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For those of us who specialise in Medical Negligence Litigation the recent Decision of the High Court in Hill v HSE is particularly interesting in that it highlights what can go wrong with what, at first glance, might appear like a relatively simple kidney stone removal and looks at the phases of the process where negligence falls to be assessed.

Simply stated, Mr. Hill had a horrible time.  He attended hospital with an obstruction in his left ureter caused by a kidney stone.   When he failed to “pass” the stone he was scheduled for an ureteroscope where the stone was removed intact.

Mr. C who performed the procedure re-entered the ureter with the scope to ensure that none of the stone had been left behind and that the stone removed was the only one.   He was happy with what he found.

Over the following days, Mr. Hill became very ill at home and was re-admitted.   It was discovered that his ureter had been perforated when the stone was being extracted.

Mr. Hill was transferred to Tallaght where a stent was inserted and he was again discharged home,   He was again admitted and the stent was found not to have worked.   He ended up have a “Boari Flap” procedure which was essentially a bye-passing of the damaged section of ureter.   This procedure results in incisions close to a number of nerves.

In the event, Mr. Hill was essentially left with permanent intermittent pain and suffering.

What is particularly interesting about this case is the manner in which the Court considered the liability issue.   It looked at the following “touch points”:-

  • The Consent to the Procedure.
  • The operation itself when the stone was removed.
  • The re-check carried out by Mr. C. after he removed the stone.
  • The level of care after re-admission.

On the Consent issue, the Court concluded that Informed Consent to a Procedure does not require a Doctor to explain every possible complication to a patient.   In this instance, ureter perforation was classified as a rare if known complication of the procedure.

The Court also held that perforating the ureter during the course of the procedure was not negligent  as it was an inherent risk in such operations and the Court felt that Mr C could not be criticised for failing to note when removing the stone that damage had been done in circumstances where few experts preforming procedures in this area had ever encountered perforation or a tear.

It is in the Court’s analysis of the recheck carried out by Mr. C to ensure that none of the stone was left behind that things get interesting.

The Court accepted that, there was an evidential conflict among experts as to whether, as a matter of course, such recheck by way of re-entering the ureter before concluding the procedure was necessary or good practice.

However, in circumstances where Mr. C did actually carry out such a recheck, the Court concluded that, having carried out this recheck, Mr. C should have identified the perforation/tear and repaired it at that point.

The Court held that the failure to so do fell below the appropriate standard of care.

In light of that finding of negligence on the part of Mr. C who was in the employment of the HSE the Court held that it was unnecessary to assess whether matters had been compounded during the re-admissions of Mr. Hill.

A significant damages award followed this finding by the High Court.

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