Flannery v Health Service Executive

Factual and Procedural Background

This action concerns the assessment of damages arising from a medical negligence incident in which a swab was left in the Plaintiff's vaginal area following a ventouse delivery with an episiotomy on 30th August 2013. The swab was removed during an internal examination on 8th September 2013. The Plaintiff alleges that this negligence caused her physical and psychiatric injuries.

The Plaintiff experienced increasing pain, foul odor, and infection symptoms following discharge from the hospital. She required readmission and intravenous antibiotics. The Plaintiff's newborn son was diagnosed with a heart defect shortly after birth, which was treated conservatively and resolved. The Plaintiff also reported emotional distress and episodes of depression following these events.

The Defendant is the Health Service Executive. The case reached the High Court for determination of damages, with medical evidence presented by psychiatrists for both parties.

Legal Issues Presented

1. Whether the Plaintiff suffered physical and psychiatric injuries as a result of the Defendant’s negligence in leaving a swab in situ after delivery.
2. The extent and nature of psychiatric injury, specifically whether the Plaintiff developed a depressive disorder or experienced an emotional reaction within normal limits.
3. The appropriate quantum of general and special damages to be awarded to the Plaintiff.

Arguments of the Parties

Plaintiff's Arguments

• The Plaintiff suffered physical injuries including pain, infection, and difficulty caring for her newborn due to the swab left in her vaginal area.
• She experienced emotional distress, guilt, and episodes of depression stemming from the incident and the concurrent illness of her son.
• She contended that the failure to examine her upon readmission on 6th September 2013 delayed discovery and removal of the swab.

Defendant's Arguments

• The Defendant acknowledged the negligence but disputed that the Plaintiff suffered a psychiatric illness; rather, her emotional distress was within normal limits.
• Expert psychiatric evidence suggested the Plaintiff did not meet clinical criteria for depression and had not received psychiatric treatment or medication.
• The Defendant emphasized the absence of psychiatric illness noted in the Plaintiff’s general practitioner’s report dated 31st July 2015.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court accepted the Plaintiff’s evidence as truthful and not exaggerated, supported by psychiatric testing. It found that the Plaintiff suffered significant physical symptoms, including increasing back pain and foul vaginal odor, from 30th August until the swab’s removal on 8th September 2013. The Court acknowledged the difficulty the Plaintiff faced in caring for her newborn during this period.

The Court noted the emotional distress experienced by the Plaintiff, compounded by her son’s serious heart condition. However, it found no sufficient evidence of clinical depression. The Court preferred the Defendant’s psychiatric expert’s opinion that the Plaintiff’s emotional response was within normal limits rather than constituting a psychiatric disorder.

The Court gave particular weight to the absence of any psychiatric diagnosis or treatment recommendation in the Plaintiff’s GP report dated 31st July 2015. It also criticized the practice of solicitor-initiated specialist referrals without GP involvement, citing relevant precedents.

Regarding physical injuries, the Court found that the Plaintiff’s perineal suture breakdown was unrelated to the swab incident. The Court applied established guidelines from recent appellate decisions to assess damages.

Holding and Implications

The Court awarded the Plaintiff general damages of €40,000 and agreed special damages of €160, totaling €40,160.

This decision directly compensates the Plaintiff for her physical and emotional injuries caused by the Defendant’s negligence but does not establish new legal precedent. It underscores the importance of accurate psychiatric diagnosis based on clinical criteria and proper medical referral procedures.