High Court of Ireland Decisions

Doherty v. Reynolds & Anor [2004] IEHC 25 (13 February 2004)

 
THE HIGH COURT

1999 No. 5682 P

BETWEEN

CHRISTOPHER DOHERTY

PLAINTIFF

AND JOHN REYNOLDS AND ST. JAMES HOSPITAL BOARD

DEFENDANTS

JUDGMENT of Mr. Justice Diarmuid O'Donovan delivered on the 13th day of February, 2004.

The plaintiff in this case, Christopher Doherty, is a 45 year old married man with three children, and he lives in Ballinasloe in Co. Galway. Prior to the events which have rise to this claim in December, 1996, he was a service engineer employed by Durkin Catering. Mr. Doherty told me that he was born and raised in Coventry of Irish parents, that he trained as an electrician in Coventry, that he met his wife in Coventry but that he came to Dublin to get married and, in the year 1982, he moved to Ballinasloe, where he has lived ever since. He has said that prior to the events which gave rise to this claim, he was in good health although he had suffered from chest pain associated with acid reflux and heartburn since about the year 1991. He said that, insofar as that condition was concerned, his general practitioner had referred him to the Portiuncla Hospital in Ballinasloe, which in turn, sent him to Galway for tests and, ultimately, he was sent to St. James Hospital in Dublin were he was advised that an operation would tighten a valve and stop the reflux. Apparently, his problem was a loose valve at the end of the oesophagus and the solution was an operation known as a nissen fundoplication. In that regard, the plaintiff gave evidence that he was told that the operation would take one of two forms; it could be done laparoscopically involving five one inch incisions in the tummy area but without necessitating opening his chest, in which event he was told that he would be home on the same day because it was quite a simple operation. However, if that operation was unsuccessful or if, for whatever reason, it could not be performed, he would have to be subjected to an open operation, in which event he would be an in-patient for some days. In fact, that it was happened. In that regard, Mr. Doherty said that, in the month of March 1996 he had agreed to submit to one or other of those procedures and, for that purpose, he was admitted to hospital on 12^th December, 1996, which was a Thursday. As it happens, it seems that the plaintiff's medical advisors were so confident that they would be able to perform a laparoscopy on the plaintiff, thereby facilitating his discharge on the following day, that he was admitted to a five day ward, which closed on Saturdays and Sundays. Mr. Doherty described the circumstances of his admission to hospital; how the details of the operation to which he was about to submit was explained to him by a Dr. Guest and how he had signed an appropriate consent form. He said that it was expected that he would go down to the theatre early on the morning of Friday 13^th December, but the fact of the matter was that he was not taken to the theatre until about 1.00 pm on that day and, shortly before being taken into the theatre, itself, he was brought to an anti-room, where he recalled having a conversation with an anaesthetist and joking with him that it was as well that he, (the plaintiff) was not a superstitious person as it was then thirteen hours on Friday 13^th. Mr. Doherty said that that was his last recollection until he came too back in his ward very late in the evening of that day and the first thing that he remembers was seeing his brother in law, Mr. P.J. Madden, who immediately, rang the plaintiff's wife, Martina on his mobile phone. The plaintiff, recalled speaking to his wife, and telling her "I'm back, I'm, fine and I will talk to you tomorrow." He said that he thought that that was around 9.00 in the evening. He said that he had no other major memories of that day other than that he was quite sore and, when asked to locate the pain, he said "I was sore everywhere I just didn't know where I was the sorest." He said that he then realised, because Mr. Madden had told him so, that the operation to which he had been subjected had been converted from a laparoscopy into an open operation.

At this stage, I think it appropriate to refer to one of the many conflicts and inconsistencies which, throughout the trial of these proceedings, was manifest between; on the one hand, evidence led by the plaintiff and several witnesses called on his behalf and, on the other, the nursing and medical records relating to the period between 12^th December, 1996 and the 18^th December, 1996, inclusive, when the plaintiff was an inpatient at St. James Hospital and the evidence of several nurses and several doctors, who were called to give evidence on behalf of the defence with regard to events relative to the plaintiffs detention in hospital during that period of time. In this regard, the nursing notes relevant to the plaintiffs stay in St. James Hospital record that, following his operation, he returned to his ward at 6.00 pm and a nurse Evelyn Meaney gave evidence that she made an entry to that effect. However, a nurse Maloney, who gave evidence that she was the nurse in charge of the recovery room, being the room to which the plaintiff was transferred from the theatre in which his operation had been performed, said that there is a book in the recovery room which records the time at which the nurses in the recovery room contact the ward to which a patient is to be brought following an operation advising the ward that the patient is ready to be discharged from the recovery room and requesting that someone come from the ward to collect him/her. Insofar as the plaintiff was concerned, that book recorded that that request had been made at 6.00 pm on 13^th December, 1996. Furthermore a document entitled "surgical schedule" which, apparently, is an administrative form filled out by staff nurses and used for statistical purposes, records that the plaintiff was discharged from the recovery room at 18.20 hrs. Moreover, in the recovery room chart referable to the plaintiff, which is entitled "post operative assessment" Nurse Maloney gave evidence of having made entries relative to her observations of the plaintiff, the last such observations having been made at 6.20 pm on 13^th December, 1996. Nurse Maloney purported to explain these discrepancies by saying that, because experience has shown that there was very often a considerable delay between the time when a request is made to a ward to collect a patient from the recovery room and the actual time of collection, it very often happened that the request to the ward would be made well in advance of the time when the patient is actually ready to be transferred. However that does not explain why nurse Meaney recorded that the patient returned to the ward at 6.00 pm when nurse Maloney was still noting her observations of him at 6.20 pm nor does it explain the "surgical schedule" which records that he was discharged from the recovery room at 6.20 pm or the recovery room book which records that he was discharged from that room at the same time and to confuse matters further, Sister Linda Meyer, the Acting Clinical Nurse Manager, gave it as her recollection that the plaintiff left the recovery room at 6.50 p.m. When Nurse Meaney was asked to explain the discrepancy between her evidence and that of Nurse Maloney, her answer was that it would appear that the plaintiff did not, in fact, return to the ward at 6.00 pm but rather at 6.20 pm and what probably happened was that the phone call to the ward to collect the patient was made at 6.00 pm, as that was the time that stood out in her mind when she was making her nursing notes. However, while, perhaps, in the light of the evidence of nurses Maloney and Meaney, it is possible to understand some of the contradictions and inconsistencies in the hospital records with regard to the plaintiff's transfer from the recovery room to his ward, it is, in my view, impossible to reconcile those records with the evidence of the plaintiff's brother in law, Mr. Patrick Joseph Madden, who coincidently, was General Secretary of the Irish Nurses Organisation at the material time. In this regard, Mr. Madden gave evidence that, for some time prior to the events which gave rise to this claim, he had been aware that his brother in law, the plaintiff, was suffering from a gastric reflux problem which necessitated surgery and he was aware that that operation was to take place at St. James Hospital on Friday 13^th December, 1996. He gave evidence that, at approximately 5.45 pm on that day, he arrived at the hospital and asked at reception where he might find the plaintiff, in response to which request he was directed to the relevant ward. When he arrived at the ward the plaintiff's bed was empty. He waited for a while and then went to the nurse's station to inquire as to the plaintiff's whereabouts whereupon he was told "We actually don't know where he is. He should have been back long ago. We don't know where he is." Now, to be fair to the hospital, Mr. Madden said that, notwithstanding that that is what he had been told, he is quite sure that they did know where the plaintiff was. In any event, he found a newspaper and he read it while waiting for the plaintiff to return to the ward. However, when, after quite a long time, the plaintiff still had not turned up, Mr. Madden went back to the nurse's station where he was advised that the plaintiff was in recovery and that he would be back shortly. At that stage, Mr. Madden learnt that the operation to which the plaintiff had been subjected had been converted from a laparoscopy to open surgery and, accordingly, he gave evidence that he then telephoned the plaintiff's wife to advise her of the situation. Mr. Madden fairly admitted that he could not recall the precise time at which the plaintiff was returned to the ward but, guided by his sister's (the plaintiff's wife), recollection of events, he estimated that it would have been some time between 8.30 pm and 9.00 pm. That evidence was never challenged. Neither was any effort ever made; either to reconcile Mr. Madden's evidence with the hospital's records relating to the time at which the plaintiff's was discharged from the recovery room or to explain where he was between the time when the records suggest that he was discharged from the recovery room and the time when Mr. Madden said he arrived in the ward. For very obvious reasons, the contradictions and inconsistencies in the hospital records, when coupled with the evidence of Mr. Madden, create a very unsatisfactory situation insofar as the court is concerned.

