PATRICK DANIELS and PHILOMENA DANIELS, Plaintiffs, v EDMOND

HESKIN, Defendant.

[1954] IR 73

SUPREME COURT

10, 11, 15, 16 DECEMBER 195230 MARCH 1953

Negligence–Doctor and patient–Insertion of stitches–Needle broken in course of

stitching–Broken portion of needle left in patient's body–Failure to inform patient or

her husband at time, of accident–Needle removed after an interval of six weeks.

The second-named plaintiff gave birth to a child at her home on the 17th June, 1951,

being attended by the local midwife. On the following day she was attended by the

defendant, a medical doctor, for the purpose of inserting stitches in her perineum.

While the defendant was inserting the stitches the needle broke. The defendant failed

to find the broken portion of the needle and completed the stitching, leaving the

broken portion in the patient's body. He did not inform either the patient or her

husband of this fact. The patient was left in the care, of the midwife, who had

received instructions, from the defendant that he was to be informed in the event of

anything unusual occurring to the patient, and if the needle was not found within a

period of six weeks the patient was to be X-rayed. Some six weeks later the midwife

had the patient examined and X-rayed by another doctor, who performed an operation

on the patient for the removal of the broken portion of the needle. The plaintiffs

brought an action for damages in the High Court, and, on the trial of the action, the

trial Judge, at the conclusion of the case, withdrew the case from the jury and gave a

direction in favour of the defendant. On appeal by the plaintiffs it was

Held by the Supreme Court (Murnaghan, O'Byrne, Lavery and Kingsmill Moore JJ;

Maguire CJ dissenting), affirming the trial Judge, that there was no evidence to

support a finding that the breaking of the needle was caused by negligence; that the

defendant in deciding to complete the stitching and to defer the operation for the

removal of the broken portion of the needle acted reasonably and without negligence;

that the non-disclosure to the patient or her husband of the fact that the broken portion

of the needle remained in the patient's perineum did not cause damage, was

reasonable in the circumstances and did not amount to negligence.

Gerber v Pines 79 Sol Jo 13 discussed.

Appeal from the High Court.

The plaintiffs, Patrick Daniels and his wife, Philomena Daniels, sued the defendant,

Edmond Heskin, a medical doctor, for damages for negligence in that he negligently

and unskilfully permitted and caused a needle to break whilst stitching the second-

named plaintiff's perineum and further permitted the broken portion of the needle to

remain therein for a considerable time and failed to remove it or to inform the

plaintiffs or either of them of the existence of the broken needle. The facts are

summarised in the head-note and appear fully in the judgment of Maguire CJ, post. At

the close of the defendant's case the trial Judge (Casey J) acceded to an application on

behalf of the defendant for a direction on the ground that there was no evidence upon

which the jury might find that the defendant was guilty of negligence and judgment

was entered accordingly. Against the said judgment the plaintiffs appealed to the

Supreme Court (1).

(1)
Before Maguire CJ, Murnaghan, O'Byrne, Lavery and Kingsmill Moore

JJ.
[1954] IR 73 at 74CB McKenna, Senior Counsel, and JA D'Arcy for the appellants:—

We submit that there is evidence from which the jury would reasonably have been

entitled to hold that the defendant was negligent. First, there is evidence that the

breaking of the needle in the course of a surgical operation is more often due to an

imperfection of technique on the part of the operator than to a defect in the instrument

and it would have been open to the jury to hold, on the balance of probabilities, that it

was caused by the negligence of the defendant. Secondly, we submit that the

defendant was negligent in not removing the broken portion of the needle from the

patient's body or, if unable to do so, in not having the patient removed to a place

where it might be removed. There was evidence from which the jury could have found

that the defendant did not take adequate steps to ensure that the needle would not

remain in the patient's body. Thirdly, we submit that when in the course of a surgical

operation, a foreign object is left in a patient's body, which is not normally left there,

there is an obligation on the doctor so to inform the patient unless it would impair the

patient's health to do so; this is a rule of law: Gerber v Pines (1). Failure to inform the

patient or her husband, so as to enable them or either of them to take such action as

they may deem fit, amounts to a breach of duty. [They also referred to Marshall v

Lindsey County Council (2); Eislein v Palmer (3), referred to in Taylor's “Medical

Jurisprudence,” 9th ed, at p 83.]

