Case note on Carmel Collins v Mid-western health Board and O’ Connor

This case concerns the death of a man in his early 40’s from a subarachnoid haemorrhage. In the HC the learned trial judge found there to be no action in negligence. The case was appealed to the Supreme Court. The deceased first fell ill on the 20th February 1991 while at work on a building site. He visited the second named defendant in his surgery later that day, after his wife had made an appointment over the phone. She told Dr. O’Connor: “Jim has a very bad headache. He does not usually go to doctors. He must be very bad.” Dr. O’Connor diagnosed the deceased with an upper respiratory tract infection or, in other words, a head cold. On Saturday the 23rd Feb the pf rang Dr. O’Connor to confirm his diagnosis. She told him that she was concerned about her husband who would usually never stay in bed. She asked him to prescribe something for her husband. Dr. O’Connor said the viral flu would just have to take its course. On the 25th February the pf rang the def at 8 am saying ‘Jim is very bad’. The def came around almost immediately and took the view that his headaches were due to sinus congestion. On 5th March, during a conversation regarding another matter, the def was informed the deceased was no better. On 17th March the deceased, still no better, went to see Dr. O’Brien because Dr. O’Connor was not working. Dr O’Brien immediately made an arrangement with the hospital to admit the deceased for a CT scan on the 20th March. The senior house officer, Dr. Nur, examined Mr Collins. Dr Nur sent him home saying that he would make an appointment for the deceased to see a specialist. On the following day, Dr. O’Brien sought an assurance from Dr. Nur that the deceased would be admitted. This was not granted, and Dr. O’Brien decided to try and get him admitted the following day under a consultant. However, at 2 a.m. that night, the deceased suffered a serious attack and entered the hospital as an emergency. A lumbar puncture and a CT scan were carried out resulting in a diagnosis of a subarachnoid haemorrhage. The deceased was transferred to Cork under the care of a consultant neurosurgeon. He never regained consciousness and died on the 27th march. The pf’s claim is divided into three parts. The first is a claim against Dr. O’Connor on two counts. It is said that he was negligent at the consultation on the 20th. Secondly, it is said that even if he was not negligent on that occasion he ought subsequently have referred the deceased to a specialist. The second claim is against the hospital board because of Dr. Nur’s failure to admit the deceased on the 20th March. The final claim is one of negligence for the manner in which the pf was treated when he was admitted on the 22nd. The SC rejected this latter claim and, as it is not discussed in the judgement, I feel it is not an important decision and therefore I will not discuss it. The issue for the SC regarding Dr O’Connor is whether he ought to have diagnosed that the deceased was suffering from a serious condition which required him to be referred to a specialist for further diagnosis and, if necessary, treatment. Barron J discussed this issue in some length. The question arising was whether the learned trial judge took too narrow an approach limiting the obligation of the GP to what he was told by his patient at the surgery, and not taking into account the circumstances under which he came to his surgery. The deceased did not tell Dr O’Connor on the 20th of Feb (nor Dr. O’Brien and Dr. Nur in other consultations) about the sudden, severe headache that had occurred, and the question asked is whether he ought to have ascertained that fact. Dr. O’Connor’s evidence made it clear that he had asked the deceased a series of questions relating to his past medical history. Following this he had asked the deceased for details of his complaints. Expert evidence for both the pf and the def seemed to suggest that there is a general and approved practice that should be followed when a headache is a significant presenting complaint. The GP should inquire about the quality, severity, location and duration of the headache and also any previous history regarding headaches. As the deceased only mentioned the headache as one of a number of symptoms, the conflict narrowed itself to whether Dr. O’ Connor should have been obliged to look beyond what the patient himself had told him. Expert evidence for the defendant suggested that a GP is entitled to rely upon the history given by the patient and felt, if the patient presented with URTI, a GP would not be expected to ask questions about the headache. It also was suggested that there was no need to take the telephone calls into account since the pf had plenty of time to express any concerns that he had.
