a good permanent job in times of poor employment prospects, might cause intermittent significant panic attacks with physical manifestations which could persist indefinitely- even for life. However, there is no psychiatric or other medical evidence that three years or more after the perceived triggering event such panic attacks may develop new or other greatly increased physical manifestations including severe abdominal pain, vomiting, headaches and profuse sweating and shaking. Should the onset of these symptoms in severe form in late 1988 have indicated a likelihood or at least a possibility that they were not related to panic attacks connected with the loss of Mr. Wolfe’s job in 1985 but pointed to the possibility of an as yet undetected abdominal disorder? ....

    [emphasis added]

  80. Professor Dinan gave evidence that the majority of patients that he saw in his clinical practice who present with panic attacks did so in a setting of life events such as the loss of a job. He disagreed with the evidence of the plaintiff’s experts, where they had cast doubt on the possibility of such symptoms persisting and said that people can retain such symptoms over a number of years. Furthermore, he said that he would put the possibility of a phaeo very very low down on the list of any differential diagnosis. He disagreed with the proposition of the plaintiff‘s experts that, even following the discovery of the duodenal ulcer, further tests should have been carried out. Furthermore, he made it clear that, among patients with a duodenal ulcer, about twenty per cent have psychiatric problems including panic attacks. He thought the diagnoses by Dr Buckley and Dr Keeling were appropriate, having regard to the information at their disposal.

  81. The learned trial judge based his conclusion on the absence of any psychiatric evidence dealing with a situation where there was a sharp deterioration in the condition of the patient three years after the “triggering event.” I do not think this conclusion is soundly based. I have already explained why I think that this is an incorrect version of the facts. I have also pointed out that it was not the version of the facts upon which the plaintiff's experts based their evidence. In the present context, the important point is that Professor Dinan was not asked to express an opinion based on that hypothesis. He was cross-examined most thoroughly, but always on the basis that the panic attacks had been going on for three years as of 1989 and five years as of 1991. It does not appear ever to have formed part of the case that the panic attacks worsened at the time and in the manner assumed by the learned trial judge. If the defendant had intended to make that case, it would have been put to Professor Dinan, the only psychiatric expert called in the case. The learned trial judge appears to have accepted the evidence given by Professor Dinan based on the actual complaints of the deceased. On that basis, there was perfectly good reason to accept that the panic attacks could have been associated with the loss of a job in 1985. Accordingly, there was no evidential basis for the conclusion of the learned trial judge either.

  82. For the reasons I have given, I would allow the appeal of the defendants. It follows logically, that there is no basis for allowing the cross-appeal against Dr Buckley and I have already said that I would dismiss the cross-appeal on the phaeo issue.


Cases

Dunne (an infant) v The National Maternity Hospital [1989] I.R. 91 


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