DE Bell, Senior Counsel (with him JA Costello, Senior Counsel, and RP Humphries)

for the respondent:—

We submit that there was no positive evidence of negligence and the possibility that

the needle broke through an inherent flaw in it is not excluded.

As regards the conduct of the respondent after he had broken the needle. There was

evidence that he gave to the patient all the care and attention which he might have

been expected to give. The duty of a specialist is higher than that of an ordinary

practitioner. We submit that there was no legal duty on the respondent to inform the

patient or her husband of the accident, and in the circumstances, in deciding not to

inform them, he was exercising reasonable and proper skill and judgment. This is

substantiated by the expert evidence of practitioners to the effect that they would have

acted in the same way in similar circumstances.

(1)
79 Sol Jo 13.
(2)
[1935] 1 KB 516, at pp 541-4.
(3)
Amer Law Dig, 1899, at p 1870.

[1954] IR 73 at 75If such a duty did exist, it must have arisen either from an implied

condition in the contract between the doctor and patient or from a principle pf the law

of tort. If the latter, then the duty must be established by evidence in the ordinary

way: Chapman v Walton (1). If it is held that there was a duty on the part of the doctor

to inform the patient or her husband of the accident, it could not have existed until the

patient was finally discharged by the doctor: Eislein v Palmer (2). We further submit

that failure to inform the patient, her husband, or other members of her family of the

accident did not result in damage. [They also referred to Rex v Bateman (3); Lindsey

County Council v Mary Marshall (4); Bevan on Negligence, 4th ed, vol 2, at p 1353.]

CB McKenna, Senior Counsel, in reply.

Cur adv vult

30 March 1953MAGUIRE CJ:—

The plaintiffs in this action, which was one of negligence tried by Mr Justice Casey

and a jury, seek to set aside the verdict and judgment entered against them by the

direction of the trial Judge, and that a new trial be ordered.

They are husband and wife, and the negligence alleged is that of the defendant as a

medical practitioner in his care of the wife. She had been safely delivered of a baby

by the local midwife, Nurse Power. While being so delivered she suffered a tear of the

perineum. The defendant, who is the dispensary doctor for the area, came in response

to a summons from Nurse Power for the purpose of stitching the tear. While he was

engaged in doing so a needle broke. Portion of this needle remained embedded in the

flesh. The defendant completed the stitching with another needle. He did not tell the

plaintiffs or either of them what had happened. They learned of it later and about

eight weeks afterwards another doctor successfully removed the broken portion of the

needle.

A medical practitioner is liable for injury caused to another person to whom he owes a

duty to take care if he fails to possess that amount of skill which is usual in his

profession or if he neglects to use the skill which he possesses or the necessary degree

of care demanded or professed. This statement is taken from Halsbury's Laws of

England, vol 21, at para 634, and appears to me correctly to summarise the law.

(1)
10 Bing 57, at p 63.
(2)
Amer Law Dig, 1899, at p 1870.
(3)
94 LJKB 791.
(4)
[1937] AC 97.
[1954] IR 73 at 76It is conceded that the defendant did owe to the plaintiff, Mrs

Daniels, a duty to take care.

Negligence was alleged under three heads:—1, the breaking of the needIe; 2, failure

to remove the broken portion promptly; 3, failure to inform the plaintiffs or either of

them of the breaking of the needle.

The learned trial Judge ruled that there was no evidence to go to the jury upon which

they could find negligence under any of these heads.

As regards the first head of negligence I am of opinion that there is no evidence upon

which the jury could hold that the breaking of the needle was due to negligence on the

part of the defendant.

The second head of negligence is that the defendant failed to remove the broken

needle promptly from the body of Mrs Daniels. From the expert evidence which on

this point was in agreement, two courses were open; one was to suspend the stitching

and have the broken needle removed before completing it; the other to complete the

stitching and wait for a period of some weeks before having it removed. The latter

was the course adopted by the defendant and from the expert evidence given it is clear

that to adopt either course is in, accordance with accepted medical practice. I am of

opinion, however, that the question of whether the defendant was entitled to decide

which course to adopt is wrapped up with the question whether it was his duty to

inform either or both of the plaintiffs of the mishap directly it occurred.

