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Cite as: [2002] IEHC 43
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Quinn v. South Eastern Health Board [2002] IEHC 43 (22 March 2002)
    THE HIGH COURT
    Record No. 1995 No. 2039 P.
    Between:
    MICHELLE QUINN
    Plaintiff
    -and-
    THE SOUTH EASTERN HEALTH BOARD
    Defendant.
    Judgment of Mr. Justice Aindrias Ó Caoimh delivered the 22nd March 2002.
    1.      The plaintiff is a young woman who was born on the 8th May, 1979.
    2.      On the 9th of November 1993 the plaintiff , then 14 years of age, was admitted to a hospital operated by the defendant at Cashel in the county of Tipperary under the case of Mr. Farrell, consultant surgeon, where she was diagnosed as suffering from appendicitis and advised that she should undergo an appendicectomy. It is alleged that it was warranted that the procedure would be carried out by Mr. Farrell. It appears that the procedure was carried out by some other person in the employment of the Defendant. Subsequent to this procedure the plaintiff developed constant debilitating pain in her right lower limb and had functional impairment. She presented to the hospital on the 18th of January 1994 and on an ongoing basis thereafter complaining of continuing pain and disability in her right lower limb.
    3.      Ultimately the plaintiff was referred to the Waterford Regional Hospital where she was diagnosed as having a very obvious area of decreased altered sensation on the lateral aspect of the thigh consistent with the distribution of the lateral cutaneous nerve of the thigh with, in addition, a localised area of hypersensitivity medial to the anterior superior spine with what is referred to as a Tinel sign at this point. It was concluded that the plaintiff was suffering from meralgia parasthetica which was believed to be due to irritation of the lateral cutaneous nerve of the thigh where it transverses the retro-peritoneal space behind the appendicectomy site.
    4.      Thereafter the plaintiff was treated with injections but these only afforded her temporary relief.
    5.      The plaintiff and her parents were advised that she should undergo a surgical procedure at the Waterford Regional Hospital. It is alleged that neither the plaintiff nor her parents were advised that there was a risk or hazard attending the carrying out of the procedure which was represented as one that would give relief to the plaintiff. On the 10th of August, 1994 the procedure was carried out at the hospital by servants or agents of the defendant which involved exploring the plaintiff’s retro- peritoneal space, exposing the lateral cutaneous nerve of the thigh, dividing the nerve and excising a length of it to prevent regeneration. The procedure provided temporary relief for the plaintiff but left her with an area of numbness on the lateral part of her thigh.
    6.      By January 1995 the plaintiff’s condition had regressed to a point where it is alleged it was substantially worse that that endured by the plaintiff prior to the surgical procedure including manifestations of burning sensations all along the lateral aspects of her thigh and on the buttock and down the leg with further extensive sensory loss extending from the lateral knee over most of the anterior lateral and posterior thigh and up towards the buttock and up on the groin and on the lower abdomen.
    7.      It is alleged that at this juncture for the first time the defendants sought a neurological opinion on the plaintiff’s condition but were unable to determine what particular nerve or nerves might be implicated in producing the condition with which the plaintiff was left in after the aftermath of the surgical procedure.
    8.      It is alleged that the surgical procedures were each performed without the full and informed or any consent on the part of the plaintiff or her guardians or either of them and that the defendants, their servants or agents thereby trespassed to person of the plaintiff.
    9.      The plaintiff alleges negligence against the defendants in:
    (a) failing to provide sufficiently qualified and experienced medical and surgical staff to perform the appendicectomy;
    (b) assuring the plaintiff and her parents that the appendicectomy would be performed by an experienced surgeon known to them (Mr. Farrell) and obtaining a consent to undergo the procedure in the Cashel hospital on that basis;
    (c) performing the appendicectomy in an clumsy, inexperienced and unusual fashion which exposed the plaintiff to the risk of injury which in fact materialised.
    (d) causing damage to the nerve tissue in the course of the appendicectomy which resulted in the injury sustained by the plaintiff.
    (e) failing to exercise any or any reasonable or proper care in the conduct of the appendicectomy.
    (f) failing to have any or any proper regard to the complaints of pain and disability made by the plaintiff;
    (g) failing to refer the plaintiff for appropriate assessment following the damage caused by the appendicectomy;
    (h) failing to ensure in the circumstances that the plaintiff was provided with all specialist services which would provide her with the optimum chance of recovery or at least minimising her pain and disability.
