High Court of Ireland Decisions

1. This is an action for damages for personal injuries taken by the Plaintiff, who is now eighteen years of age, against the first Defendant who is a general surgeon who practices at St. Luke's General Hospital, Kilkenny, the second named Defendant who is an orthopaedic surgeon who practices at Kilcreen Orthopaedic Hospital, Co. Kilkenny, the third named Defendant who is a medical doctor and also at the relevant time practised at Kilcreen Orthopaedic Hospital and the fourth named Defendant which is the statutory authority responsible for the management of St. Luke's General Hospital and Kilcreen Orthopaedic Hospital. The first and second named Defendants have now admitted liability, and the action proceeded before me as against those Defendants only, confined to the assessment of damages. Although this is only an assessment of damages, it is, however, necessary to consider in some detail the Plaintiff's original medical condition, the nature of the misdiagnosis which constituted the act of negligence, the Plaintiff's treatment to date and the prognosis for the future.

2. In mid-December 1991, when the Plaintiff was just eleven years of age, she complained of pains in her left knee joint and began to walk with a limp. On 17th December, 1991, about ten days after the initial pains in her knee, she was taken to Kilcreen Orthopaedic Hospital by her mother. A tentative diagnosis was made that she was suffering from osgood schlatter disease, and a below knee plaster of paris cast was applied. On 23rd December the pain in her knee became acute and severe and her mother took her to the accident and emergency Department of St. Luke's Hospital in Kilkenny. There she had an x-ray of the left knee, her upper tibia and fibula and her patella. No bone abnormality was found, but an appointment was made for her to have a bone scan in St. Anne's Hospital in Dublin on 10th January. The plaster of Paris was removed and she was given a Robert Jones bandage and crutches. This was duly carried out, but showed no significant abnormality. At this stage the first Defendant, who had been treating her in St. Luke's Hospital, referred her back to Kilcreen Orthopaedic Hospital where she was seen by the second Defendant on 24th January, 1992. He could find nothing wrong, and advised that she should get walking on the leg and try and ignore the pain.

3. Her condition did not improve, and on 11th February 1992 she was taken back to the accident and emergency department of St. Luke's hospital where, on the insistence of the Plaintiff's mother who was a nurse, an x-ray was taken of her left hip.

4. The result of this x-ray showed a slipped left upper femoral epiphysis. She was immediately admitted to hospital for bed rest and further orthopaedic advice, and it was arranged that she would attend Mr. Desmond Fogarty, Orthopaedic Surgeon, at Our Lady's Hospital for Sick Children in Crumlin the next day. It is conceded by the Defendants that, although her initial complaints related to her knee, her symptoms were such as should have immediately alerted them to the possibility of a slipped epiphysis, and that the treatment given to her, and in particular the application of a below knee cast, were quite inappropriate.

5. Two witnesses on behalf of the Plaintiff have given evidence that her history shows that the probability is that at the time of her initial complaints she had a chronic slipped epiphysis, which was not particularly severe and could have been remedied had it been diagnosed immediately. However, because of the delay in diagnosis, and also probably because of the added strain on her hip caused by the below knee cast, she had suffered an acute episode immediately prior to her hospital visit on 23rd December, which led to the severe pain she suffered at that time, and also led to a very severe slippage of her epiphysis. These witnesses were not challenged on this view and I accept that the probability is that had there been a correct diagnosis on her first admission her condition could have been corrected within a short time and without leaving her with any lasting ill effects, although an operation would have been involved. I also accept that, had this diagnosis been made, she would not have had to undergo the lengthy and very unpleasant treatment which she had to bear, and would not have had the type of disability from which she now suffers. I accept, therefore, that the pain and suffering which has occurred since the misdiagnosis, and will continue to suffer into the future, together with the physical disabilities or restrictions from which she now suffers would have been avoided had a proper diagnosis been made originally.

6. Following admission to Our Lady's Hospital in Crumlin an MRI scan was carried out, and she had an operation of femoral neck osteotomy and internal fixation of the slipped epiphysis. My understanding is that this is the operation which would have been carried out successfully had there been an immediate diagnosis of her condition. Following the operation she was put on traction and was discharged on 6th March, 1992. However, the operation was not a success, and she was re-admitted to Our Lady's Hospital on 30th March for traction, following which a hip spica was applied and she was discharged on 11th April. It should be noted that the hip spica is a very unpleasant and uncomfortable form of cast which in fact covers the greater part of the left hand side of the body.