The plaintiff told me that he had very little recollection of Saturday 14^th December, 1996 because, as he said, he was in and out of consciousness throughout that day. He did recall, however, that he experienced a lot of pain during that day, that he was connected to a pain pump; a P.C.A. pump, and that he realised to his embarrassment that he had a urinal catheter inserted. In this regard, the plaintiff said that the catheter was taken out "Some time on Tuesday, late morning I think." However, as the nursing notes record that the catheter was removed during the afternoon of Saturday 14^th December, I think that the plaintiff's recollection in that regard is faulty because I cannot conceive that a nurse would record the removal of a catheter if that did not happen. In the context of this case, it seems to me that the time at which the catheter was removed is of such little importance that it is so unlikely that a nurse would note its removal some three days before it was actually removed; that is, if the plaintiff is to be believed, so that that possibility is not worthy of consideration. What is worthy of consideration is the location of the pain which the plaintiff said he was experiencing on that Saturday and in that regard, when, under cross-examination by Mr. McCullough on behalf of Mr. Reynolds he was asked to describe the sort of pain he was suffering from at that stage, his reply was "At that stage my whole upper body seems to be……………..I couldn't move, I was stiff from not being able to move. My stomach was sore, my shoulder was sore, I just didn't know where the pain was, I was in so much pain." He added "I was expecting pain to be in my abdomen where the operation was. I could not understand while my whole upper body, my whole upper torso seemed to be rising in pain." Moreover, the plaintiff rejected the suggestion that the pain which he was experiencing was more generalised pain around the site of his operation and he reiterated "I would say that the whole upper half of my body, the abdomen and the shoulder". At the same time Mr. Doherty reiterated that that Saturday was a bit of a blur for him. In this regard, there appears to be no doubt but that at some stage during the weekend of 14^th December, 1996 to Monday 16^th December, 19976 the P.C.A. pump to which the plaintiff was connected was found to have been faulty and was changed. Mr. Doherty said that this occurred at approximately 3.30 am on Monday 16^th December whereas the nursing notes record the change of the P.C.A. machine as being during the "nocte" of the 15^th December. In this regard, although, in the course of her evidence, Nurse Lyons; the nurse who made that note, speculated that it might have been a reference of a change of syringe, she, herself, thought it more likely that the record referred to a change of the P.C.A. machine, itself, and I agree with that because I hardly think it likely that the nurse would have used the word "machine", when making that record, if it was merely a change of a syringe. Again, I find it difficult to conceive that a nurse could record the happening of an event some 24 hours before it actually occurred and given that the doctor who was responsible for changing that pump could not recall the time at which he did so, I am inclined to prefer the nursing record to Mr. Doherty's recollection. In any event, given that it is common case that, at some stage during that weekend, the P.C.A. pump was changed, I think it much more likely that it was changed at the time recorded in the nursing notes than at the time suggested by the plaintiff because, as I have indicated, it seems to me to defy reason that a nurse would record the happening of such an event long before it actually took place. Moreover, the plaintiff, in the course of his evidence, said that the Doctor, who changed that pump, identified himself as the anaesthetist, who had been present during the course of Mr. Doherty's operation and that man, Dr. Abraham Matthew in the course of his evidence, while he could not recall changing the P.C.A. pump was adamant that he had not been on duty on the night of the 15^th/16^th December, 1996, whereas he had been on duty on the night of the 14^th/15^th December, 1996. This seems to me to confirm that the P.C.A. pump was changed at the time recorded in the nursing notes rather than at the time suggested by the plaintiff. Nevertheless, however, I am persuaded by Mr. Doherty's evidence that, during the hours immediately before that pump was changed, he was in agony and I am satisfied that that pain included severe pain in his right arm and right shoulder. I am satisfied on that account because, when the plaintiff was seen in Beaumont Hospital on the 14^th January, 1997, it is recorded (a record which the defendants did not dispute) that the plaintiff had then complained that he had experienced pain in his right arm immediately following his operation. Given that that complaint was made at a time when the plaintiff could not possibly have known of the significance of his have experienced pain in his right arm and right shoulder immediately following his operation (a significance to which I will be referring in greater detail in the course of this judgment) I am persuaded that when, in the course of his evidence before me, the plaintiff said that he had experienced pain in his right arm and right shoulder before the P.C.A. pump was changed, he was telling me the truth. At the same time, I recognise that, if it be a fact, as I believe it to be for the reasons which I have stated, that the P.C.A. pump was changed during Saturday night /Sunday morning of the 14^th/15^th December, 1996, it is difficult to understand why the plaintiff would have had so many complaints to make with regard to pain to the several visitors (his wife and children and his sister in law Carmel, and her husband, Austin) whom he received during Sunday 15^th December; particularly as Mr. Doherty conceded in evidence that, after the pump had been changed, he got considerable relief from pain and therefore, if the pump was working on Sunday 15^th December, he should not have been complaining of very severe pain on that day although his evidence and that of his wife and of his sister in law, Carmel and her husband, was that he was so complaining and, in particular was complaining of pain in his right arm and shoulder on that day. While, given that he had been subjected to a serious operation a couple of days earlier, I could well understand how Mr. Doherty might be confused with regard to the sequence of events and, in particular, the times at which he experienced pain, I cannot credit that his wife and his sister-in-law and her husband could all be mistaken with regard to the time when they visited the plaintiff in hospital and, in particular, that they were mistaken when they gave evidence that they had visited him on Sunday the 15^th December 1996. Accordingly, as the nursing records for that date do not record the multitudinous complaints of pain by the plaintiff of which his wife, Martina Doherty and his sister-in-law, Carmel Madden gave evidence, I must conclude, with all due respect to those two ladies, that, while it may well be that the plaintiff did complain to them of pain and, in particular, of pain in his right shoulder around that time, it was not on the 15^th December of that year when they visited him in hospital and that they are mistaken when they suggest that he made those complaints on that date. This is not to say that, because there is no record in the nursing notes that the plaintiff complained of pain in his right shoulder during the days immediately following his operation, I reject his evidence in that regard. On the contrary, I accept that he was experiencing pain in his right shoulder and that he was complaining of pain in his right shoulder ever before the P.C.A pump was changed during Saturday night/Sunday morning of the 14^th/15^th December 1996. I accept his evidence in that regard, notwithstanding the absence of any nursing note recording such complaints, for the simple reason that it is consistent with what he told the Doctors in Beaumont Hospital, when he was seen there on the 14^th January, 1997 and with the evidence which he gave with regard to the pain which he experienced and the complaints which he made following his return home on the 18^th December 1996; which latter evidence was not only not challenged by the defence but was accepted as a truthful account by the plaintiff of his experiences at that time; given that the defence indicated that it was not necessary for the plaintiff to call the several witnesses, who it was indicated were available to give corroborative evidence in that behalf. In this regard, it seems to me to be extremely unlikely that, following his return home, the plaintiff would develop a pain relative to his operation which he had not experienced while an inpatient in hospital following that operation and, given that the operation to which the plaintiff was subjected was located in the area of his stomach, it is not in my view all that surprising that the nurses, who were caring for him, would not consider complaints of pain in the right shoulder to be sufficiently relevant to justify a record being made of them. In this regard, I appreciate that, when they came to give evidence, all of the nurses, who were responsible for caring for the plaintiff in the days following his operation, said that, although they had no personal recollection of the plaintiff that had he complained of pain in his right shoulder, then, notwithstanding that the operation to which he had been subjected was located in his stomach, they would, nevertheless, have recorded such complaints. Accordingly, I was invited to conclude that, in the absence of such records, no such complaint was made by the plaintiff. However, for the reasons which I have given, I am not persuaded to come to that conclusion.