    (i) failing to warn the plaintiff and her parents of the risk of further injury attending the surgical procedure to divide the lateral cutaneous nerve and excise a length of it;
    (j) failing to obtain appropriate neurological and neuro-surgical opinion prior to carrying out the said procedure to divide the lateral cutaneous nerve and excise a length of it;
    (k) failing to provide medical and surgical staff who where experienced and qualified to conduct the said lateral cutaneous nerve division and excision of part of same;
    (l) performing the said division and excision in circumstances where its effect, if unsuccessful, would be to prevent or make more difficult, a subsequent neurological investigation of the plaintiff’s continuing symptoms.
    (m) the plaintiff relies upon the principle of res ipsa loquitur;
    10.      It appears that following the appendicectomy the plaintiff had a stinging sensation and a tingling sensation in her right thigh and occasionally thought that her leg was going to go from under her. Her leg and thigh became progressively worse. She could not put her heel on the ground and had to walk on her toes with her right leg.
    11.      At the age of 14 when the plaintiff was in third year in school at Ardfinnan, County Tipperary, which was her junior certificate year, she was living a normal life without any health problems and participated in sports activities at school and was on the basketball team of the school as well as participating in swimming and cycling when on the 9th of November 1993 she was brought to Cashel Hospital with appendicitis as a result of which she was told by Mr. Farrell, a surgeon at the hospital, that she would have to have her appendix removed and he indicated that he would carry out the surgery.
    12.      After the plaintiff had her appendix removed she left the hospital she had soreness in her side and stinging in her right thigh. This stinging was present about four days after the appendix was removed. Initially the plaintiff was sore in the area of the scar from the operation. Sometime after this she started getting numbness in her leg in the front of her right thigh with the stinging sensation continuing in the right side. The numbness was noted about two or three weeks after the operation. This stinging sensation was in an area about 8 or 9 inches below her waist on her upper thigh and running down a distance of about 6 inches. As she started getting back to normal activities she started getting darting pains in her right leg with weakness in her leg. These darting pains were in the area from her knee to her groin. The plaintiff found that she had to walk on her right toe to relieve the darting pain from her knee to her groin. She complained about the pain to her parents at the time and when by the following January the pain had got worse with weakness in her leg she went back to Cashel Hospital where she came under the attention of Dr. Glynn. He carried out several tests and referred the plaintiff to Dublin for an MRI test. The plaintiffs problems continued for 4 months from the time of her operation. Mr. Glynn was unable to diagnose the problem and on the 13th April 1984 he referred the plaintiff to Waterford Regional Hospital from Cashel Hospital where she was a patient at the time. The referral note at the time from Dr. Glynn indicates that the plaintiff was complaining of severe pain in the right thigh region, the right hip region, unable to weight bear on the right heel and tended to walk on her toes. The referral note records that the situation had evolved somewhat over a period of months from a sense of severe pain in the region of the greater trochanter combined with a terrible sense of pressure in the thigh affecting the knee to an area of numbness in the lateral gluteal region with pain felt in the right groin.
    13.      At the hospital in Waterford the plaintiff came under the care of Mr. O’Beirne who gave the plaintiff a local anaesthetic on the 18th April, 1994 which resulted in taking away the pain but left the plaintiff weak in her knee such that she found it hard to balance her right knee and leg. Further tests were carried out on the plaintiff and a second injection of a local anaesthetic was administered on the 17th May, 1994. On the 20th May, 1994 the plaintiff was given an injection of Phenol . The result of these injections was that the plaintiff was able to walk and resume normal activities without pain or any adverse symptoms save for an area of numbness in her right thigh. This situation lasted for four weeks. During this period the plaintiff went back to school and resumed swimming, cycling and socialising with her friends. However, after four weeks the symptoms that the plaintiff had been experiencing started coming back - the stinging, darting pain and a banging sensation which was a feeling of pressure in the plaintiff’s leg on the right hand side of her right thigh which had been associated with the stinging sensation. However, the darting pain was limited to the area of her knee and her groin as opposed to being the whole way up her leg. The stinging sensation was also described as a burning sensation. The more the plaintiff did at this time the greater she suffered such that if she walked a lot or if she started back to social activities including swimming and cycling it would make things worse. After a period of seven weeks from the injections the plaintiff was back to the same condition as she was in before receiving the injections.