The only case cited to the Court on this last question was Gerber v Pines (1). There Mr

Justice du Parcq said that it seemed to him “that a patient in whose body a doctor

found that he had left some foreign substance was entitled to be told at once. That was
a general rule, but there were exceptions.” Reference was also made to a note of an

American case noted in Taylor's Medical Jurisprudence, 9th ed, vol 1, at p 83, Eislein

v Palmer (2), in which it was apparently decided that there was no duty on a physician

to tell a patient or her husband that a broken needle had been left in the patient's body

as long as she remained a patient but that there was a duty to tell her when

discharging her from his care.

To my mind Mr Justice du Parcq has laid down the rule correctly. In this case no

reason is given why the defendant should be excused what seems to me to be his

obvious duty. There was no evidence that any serious consequence would be likely to

follow telling the patient what had happened

(1)
79 Sol Jo 13.
(2)
Amer Law Dig, 1899, at p 1870.

[1954] IR 73 at 77when it happened. Even if it were shown that to tell her might

unduly shock Mrs Daniels there is no reason why her husband should not have been

informed. The fact that a choice lay between the two alternative courses of action

mentioned above made it to my mind incumbent upon the defendant at least to inform

the husband and to allow him to judge whether his wife should be told and in any case

to allow the patient or her husband to make the choice. The defendant would clearly

have advised that the stitching be completed and the operation of removing the broken

needle deferred for some weeks. It was, however, the prerogative of the patient and

her husband to decide whether they would accept or reject such advice if given.
In my view the jury should have been asked to consider the question whether or not

the defendant was negligent in failing to inform the plaintiffs of the breaking of the

needle.

The verdict and judgment should be set aside and a new trial should be ordered.

MURNAGHAN J:—

I agree with the judgment about to be read by Mr Justice Lavery.

O'BYRNE J:—

I agree with the judgment about to be read.

LAVERY J:—

The plaintiffs appeal to this Court against the dismissal of the action consequent on

the ruling of the learned trial Judge that on the evidence there was, as a matter of law,

no case for the jury to consider and that if the case went to them for consideration it

would not be open to them to find that the defendant had been guilty of negligence

and to award damages.

The respective functions of judge and jury are well settled and there was no

controversy about them.

There is in every case tried by a judge and jury a preliminary question which is one of

law, namely, whether there is any evidence on which the jury could properly find in

favour of the party on whom the onus of proof lies. If there is not, the judge ought to

withdraw the question from the jury and direct a non-suit if the onus is on the

plaintiff. It is not in dispute that the onus of proof was on the plaintiffs.

Neither is there any serious dispute as to what the question was.

[1954] IR 73 at 78The defendant undertook to treat the female plaintiff, to whom I

shall hereafter refer as the plaintiff, as a medical man and he is responsible for

damage caused by his treatment if he did not possess in a reasonable measure the skill

necessary to perform what he undertook or if, possessing such skill, he failed to

employ it with reasonable care.

I need not set out again the course of events which has already been stated by the

Chief Justice.

The plaintiff charged that the defendant failed in his duty in three respects. First, that

in the course of stitching the plaintiff he broke the needle he was using and left the

broken part in the plaintiff's body and that on the evidence it was open to the jury to

find that this was due to want of skill or incapacity or carelessness on his part.

Secondly, that the mishap having occurred his subsequent treatment of the plaintiff

was improper. Thirdly, that the mishap, having occurred it was his duty to inform the

plaintiff or her husband in order that if they wished they could seek the advice and

attention of another doctor and so avoid the consequences which it is alleged followed

the action—or, as it is said, the inaction of the defendant.

On the first question, the plaintiffs concede that the case is not one where the

principle, or the phrase, “res ipsa loquitur” applies and that on the evidence the

needle may have broken through a flaw in itself not discoverable by the doctor or

otherwise without negligence on his part.

This is certainly the case. Three doctors gave evidence and all agree that this was so.

Mr McKenna, however, submits that as there was evidence that the breaking of

needles in the course of a surgical operation is more often due to an imperfection of

technique on the part of the operator than to defect in the instrument it would have

been open to the jury on the balance of probability to find that it was caused by

negligence.

Leaving aside the question whether imperfection in technique is to be considered

negligence in all cases, it seems to me that Mr McKenna is claiming to apply the

principle of “res ipsa loquitur” in another form and that there is a fallacy in his

argument.