Expert evidence on behalf of the plaintiff suggested that a doctor has a duty to ask questions of the patient to clarify the details of the symptoms, and not to do so is neglect. Professor Salkind suggested the def should have been suspicious by the events precipitating the patient’s arrival at his clinic on the 20th Feb. A diagnosis of a common cold for a patient that never attends a doctor should alert the GP to ask more questions, especially given the phone conversations with the pf and the deceased’s failure to recover. The telephone call should not have been ignored in Barron J’s view. He felt that the learned trial judge’s finding that the def asked the correct questions in the course of examining the deceased, was not made having regard to the contents or fact of the telephone call which preceded the visit on the 20th Feb. Barren J states that ordinary care requires the doctor to take into account everything that might bear on his patients’ condition. The doctor failed to consider why a man who never went to the doctor would come to him as a matter of urgency for a mild infection. He also ignored Mrs Collins’ words during the telephone call highlighting a severe headache. He should have asked questions on this evidence alone. The telephone call on the 23rd should certainly have resulted in a referral. There were large discrepancies between the def’s diagnosis and the behaviour of the patient. The deceased was still in bed and was not getting any better. The answers he was given on the 25th regarding the headaches denied his diagnosis of headaches due to sinusitis. Barren J chose to allow the appeal, citing ‘Dale v Munthali’ and the English case of ‘Langley v Campbell’ where a man was diagnosed with flu despite evidence suggesting malaria should have been considered. Both these cases show that the courts regarded as material what the defendant was or might have been told by the patients’ family members. Barren J agrees with this view. He found that the def’s failure to heed what the plaintiff said in each of her three phone calls constituted negligence. In relation to the first named defendant, the SC allowed the appeal. Barren J and Keane J delivered important judgements supporting this appeal.
The main issue before the court was whether Dr. Nur should have admitted the deceased as an inpatient. Given the facts of the case it is clear that he should have, but was there a breach of care by not admitting him? The expert evidence didn’t make this answer clear. Experts for the plaintiff suggested that the authority vested in a junior doctor in Scotland and England would never reach the heights it did in this case. Mr Patrick Plunkett, a consultant in the A & E in St James’s Hospital gave evidence that the procedure followed by Dr. Nur was appropriate. Given that this was a procedure followed by other hospitals, it fell into the category of a general and approved practice. Keane J cited ‘Dunne v The National Maternity Hospital’ where Finlay CJ discussed the matter of a GAP. He said that a GAP cannot provide an escape from liability ‘if established that such a practice has inherent defects which ought to be obvious to any person giving the matter due consideration’. The judges here agreed that this Gap was inherently defective. Barren J stated that any system, which gives absolute authority to a junior doctor, is inadvisable.
Dr. Nur, as a junior doctor, was merely learning his profession. To give such a person absolute discretion to refuse admission is a dangerous practice, and one that should not be followed. Dr. Nur ignored Dr O’ Brien’s express concerns and treated the case as solely for his own diagnosis rather than consulting a physician. Perhaps this was simply the procedure followed in this hospital. Either way there was a breach of duty of care for which the first-named defendant was found liable.

This case is significant for many reasons:
·Doctors cannot act only on what they are told, nor ignore what they are told. Barren J makes it clear in his judgement that ordinary care requires a doctor to take into account everything that might bear on his patient’s condition. Where information is supplied by someone other than the patient, it should be taken into account and, if necessary, further questions asked. The doctor must listen to what relatives of the patient report.
·Dr. O’Connor breached his obligation to make a timely referral by not referring the deceased to a specialist. A doctor has a duty to recognise the limits of his expertise, and to refer his patient to a specialist when appropriate. This case highlights the fact that there may be a breach of this duty where a doctor is unaware that he should refer his patient to a specialist. What is relevant is that he ought to have been aware. Dr O’ Connor could see his patient was not recovering with his treatment and therefore, he should have sought a second opinion.
·A GAP cannot be relied on if it is inherently defective. This case endorses the view that following a GAP does not necessarily negate liability. Although it is uncommon for a court to find a generally followed practise defective, it is a possibility. The general rule is that once it is obvious to a person without any medical expertise, such as a judge, that a procedure is fraught with risks it must be inherently defective.
·The case confirms that the standard of care is objective. Experience will not be taken into account when identifying the standard of care required. Therefore, a junior doctor will be measured against the standard of care expected by an experienced doctor.