    14.      It appears that Mr. O’Beirne was unable at this time to explain the plaintiff’s problems and he said that the plaintiff would have to get an operation in her leg which involved cutting a nerve in her leg in the thigh region. It was represented to the plaintiff that this would take away the pain and that the plaintiff would be back to the same position as she was in following the third injection, with just an area of numbness in her right thigh. She was told that she had meralgia parasthetica. The hope was that surgery at this time would sort out the plaintiff’s problems leaving some numbness in her thigh area. This surgery was performed on the 10th August, 1994 under general anaesthetic. Initially the plaintiff was much improved after the surgery with some stinging in her right side but she was able to walk. She returned home and commenced to carry out normal activities and returned to school. However, she then started to get the pain back in her leg and the shooting or darting pain recurred. The banging sensation and stinging also returned. Thereafter the darting pain to the groin area returned. These all returned within a period of two weeks or less after returning home from hospital. The plaintiff never returned to her normal activities. She did return to school and was all right when sitting or standing but her problems arose when she had to do activities. When she had to do anything that involved moving her right leg the pain got a lot worse and was severe. She was not able to get back to cycling or swimming. She fell in January 1995 but this did not make matters worse. The plaintiff returned to Mr. O’Beirne who was not able to do anything for the plaintiff. The symptoms remained with the plaintiff to the present time. The plaintiff complains that her pain is worse now than it was before the operation in Waterford.
    15.      The plaintiff was referred to a Dr. Galvin, a neurologist in Cork who was unable to help the plaintiff but referred her to Dr. Gerry Browne, a pain consultant who was also unable to assist the plaintiff other than give her some Emla cream that gave some temporary relief but when it wore off the pain would be worse.
    16.      The plaintiff is best when she is lying down but she does suffer a darting pain like the prick of a needle in her groin which is constant. If the plaintiff turns her right leg in towards her body she gets some relief. There is, however, a darting pain from about two inches above her right knee and a cramp in her buttocks which is constant. On the other hand when the plaintiff is walking and trying to get about he avoids bending her knee or putting her heel on the ground as it would otherwise provoke the pain. The plaintiff continues to suffer the stinging and ‘banging’ . The plaintiff is unable to walk very far and certainly not for a distance of one mile and when she is required to walk it provokes the pain. If the plaintiff walks any distance she gets a weakness in her leg which can result in the leg going from under her.
    17.      The plaintiff had difficulty coping in school because she had to sit down and she could not do this the whole time nor could she stand up for a long period and as a result she had to both stand up and sit down during classes as required to ease the pain. The plaintiff was unable to resume her social activities and was reduced to watching television and could not go to a disco and as a result of all of this her friends became limited. She had a few friends who called to her as she could not go out to do activities. Two friends visited her and the plaintiff was lonely at the time.
    18.      While the plaintiff missed out a lot in school she performed well in her Leaving Certificate examination in the circumstances. She obtained one honours grade and passes in her other subjects. Her two friends did better than her even though the plaintiff had been of an equal grading to them. She believes that she would have done much better had she not the health problems.
    19.      The plaintiff sought employment after leaving school and had problems associated with her work. She worked in a drapery department of Dunne’s Stores and found it very hard. Thereafter she worked in a solicitor’s office doing secretarial work having done a secretarial course but as she was sitting down all the time she found it very difficult. She was unable to continue and thereafter worked in an office of a nursery garden centre. Again she was sitting down all day and was unable to stand when working. She now works with AIBP in Cahir where she works as a clerk doing some book-keeping and dispatch work. This work suits her as she can stand up and sit down and mobilise. She is in between two offices. She has her own department and gets on well there. She works a considerable amount of overtime as she finds that her social activities are very limited as she is unable to participate in same as when she engages in same the pain gets a lot worse. She can work up to 14 or 15 hours per day, four days per week. In addition she may work a normal day on a fifth day and a half day on the sixth day of a week which is on every second Saturday. As a result of all of this the plaintiff is isolate but there are 26 girls altogether and three of these in her office. The plaintiff gets relief from her pain by lying down. She does not take pain killers as they do not give relief.
    20.      The plaintiff is good at her job. She has the support of her parents and depends on them a lot. However, as she is now 22 years of age she feels that she needs more independence for herself. Her parents drive her to and from work and to and from her friends. The plaintiff tried to learn to drive without success as she could not manage the pedals. She finds it difficult to negotiate stairs. The plaintiff’s problems are in all probability going to be permanent. She is concerned that as a mother in the future she would have difficulty holding or carrying a child as she has weakness in her leg which could go from under her. While she can walk on her toe she does not have good balance when walking on her toe.