If there is positive evidence that an event was caused in a particular way and other

positive evidence that it was caused in another way, it is undoubtedly true that the

jury to decide as between such bodies of evidence on the balance of probability how it

actually occurred.

That is not the case here. No evidence given at the trial would support a finding that it

was the manner of the operation which caused the break. On the contrary, such

[1954] IR 73 at 79evidence as there is, and it is very slight, would tend to establish

that the accepted and normal course was followed. I refer to the evidence of Nurse

Power and of Dr O'Keeffe that he found the needle in what he concluded was its

original position and that he did not suggest it had been wrongly used.

It is certainly not open to a jury, in. my opinion, in that state of facts to hold that the

breaking was caused by imperfection of technique on the ground that say in 60% of

cases of broken needles it is so caused, and the same is true of any other statistical

record of such happenings until the point is reached where the preponderance is such

as to make it a case of res ipsa loquitur shifting the burden of proof to the defendant

to give an explanation and to establish that the mishap was not due to his negligence.
In my opinion the first ground fails; and the ruling of the learned trial Judge on the

question was correct.

Was the course taken by the defendant after the breaking of the needle improper?

Dr Davidson, an ex-Master of the Rotunda Hospital and a distinguished

gynaecologist, called for the plaintiff, said in effect that he would have taken the

course which the defendant took, that if he could not recover the needle, he would

complete the stitching, keep the party under observation and defer an operation to

recover the needle for two or three months, firstly in the hope that it might come out

of itself and, secondly, to avoid infection and to allow the period of infection to pass

before operating, should the needle not come away.

Mr Chance for the defendant gave evidence substantially to the same effect.

As against this evidence, Dr O'Keeffe said, at Q 573: “I think I would take the patient

into hospital straight away and either do it that evening or the following morning,

giving her an anaesthetic, put her asleep, and attempt to remove the needle,” and that

he did not think there would be any difficulty in doing so.

There is no hint in his evidence that while he might have taken a different course he

considered that taken by the defendant as improper or in any way wrong according to

accepted medical practice.

In that state of the evidence it would not, in my view, be open to the jury to hold that

the defendant was negligent.

The defendant was bound to possess and use reasonable skill, having regard to his

position as a general practitioner and in the circumstances of the particular case. If I

may quote Maugham LJ in the case of Marshall v Lindsey

[1954] IR 73 at 80County Council (1):—“I refer to his evidence as an illustration of

the fact that in this matter, as in so many others, the doctors differ, and in the presence

of this undoubted honest difference of opinion it is not open in my opinion to a jury to

hold that it is negligent to accept one view rather than the other,” and again (at p

540):—“I do not doubt the general truth of the observation in the judgment” [in the

case of Vancouver General Hospital v McDaniel (2)] “that a defendant charged with

negligence can clear himself if he shows that he has acted in accord with general and

approved practice.”

Maugham LJ was a dissenting judge, but I do not read the judgments of the other

members of the Court—or of the House of Lords to which the case was taken—as

differing on this point. In any event, my view is the same as that expressed by

Maugham LJ. A contrary view would lead to strange results which are so apparent

that I need not give illustrations.

In my opinion the ruling of the learned trial Judge on this question was correct.

There remains for consideration the question whether the defendant should have told

the plaintiff or her husband that he had broken a needle and that probably the broken

portion was in her body and whether the fact that he did not do so was negligence or a

breach of duty founding an action.

As the Chief Justice has said, this question is bound up with the matter I have already

dealt with, namely, the defendant's decision to complete the stitching and to defer an

operation for the removal of the needle should this become necessary till the period of

infection had passed.

The duty of a doctor to inform his patient of the treatment he is adopting and of

incidents such as that under examination has been fully discussed in argument. It is

clear that there are some matters which a doctor must disclose in order to afford his

patient an opportunity of deciding whether she accepts his view or wishes to consult

another doctor and an opportunity to make a choice between alternative courses. An

example would be where a dangerous operation was contemplated.

On the other hand, there are matters which the doctor must decide for himself having

accepted the responsibility of treating his patient and having regard to his professional

skill and knowledge upon which she relies. A clear example would be where in the

course of an operation an unexpected complication appears.

