Kinsella v Rafferty  IEHC 529
This recent Irish Case involves the plaintiff, Cynthia Kinsella, who took an action against Dr Gerry Rafferty, a consultant obstetrician and gynaecologist of Mount Carmel hospital, for Negligence and breach of duty in performing a total abdominal hysterectomy. Section 18 of the Judgment states:
“In the weeks immediately after her discharge from Mount Carmel Hospital, she spent a good deal of time in bed, resting. Up to, three to four weeks post-operatively, she continued to make progress. Then, however, she noticed that she was leaking urine through her vagina. This was not something that was mentioned in the booklet, and as it persisted, it began to cause her great distress.”
Tests later confirmed that a Vesico Vaginal Fistula (VVF) had developed. Later that year Mrs Kinsella was admitted to Mount Carmel Hospital for the repair of the fistula which was a complete success. Although the plaintiff recovered physically, the occurrence of this fistula, the catheterisation of the plaintiff for 2 months and the subsequent correction surgery impacted on her mental health. As a result, this left the plaintiff highly anxious, distressed and somewhat depressed.
In finding for the plaintiff, O ‘Neil J. found that Dr Rafferty’s evidence was unconvincing and further that: “I have come to the conclusion that the plaintiff’s fistula was caused by a failure on the part of the defendant to carry out this procedure with the degree of care to be expected from a consultant gynaecologist.” He awarded Mrs Kinsella the sum of €425,000 plus any agreed special damages.
This is quite an interesting case which can be read in full on Bailii.org, here. The most interesting factor, to me anyway, is what happened after this woman’s surgery. As she remained highly anxious she was referred to a psychiatrist who prescribed Citalopram/Cipramil/Celexa. Leaving aside the awful adverse reactions and the zombie-like effects of Citalopram (as stated by this woman’s husband), it seems that expert testimony (from the professionals in this case) state that for an estimated 50-70% of people, the drugs simply do not work! Yet we spend millions keeping the drug companies happy? The account of her experience with this drug and Justice O ‘Neil’s opinion of the same can also be found in the judgment. Details below:
(1) All of the psychiatric experts agreed that there was no prospect of the plaintiff’s condition being remedied unless she could undergo an effective therapeutic process which would probably be fairly prolonged. This would consist of the taking of anti-anxiety and depression medication and also probably active intervention in the form of cognitive behavioural therapy.
(2) Even with adherence to such a programme, for perhaps up to 24 months, the evidence of Dr. Lane was that in at least 50% of cases, perhaps up to 70%, no improvement resulted and there was no return to normal functioning. Dr. Tobin, whilst disagreeing with the higher figure of 70% as being too pessimistic, nonetheless agreed that in cases of severe anxiety disorder, the failure rate in treatment was of the order of 50%. All of the psychiatric experts agreed that the longer the condition persisted the harder it was to treat and the likely outcome correspondingly poorer. All agreed the plaintiff’s condition was and had been for some time in that chronic state.
(3) Some controversy surrounded the initial treatment undertaken by the plaintiff late in 2008, when she was prescribed a drug called Cipramil . She was prescribed this drug, first, before she went back to work in October 2008, but postponed starting it at that time because of her return to work. She coped badly at work in the sense that her concentration was poor and her work was frequently called in question by her superiors because of mistakes. Because of the stress of all this, she went out of work again on 4th November 2008, and after that, commenced taking this drug. She attended her GP, Dr. Toomey, in January and again in February 2009, and she reported to him some improvement on this drug and he noted himself some improvement at that time.
(4) However, her evidence and, in particular, the evidence of her husband, was that she found it extremely difficult to tolerate this drug. Her description, and more particularly, that of her husband, was that whilst she was on it, she was a “zombie” or was constantly “out of it”. Her husband described a variety of minor domestic mishaps resulting from her absent mindedness or forgetfulness or lack of concentration while she was on this drug. Eventually, she could tolerate it no longer and gave it up about March 2009.
(5) Whilst the plaintiff did report to Dr. Toomey some improvement while on this medication, I am satisfied from her evidence, and particularly from the evidence of her husband, that by March 2009, when one would have expected this medication to be producing a tangible benefit in terms of the plaintiff’s overall wellbeing, the reverse was the case, and the plaintiff found herself no longer able to tolerate it. I think it is probable that in her reporting to Dr. Toomey, her general demeanour of diffidence and apology for her condition may have induced her to present to him a more optimistic picture than was justified.
(6) All of the psychiatric experts were asked to consider the reasons why the plaintiff gave up this medication. This arose from the fact that in a second report, Dr. Tobin expressed the opinion that if the plaintiff was compliant with this type of medication regime, she was likely to begin to improve after three weeks or so, to be significantly improved after about two months and to be ready to resume employment after about three months.
(7) Dr. Lane thought this scenario far too optimistic. Both Dr. Lane and, in particular, Dr. Murphy who saw her on several occasions, was of opinion that the precipitating factor causing her to give up the medication was not any wish on the part of the plaintiff to get by without the medication, nor any personal bias against this type of medication, but rather, her state of mind induced by her anxiety condition in the first place. Dr. Lane further explained that the type of medication the plaintiff was on had in it a component which tended, in the initial phase, to increase anxiety, and whilst Dr. Tobin agreed with this, he was of opinion that this could have been counteracted by offering a tranquilising-type drug at the same time until the initial phase was overcome.
(8) It is unlikely that the plaintiff’s problem with this drug was any initial adverse reaction to an anxiety component in the drug. She persisted with the medication for approximately four to five months, which should have taken her beyond this initial phase, but by that time, she found the effect of it on her intolerable. I have no doubt that given that this medication did not alleviate her anxiety state, it was probable that the continuance of this kind of medication had an exacerbating effect on her anxiety state, in the sense that if the medication was not making her any better and if she felt in many ways worse on the medication, it was inevitable that the continued taking of the medication, or of an alternative substitute for it, was likely to heighten her anxiety state.
(9) Accordingly, when she saw Dr. Lane who suggested an alternative medication and when the dosage levels were mentioned, which appeared high to the plaintiff but in fact were not, her reaction was, understandably, resistance, no doubt driven by her underlying state of hyper-anxiety. What this suggests is that it is going to be very difficult to establish the plaintiff, having regard to her chronic state of high anxiety, on a regime of medication that she will, in the first instance, be able to accept, and secondly, tolerate to the point of achieving some benefit.
(10) There is then, the rather chilling evidence of Dr. Lane, with which Dr. Tobin agreed, that in any event, in 50% of cases of severe anxiety, even with total compliance by a motivated patient, the treatment fails.