While, as I have indicated, given that the P.C.A. pump had been changed at that stage, I am not persuaded that the plaintiff was as voluble with his complaints of pain as he, himself, and his wife and his sister-in-law, Carmel Madden, maintained when they visited him on the 15^th December, 1997, I do not for a minute think that Mr. and Mrs. Doherty invented the incident, which they both described in evidence when, on that date, the plaintiff's youngest child, Rachel, who is then five years of age, on arriving on the ward where the plaintiff was located, jumped on to his bed on which the plaintiff was lying on his left hand side and on to his right arm, whereupon the plaintiff roared at the child that she was hurting him and that she was to get off him; apparently, frightening the wits out of her. Notwithstanding, that I think that Mr. Doherty was much more comfortable following the change of the P.C.A. pump during the previous night, I believe that that incident occurred, and, to my mind, it confirms, that, at that stage, Mr. Doherty was experiencing considerable pain in his right upper arm.

Arising from the foregoing, I note the suggestion on behalf of the defendants that, notwithstanding Mr. Doherty's protestations that, other than the anaesthetist who changed his P.C.A. pump, he was not seen by any doctor during Saturday 14^th December, Sunday 15^th December and Monday 16^th December, they maintain that he would have been seen by Mr. Reynolds over the weekend and when he (Mr. Reynolds) conducted his ward round on the Monday. The defendants concede that there is no record of those visits and no clinical notes with regard to the plaintiff's condition on the occasions of those visits. Nevertheless, I was invited to accept that, notwithstanding the fact that the plaintiff said otherwise, those visits occurred and, as I interpreted the defendants case, I was also invited to conclude that, if the plaintiff had complained of pain in his right arm/shoulder on the occasion of any of those visits, those complaints would have been recorded by Mr. Reynolds, or by one of his medical team. Accordingly, in the absence of such record, I was invited to conclude that no such complaints had been made by the plaintiff. In my view, no such inferences can be drawn from the absence of clinical notes and I am not persuaded that the evidence of the plaintiff can or should be displaced by the fact that there are no clinical records to support them.

Following the Nissan fundoplicational operation which the plaintiff underwent on the 13^th December, 1997, he was discharged from St. James Hospital on the 18^th December, 1997. Dr. Michelle Guest, who was then a medical intern at St. James Hospital and a member of the first named defendants team, gave evidence that she had been the Doctor, who was responsible for discharging Mr. Doherty. This evidence was not based on any recollection that she had of the event because Dr. Guest freely conceded that she had no memory whatsoever of Mr. Doherty, or of ever having attended him at St. James Hospital. On the contrary, her evidence was based on hospital records relating to Mr. Doherty's detention in hospital between the 13^th and 18^th December, 1996 inclusive which were in her own handwriting. In particular, insofar as the plaintiff's discharge from hospital was concerned, she relied on a clinical note made on the 18^th December, 1996 which she herself had signed and which read "well, no complaints. Home today, O.P.D. 6/52. Analgesia P.R.N.X1/52". In the course of her evidence, Dr. Guest interpreted that note as meaning that the patient was well, that he had no complaints and that he was ready to go home, that he was to be reviewed at the out-patients department in six weeks time and that he was to have analgesia, or pain relief, on a required basis for one week. In that regard, Dr. Guest pointed to a document described as the plaintiff's "discharge summary" in which it was indicated that he had been prescribed disalgesic which is a simple analgesic. Accordingly, accepting the hospital records on their face value, coupled with the evidence of Dr. Guest, it would appear, that when he was discharged from hospital, Mr. Doherty had made a relatively good recovery from the effects of the operation to which he had been subjected some five days earlier and was, then, only in need of relatively mild pain killing medication. However, a very different picture was painted, when Mr. Doherty, himself, described the events surrounding his discharge from hospital; a description which was fully corroborated by his wife and by a family friend, Fr. Benny Flanagan, who had come to visit him at St. James Hospital on that date but, on arrival, found to their surprise that he was to be discharged. It is not necessary, I think, for the purpose of this judgment to review in detail all the evidence which was given by Mr. and Mrs. Doherty and by Fr. Flanagan with regard to the events of that morning. It is sufficient to note that Mr. Doherty, himself, expressed huge surprise when he learned that he was to be discharged, because, insofar as he was concerned, he was anything but well, given that he was then experiencing very severe pain in his right arm and shoulder. Indeed, he told me that he said as much to Dr. Guest. Nevertheless, he said that he was delighted when he was told that he was going home; particularly as it was coming up to Christmas, and that that particular day was his wedding anniversary. However, when his wife told him to get dressed in anticipation of going home, he complained that he was too sore to put on his own shirt; indeed, he maintained that he was in so much pain that he could not even get his pyjamas off and, ultimately, Fr. Flanagan had to assist him in both taking off his pyjamas and putting on his clothes. Fr. Flanagan fully corroborated the plaintiff's evidence in that regard describing the plaintiff as follows: "he was crouched over and he was holding his right arm with his left, just bent over, obviously, before he opened his mouth at all, in excruciating pain. I was really shocked by what I saw." Fr. Flanagan went on to describe how he helped the plaintiff to get dressed as follows "It was a major task to remove the top of his pyjamas, to get the left arm out first and then to negotiate the right arm. I remember the first item of clothing that went on was a singlet and the difficulty of, and you know, getting the singlet over both arms and getting it on. Then the shirt. It took ages and he was in extreme pain. It was arm 'don't touch my arm' but to try and negotiate his dressing was a major major task and we did it together". Mrs. Doherty gave very similar evidence and, in particular, described her husband's appearance as "absolutely drawn with pain". He was crippled in pain. His face was ashen with pain." Mrs. Doherty also mentioned that the day in question was their wedding anniversary and that she had hoped and expected that, when she arrived in the hospital, the plaintiff would put his arms around her. However, she said that he was obviously too crippled with pain to do so. Mrs. Doherty also gave evidence that, when she saw her husband and learnt that he was to be discharged, she had gone to the nurses station and told a nurse that she was not taking her husband out of the hospital in the condition in which she had found him and that she wanted to see a doctor. Fr. Flanagan said that, independently of Mrs. Doherty, he, also had gone to the nurses station and demanded that Mr. Doherty be seen by a doctor. Eventually, a lady Doctor (presumably, Dr. Guest because she fits the description of that lady Doctor, given by Mrs. Doherty) arrived but, although both Mrs. Doherty and Fr. Flanagan gave evidence that they indicated to her that they did not consider that the plaintiff was fit to be discharged from hospital and, in particular, was not fit for the 100 mile car journey, which he would have to undergo before he got home, their evidence and that of Mr. Doherty was that the lady Doctor did not even examine the plaintiff and indeed, Mrs. Doherty's evidence was that the response of the lady doctor was "bring him home and it will come around right". The plaintiff also said that the Doctor had told him that the hospital had a thing called M.R.S.A and, given that he had had open surgery, he would be better off at home, away from the M.R.S.A.. When this evidence was put to Dr. Guest, her response was that, if Mr. Doherty had made a complaint of pain to her, she would have taken an appropriate history from him, would have conducted a thorough examination of him and would have notified a senior member of the medical team. With regard to the suggestion that there was M.R.S.A. in the hospital at the material time, Doctor Guest said that she could not recall whether or not this was so, but that M.R.S.A. is likely to be present in a lot of hospitals on a daily basis and that it is most likely that it was present at that time. However, she also said that its presence was not a reason why a patient might be discharged earlier than otherwise and she was adamant that she would not have told Mr. Doherty that, because he had had open surgery, he was at risk of contracting M.R.S.A. and would therefore be better off at home. She was also adamant that, if she had been told that Mr. Doherty was in severe pain, she would have examined him and would not have permitted him to be discharged from the hospital. Indeed, Dr. Guest totally rejected the suggestion that she would have been as dismissive of the several matters which it is alleged that Mr. and Mrs. Doherty and Fr. Flanagan brought to her attention as they suggest that she had been. Moreover, she was insistent that, if Mrs. Doherty had protested against the plaintiff being discharged from hospital, she would not have forced him to go home, although she conceded that the ultimate decision as to whether or the not the plaintiff should be discharged would be made by a more senior member of the medical team who was looking after him. In fact, she maintained, that, had the concerns expressed by Mr. and Mrs. Doherty and by Fr. Flanagan been made to her, she would have informed a senior member of the team that was looking after Mr. Doherty. In essence, therefore, Dr. Guest rejected out of hand, the evidence tendered by Mr. and Mrs. Doherty and by Fr. Flanagan with regard to the events which occurred on the morning of the 18^th December, 1996 and, by inference, maintained that, had those events taken place as described by Mr. and Mrs. Doherty and by Fr. Flanagan, there is no way that she would have recorded in the plaintiff's clinical notes that he was well and had no complaints. It was also the evidence of the several nurses, who were on duty at the material time, that had Mrs. Doherty and Fr. Flanagan made the complaints of which they gave evidence, they would have been recorded in the nursing notes and, accordingly I was invited to conclude that, because of the absence of such records, no such complaints were made.