Into which category does the present case come?

(1)
[1935] 1 KB 516, at p 551.
(2)
[1934] WN 171.

[1954] IR 73 at 81The evidence establishes, in my opinion, that when the needle

broke, the choice before the defendant was either to suspend operations, inform the

husband and have the plaintiff removed immediately to hospital (assuming that were

possible), and there X-rayed and operated on for the removal of the needle or to

complete the stitching and defer the operation for removal.

I have already expressed the view that in deciding on the latter course the defendant

acted reasonably and without negligence.

This decision having been taken the evidence establishes that the defendant and the

nurse discussed the question whether the plaintiff should be told and agreed that it

would be better not to tell her for fear it would damage her health. A period of six

weeks would have to elapse during which nothing could be done save to keep the

patient under observation. In the words of the defendant in his letter of the 24th

October, 1951, he did not inform the patient as he “was of the opinion that if this fact

were disclosed to her at that time it would only cause her unnecessary mental

anxiety.”

This appears to me to be a reasonable decision and it involved non-disclosure to the

husband as well. In the circumstances no purpose could have been served by

informing either the patient or her husband.

It is not, however, necessary to hold that the decision was the right one. In order to

establish negligence or breach of duty the plaintiff would have to show that it was a

decision incompatible with the proper exercise of the defendant's functions as a

doctor.

Moreover, in order to succeed in the action, even assuming the duty to tell the

plaintiff would have to prove that damage which is the gist of the action as pleaded

was caused by the failure to tell. In fact, the needle was successfully removed by Dr

O'Keeffe at the appointed time and the event justified the course taken by the

defendant. I cannot find any evidence that the non-disclosure caused any damage to

the plaintiffs.
For these reasons I am of the opinion that the ruling of the learned trial Judge was

correct in all respects arid that this appeal should be dismissed.

KINGSMILL MOORE J:—

The plaintiffs are a labourer and his wife, living some five miles from Waterford, and

the defendant is the dispensary doctor of the district in which the plaintiffs reside. The

[1954] IR 73 at 82plaintiffs claim damages for negligence, or alternatively for breach

of contract, alleging that the defendant was employed to treat the female plaintiff and

that in so doing he was negligent in three ways, in as much as he allowed a surgical

needle to break while stitching her perineum, failed to remove the broken portion of

the needle from the perineum or to take early steps to have it removed, and failed to

inform the plaintiffs that the broken portion had been left in the perineum.

At 11 o'clock pm on the 17th June, 1951, the wife gave birth to her first baby, and in

the course of the delivery the perineum became torn to an extent which required

stitching. Accordingly, Nurse Power, a midwife of over thirty years' experience, who

was in attendance at the birth, sent next day for the defendant. He arrived at 11

o'clock am, selected from his bag the needles he required, and gave them to the nurse

who sterilised them, and threaded in the sutures. The first stitch was inserted without

mishap, but in the course of inserting the second stitch the needle broke and about 1½

inches remained buried, fairly deeply, in the perineum. Another needle and suture

were got ready, and with them the second stitch was put in. place. Both doctor and

nurse searched for, but could not find, the broken portion of the needle and the doctor

told the nurse that “it must be in there,” meaning that it was in the perineum, and said

“we will have to have an X-ray,” and subsequently “you will have to have an X-ray.”

Before leaving he told the nurse to look after the patient, to watch her pulse and
temperature and to report to him if anything went wrong, or if she was worried about

anything, or if the patient was suffering any discomfort. He does not seem to have

given specific directions about the needle, but Nurse Power understood that these

directions were given with reference to the needle, and she also understood that if the

needle was not found in six weeks the patient was to be X-rayed.

The patient remained under the care of Nurse Power and had a normal convalescence.

