Daniels V Heskin
Daniels V Heskin
HESKIN, Defendant.
[1954] IR 73
SUPREME COURT
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
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
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
(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
DE Bell, Senior Counsel (with him JA Costello, Senior Counsel, and RP Humphries)
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
(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.]
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
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
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
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
The learned trial Judge ruled that there was no evidence to go to the jury upon which
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
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
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
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
(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:—
O'BYRNE J:—
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
The respective functions of judge and jury are well settled and there was no
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.
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
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
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
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
been open to the jury on the balance of probability to find that it was caused by
negligence.
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
Was the course taken by the defendant after the breaking of the needle improper?
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
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
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
In that state of the evidence it would not, in my view, be open to the jury to hold that
the fact that in this matter, as in so many others, the doctors differ, and in the presence
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
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
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
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
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
(1)
[1935] 1 KB 516, at p 551.
(2)
[1934] WN 171.
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
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.”
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
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
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
of contract, alleging that the defendant was employed to treat the female plaintiff and
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
[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
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
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
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
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
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
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
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
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
If the doctor was not negligent in breaking the needle, was he negligent in leaving the
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
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
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
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.
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
Counsel for the plaintiffs suggested that there was a rule of law that such information
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
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
(1)
Amer Law Dig 1899, at p 1870.
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
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
that the defendant had failed in any of the duties toward his patient which I have
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,
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
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
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
ABC[1954] IR 73 at 89
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The Irish Reports* > 1954 > PATRICK DANIELS and PHILOMENA DANIELS,
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