Clearly, it is impossible to reconcile the evidence of Mr. and Mrs. Doherty and of Fr. Flanagan with regard to the events which occurred at St. James Hospital on the morning of the 18^th December, 1996 with the relevant hospital records. It is equally clear that, if I were to accept the evidence of Dr. Guest and of the several nurses who were on duty at the material time i.e. that, if those events had occurred, they would have been recorded, I must conclude that Mr. and Mrs. Doherty and Fr. Flanagan had told me deliberate lies. However, I see no reason whatsoever why I should come to that conclusion and to be fair to the defendants this was not suggested to either one of them under cross-examination. While in the witness box, each of those three persons impressed me as being basically honest people and I did not detect any evasiveness or lack of candidness in what they told me. Moreover, it did not appear to me that either one of them was significantly shaken under the rigorous cross-examination to which they were subjected. As I have already indicated, I can readily understand why, during the days immediately following his operation, the plaintiff, himself, might be somewhat confused with regard to the sequence of certain events which occurred and, insofar as Mrs. Doherty is concerned, I think that she is mistaken when describing the volubility of her husband's complaints of pain when she visited him in hospital on the 15^th December, 1997. However, either the events which they described on the 18^th December, 1997 occurred, or they have invented them and, worse than that, they have invented them in collusion with Fr. Flanagan, who, accordingly, is a party to their perjurous evidence. I cannot and do not accept that these three people have told me blatant lies about what occurred on the occasion of the plaintiff's discharge from hospital on the18th December, 1997. Apart from the fact that, as I have indicated, they presented to me as basically honest people and reliable historians of the events which they described in their evidence and that no one of them appeared to wilt under cross-examination, while I recognise that Mr. and Mrs. Doherty would have very good reasons for trying to mislead the Court, I think it highly improbable that Fr. Flanagan, no matter how friendly he is with Mr. and Mrs. Doherty, would be persuaded to commit perjury on their account. My belief that Mr. and Mrs. Doherty and Fr. Flanagan have given an accurate account of the events which occurred on the 18^th December, 1997 is also very much influenced by the fact that, following his return home, Mr. Doherty consistently and persistently complained of severe pain in his right arm and shoulder; a fact which was accepted by the defence and given that there was evidence from a number of witnesses that the plaintiff had experienced those symptoms long before he came home, I think it would be unreasonable to conclude that those symptoms only manifested themselves following his return home, merely because his hospital records are silent insofar as complaints of pain in his right arm and shoulder are concerned. In that regard, I appreciate that I am rejecting the evidence of the several nurses, who cared for the plaintiff, who said that had those complaints been made to them, they would have recorded them. However, as I think that I have already indicated, it seems to me that it is not unreasonable to conclude that, despite their protestations, given that the plaintiff's operation was located in his stomach, the nurses, who were caring for him, might not consider complaints with regard to pain in his arm and shoulder to be relevant and worthy of being recorded. Indeed, in the course of his evidence, the plaintiff said that it seemed to him that no one seemed to think that his complaints with regard to his arm and shoulder were important and, accordingly, he did not think that those complaints were taken very seriously. Insofar as Dr. Guest is concerned, I find it very difficult to accept that if, as I believe they did, Mr. and Mrs. Doherty and Fr. Flanagan had complained to her in a manner described by them, that she would have noted in the plaintiff's clinical notes that he was well and had no complaints. Dr. Guest did not impress me as being so irresponsible that she would create such an inaccurate record. On the contrary, I thought she was a very honest and intelligent person. However, there is no doubt but that she did make that record in the plaintiff's clinical notes and, as I have indicated, I do not accept that it accurately reflects the plaintiff's condition at the material time. I can only conclude, therefore, that Dr. Guest was suffering from some aberration when she made that record (perhaps she had another patient in mind). However, for whatever reason, I am satisfied that that record does not accurately reflect Mr. Doherty's condition at the time at which he was discharged from hospital on the 18^th December, 1996. Indeed, I think that that record is as absurd as is the record in the plaintiff's clinical notes on the 17^th December, 1996 that, on that date, he was on a full diet because I am quite satisfied that that was not so.

Arising from the foregoing, I think it relevant to note that I was not satisfied that the defendants records relating to the plaintiff's stay in St. James' Hospital between the 12^th December, 1996 and the 18^th December, 1996 were complete or, indeed, as reliable as they might have been. For example, I was surprised at the absence of any clinical notes covering the period between the 12^th December and the 18^th December inclusive and, in particular, the absence of any record of the visits which Mr. Reynolds maintained that he had made to the plaintiff over the weekend and, especially, the absence of a record of the ward round (which would have included the plaintiff) that Mr. Reynolds said that he conducted on Monday the 16^th December. As I have already indicated, the entry in the nurses notes that the plaintiff was returned to the ward at 6 p.m. on Friday the 13^th December was clearly wrong, as is the entry in his clinical notes of the 17^th December that he was on full diet. There is note that the P.C.A. pump was faulty and there is a huge gap in the nurses' notes relating to Monday the 16^th December. There were a number of other inconsistencies to which I do not think it necessary to refer in detail. It is sufficient to say that, while I was invited to accept that the records which did exist where, as it were "gospel" I regret to say that I was not persuaded that that was so. As I have indicated, I am satisfied that, as soon after the operation to which he was subjected on the 13^th December, 1996, as he was capable of appreciating how he was feeling, Christopher Doherty was conscious of persistent severe pain in his right arm and shoulder and it is common case that that pain has persisted from that time until the present date. At least, it is common case that that pain has persisted since the plaintiff was discharged from St. James Hospital on the 18^th December, 1996 although it was suggested on behalf of the second named defendants that, in an undated written statement prepared by the plaintiff for Dr. Andrew James Hartle, a Consultant, Anaesthetist, the plaintiff had indicated that he first experienced pain in his right shoulder and arm on the 17^th December, 1996. The plaintiff, in the course of his evidence, said that, if that was what Dr. Hartle understood, he was wrong, because the fact of the matter was that he had experienced pain in his right arm and shoulder well before the P.C.A. machine was changed which, as I have already indicated, I am satisfied that that occurred during the night of Saturday the 14^th December/Sunday the 15^th December, 1996. Accordingly I am satisfied that the plaintiff was conscious of pain in his right arm and shoulder, on the day following his operation. Indeed, I think it probable that he became conscious of that pain as soon as the effects of the anaesthetic associated with his operation had worn off.