7. The hip spica remained in place for some months, and during 1992 she had a number of visits to Our Lady's Hospital for traction and for physiotherapy. As her condition did not improve, she was readmitted on 6th November, 1992, and an arthrodesis of her left hip was carried out. Following this operation she had several changes of plaster, and a hip spica was again put in place. This was removed on 10th February, 1993.

8. Unfortunately, this operation also did not prove successful, due to a combination of the severity of the displacement and the fact that she had developed an avascular necrosis and subluxation of her left hip. by the end of 1993 she was having further serious problems with her hip, probably due to the necrosis. On 13th July, 1995 she had a second arthrodesis in Our Lady's Hospital, this time using internal fixation and a copper plate was inserted in her hip. Initially she appeared to be making satisfactory progress, but subsequently it became clear that the arthrodesis was only partially successful. Furthermore, as a result of all these interventions, she was left with a considerable shortening of her left leg amounting in all to some 6 cms. 4 cms of this shortening was in her femur and 2 cms in her tibia. She was referred to Mr. David Moore, Orthopaedic Surgeon, who specialises in limb lengthening. She was admitted to Our Lady's Hospital again, under Mr. Moore, and he operated on her in early April 1996. This operation was successful, in that it has achieved more or less equal limb lengths, but as the entire lengthening took place in the tibia, her knees are not symmetrical. The operation and her subsequent treatment required her to have an elizarov external fixator applied to her tibia, which had to remain in place until November of that year, and she had to wear a plaster cast for a further month after its removal. She still was left with deformity in her left ankle which required a stretching of her Achilles tendon. Initially, it was attempted to achieve this by physiotherapy, but ultimately this had to be lengthened in a further operation on 22nd July, 1997, again requiring a plaster cast on her leg for a further two months.

9. The Plaintiff's left hip has been partially athrodesed, but there is a marked adduction of the hip, with the result that it is in a more or less fixed position turned inwards by about 40°. The metal plate is still in position, but several of its screws have broken because of the movement of her hip. The hip is now clinically stable, but with this deformity. She still has some restriction in her ankle movements. She has a large and unsightly S shaped scar of about 45 cms on her hip, and a number of lesser, but nonetheless cosmetically very significant scars in the region of her left knee and left ankle. Her left knee is noticeably higher than her right knee. She suffers more or less continuous pain in her back, some pain in the tibial region of her left leg and occasional pain in her left hip. The pain in her back becomes particularly severe if she has to remain in one position, such as a sitting position, for any considerable length of time. She walks with a gross limp.

10. There are three possible further surgical interventions which can be carried out. Firstly, a further arthrodesis can be performed on her which would involve removingthe existing plate and screws and replacing them. On the evidence this has approximately a 50% chance of success, although it could be repeated again, if it were not successful. If the operation were successful, there would be a very noticeable improvement in her limp, and in her general mobility, but she would still be left with chronic back pain, although not as severe as she is suffering from at the moment. If the operation is not successful, its failure would probably not worsen her present condition, but of course she would have had to go through the pain and discomfort of the operation.

11. A further possibility is that she could have an arthrodesis carried out by

12. Mr. Gary Fenelon, who gave evidence before me. His recommendation is that the arthrodesis should be carried out in conjunction with a pelvic ostestomy which would considerably improve the position of her leg and result in better weight transmission which would assist her back problems. He put the chances of the success of such an operation at about 80%, but acknowledges that it is a much more severe operation than a simple arthrodesis.

13. Finally, she could have a hip arthroplasty, or hip replacement, but the general medical opinion is that this would not be recommended under any circumstances at her present age, and indeed should not take place until she is in her late thirties.

14. There is no doubt that the Plaintiff's disabilities and the various procedures and hospitalisation have had a devastating effect on her. She has had some twenty admissions to hospital as an in-patient and has spent lengthy periods in casts of various natures. Her schooling has been seriously disrupted, even though she did have some home tutoring. In this regard, I am satisfied on the evidence that, while she would never have been a top grade student, and would probably not have got sufficient points to enter university, nevertheless her opportunities for the future have been limited. She did complete her junior certificate, with honours in two subjects, but she has been advised that she should only attempt pass papers in her leaving certificate. This will seriously limit her entry into any type of third level education, a subject which I will return to later.