    21.      Evidence was given by Mr. Tom Russell, a consultant neurosurgeon at the Western General Hospital in Edinburgh. He has a bachelor degree in medicine and a further degree in surgery from the University of Glasgow. He has a Bsc in physiology and holds two fellowships in surgery from Glasgow and Edinburgh respectively. He has a speciality in spinal neurosurgery. He has been a consultant for 14 years and is senior lecturer in neurology and neurosurgery in the University of Edinburgh. In the course of his training he did a mandatory period of two years in general surgery. He performed an appendicectomy in this period. He described this as normally a very straight forward operation. After a few months of qualification a junior doctor would be permitted to perform such an operation.
    22.      With regard to meralgia parasthetica in the majority of cases no cause is found. When a cause is found it is usually compression of a nerve as it comes through or passes under the inguinal ligament. The nerve in question is the lateral femoral cutaneous nerve (LFCN). It arises from branches of the L3 and L4 nerve which meet. It then traverses the pelvis line with a muscle called the iliacus. It exits the pelvis either through or under the inguinal ligament. It then becomes superficial and supplies sensation to a variable part of the front and side of the thigh. It arises from a nerve in the lumbar plexus, travels through the pelvis and reaches a point at the anterior superior iliac spine. When it reaches this point it is leaving the pelvis and emerges out into the thigh. It branches with a significant variability. It is a difficult nerve to find and is not a large nerve. One tries to explore it as near the inguinal ligament as possible before the branching. Once it has branched it is almost impossible. It is a sensory nerve which supplies sensation to the skin. The nerve usually serves the front and side of the thigh (anterolateral part) but there is some variability. It may serve an area just below the knee and it may supply the inside of it. It may also serve an area on the inside of the lower thigh, just above the knee and it may supply some sensation around the buttock.
    23.      The normal explanation of meralgia parasthetica is that this nerve has become compressed, usually in the area of the inguinal ligament. Numbness is what normally follows. It is associated with a tingling, burning or dull aching pain (dysesthesia). This is a very abnormal sensation. It usually occurs when the skin is touched lightly and patients describe it in a variety of ways.
    24.      There may be secondary symptoms with meralgia parasthetica largely caused by the patient trying to reduce the pain. In this regard the patient may complain of cramp in the muscles of the leg because of using the muscles as the leg is being held awkwardly and constantly to avoid the pain. It is common to want to keep the hip slightly flexed. To get relief from the primary symptoms the patient will tend to walk on tip toe. The ability to get a comfortable position varies considerably from person to person. They usually want to more between sitting and standing. This depends on precisely where the nerve is being squeezed.
    25.      There are three forms of treatment for meralgia parasthetica. The first is to move anything that may be contributing, the common items are tight belts and tight clothing because the nerve can be compressed by these. The second treatment is one of conservative medical treatment. A variety of treatments come under this heading. The first may be injections, direct injections into the region of the nerve using local anaesthetic, steroid, Phenol, or a combination of these. The second would be to try simple non steroidal pain killers which are non steroidal anti-inflamatories. The third is to try some anti-convulsant , anti epileptic drugs.
    26.      The third form of treatment is surgery of some description of which there are three kinds. The first is neurolysis which is decompression of the nerve by finding the nerve and looking for anything constricting the nerve and then releasing these. The hope is that by removing the constriction on the nerve the problem will be settled. The second type of surgery is a variation on this in which neurolysis is performed and the nerve is moved (transposition). In this case when the neurolyisis is carried out the nerve is moved. The nerve may be moved a few centimetres. The third form of surgery is neurectomy in which the nerve is either cut through or portion of the nerve is cut out to leave a gap. This is transsection. When a neurectomy is performed the nerve will stop working for a variable period of time. In this case if a nerve is cut the distal part (being the part down the thigh) will die as it no longer receives nutrition from the nerve cell in the spinal cord. The section of the nerve that is taken out is to prevent the nerve re-growing and joining up again. Should it re-grow one would be back to square one at best. The proximal end gets involved in local inflammation in trying to heal itself by forming a neuroma, which is a bulbous swelling at the end of the nerve. It may get involved in the scar tissue that forms the site of the cut and get trapped in the scar tissue such that when the nerve gets back to working again the nerve begins to transmit again and may transmit strange signals which may result in strange sensations.