An issue arose as to whether or not, in addition to pain in his right shoulder and arm, the plaintiff had also suffered from weakness in that area. In that regard, when the plaintiff was admitted to Beaumont Hospital on the 13^th January, 1997, an examination of his shoulder muscles and an E.M.G. test disclosed weakness of those muscles. This begged the question as to whether that weakness was present from the time that Mr. Doherty had experienced pain in his right arm and shoulder or whether it developed in the intervening period. In that regard, the plaintiff, in the course of his evidence, said that he had not been using his right arm because of pain and that, therefore, he did not notice whether or not there was any weakness in it. He said that his problem was pain in the right arm and shoulder, the result of which was that he could not move it and whether, initially, there was also weakness in it, as was subsequently discovered in Beaumont Hospital, he did not know. In that regard, Dr. Peter Harvey, a Consultant Neurologist, who gave evidence on behalf of the plaintiff gave it as his opinion that the description given to the Court of the difficulty which the plaintiff had in taking off his pyjamas and putting on his shirt immediately before he was discharged from the hospital was indicative of weakness; as he said "wholly compatible with paralysis of muscles around the shoulder" and he also thought that the plaintiff's description of the way in which he cradled his right arm; a description which was corroborated by his wife and by Fr. Flanagan, was consistent with weakness. On the other hand, Professor Michael Hutchinson, a Consultant Neurologist, who gave evidence on behalf of the defence, did not agree that Fr. Flanagan's description of the difficulties which he experienced when helping the plaintiff to get dressed prior to his discharge from hospital was consistent with weakness of his right arm. In Professor Hutchinson's view, those difficulties would only be consistent with the plaintiff experiencing pain in his right arm and shoulder. However, Professor Hutchinson conceded that, if one has severe pain in a limb, it is not possible to determine whether or not there is also weakness present and that it is possible that one could be suffering from a weakness but not be aware of the fact because it is masked by pain. In this regard, following his discharge from St. James Hospital on the 18^th December, 1996 and before he was admitted to Beaumont Hospital on the 13^th January, 1997, the plaintiff was seen by two General Practitioners; Dr. Ciaran Arnold and Dr. Eugene O'Byrne. Neither of these two doctors recorded any weakness in the plaintiff's right arm and shoulder, although the fact of the matter is that Dr. Arnold does not appear to have carried out any detailed examination of the plaintiff. Insofar as Dr. O'Byrne was concerned, while, in the course of his examination in chief, he said that he found that the plaintiff had a full range of movements in his neck and shoulders and when, under cross-examination, he was asked how he measured that, he said "generally, the neck movements would be checking flexion, extension, rotation, left and right, side flexion, general shoulder movements, abduction." He said that, according to his records, there was no problems. He added that if the plaintiff had reported paralysis, or weakness in the neck, shoulders or arm, it is something that would have been very obvious but that he had no record of such. However, some time after Dr. O'Byrne had completed his evidence, I acceded to an application to have him recalled to the witness box and he told me that, when originally giving evidence, he had mistakenly interpreted his notes of his attendance on the plaintiff of the 7^th January, 1997 and that the note which he had interpreted as indicating a full range of movement (The note comprises the four letters; from) it should read that he had pain in his right arm from (my emphasis) neck and shoulders. In other words, that note did not indicate he had found a full range of movements in the plaintiff's neck and shoulders and Dr. O'Byrne went to say that, had he intended that the word "from" was intended to indicate a full range of movement, he would have used capital letters. That makes sense to me because, the plaintiff made no complaint with regard to Dr. O'Byrne's examination of him on the 7^th January, 1997 and if, Dr. O'Byrne had suggested when he originally gave evidence he had then tested the movements of Mr. Doherty's right arm and shoulder, given that, up to that time, Mr. Doherty had complained if ever any one even touched the shoulder, I would have expected that he would have been vociferous in complaining about such an examination. Accordingly, in the absence of such complaint, it seems to me that the probabilities are that Dr. O'Byrne did not test the movements of the plaintiff's right arm and shoulder on the 7^th January, 1997. In these circumstances, the only positive evidence available to me with regard to when the weakness in the plaintiff's right arm and shoulder was manifest, is that it was demonstrated in Beaumont Hospital on the 13^th January, 1997, and there was no evidence to suggest that that weakness was developed between the 18^th December, when the plaintiff was discharged from hospital, and when he was seen in Beaumont Hospital on the 13^th January. However, I also had the evidence of Dr. Harvey and of Professor Hutchinson, coupled with the description by the plaintiff and by Fr. Flanagan, of, the difficulties which the plaintiff experienced when he was being dressed prior to his discharge from hospital on the 18^th December, 1996 and the evidence of the plaintiff, his wife and Fr. Flanagan with regard to how the plaintiff was in the habit of cradling his right arm with his left arm. On an analysis of that evidence, it seems to me that the probabilities are that there was a weakness in the plaintiff's right arm and shoulder at that time but, that to a large extent, as Professor Hutchinson speculated, it was masked by pain. In this regard, I think that Dr. Harvey's view, which was based on the plaintiff's and Fr. Flanagan's experiences when Mr. Doherty was trying to get dressed prior to his discharge from hospital and the fact that the plaintiff was noticed to be cradling his right arm with his left arm, is an imminently reasonable one.

It is common case that there was nothing wrong with the plaintiff's right arm when he entered St. James Hospital on the 12^th December, 1996 and that the site of the surgery carried out on the 13^th December, 1996 was remote from the plaintiff's brachial plexus, but that, since that time, the plaintiff has experienced severe pain, disability and hypersensitivity in his right arm and shoulder which has persisted to the present day. In this regard, the plaintiff has been diagnosed as having suffered an injury to his right brachial plexus. It is the plaintiff's case that this is a traction injury which occurred; either during surgery on the 13^th December, 1996, or before or after surgery at a time when the plaintiff was under the effect of anaesthesia.

It is common case that this injury was; either a traction injury, as claimed on behalf of the plaintiff, or a condition known as brachial neuritis, also known as neuralgia amyotrophy, the cause of which is uncertain and, in that regard, it was agreed by all concerned, that if, contrary to what was asserted on behalf of the plaintiff, the Court were to conclude that what the plaintiff is suffering from is a brachial neuritis, then no one is to blame for it, and the plaintiff's claim against the defendants is doomed to failure. Indeed, it is the contention of the defendants that what the plaintiff is suffering from is a brachial neuritis, whereby his claim should fail. Accordingly, a crucial issue in the case was whether the plaintiff's on-going problems are attributable to a traction injury, as the plaintiff asserts, or a brachial neuritis, as the defendants maintain. In this regard, it seems to me that the only reliable evidence which I heard relative to the determination of that issue is that of the two neurosurgeons to whom I have already referred; namely, Dr. Peter Harvey and Professor Michael Hutchinson. I also heard evidence from a number of other medical specialists; in particular Dr. M. Al. Khayatt and Dr. Sean Connolly, two Consultant Neurophysiologists, who respectively gave evidence on behalf of the plaintiff and of the defendants with regard to nerve conduction studies and needle electromyography tests which they carried out on the plaintiff. As I interpreted their evidence, the findings of these two specialists were essentially the same and each concluded that the plaintiff's problems were consistent with a brachial plexus injury, which was either a traction injury or a brachial neuritis. Dr. Khayatt favoured a traction injury because of the fact that the plaintiff was suffering from denervation which had persisted for over six years (Dr. Connolly agreed that the plaintiff was suffering from denervation) and he (Dr. Khayatt) expressed the view that, had the plaintiff's condition been attributable to a neuritis he would have long since recovered from it. However, Dr. Khayatt also agreed that it was anything but certain that the plaintiff had suffered a traction injury. On the other hand, Dr. Connolly favoured the diagnosis that the plaintiff's condition was attributable to a neuritis because of the patchy distribution of the nerve damage which he had suffered (again, Dr. Khayatt agreed that the plaintiff had a patchy distribution of nerve damage) but Dr. Connolly would not agree that the patchy distribution of nerve would also be consistent with a traction injury, although, in the earlier reports that he had submitted to the defence, he has indicated he could not say what the probable cause of the damage to the plaintiff's brachial plexus was. Eventually, however, Dr. Connolly agreed that, so far as he was concerned, the exact cause of the plaintiff's injury was uncertain.