15. In addition, and just as importantly, she has been unable to enjoy a normal childhood. She appears to mix with her peers quite well, and has a number of friends, but she cannot join them in normal teenage activities, such as sports or attending discos, and she has been unable to join in school outings. This has largely been because of her injuries, which physically prevent her from taking part in these activities, but it is also partly due to a very understandable self-consciousness about her limp and also about the scars on her leg. She is also psychologically affected, which again is understandable, and to some extent has not yet managed fully to come to terms with her situation. She becomes quite emotional when recounting her history, but interestingly she remembers very little of the early days, which she says herself she has blanked out of her mind.

16. Physically, quite apart from the traumas of the various operations and admissions to hospital, she still suffers from considerable persistent back pain which necessitates frequent rest periods, to the extent that she has to come home from school at lunchtime to enable her to rest.

17. As I said earlier, I am quite satisfied that had the problem been properly diagnosed initially, while she undoubtedly would have had to undergo an operation, and probably had some months of disability, the probability is that thereafter she would have had a perfectly normal childhood and teenage years.

18. All the medical experts agree that the Plaintiff should have a further arthrodesis. Whether it is successful or not, she will have the trauma of the operation itself and some months of serious discomfort and lack of mobility. The chances that an ordinary arthrodesis operation would be successful appear to be about 50%, while if the procedure recommended by Mr. Fenelon, which involves a pelvic osteotomy is carried out, the chances of success are probably greater, although I doubt if they are as high as the 80% which was his estimate. On the other hand, Mr. Fenelon's operation would be much more serious and take a considerably longer time for recovery. It also involves a greater risk of infection and of nerve damage, which if it occurred, would be very serious. I have to decide this case on a balance of probability, and I think on the evidence I have heard that it is probable that a further operation will to some degree be successful. That being said, however, nothing is going to restore the Plaintiff to normality. In the short term, once she has recovered from an operation, her back pain will probably be considerably relieved, and her gait will improve. However, in the longer term it seems clear that the back problems will recur, she will always have a limp and be restricted in her activities. The view has been expressed that she would be able to live a normal life, but I think that requires a very strained definition of normality. She will of course be able to look after herself and live on her own, whether she has a further operation or not, provided she adapts her life to suit her limitations. these limitations are going to include increasing back pain, a continuing limp, although not as bad as at present, difficulties in certain types of action which involve a lot of bending, such as picking things off the floor. Furthermore, even with another successful operation, she will have difficulties having intercourse and, if she becomes pregnant, the birth will have to be by a caesarean section.

19. Damages have been claimed under a number of headings, many of which are in fact agreed. I propose to list all the damages which I am awarding, but I think it is only necessary to comment where there has been some measure of disagreement. The items of damage are as follows:-

20. I accept that this is an item recoverable under the principles set out in Crilly -v- Farrington (unreported) 26th August, 1992. On the evidence of Ms. Noreen Roche and in the light of the fact that the Plaintiff's mother in fact had to give up work for certain periods, I assess this at £61,898.00

21. On the same principles I accept that the Plaintiff is entitled to recover the cost to her parents of transporting her to and from hospital and medical appointments. While there were no records of this, in my view it amounted to approximately 15,000 miles. I am not prepared to allow the mileage figure claimed, as this would effectively include the basic costs of the car, which I think the Plaintiff's parents would have had in any event. I think a figure of 50p per mile would be fair, making an award of £7,500.00

22. The Plaintiff will certainly require future care from her parents while she is still at school, which will be for another eighteen months. She will require to be brought to and from school, particularly at lunch time. However, I do not think she will require future care of the type claimed once she becomes more independent, particularly if she gets a car of her own. I am prepared to allow future care for two years at £8,100 per annum, making an award under this heading of £16,200.

23. I accept that the Plaintiff will almost certainly have another operation in the reasonably near future, and will require some considerable care for a short time after such operation. I accept the figure claimed of £5,718.

