Woman loses appeal claiming hysterectomy was negligently performed

A woman left with a lifelong disability after a hysterectomy operation has lost her appeal over the rejection of her claim the surgery was negligently performed.

Mary McNicholas of Cloonkedagh Road, Kiltimagh, Co Mayo, a mother of two, had sued Dr Andrea Hermann who, at the time of the operation in 2005, was a consultant gynaecologist practising at the Galway Clinic in Doughiska, Galway.

In his High Court judgment dismissing her case, Mr Justice Anthony Barr found Dr Hermann did not depart from an appropriate standard of care when advising Ms McNicholas in August 2005 she could undergo a total abdominal hysterectomy when it suited her later in that year.

He rejected claims pre-operative care given by Dr Hermann was deficient in not advising Ms McNicholas, as another doctor had, to lose weight before the operation. It was reasonable for Dr Hermann to conclude, given prolonged bleeding and symptoms having a serious adverse effect on Ms McNicholas’ quality of life, she was unlikely to be able to lose much weight, he held.

He also rejected claims of negligence arising from Dr Hermann not releasing a retractor a number of times during the surgery to prevent nerve damage.

On Tuesday, the three judge Court of Appeal upheld the High Court findings Ms McNicholas had not proven negligence in how Dr Hermann carried out the total abdominal hysterectomy.

It also rejected Ms McNicholas’s arguments, arising from criticism by her as to how Mr Justice Barr addressed some evidential issues in his High Court decision and his alleged failure to consider the very fact of her injury implied negligence, she was entitled to a rehearing of her case in the High Court.

While having "every sympathy" for Ms McNicholas who has been left with a debililating condition, a disappointed litigant is "not entitled to demand" a trial judge to resolve every evidential or legal dispute that may arise in proceedings, especially when a case is complex and heard over a protracted period, Ms Justice Mary Irvine said.

Ms McNicholas had established no permissible basis upon which to disturb the High Court findings, she added.

Abdominal surgery

Earlier, the judge noted, before this surgery, Ms McNicholas suffered from heavy and prolonged menstrual bleeding and her condition was further complicated by endometriosis (where tissue that normally grows inside the uterus grows outside it) and uterine fibroids. Any intended surgery also had to take account she had previously undergone abdominal surgery and had a coil inserted in an unsuccessful effort to control bleeding.

It was accepted, during the surgery, Ms McNicholas sustained permanent damage to her left femoral nerve and has been left with significant life-long disabilities, the judge said.

Ms McNicholas’s appeal centred on her claim Dr Hermann should have released self-retaining retractors periodically during the surgery, she said. Such retractors effectively acted akin to a car-jack and were used to draw back and hold in position skin, fat, and muscle to give a surgeon a field of vision.

The High Court correctly held there was no recognised practise requiring Dr Hermann to have released the retractors in the manner contended for, she said. It was also satisfied, having regard to the extensive bleeding which occurred during this surgery, releasing the retractors would have exposed Ms McNicholas to unwarranted risk.