Given the uncertainty expressed by the two neurophysiologists, it seems to me that the only reliable evidence on which I could base a conclusion as to whether what the plaintiff is suffering from is a traction injury or a neuritis is the evidence of the two neurosurgeons. In this regard, it seems to me to be common case between them that the essential difference between a brachial plexus injury due to traction and that due to a neuritis is that, while both conditions involve the onset of severe intractable pain, the traction injury is accompanied by muscle weakness, whereas, in the case of a neuritis, the muscle weakness develops some time after the onset of pain. Moreover, while the pain associated with a traction injury can be expected to persist for some considerable time (although not usually as long as it has in the case of the plaintiff), that associated with a neuritis usually only lasts for days or weeks; occasionally, a month at most, and then it disappears dramatically. Furthermore, a condition known as causalgia is rarely associated with neuritis, although common in traction injuries. In this regard, Dr. Harvey and Professor Hutchinson agreed that the plaintiff was suffering from causalgia and, in his evidence in chief, Dr. Harvey said that causalgia is related to trauma to a nerve and occurs in stretching injuries but does not occur in brachial neuritis, so that the presence of causalgia in the plaintiff excludes the possibility that he suffered a brachial neuritis. Indeed, Dr. Harvey said that, although, during a long career as a consultant neurologist, he had been concerned with a large number of brachial neurological patients, that never come across a case of causalgia having been caused by brachial neuritis. Furthermore, Dr. Harvey said that it was unheard of for the initial pain associated with brachial neurology to persist for six years, and the fact that the pain of which the plaintiff complained had continued for that period of time excluded the likelihood that it was due to brachial neuritis. Essentially, therefore, it was Dr. Harvey's opinion that the problems of which the plaintiff was complaining were attributable to a traction injury and he emphasised that traction injuries of the brachial plexus is a common event, whereas brachial neuritis is very uncommon. However, under cross-examination, Dr. Harvey accepted that there was literature and, in particular, an article by an M. de Carvalho in a neurophysiologic journal in which the existence of causalgia in a patient suffering from brachial neuritis was reported and he also accepted, because Professor Hutchinson said so, that he (Professor Hutchinson) in his clinical experience had seen two manifestations of causalgia in patients suffering from brachial neuritis. In this regard, Dr. Harvey said that he had not been aware of the de Carvalho article until his attention had been drawn to it by the defendants but he commented that it appeared to be the only recorded record of causalgia being associated with a brachial neuritis. He also commented that, while he accepted Professor Hutchinson's say so that he had seen two manifestations of causalgia in patients suffering from brachial neuritis, it was unfortunate that Professor Hutchinson was not in position to give any further detail with regard to those two cases and that they had not been written up. However, notwithstanding the de Carvalho article and Professor Hutchinson's experiences, Dr. Harvey was no less confident in his opinion that the condition which the plaintiff was suffering from was a traction injury, rather than a brachial neuritis. Professor Hutchinson took a very different view. While he accepted that the medical profession were not certain as to the precise causes of brachial neuritis, he was in no doubt but that was the cause of the plaintiff's problems. He agreed that the normal experience in relation to a brachial neuritis is that there is a period of intense pain but that it is of short lived duration and while, under cross-examination, Professor Hutchinson appeared to me to be somewhat evasive on the topic, he eventually appeared to accept that he had no experience of a patient with brachial neuritis experiencing pain associated with that condition which persisted for a period in excess of six years and that there is no record in the literature of such a case. In fact, Professor Hutchinson accepted that, not only was Mr. Doherty an unusual case of brachial neuritis, in that, the pain of which he has complained had persisted for such a long period of time, but his prognosis is that he is going to experience that pain for the rest of his life and, at best, is going to have to rely on pain control. Accordingly, Professor Hutchinson conceded that the condition of brachial neuritis which he believes that Mr. Doherty has is an extremely rare one; in fact, unique because, when Mr. Walsh, for the plaintiff, challenged Professor Hutchinson under cross-examination to establish from the literature, a case of brachial neuritis, with similar manifestation or presentation, Professor Hutchinson was unable to do. He did say, however, that one of the matters which persuaded him that the condition from which the plaintiff is suffering is a brachial neuritis is the temporal relationship of the onset of the weakness and also the anatomical distribution of the weakness. In this regard, it was Professor Hutchinson's view that Mr. Doherty had functioned normally while he was in hospital and it was for that reason that he believed that the weakness in Mr. Doherty's right arm and shoulder, which was subsequentially demonstrated when he attended Beaumont Hospital, had not manifested itself up to that time. As I have already indicated, I reject that view in favour of the proposition that there was a weakness in the plaintiff's right arm while he was in hospital; albeit that, to a large extent, it was masked by pain. On the question of pain, Professor Hutchinson said that the normal manifestation of a brachial neuritis was delayed onset; usually ten days to two weeks, although he said that it is well documented in the literature that it can occur within hours of the inciting injury. Accordingly, accepting that Mr. Doherty was conscious of pain in his right arm and shoulder as soon as he became sentient following his operation, it would seem to follow that his is not a normal manifestation of a brachial neuritis, because it is different from the normal experience recorded in the literature. Professor Hutchinson also pointed to the widespread involvement of the plaintiff's brachial plexus and other nerves not related to the brachial plexus as indicating that his problem was not attributable to a traction injury. However, he also agreed that he had significant sensory loss, which, if it was accepted that the plaintiff was suffering from, such loss, it was an exceptional finding in the case of brachial neuritis, although he then went on to reject a statement in the third edition of a journal entitled "peripheral neuropathy" by Dyck Thomas, wherein it is stated with regard to a brachial neuritis "sensory loss is infrequent"; this, despite the fact that the Dyck Thomas journal is widely accepted as a standard work on neuropathy. Indeed, Professor Hutchinson, himself, accepted, that it is one of the leading works. Although, initially, Professor Hutchinson had said that the finding of significant sensory loss in the case of a brachial neuritis was exceptional, later on in his evidence he modified that by saying "one would expect to find some areas of sensory loss. I would say in forty percent to fifty percent of patients." Professor Hutchinson did agree, however, that, where there is sensory loss in a case of brachial neuritis, it is often limited to a small area over , the lateral deltoid (a view, incidentally, which is also expressed in the article of the third edition of "peripheral neuropathy" to which I have referred) but that was not the case insofar as Mr. Doherty was concerned and he agreed that that was yet another distinguishing feature in relation to whether or not Mr. Doherty's condition was a neuritis or a brachial plexus traction injury. Nevertheless and despite the other unusual features of Mr. Doherty's condition, when viewed in the context that it is a brachial neuritis, Professor Huthinson was adamant that that, was, indeed, the nature of the condition from which Mr. Doherty is suffering. He did not agree that that was a novel concept in the context of present medical knowledge.

When considering the evidence of Dr. Harvey and Professor Hutchinson in the context of assessing the arguments for and against the proposition that the condition of which the plaintiff, Christopher Doherty, is now suffering is a traction injury, as he contends, or a brachial neuritis as is contended on behalf of the defence, I was forcibly struck by the fact, as it seemed to me from a perusal of the reports originally submitted by Professor Hutchinson, that he approached the question of the nature of the plaintiff's problems with a very closed mind. From the outset, it was his view that the plaintiff had suffered a brachial neuritis and although, in the first report which he submitted to his principals, he acknowledged that he was in possession of certain information; for example, that the plaintiff maintained that, within a day or two of surgery, he was developed pain which has continued ever since, Professor Hutchinson totally ignored that information when arriving at his conclusion that Mr. Doherty was suffering from a brachial neuritis and, indeed, not only did he ignore it when, in the course of the first report which he submitted; a report dated the 26^th January, 2002, he speculated on the timing of the onset of the brachial plexus lesion which Mr. Doherty had undoubtedly suffered, he noted "it is clear that this did not occur while he was in hospital and he was not complaining of any symptoms whatsoever when he was discharged from hospital on the 18^th December, 1996". Obviously, that was not so and Professor Hutchinson admitted as much under cross-examination. Moreover, it would appear that, not only did Professor Hutchinson ignore what the plaintiff had told him before he compiled his report of the 26^th January, 2002 but, before he compiled that report, he also seems to have ignored notes of the plaintiff's attendance at Beaumont Hospital on the 13^th and 14^th January, 1997 which were available to him and from which it appears that the plaintiff had then complained that he had experienced pain in his right arm immediately following the operation to which he had been ubjected on the 13^th December, 1996. Since then, Professor Hutchinson has never deviated from the view that the condition from which the plaintiff is suffering is a brachial neuritis and has never admitted to any reservations whatsoever in that regard. Given that the conclusion in his report of the 26^th January, 2002 was based on the false premise that the onset of the plaintiff's brachial plexus injury did not occur while he was in hospital and that he was not complaining of any symptoms whatsoever when he was discharged from hospital on the 18^th December, 1996, I thought it surprising that Professor Hutchinson did not even entertain the possibility that his original diagnosis might not have been correct. It is in those circumstances that I have the impression that Professor Hutchinson has a closed mind insofar the nature of the condition which is troubling the plaintiff is concerned. However, that is by the by. Two eminently reputable neurosurgeons have expressed very different views on the nature of the brachial plexus lesion from which Mr. Doherty is undoubtedly suffering and each of them purports to justify his view by reference to his own clinical experience and to learned literature on the subject. All things being equal, it would be inappropriate for me to choose between them and to prefer one view to the other because I am not qualified to make such a choice. As Finlay C.J. said in the course of his judgment in the case of Best v. Wellcome Foundation Limited [1993] 3 I.R. at p. 421 "I am satisfied that it is not possible either for a judge of trial or for an appellate court to take upon itself the role of a determining scientific authority resolving disputes between distinguished scientists in any particular line of technical expertise". However, it seems to me that in this case all things are not equal in the sense that, if Professor Hutchinson is correct that the plaintiff is, indeed, suffering from a brachial neuritis, then it is very much an exception to the general rule and, that being so, it follows, in my view, that, common sense would dictate that, as a matter of probability, it is not a brachial neuritis and, therefore, as the only alternative diagnosis canvassed by any of the parties is that, on the balance of probability, the plaintiff is suffering from a traction injury, I must conclude that that is so. In this regard, I acknowledge that it was suggested on behalf of the first named defendant, that, in the event that I could not choose between the two likely explanations for the plaintiff's complaint, it was open to me to reject both explanations and to conclude that the plaintiff is suffering from an injury whose origin it is impossible to dertermine. In the light of the evidence which I have heard, I think it would be very wrong of me to take what might be perceived to be "an easy way out" when I am satisfied that, notwithstanding Professor Hutchinson protestations, the probabilities are that the plaintiff is suffering from a traction injury. There are eight reasons why I have come to this conclusion namely;

(1) It is common case that the risk of brachial neuritis following surgery is exceedingly rare, whereas the risk of traction injury to nerves in the brachial plexus area during the perioperative period is well recognised.