    27.      The witness never performed a neurectomy for a variety of reasons. Most people will settle for conservative treatment and a neurectomy is completely irreversible and once it has been done many of the drugs that would work when the nerve is intact will now no longer work. The success rate of a neurectomy is variable and it reputation is very poor.
    28.      The literature suggests that in the case of meralgia parasthetica conservative treatment should be tried exhaustively before even considering surgery. Only when conservative treatment has been exhausted should surgery be attempted.
    29.      The notes on the plaintiff show that when she was admitted to Waterford Regional Hospital she was given an injection of Xylocaine into the region of the lateral cutaneous nerve, the thigh, at the inguinal ligament, which gives some relief of pain. This is a diagnostic. This enabled a conclusion to be reached that the plaintiff was suffering from meralgia parasthetica. Mr. Russell expressed the opinion on the evidence of the plaintiff that she was suffering from this from the time of her appendicectomy. He was shown the appendicectomy scar on the plaintiff which he considered to be oddly placed by which the witness indicated that it was two or three inches lower than the standard scar and nowhere near the area of the standard incision site for an appendicectomy. He considered that it was several inches out of place. He observed that the actual incision is very close to the inguinal ligament which means that the plaintiff would be at the greatest risk of damage to the femoral nerves, the femoral vessels and also the lateral cutaneous nerve in the thigh. The classical site essentially overlies the appendix in most cases.
    30.      The witness expressed the opinion that the readmission of the plaintiff to Waterford Regional Hospital on 25 April, 1988 for the purpose of the release of the lateral cutaneous nerve of the right thigh was inappropriate as there had been no attempt to treat the plaintiff medically. However, this course was not followed at the time and the witness indicated that the treatment by injection in May 1994 was appropriate. He expressed the view that a number of options existed at this point, the easiest being to continue with the injections. The literature suggests that 75% of people will settle with repeated injections. On this basis he considered that there was a strong case for repeating the injections. Alternatively, the other medical options such as anticonvulsant drugs or even simple painkillers could have been used.
    31.      The witness considered that the Phenol injections of 17th and 20th May gave a good result but unfortunately relatively short lived but could be repeated. If repeated he would expect a similar result or a longer lasting result. If he did not get the right response from this he would have either switched to injecting steroid or a mixture of steroid and local anaesthetic or one could have switched to steroid on its own or to steroid plus a local anaesthetic. Alternatively, one could have switched to using drug therapy or there are painkillers or other anti-epileptic drugs. As the literature suggests that 90% of cases settle within two years on conservative treatment alone he would have allowed for nothing short of a year before recommending surgery. One may hold out for the full two years. At the end of 18 months, if it were not improving he would have given surgery some thought and the surgery in question would be neurolysis. He considered that had the plaintiff been treated conservatively she had a clear probability of being cured.
    32.      The witness indicated that the procedure carried out to have been inappropriate treatment because the full range of conservative treatment had not been tried, because the procedure was irreversible and once carried out many drugs that would have been of use and which would work when the nerve was intact will now no longer work and these treatments are no longer available. He considered that the decision to carry out the surgery was at the wrong time in the evolution of the disease.
    33.      The witness himself has carried out approximately 6 neurolysis procedures. The plaintiff’s symptoms were what he would expect from a neurectomy which did not work.
    34.      The witness considered that the advice given to the plaintiff concerning the neurectomy to have been wrong because a significant number of people have what is called anaesthesia dolorosa which is a dull aching pain on the site of the numbness which many patients find is actually worse that the original pain. Furthermore, the neurectomy may not take away the pain and it has a negative effect on the outcome of conservative treatment because many drugs that rely on an intact nerve to work will now no longer work. The advice given was short of what should have been given. The witness stated that the consent form did not indicate an intention to section the nerve.
    35.      The witness indicated that the incidence of meralgia parasthetica in children is very low.
    36.      The witness indicated that the plaintiff’s condition is permanent with no further treatment and she has not been offered any further treatment in Ireland. The witness indicated a number of drugs which should have been used but as the plaintiff’s condition has lasted for some time they may not be effective now. He expressed the view that it is likely that the plaintiff’s symptoms will continue indefinitely.