After nine days the stitches were removed, and the patient got up, and began to take

up her ordinary life. She did suffer from what she called “ire,” a word which

apparently means “chafing” and which, according to Nurse Power, is a normal feature

after delivery, and when she bent down, according to her testimony in the box, she

felt as if there was a piece of wire in her flesh which pricked her. Nurse Power

attended her daily for nine days after the birth and saw her out walking, or in a social

call, about twice a week after that. No complaint

[1954] IR 73 at 83was made to Nurse Power about the sensation of wire, but the

patient did complain of the “ire.” Nurse Power in the course of the six weeks after the

birth saw and reported to the defendant about three or four times, and told him that

she had not been able to find the needle. When the six weeks had expired Nurse

Power, without any additional instructions from the defendant, but in pursuance of

what she thought had been agreed on the day of the stitching, took her patient into

Waterford to a Dr O'Keeffe, who is a surgeon and gynaecologist, and he made

arrangements for an X-ray. The X-ray showed the broken needle lying fairly deep in

.the perineum. After a delay of about a fortnight, till a bed should be vacant, the

patient was operated on, and the broken needle removed, not without some little

difficulty, on the 13th August. On the 26th August she was discharged from hospital
with the operation scar healed and her health has progressed normally. At the trial she

said that she was due to have another child on the 24th June—just over twelve months

after her first baby was born.

Nurse Power kept the defendant informed of the steps which were being taken by her

and believed herself to be carrying out his instructions. She says that when she told Dr

Heskin that she had taken the patient to Dr O'Keeffe he appeared pleased.

For the plaintiffs, Dr O'Keeffe and Dr Davidson, ex-Master of the Rotunda Hospital,

gave expert evidence. For the defendant, Dr Arthur Chance, a very eminent surgeon,

was called, and his evidence was for convenience interposed after the plaintiffs'

doctors had given their evidence. The defendant himself was too ill to attend the trial.

At the conclusion of the case for the plaintiffs the trial Judge withdrew the case from

the jury on the ground that there was no evidence of negligence, and entered judgment

for the defendant, and against this ruling and order the plaintiffs appeal.

There was very little controversy as to facts and the case turns on whether, on the

admitted facts, there was any evidence that the defendant was negligent in the

treatment of his patient in any of the three ways suggested, and the answer depends

chiefly on the expert evidence of the doctors.

The first negligence alleged was permitting the needle to break in the tissues of the

patient. All the doctors agreed that needles may, and do, break owing to flaws in the

steel, without the slightest error being imputable to the user. As I understand the

evidence, all the doctors also agreed that a sound needle may be broken by a doctor in

the course of an operation if the doctor asks too much of it, either by
[1954] IR 73 at 84taking up rather too big a fold of tissue, or by forcing the needle

slightly, or subjecting it to some other strain. This Dr Chance termed an “imperfection

of technique,” but he made it quite clear that it was such an imperfection as was

inherent in the limitations of human nature, and did not amount to negligence: “there

is no living surgeon that has not broken a needle many times,” “all the most skilful

people in the world have done it,” “the most competent surgeons in the world have

broken needles. The masters have broken them.” Dr Davidson said:—“I have broken

needles often myself—trying to get too much into the needle, or putting too big a

strain on it,” and in cross-examination he reaffirmed that needles had frequently

broken with him, but disclaimed any negligence on his part. Dr O'Keeffe appeared to

have been more fortunate than his colleagues, having only broken needles on two

occasions.

If a needle may be broken through a flaw in the steel, or through some failure to reach

perfection in handling, which does not .amount to negligence, there can be no

question of the application of the maxim, “res ipsa loquitur,” and there must be

evidence of some definite act of negligence by the doctor. It was suggested that the

doctor used a wrong type of needle. The usual needle used for such stitching is the

semi-circular, or fully-curved perineal needle, and the X-ray showed that the doctor

had used a less fully-curved needle. But on this, Dr Davidson said:—“I should say

that not all people use a fully-curved needle. Some use the semi-curved needle. Some

may use the less fully-curved.” Dr O'Keeffe agreed that different kinds of needles

were used, depending on individual choice.

It was also suggested that the needle was too thin, but it was admitted that a fine

needle had the advantage of minimising pain, and no doctor said that the needle used

was improperly fine.

I am unable to find any evidence such as would warrant a jury in finding that the

fracture of the needle was due to any negligence of the defendant, rather than to an

unforeseen weakness in the steel, or to a mishap such as may happen to the most

skilful operator, especially when he is working in difficult conditions. To fall short of

perfection is not the same thing as to be negligent.