(2) The onset of pain insofar as Mr. Doherty is concerned i.e. as soon as he was sentient after his operation, was much quicker than is normal in the case of a brachial neuritis and is more consistent with a traction injury,

(3) The duration of the pain experienced by Mr. Doherty since it's onset has persisted for much longer than is normal in a case of a brachial neuritis though, admittedly, also a lot longer than one might expect in the case of a traction injury. In this regard, however, there is no record of a patient suffering from brachial neuritis experiencing pain for as long as Mr. Doherty has,

(4) The existence of causalgia, which it is agreed that Mr. Doherty is suffering from, is very unusual, although not unknown, in the case of brachial neuritis,

(5) Professor Hutchinson conceded that, if what the plaintiff is suffering from is a condition of brachial neuritis, then his is a unique case of that condition,

(6) The plaintiff experienced weakness in or about the same time as the onset of pain which is consistent with a traction injury and not with a brachial neuritis when the onset of weakness of is delayed,

(7) The plaintiff is suffering from sensory disturbance which is not common in patients with brachial neuritis and

(8) When, in the case of brachial neuritis, the patient suffers from sensory disturbance, that disturbance is often limited to a small area over the lateral deltoid which is not the case insofar the plaintiff is concerned.

I might also add that, in arriving at my conclusion that what the plaintiff is suffering from is a traction injury, I was influenced by Dr. Harvey's remark "if this is a case of brachial neuritis 'it is the oddest case of brachial neuritis that I have ever seen and should be written up immediately'

While, as I have indicated, I am satisfied that the injury which the plaintiff suffered to his brachial plexus is a traction injury, I am not persuaded that the first named defendant, Professor Reynolds, was, by act or omission in anyway responsible for that injury and, accordingly, I think that the plaintiff's claim against Professor Reynolds must fail. In this regard, as I pointed out when, at the end of the plaintiff's case, I adjudicated on an application by counsel for Professor Reynolds for a non suit, there are two legs to the plaintiff's claim against Professor Reynolds. In the first place, it is alleged, that by reason of some negligent act or omission in the course of treating the plaintiff, Professor Reynolds was responsible for the brachial plexus injury which he suffered and, secondly, in the circumstance that Professor Reynolds undertook to carry out an operation on the plaintiff in an effort to cure a medical problem from which Mr. Doherty was then suffering and that, following that operation, Mr. Doherty was found to be suffering from another medical condition which he never had previously, the doctrine of res ipsa loquitur applies. Insofar as those two complaints against Professor Reynolds are concerned, I have already decided that the Professor had no responsibility with regard to his care of the plaintiff which his failure to observe could have given rise to a brachial plexus injury, accordingly, the Professor had no case to answer on that ground. This view was confirmed when Professor Reynolds came to give evidence in the course of which he said that his only duty with regard to positioning the plaintiff during the course of surgery was to ensure that he was in a position that was comfortable for him (the professor). However, he was not involved in the physical act of positioning or repositioning the plaintiff before, during or after surgery. That was the responsibility of the anaesthetist and the nursing staff. I had no good reason to doubt that evidence. In so far as the suggestion that the doctrine of res ipsa loquitur applies, in the circumstance that Mr. Doherty is now suffering from a condition which he never had before Professor Reynolds operated on him, I was satisfied that that doctrine must apply. In that regard, however, I indicated that I was in agreement with the statement of O'Flaherty J. in the course of his judgment in the case of Lyndsay v. Mid Western Health Board [1993] 2 I.R. at p. 118 when he said with regard to an unexplained circumstance "to say that that does not say call for an explanation from the defendant would be in defiance of reason and justice" and, accordingly, I rejected the application for an non suit for the reason that I considered it to be incumbent upon Professor Reynolds, himself, to explain why what occurred to the plaintiff was not due to any fault on his part. Well, I have now heard evidence from Professor Reynolds in respect of which he was subjected to rigourous cross examination and, in the light of that evidence, I am persuaded beyond any doubt whatsoever that what happened to the plaintiff was in no way attributable to any negligent act or omission on the part of the Professor and I heard no evidence to suggest that the injury of which the plaintiff complains does not normally happen in the absence of negligence on the part of the surgeon. Accordingly, it is my judgment that the plaintiff's claim against Professor Reynolds fails.

Although I am persuaded that the injury suffered by Mr. Doherty was a traction injury which he sustained while an inpatient in St. James Hospital in December 1996 and, in particular, during the perioperative period associated with the surgery to which he was subjected on the 13^th December 1996, I heard no evidence which enabled me to identify any particular incident which gave rise to that injury. I did hear evidence, which I accept, that such an injury does not normally result from a nissen fundoplication operation. Moreover, in the course of the evidence which I heard, I also learned that relevant literature records many incidences of brachial plexus injuries occurring during anaesthesia and Mr. Murphy, the Consultant Surgeon from St. Vincent's Hospital, Dublin, who gave evidence on behalf of the defence indicated that, in his experience, it happens that arms fall off an operating table, or a trolley, when the patient was under anaesthetic although, in that event, he said that it was unlikely that a brachial plexus injury would result, although he could not say that such a result was impossible. While conceding that the precise mechanism of the traction injury suffered by Mr. Doherty is not clear, Dr. Harvey initially expressed the opinion that it involved abduction, external rotation and probably elevation. However, under cross examination, he resiled from the view that it involved elevation although he agreed that a traction injury could also result from a patient being put in an awkward position which caused too much pressure on the brachial plexus. At the end of the day, however, while he was satisfied that the injury suffered by the plaintiff was a traction injury, Dr. Harvey could not say with any certainty what the mechanism of that injury had been. For his part, Professor Hutchinson stated that he could not conceive of a traction injury of sufficient severity occurring in the operating theatre (the emphasis is mine) to cause the nerve damage which the plaintiff sustained. He said, "It is the sort of injury that we talk about if someone comes off a motorbike, it has to come at some velocity and speed and force, there has to be severe depression of the shoulder". Moreover, while protesting that the injury suffered by the plaintiff was not in fact, a traction injury, it was submitted on behalf of the first named defendant that the mere existence of a traction injury does not necessarily infer an act of negligence on the part of the defendants and, in that regard, when it was suggested to him that the fact of a traction injury inferred substandard care, Professor Reynolds said that, while he would accept that proposition as a possibility, there are many recorded events in the literature to suggest that a traction injury can occur notwithstanding the absence of substandard care in the management of a patient. If, as I understood the evidence which I heard, a traction injury results from the movement of a limb and if, as I also interpreted the evidence to be that, when a patient is under the influence of an anaesthetic, it is necessary to protect his/her limbs from movement so as to avoid the possibility of movement, I cannot understand how and, to be quite frank, I do not accept that a traction injury could occur in the absence of substandard care in the management of a patient. It seems to me that such an injury does not happen if proper care is taken. In this regard, while, as I have already indicated, Dr. Harvey was uncertain about the precise mechanism of the injury suffered by Mr. Doherty, it is, in my view, clear from his evidence that it required significant movement of his right upper limb. Moreover, given that it was Professor Hutchinson's view that the injury suffered by the plaintiff was a very severe one, as I think that it was, I infer that he would agree that it would necessitate significant movement of the right upper limb. That being so, it seems to me to be very unlikely that such a movement could occur if the plaintiff was properly managed and cared for while under the effects of anaesthesia. In this regard, I heard the evidence of a number of nurses and of an anaesthetist (Dr. Matthew) who, at the material times, were present, firstly, in the holding area to which the plaintiff was brought prior to his being brought to the operating theatre, secondly, the room in which the anaesthetic was administered, thirdly, in the operating theatre, itself, and, fourthly, in the recovery room to which he was brought following the completion of the operation. Although satisfied by available records that they had been on duty and caring for the plaintiff in the several ways in respect of which they gave their evidence, no one of these witnesses had any recollection of the plaintiff, or any recall of actually caring for him. Accordingly, their evidence was not so much about what they did for Mr. Doherty but what they would normally do for a person in his position. In that regard, they collectively gave a detailed description of the systems and procedures which they alleged were invariably followed when preparing a patient for surgery and when caring for him/her during and after surgery. In particular, they described how the patient's limbs were protected while he/she was under anaesthetic. In the light of that evidence, I have no doubt but that, if those systems and procedures had been implemented in the case of Christopher Doherty, there is no way in which a significant movement of his right upper limb, such as would cause a traction injury to his brachial plexus, could have occurred. Moreover, those witnesses assured me that, if, in fact, an incident involving significant movement of the plaintiff's right arm had occurred, it would, inevitably, have been seen and recorded. Indeed, Dr. Matthew said that, had the plaintiff's right arm moved in a manner similar to that described by Dr. Harvey, the cannula which was in his right hand would have had to be re-sited and that fact and, indeed, the fact that the cannuala had come out was something that would have been recorded in the notes and Nurse Maloney, who was in the recovery room, said that, in all her years as a nurse, she had never seen the arm of a patient falling while the patient was anaesthetised. As a matter of fact, Professor Reynolds gave similar evidence. Accordingly, in the absence of any such record, I was invited to conclude that, insofar as the plaintiff was concerned, no such incident had, in fact, occurred. At the same time, I did not hear evidence from the circulating nurse, from the scrub nurse or from the theatre attendant; all of whom would have been present; at least, during the period of Mr. Doherty's operation. It is also noteworthy that Sister Myer and nurses Doyle and Maloney would not have been present at all times during the preoperative period. Accordingly, as Mr. Reynolds and Dr. Matthews would be concentrating on there respective duties during the course of the operation, rather than what might be happening to the plaintiff's limbs, I am not persuaded that all of the evidence which might have been available with regard to what happened to the plaintiff during the preoperative period was, in fact, available and it seems to me that the evidence of Sister Myer and of nurses Doyle and Maloney had gaps in it which reduced it value. In any event, and it seems to me that nurses and doctors, who remember nothing, can prove nothing except what should happen in an ideal hospital situation and it does not necessarily follow that because a nurse or a doctor, who remembers nothing, has not recorded an untoward event that such an event has not occurred. Accordingly, while, as I have indicated, I have no difficulty in accepting that, if the systems and procedures for caring for a patient during a peri-operative period which were described for me by the several nurses and the doctors, who cared for the plaintiff on the 13^th December, 1996, had been implemented at that time, Christopher Doherty could not have suffered a brachial traction injury. However, in, the circumstance that no one was in a position to state positively that those systems and procedures had, in fact, been implemented in the case of Mr. Doherty, I cannot exclude the possibility that an incident did occur, as a result of which the plaintiff suffered the injury of which he complains.