    37.      Under cross-examination the witness conceded that the meralgia parasthetica diagnosed in the plaintiff by Mr. O’Beirne was a severe case at the time.
    38.      With regard to the advice given to the plaintiff, the witness stated that anaesthesia dolorosa occurs in slightly less that 50% of cases.
    39.      The witness was not aware of any of his colleagues in neurosurgery who carry out neurectomy for meralgia parasthetica and no general surgeon that he knows of carries it out for this condition and no orthopaedic surgeon that he knows of carries it out for the condition. Nevertheless, the witness did not rule out surgery as being appropriate in the treatment of meralgia parasthetica and neurectomy in certain cases.
    40.      In the instant case the witness was critical of the fact that conservative treatment was used for only 4 to six weeks. Phenol is a dangerous drug and should be used only sparingly and it may cause problems and accordingly it has to be handled carefully. He considered that in the instant case Mr. O’Beirne should have considered one other Phenol injection and should have given one. The witness accepted that it is a clinical carefully balanced decision that a doctor has to take whether to give a second Phenol injection. He did not respect the decision to go the neurectomy route at the time as conservative treatments exist and should have been explored fully before surgery was considered. He opined that no one should have carried out the neurectomy in the circumstances of the plaintiff.
    41.      With regard to the pain experienced by the plaintiff, the witness compared it with the pain that arises after amputation of a limb where the limb has gone but the pain of the limb is still present as far as the patient is concerned.
    42.      At the conclusion of the plaintiff’s case it was indicated to the court that the defendant did not intend going into evidence and it was submitted by counsel on behalf of the plaintiff that I should dismiss the plaintiff’s claim on the basis that the Defendant had no case to answer.
    43.      By reference to the evidence it was submitted that Mr. Russell did not have the necessary expertise to criticise the defendant’s surgeons who had operated on the plaintiff. It is submitted that the witness in evidence admitted that he did not have the expertise to comment or say that there was a lack of care or a falling below of a standard in relation to any of the persons involved, namely the orthopaedic surgeon and the general surgeon. It is submitted that the witness only had the expertise in his own area of speciality in his own jurisdiction.
    44.      With regard to the issue as to whether the defendant’s consultant should have persisted with conservative treatment of the plaintiff after she was diagnosed as suffering with meralgia parasthetica and after she had been administered local anaesthetic injections as well as Phenol, it is submitted that Mr. Russell is not in a position of second guessing the decision of the orthopaedic surgeon when he came to make a decision to move from conservative treatment.
    45.      While the literature introduced in evidence suggested that conservative treatment should be continued for at least 12 months or 18 months, it is submitted that this view is not to be set up as having equal importance to the view of “a careful orthopaedic surgeon” Mr. O’Beirne, who treats the plaintiff face to face. It is submitted that there is nothing to say that Mr. O’Beirne was so wrong that no careful doctor in his position of being an orthopaedic surgeon could have made the decision at the moment he made it to change. It is submitted that everything in his view insofar as we know from the state of the papers at this moment had been done up to that stage and he made the decision to move to other treatment.
    46.      With regard to the site where the nerve was cut, it is submitted on behalf of the Defendant that the plaintiff’s case must fall on the evidence of Mr. Russell.
    47.      With regard to the issue of consent it is submitted that the case does not stand as the plaintiff and her parents were told of the intention to cut the nerve. The absence of consent related to the documentation which showed that the consent form was for an exploratory procedure.
    48.      On behalf of the plaintiff, it is submitted that on the evidence the plaintiff is worse off now than before the neurectomy and that she has lost the opportunity of being among the 91% of patients, which is one statistic in the literature, who would recover on conservative treatment.
    49.      The suggestion that Mr. Russell did not have the necessary qualification to give the evidence which he did in this case is categorised as a “red herring” by Dr, White on behalf of the plaintiff. It is submitted that the evidence demonstrated his expertise and that no evidence was given to contradict him in this regard.
    50.      With regard to the qualifications of Mr. O’Beirne the question is asked if he had the necessary qualifications why did he consider it necessary to telephone Mr. McKinnon in America for his advice. It is pointed out that the general surgeon in Waterford was Mr. O’Connor and why if he had the necessary qualification was it necessary for Mr. O’Beirne to ring America rather than to speak to Mr. O’Connor. On this basis it is submitted on the basis of the discovery made in this case that neither Mr. O’Beirne nor Mr. O’Connor had the necessary expertise in this case.
