High Court of Ireland Decisions

1. This case is brought by the Plaintiff claiming damages for negligence against the first and second named Defendants in respect of medical procedures and treatment which she underwent on 2nd October, 1990 and as a result of which she has suffered personal injuries.

2. The Plaintiff was born on the 12th day of September, 1968 and resides at

3. The history of the Plaintiff's illness is as follows:-

4. In or about the year 1984 she started to suffer from headaches and was then seen by Dr. Fegan, the first witness. He was so concerned that he sent her to be examined by the neuro-surgeon, Mr. Jack Phillips and she came under Mr. Phillips' care in 1984.

5. It was discovered at that time that she suffered from an Arteriovenous Malformation, hereinafter referred to as an A.V.M. At that time Mr. Philips considered that the medical technology then available was not sufficiently advanced to operate on her as it was too dangerous. She was treated with analgesics from that time on. She lost a lot of time off school as a result of the headaches which she continued to suffer but was healthy apart from those headaches. In 1986, she again attended Mr. Phillips and as appears from a letter of the 29th April, 1986, an appointment was made for her to see Mr. O'Laoire, second named defendant and I quote from that letter:-

6. No treatment appears to have been offered to the Plaintiff at that time. She returned to hospital to Mr. Phillips in 1990 and he, by letter of the 20th March, 1990, referred her again to Mr. O'Laoire. And that letter reads as follows:-

7. In 1990 she saw Mr. O'Laoire at his clinic in the Beaumont Hospital and there CAT scans and MRI scans were done and finally Mr. O'Laoire saw the Plaintiff in the Beaumont Outpatients, his clinic there, for the purposes of discussing what should be done.

8. The Plaintiff has stated that this interview took place in July as far as she can remember. She indicates that her mother was with her but cannot remember if anyone else was with her.

9. The Plaintiff said the interview lasted some 10 to 15 minutes and the Defendant indicated to her that there was a risk of 1% per annum of haemorrhage with this A.V.M. and that the older she got the higher the risk cumulatively and that in pregnancy would increase the risk of brain haemorrhage, therefore advised her that it would be better to have it removed.

10. She said she asked what the risks of the operation were and he said there was a 5% chance of a minor disability. Then she asked what that was and she says he replied that if the telephone rang she would have to look where the furniture in the room was, before she ran out, other than automatically knowing where the coffee table or the sofa was. She denied that there was any further conversation about any alternatives and she further specifically denied that mortality was mentioned at all.

11. The Plaintiff's mother who was with her at the time of the interview corroborates the Plaintiff's evidence in almost every respect particularly in that she heard the mention of a 5% minor disability, in exactly the same type of words, as described by the Plaintiff. She agreed with the Plaintiff that the interview took some to 10 to 15 minutes and the decision was taken to operate.

12. The Plaintiff denied that there was any discussion regarding her recent symptoms namely blackouts, dizziness or a change in the behaviour of her A.V.M. She said that all they talked about was the risks of the operation. However, it was accepted by the Plaintiff that she was warned of the dangers of not having the operation would have increased the dangers of haemorrhage during pregnancy.

13. It is quite clear from the evidence that the Plaintiff was aware of the dangers of an A.V.M. and knew that in 1984. The operations were then too difficult and could not be performed with the technology available at that time.

14. The Plaintiff returned to hospital on 1st October where she was admitted and there was introduced to some patient who had already had the operation and who appeared to be alright after the operation.

15. She signed the consent form which was witnessed by Dr. Bari. She denied that Dr. Bari had pointed out any dangers which might occur as a result of the operation.

16. The Plaintiff was operated on, on the 2nd October and in consequence she unfortunately suffered disability on the left side of her upper arm and leg. The Plaintiff says that if she was aware of the true risks in the case, she would not have undergone the operation but would have waited until later taking a chance upon having a haemorrhage hoping that medical science would have improved over the years thereby reducing the risks of an operation. The case, therefore, appears to fall into three categories of alleged negligence. First of all I must say that any suggestion that the operation was improperly carried out has been withdrawn by the Plaintiff and that leaves that aspect out of the case. Therefore, the three issues are as follows.