Furthermore, notwithstanding Dr. Harvey's view that it is unlikely that the plaintiff would have suffered his injury after he had left the operating department, I cannot ignore the fact that there was no evidence to explain what was happening to him during the period between the time when the records suggest that he was discharged from the recovery room and the time when Mr. Madden said he arrived back in the ward; given that Mr. Madden's evidence in that regard was never challenged. In my view, it cannot be said that nothing untoward happened during that period as the period cannot be accounted for. I appreciate, of course, that counsel for the hospital always maintained that, as the evidence led on behalf of the plaintiff indicated that it was unlikely that he had suffered his injury after he had left the recovery room, it was not necessary for the hospital to explain the inconsistency between the hospital records with regard to when the plaintiff left the recovery room and Mr. Madden's evidence with regard to when he arrived in his ward, I am afraid that I cannot accept that. While it may well be, as Dr. Harvey said, that it was unlikely that Mr. Doherty suffered his injury after he left the operating area, he did not exclude that possibility and given that Mr. Doherty, himself, had no recollection of events which occurred before he arrived back to his ward following his operation, it seems to me that it could well be that something untoward did happen between the time he left the recovery room and the time he that arrived back in his ward whereby he suffered his injury.

In the light of the foregoing, my conclusions about this case are that; (1) when he was admitted to St. James Hospital, Dublin, on 12^th December 1996 and prior to his being anaesthetised on 13^th December 1996 in preparation for a nissen fundoplication operation, Christopher Doherty was free from any injury associated with his right arm and shoulder, (2) the nissen fundoplication operation to which the plaintiff was subjected did not involve his right arm/shoulder, (3) the plaintiff has no recollection of events which occurred after he was anesthetised preparatory to being subjected to the said operation and when he was returned to his ward following completion of the operation, (4) at some stage, during his detention in St. James Hospital in the period between 12^th of December 1996 and 18^th of December 1996 inclusive, the plaintiff sustained an injury to his right brachial plexus, (5) that injury was a traction injury, (6) it was not established how or when, during the period of his hospitalisation, that injury occurred; in particular, there was no positive evidence of neglect on the part of the defendant which gave rise to it, (7) there was no positive evidence of what befell the plaintiff from the time that he was anesthetised until the time that he was returned to his ward. In that regard, while there was abundant evidence of what should have happened to him during the perioperative period, there was very little evidence of what actually happened although Nurse Linda Meyer purported to recall that, in the course of operating upon the plaintiff, Mr. Reynolds had changed from a laparoscopic procedure to an open procedure and (8) in the absence of an explanation as to how the plaintiff suffered his injury, or positive evidence which would exclude negligence, I must conclude that that injury resulted from some as yet unknown event during that period arising from substandard care on the part of one or more of the persons who were responsible for caring for the plaintiff.

Having regard to the foregoing, it follows, I think, as is submitted on behalf of the plaintiff and accepted on behalf of the second named defendant that the doctrine of res ipsa loquitur applies. In this regard, I accept that, as was decided in the case of Lyndsay (A Minor) v. Mid Western Health Board, to which I have already referred, where res ipsa loquitur applies to an injury sustained by a plaintiff in or about the time of carrying out an operation under anaesthetic, the most that the defendants are required to do is to show that they exercised all reasonable care and, in particular, they are not required to prove on the balance of probabilities what did, in fact, cause the plaintiff's injuries. Accordingly, where the doctrine of res ipsa loquitur applies so that an answer from a defendant is called for, that answer can be provided for in two ways, namely; (1) it could be proved, on the balance of probability, that the plaintiff met with his injury in a particular manner which excluded blame on the part of the defendant or (2) the defendant could establish that, during the period that the plaintiff was not sentient, there was no negligence on his/her part. In this case, the defendants have not established precisely how and when the plaintiff sustained the injury of which he complains and, accordingly, have not demonstrated that it cannot be attributed to any blame on their part and, although they have purported to lead evidence to establish that, from the beginning to the end of the procedure to which the plaintiff was subjected on 13^th December 1996, there was no negligence on their part, the fact of the matter is, as I have already indicated, that, because the persons responsible for caring for the plaintiff during that period have no actual recollection of what occurred, all that has been proved is what should have happened in an ideal hospital situation; not what actually occurred. Accordingly, as I have already indicated, I am not persuaded that the defendants have excluded the likelihood on the balance of probability that the injury suffered by Christopher Doherty was occasioned by substandard care on their part. Accordingly, it is my judgment that the plaintiff is entitled to succeed in his claim herein against the second named defendants. In this regard, I do not accept, as Mr. Meenan on behalf of the second named defendants submitted, that, before I can determine that the defendants must have done something which they should not have done or omitted to do something which they should have done, as a result of which the plaintiff has suffered the injury of which he complains, I must be able to find facts which support that determination. In my view, if, as I believe, the injury suffered by Mr. Doherty must be attributable to some want of appropriate care while he was under the control of the second named defendants, I am entitled to conclude that the defendants are responsible for the injury without being able to say precisely how it was caused. Moreover, once I am satisfied that the injury suffered by the plaintiff is traction injury, I do not consider, as Mr. Meenan has also suggested, that I must be able to point to a movement similar to that described by Dr. Harvey; as opposed to any other kind of movement, before I can visit the defendants with responsibility for it. In my view, the fact of injury and the fact, and I believe it to be, that that injury could not have occurred had the plaintiff received appropriate care at all material times, is sufficient to entitle me to visit the defendants with responsibility for it.