If the doctor was not negligent in breaking the needle, was he negligent in leaving the

broken piece in the tissues, to be removed subsequently? There was a divergence of

opinion between the doctors as to what was the most suitable course. Dr Davidson

said that if he was a country practitioner, stitching the patient in her own home, and

found

[1954] IR 73 at 85it difficult to get at the broken needle at once, he thought that he

would stitch up the patient and leave her to see if the needle would show up at a later

date; but if the needle had not worked itself out by three or four months time, he

would operate, and he would operate at an earlier period if pain or temperature

suggested any harm was being done. Dr O'Keeffe said:—“I think I would take the

patient into hospital straight away … giving an anaesthetic and attempt to remove the

needle.” He made it clear that, unless he could be certain of operating within twenty-

four hours of the time when the needle was fractured, he would prefer to have the

needle in situ for some weeks or months before operating. Dr Chance was of opinion

that if the needle were broken in the course of an operation in a hospital theatre, the

best course would be to locate and remove the broken portion at once, but if the

damage occurred in a private house, and the broken portion could not be at once

located and removed, then the better course was to sew up the patient and remove the

needle after six weeks or so had elapsed.

None of these eminent medical men purported to be dogmatic; none of them

suggested that a course, other than the course he preferred, would have been

necessarily erroneous: certainly no one of them suggested that the adoption of the

alternative course was negligence. I should like to say with emphasis that an honest

difference of opinion between eminent doctors, as to which is the better of two ways

of treating a patient, does not provide any ground for leaving a question to the jury as

to whether a person who has followed one course rather than the other has been guilty

of negligence. It would be different if a doctor had expressed the opinion that the

course adopted was definitely erroneous. The defendant in, this case adopted the

course which Dr Davidson, a Master of the Rotunda, who for many years was

responsible for teaching the best practice of midwifery, considers to have been

correct, and the one which ought to have been adopted in the circumstances. Neither

the honesty not the competency of this opinion has been challenged—indeed Dr

Davidson was called as the expert witness for the plaintiffs. I do not understand Dr

O'Keeffe to have suggested that there was anything negligent in leaving the needle in

situ to be removed subsequently, though he himself would probably have attempted

an early removal if he could be sure of doing the operation within twenty-four hours.

There was no evidence that the defendant, faced with an emergency, could have been

sure of making suitable arrangements for an operation to take place within the

[1954] IR 73 at 86period assigned, and in Dr O'Keeffe's own opinion, if this could not

be ensured, the most proper course was that taken by the defendant.

There seems to me to be no evidence fit to be considered by a jury to suggest that the

defendant was negligent in leaving the needle in the tissues for removal at a

subsequent period when the tissues should have healed and risk of infection would

have diminished.
The third head of negligence alleged against the defendant was his failure to give

immediate information to the patient or her husband that portion of the needle was

buried in the tissues.

Counsel for the plaintiffs suggested that there was a rule of law that such information

should be given. He relied first on the words of Mr Justice du Parcq in a case

of Gerber v Pines, very shortly reported in 79 Sol Jo 13. The learned Judge is there

alleged to have said that “it seemed to him that a patient in whose body a doctor found

he had left some foreign substance was entitled to be told at once. That was a general

rule, but there were exceptions.” Counsel next referred to an American case, noted in

Taylor's Medical Jurisprudence, 9th ed, vol 1, at p 83, Eislein v Palmer (1), in which it

was apparently decided that there was no duty on a physician to tell a patient or her

husband that a broken needle had been left in the patient's body so long as she

remained a patient, but that there was a duty to tell her when discharging her from his

care.

I doubt very much whether the judges in either of these cases intended to enunciate a

rule of law. If they did I must respectfully disagree. A doctor owes certain well

recognised duties to his patient. He must possess such knowledge and skill as

conforms to the recognised contemporary standards of his profession and, if he is a

specialist, such further and particularised skill and knowledge as he holds himself out

to possess. He must use such skill and knowledge to form an honest and considered

judgment as to what course, what action, what treatment, is in the best interests of his

patient. He must display proper care and attention in treating, or in arranging suitable

treatment for, his patient. Any attempt to substitute a rule of law, or even a rule of

thumb practice, for the individual judgment of a qualified doctor, doing what he

considers best for the particular patient, would be disastrous. There may be cases
where the judgment of the physician is proved by subsequent events to have been

wrong, but if it is honest and considered and if, in the circumstances known to him at

the time, it can fairly be

(1)
Amer Law Dig 1899, at p 1870.