17. Firstly, that Mr. Laoire failed when asked or at all properly to indicate to the Plaintiff the dangers and risks involved in the operation, as a result of which her consent was not informed, and she states she would not have undergone the operation had she been properly informed.

18. Secondly, there ought to have been a second interview closer to the date of the operation than the occasion upon which she met Mr. O'Laoire in the outpatients.

19. And thirdly, that because there was a suggestion of epilepsy in the case, Mr. O'Laoire should have dealt with that by way of medication or some other means.

20. As regards the question of the second interview taking place closer to the event, in my view, the evidence is not sufficient to establish that it was a breach of duty or negligence on the part of the Defendants or either of them in failing to have a second interview explaining the details of the condition from which the Plaintiff was suffering, the dangers which were involved in the operation, close to the operation and I am satisfied of this on the evidence of Mr. O'Laoire and Mr. Gibson. It will subsequently appear I am also satisfied that the interview which did take place took place on the 23rd August.

21. I am also satisfied that Mr. O'Laoire was not in any way negligent in failing to treat the alleged epilepsy separately because the Plaintiff had been referred by Mr. Phillips to Mr. O'Laoire not for the treatment of epilepsy but for the ascertainment as to whether or not the A.V.M. could be operated on.

22. The third matter which is the gravamen of the case namely whether or not Mr. O'Laoire gave sufficient information to the Plaintiff at the interview where she agreed to have the operation.

23. Mr. Gordan, the neuro-surgeon gave evidence, which is quite clearly accepted by everybody, to the effect that if the advice given by Mr. O'Laoire was as stated by the Plaintiff, it is insufficient having regard to the seriousness of the condition from which the Plaintiff was suffering. There is no dispute regarding that statement of facts and as subsequently indicated the Defendant does not dispute what Mr. Gordan says in this regard. However, Mr. Gordan went on too long a delay between the original interview and the actual operation and that there should have been a second interview in the intervening period. I have already given my views regarding this part of the evidence and I am not in agreement with Mr. Gordan on this aspect of the case.

24. With regard to the Defendants version of what took place there are a number of problems arising. First of all neither the Defendant, Mr. Laoire nor Dr. Bari himself have any recollections specifically of the Plaintiff. What they stated was what their invariable practice was in such cases corroborated to a certain extent by certain letters and notes which were written at the time. It is first of all contended by the Defendants that the interview between the Plaintiff and Mr. O'Laoire took place to the best of their knowledge on the 23rd August and not in July as the Plaintiff and her mother appeared to think.

25. It appears that the Plaintiff had been admitted to Beaumont Hospital at the end of July and detained there for a few days and then discharged. A letter was sent to Dr. Fegan by Mr. Shah dated 20th August, 1990 pointing out the history of the Plaintiff and indicating that she was discharged home awaiting a decision for the further management of the deep-seated A.V.M. Mr. O'Laoire had identified that the carbon copy of that letter also dated the 20th August, 1990 as the document upon which he made notes in his own hand at the time of the interview with the Plaintiff. That being so, it appears to me, at least on the balance of probabilities if not beyond reasonable doubt, that the carbon copy dated 20th August, 1990 had to be in existence before Mr. O'Laoire had the interview with the Plaintiff and I so hold.

26. Mr. O'Laoire has no recollection of what took place at the meeting and made no notes other than those notes appearing on the copy of the letter for the simple reason that he indicates his writing is not that good and he has a habit of dictating immediately after an interview what took place.

27. Mr. O'Laoire says that his invariably practice in a situation such as this would be to explain clearly to the Plaintiff the seriousness of the operation proposed to be done. He would also indicate to the Plaintiff that there would have been a 5% risk of mortality or serious disability resulting from the operation. He would also point out the serious cumulative percentage risk if the operation was not carried out and that this would continue as she got older. Mr. O'Laoire states that he would have said that in his opinion the risk of 5% mortality and serious disability was approximately the same as the risk of not attending to the matter and having the operation for a period of about two years. Mr. O'Laoire quite freely admits that were the warnings given in accordance with the evidence the Plaintiff and her mother, they would not be acceptable. However, he relies heavily on two facts:-

28. In addition, Mr. O'Laoire relies heavily on the letter which he swears, and I accept, was dictated on that date immediately after the interview in accordance with his practice to Mr. Phillips which goes as follows:-

29. I explained to her and the family that the risks of excision of this particular lesion although it does extend deeply and is in the eloquent cortex are considerably smaller than the risk of a spontaneous haemorrhage.