    51.      Essentially the plaintiff relies upon the evidence of Mr. Russell that there was a mandatory requirement of to exhaust conservative treatment before surgery is resorted to and that this requirement had not been met in this case. In this case the conservative treatment involved 3 injections over a five week period. (18th April 1994 to 20 May, 1994) which contrasts with the witness’s view that it should have been persisted with for between 12 and 18 months.
    52.      Reliance is placed upon the fact that Mr. O’Beirne did not try other conservative treatment at the end of the period of the conservative treatment in this case, before going the route of a neurectomy. This was the essential criticism of Mr. Russell in this case. His view was clearly that no one should go in to a neurectomy in the circumstances of the plaintiff at the particular time. The witness referred to the literature in stating this.
    53.      Further to this submissions are made on behalf of the plaintiff that there was negligence in not performing neurolysis at this stage. Again reliance was placed upon the evidence of Mr. Russell in this regard, especially in the case of children. In this regard reliance is placed upon the irreversible nature of a neurectomy.
    54.      Reliance is placed upon the discovered notes in this case to show that the plaintiff was readmitted on the 25th April, 1994 for the release of the lateral cutaneous nerve of the right thigh within less than two weeks of arriving in Waterford and this was for neurolysis rather than a neurectomy. In this regard it is submitted that this indicates that at that very early stage no attention at all was directed to conservative treatment.
    55.      With regard to the advice given to the plaintiff at the stage of the neurectomy, she was advised that she would have an area of numbness in her thigh but she would otherwise be perfect, counsel has referred this court to the evidence of Mr. Russell in regard to the failure to advise the plaintiff appropriately of the risk of anaesthesia dolorosa and the fact that the operation would have a negative effect on many drugs that rely on an intact nerve to work.
    56.      It is submitted that as a matter of probability had the plaintiff been treated with conservative treatment at the time rather than the neurectomy that she had a somewhat greater chance than 51% of recovering. On this basis it is submitted that the issue of the original appendicectomy in Cashel and whether it was negligently carried out is not entirely necessary in this case. It is submitted that the essential problem in this case is that the plaintiff was not properly treated.
    57.      It is submitted that if the plaintiff cannot establish negligence in regard to the appendicectomy that the essential difference is the period from November 1993 to April 1994.
    58.      With regard to the appendicectomy, the plaintiff’s case rests essentially on the doctrine of Res Ipsa Loquitur. It is submitted that the evidence goes to establish that the result was not a result which was to be anticipated in the normal course of events from an appendicectomy operation, and all the more so in the case of a child where the incidence is very low. It is submitted that notwithstanding a request to do so the defendants have failed to give an explanation how what should have been a benign procedure ended up causing the condition of meralgia parasthetica.
    59.      While Mr. Russell did comment on the location of the incision he was not prepared to criticise the procedure carried out. He indicated that the location of the incision was such as was likely to present a risk of damage to the particular nerve in question in this case. Counsel for the plaintiff relies upon the fact that the plaintiff was under the care of the Defendant at the time of the appendicectomy and that meralgia parasthetica is not something that results in the ordinary course of things if those who have the management exercise reasonable care. It is submitted that in these circumstances in the absence of an explanation that this affords reasonable evidence of negligence. It is submitted that as a matter of probability the plaintiff has established that the appendicectomy caused the meralgia parasthetica.
    60.      Reliance in this regard is placed upon ‘Neurology in Clinical Practice’ (1996) by Walter G. Bradley and others published by Butterworth-Heinemann where at page 1896 it is stated in regard to meralgia parasthetica, inter alia as follows:
    “The site of the entrapment is usually at the level of the inguinal ligament. Rarely, the nerve can be affected in its proximal segment by retroperitoneal tumors or be injured during appendicectomy.”
    It is submitted that at no time was there any warning that this was a risk associated with the appedicectomy, and it is submitted that this would be given if it were the expected event. On this basis it is submitted that the appendicectomy was the cause and that the plaintiff’s case comes within the doctrine of res ipsa loquitur.
    61.      Counsel relies upon the decision of Erle, C.J. in the case of Scott v. London & St. Katherine Docks Co., 3 H. & C. 595 at 601 where he stated as follows:
    “There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary circumstances does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from the want of care.”
    62.      Counsel submits that this principle is applicable to the facts of this case and no explanation has been forthcoming from the plaintiff to explain how otherwise the plaintiff sustained the meralgia parasthetica.