24. As I have said I do not accept that the Plaintiff will require to be cared for in this sense as I believe she will be quite independent. This is particularly so as I am awarding her damages which allow for some home help and for child minding, and I think this should be sufficient to cover her needs.

25. I think the Plaintiff will find it very difficult to cope with young children due to the restrictions of her movement. I think she will need help in this regard for some three years after the birth of each child. I propose to assume that she will have two children, one at age twenty-five and one at age thirty, and I accept Mr. Delaney's calculations of a capitalised value of this at £44,800.

26. It is accepted she will require an automatic car at a value of £15,500.

27. It is also agreed that she should have a computer at a value of £1,500.

28. At present the Plaintiff has a room specially built on to her parents' house, but her parents' central heating is not sufficient to properly heat this room. It is suggested there should be central heating put into the room and a gas fire fitted. I will allow the central heating cost as a one off item of £2,400.

29. I accept that, because her need to rest, it is reasonable that she should be provided with a television and video in her room. I accept the figure of £994.

30. The sums claimed are set out in the First Schedule to the report of Ms. Margot Barnes. These include the cost of home help, housing maintenance and gardening. In my view the Plaintiff will not require such items for another five years, and therefore I propose to deduct £7,500 from the amount claimed. I accept the other items, and therefore award her £47,809.

31. I accept the figure of £22,095.

32. The main part of this item is the continuing cost of car maintenance and depreciation. While it effectively assumes that the Plaintiff would not have had a motor car were it not for her condition, I think that is a reasonable assumption to make under the circumstances. I accept she now has no choice but to have a motor car. I award the figure of £27,933.

33. I accept the figure of £489.

34. I think it is probable this would happen in about two years time. I do not think it is possible to give any reasonable assessment of whether any further operations will be necessary in the future, and I do not propose to make any allowance in that regard. I will award her £17,136 as calculated by

35. I have accepted that the Plaintiff's earning capacity will be reduced, partly because of her physical disabilities and partly because of the interruptions in her education. I think it is reasonable to assume that while she probably would not have gone to University, she might have qualified as a nurse, or for some other work with similar remuneration, and I take this as the relevant level of remuneration which she would have earned were it not for her condition. I also think it reasonable to assume that her earning capacity now, were she of a working age, would be about £11,000 per annum. Accordingly, I accept Mr. Delaney's capitalised figure allowing for a net difference of £58 per week from age twenty-one to thirty-two and a further difference of £45 per week in addition to that from age thirty-two to sixty-five. This figure amounts to £97,865.

36. Accordingly, the total special damages I will award amounts £390,975.

37. The appropriate level of general damages was discussed by the Supreme Court in Allen -v- O'Suilleabhain (unreported 11th March, 1997). That case concerned injuries to a nurse which rendered her unable to work and left her with constant back pain, stiffness in her lumbar spine and restriction of leg raising movements and a weakness in her left leg. The Court referred to the Judgment in Sinnott -v- Quinnsworth Limited (1984) ILRM 253, where O'Higgins C.J. said:

38. That case and those remarks date from the early 1980's, and quite clearly should be greatly increased to account for the passage of time. However, in Allen -v- O'Suilleabhain the Court considered that the Plaintiff's injuries, which were not unlike the injuries in the present case, could not be compared with the type of injuries which attracted the maximum award. In fact, in that case the Supreme Court awarded the Plaintiff £125,000 general damages. While the injuries which the Plaintiff suffered in Allen -v- O'Suilleabhain were not unlike those in the present case, the Plaintiff did not have to undergo the series of traumatic operations which this Plaintiff has had, and did not effectively lose her childhood, and therefore I do not think that the figure of £125,000 can be considered as a guideline for this case.

39. I fully accept that there must be a limit to the amount of general damages which can be awarded. However, in assessing such damages the Court has to take into account the particular circumstances of each case, and while the Plaintiff in the present case will be able to lead an independent life, although a limited one, she has had to endure appalling pain and suffering and loss during a very important part of her life. While I think that she will probably adapt better to her situation in the future, particularly if there is some improvement in her condition, she can never relive her childhood and teenage years. I would propose to assess damages on the basis that the maximum figure referred to by the Supreme Court should now be in the region of £250,000 and I would award the Plaintiff £120,000 for pain and suffering to date and £70,000 for pain and suffering in the future making in all £190,000 general damages.