30. In addition the recent episodes of speech slurring, etc. raise the possibility of some vascular steal from the adjacent cortex although clearly a form of epilepsy could also be possible.

31. She will be admitted for surgery.

32. Yours sincerely,

33. Consultant Neuro-surgeon".

34. In this regard, the notes quoted above are of interest because it does mention complications of pregnancy not mentioned in the letter to which the Plaintiff herself accepted had been mentioned. Similarly, in the letter are mentioned the speech slur and right wood arm which appears in the notes. Therefore, is the Plaintiff accurate in indicating in her version of the warning which was given to her corroborated by her mother or did Mr. O'Laoire give her the correct warning which she either misunderstood or has failed properly to remember? One thing is quite clear, and I will state it again, Mr. O'Laoire indicated that the warning which the Plaintiff says he gave her would have been appropriate for a completely different condition but would have been inappropriate for the condition from which the Plaintiff was suffering and which was clearly recorded apart from anything else on the copy of the letter of the 20th August, 1990 upon which the Defendant made notes and was further clearly set out in the letter of August 23rd which was dictated by the Defendant and I accept dictated by him immediately after the Plaintiff had left the office as that was his practice so to do.

35. Therefore, which, on the balance of probability is more likely to have happened. Was the Plaintiff correct or did the Defendant not only fail to follow his invariable practice in giving advice which he said he would have been given having regard to the nature of the operation but specifically gave wrong advice and did so while in his hand was the document setting out the specific condition from which the Plaintiff was actually suffering amd immediately thereafter dictated a letter setting out in great detail that he had explained to her and the family the problems which were involved. This letter indicates the condition from which was suffering and in addition that the Plaintiff herself was not the only one present.

36. Could the Defendant have written the letter clearly indicating the nature of the lesion, namely it being deep and in the eloquent cortex saying that the dangers of the operation were considerably smaller than the risk of spontaneous haemorrhage within a period of a maximum of 20 minutes from the time of giving the Plaintiff a completely different series of warnings. In otherwords, is it probable that a person of Mr. O'Laoire's experience with the particular knowledge which he had of the dangers attached to an A.V.M. operation would treat the condition of the Plaintiff as lightly as the Plaintiff's recollection indicates it was treated. The question is rendered more difficult as the Plaintiff is an extremely articulate and able person. However, she was aware of what an A.V.M. was since 1984 and was aware that the medical procedures at that time were insufficient to deal with it.

37. Therefore, on the one hand we have a situation where an intelligent young Plaintiff asks a question and says she got a specific answer to it corroborated by her mother and on the other hand we have a situation where a highly experienced skilful surgeon who said it was his invariable practice to give a correct warning and not only did not fail to give a correct warning but gave a specifically wrong warning whilst having clearly in his hands documents referring to the condition from which the Plaintiff was suffering.

38. This operation was not a common one. The Defendant had done some fifty-six to seventy-five of these operation in a period of ten years, and therefore the operation was of a specific interest to the Defendant who was at the time writing papers on it and has continued to do so. I have taken into consideration the principles laid down in Walsh -v- The Family Planning Services Limited 1992 I.R. at p.496 and I have found the following. Having regard to the letters which were written on the date on the 20th August the notes thereon, letter written on the 23rd August which I hold to be the date upon which the interview took place and which corroborate the Defendant's point of view that it is more likely that he would have adhered to his invariably practice and certainly that on the evidence before me having regard to all aspects that the Plaintiff has failed to discharge the onus of proof that he did not adhere to his usual practice and gave the incorrect or inadequate advice.

39. In Order for the Plaintiff to succeed it would have been necessary for her to prove and for me to hold that on the balance of probabilities not only did the Defendant not follow his invariable practice but deviated from it to such an extent that he not merely gave inadequate information regarding the dangers of the operation but specifically gave wrong information regarding the dangers of the operation. Under those circumstances I find the Plaintiff has failed to discharge the onus of proof and I therefore dismiss the Plaintiff's claim.