[1954] IR 73 at 87justified, he is not guilty of negligence. There may indeed be cases

where the nature of the judgment formed or the advice given is such as to afford

positive evidence that the physician has fallen short of the required standard of

knowledge and skill, or that his judgment could not have been honest and considered,

but it lies on the plaintiff to adduce evidence from which such a failure of duty can

reasonably be inferred.

I cannot admit any abstract duty to tell patients what is the matter with them or, in

particular, to say that a needle has been left in their tissues. All depends on the

circumstances—the character of the patient, her health, her social position, her

intelligence, the nature of the tissue in which the needle is embedded, the possibility

of subsequent infection, the arrangements made for future observation and care, and

innumerable other considerations. In the present case the patient was passing through

a post-partum period in which the possibility of nervous or mental disturbance is

notorious; the needle was not situate in a place where any immediate damage was to

be anticipated; husband and wife were of a class and standard of education which

would incline them to exaggerate the seriousness of the occurrence and to suffer

needless alarm; and arrangements were made to keep the patient under observation

during the period when sepsis might occur, and to have the patient X-rayed at a period

when the bruising and injuries caused by the birth should have subsided. If it were
open to me to speak as a juror I would say that the defendant's action was correct.

That question is not directly before this Court. What we have to consider is whether it

was so incorrect as to provide evidence on which a jury could reasonably conclude

that the defendant had failed in any of the duties toward his patient which I have

already enumerated. In my opinion there is no such evidence.

All the doctors who were examined were of opinion that it would be wise for a doctor

to tell a patient or some member of her family of such a mishap—but wise in a self-

regarding way so as to protect the doctor from the possibility of future vexatious

actions. Thus Dr Davidson said he would inform the patient as otherwise he might

“find himself in an awful mess.” “From my own point of view I would inform her,

looking after my own interest.” In cross-examination he admitted that there was a

choice between “either keeping yourself right by informing the patient, or taking a

chance and saving her anxiety.” Dr O'Keeffe said he would have told one of the

family; but agreed that there were patients who should not be informed immediately

after a confinement,

[1954] IR 73 at 88that in every case a doctor must make up his own mind, and that as

Dr Heskin and Mrs Power knew the patient and the circumstances of the case they

were in the best position to form a correct judgment. Mr Chance thought the patient

should not have been informed; that there was no reason to inform her except the

doctor's self-protection; that in his own interest a doctor should tell somebody.

Here the defendant told Mrs Power. No doubt he would have been wise in his

generation to tell the husband and so avoid future trouble for himself. But this policy,
though justifiable from motives of narrow self-interest, may seem to some less

laudable than the other alternative of “taking a chance” to save the patient anxiety.

Nor can I see how the patient's interests in this case would have been secured by

informing her husband, thus causing anxiety to him and, if he revealed his knowledge,

to her. It has been suggested that if her husband had been informed he might have got

into touch with Dr O'Keeffe, who in turn might have been able to get a bed and

remove the needle within the period of twelve to twenty-four hours in which he

considered operation would be desirable. The husband, though examined, never

suggested that he would have taken this course, and, if we are to pay attention to the

evidence given by Dr Davidson for the plaintiffs, it is a matter of doubt whether such

an operation at this time was the best treatment. Even if there was a duty to inform,

which in this case I do not think there was, I cannot find that any damages have been

incurred by failure in such duty.

To avoid any misconstruction I may add that I do not wish to suggest that a doctor

would always be justified in keeping such knowledge to himself. In every case there

is a clear duty to take precautions against injury to the patient from the presence of the

needle. The nature of those pre-cautions must vary with each case. In the present case

the arrangements made with Mrs Power, to keep a close watch on the patient and have

an X-ray at the appropriate time, were such that it would be impossible to find that the

doctor had not exercised his judgment honestly, responsibly and with a due regard to

his patient's interest.

Solicitors for the appellants: Peter O'Connor and Son.

Solicitors for the respondent: Arthur Cox and Co.

ABC[1954] IR 73 at 89
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The Irish Reports* > 1954 > PATRICK DANIELS and PHILOMENA DANIELS,

Plaintiffs, v EDMOND HESKIN, Defendant. - [1954] IR 73

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