    Conclusions:
    63.      In the first place I accept the evidence of the plaintiff itself and in fact it has not been controverted in any respect. Furthermore, I accept the evidence of Mr. Tom Russell and the evidence in the form of the literature which has been placed before the court and the documents discovered in these proceedings which was opened in evidence before this court.
    64.      It is clear that the plaintiff sustained meralgia parasthetica in or about the time of her appendicectomy in November 1993. I am satisfied on the evidence before me that this resulted from the appendicectomy. The plaintiff began to suffer from the meralgia parasthetica almost immediately after leaving hospital. The evidence shows that the plaintiff complained within two or three weeks of leaving hospital. It appears that the plaintiff’s complaints developed until she was seen in the hospital in Cashel in January 1994 and worsened further until she was referred to the Waterford General Hospital in April, 1994.
    65.      I am satisfied that Mr. Russell has the necessary expertise to pronounce on what occurred at that hospital. It is clear that at a very early stage, that is within two weeks of the referral to the hospital in Waterford that surgery was being contemplated. However, it was not followed through at that time and it appears from the evidence that injections were administered to the plaintiff in the form of anaesthetics in the first instance to locate the area of the nerve damage to the plaintiff’s body and further with a view to seeking to address the plaintiff’s complaints in a conservative manner. In this regard the first injection was on the 18th of April and the final injection (Phenol) was on the 20th May, 1994. The final injection gave a complete relief to the plaintiff for a limited period. However, when it failed to address the plaintiff’s problems it is clear from the evidence that no other conservative treatment was provided and the only treatment provided was the neurectomy which was carried out in August, 1994.
    66.      I am satisfied on the evidence of Mr. Russell that proper care of the plaintiff at that time warranted conservative treatment being continued in one form or another for at least 12 months and more probably for a longer period. I am satisfied on the evidence of Mr. Russell, supported by the literature referred to in evidence before me, that had conservative treatment been followed for this period that in all probability it would have addressed the plaintiff’s problems and resulted in her overcoming the meralgia parasthetica. It is clear that the choice of surgery at the time in the form of neurectomy rather than neurolysis was such as to reduce the prospect of any drug therapy in the future as the evidence shows that many drugs depend on a live nerve. Accordingly, I have no hesitation in accepting the opinion of Mr. Russell that the neurectomy was the wrong treatment at the particular time when it was carried out and that this choice of treatment has left the plaintiff in a position where she is unlikely to overcome the meralgia parasthetica and in all probability will remain severely debilitated by it for the rest of her life.
    67.      With regard to the plaintiff’s consent to the neurectomy, I am satisfied that while there was a consent it cannot be considered to have been an informed consent as the plaintiff and her parents were not advised of the risks associated with a failed neurectomy and in particular the possibility that it might not prove successful and might reduce the possibility of other conservative treatment being followed, not to mention other possible side effects from the operation such as anaesthesia dolorosa. It must be emphasised that the plaintiff was not advised appropriately as to the consequences of the neurectomy being an irreversible procedure.
    68.      I am not prepared to hold that the site of the neurectomy was inappropriate as the evidence does not show that the problems of the plaintiff relate to the failure to properly locate the damaged nerve or otherwise.
    69.      With regard to the appendicectomy, I have already indicated that I believe that this resulted directly in the meralgia parasthetica. In reaching this conclusion I am mindful of the evidence of Mr. Russell as to the location of the incision and the fact that it was unusually low and in an area with greater risk of damage to the lateral femoral cutaneous nerve. I believe the fact that rarely can the nerve be affected during appendectomy and the fact that the evidence shows that it was in the instant case that it brings into play the doctrine of res ipsa loquitur and that the plaintiff is entitled to succeed against the defendant in respect of the appendectomy also as no explanation has been forthcoming from the defendant in whose care the plaintiff was at the relevant time.
    70.      In light of the findings of negligence against the defendant I now assess damages against the defendant. In this regard I have to take into account the pain and suffering suffered by the plaintiff to date and also the fact that the injury sustained by her has severely blighted her teenage years and deprived her of a normal lifestyle in those important informative years. It is clearly to the plaintiff’s credit and to her parents that she has sought to address her problems in a positive manner and has become a valued staff member of AIBP in Cahir. In light of the evidence given before me I assess damages in the sum of Euro 120,000 to date and Euro 180,000 to the future.

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