[2016] IEHC 114
THE HIGH COURT
[2013 No. 8628 P.]
BETWEEN
ANNA FOGARTY
PLAINTIFF
DEFENDANT
JUDGMENT of Mr Justice Barr delivered on the 26th day of February, 2016
Introduction
1. This is an action brought by the plaintiff against the defendant for damages in respect of personal injuries and loss arising as a result of a road traffic accident which occurred on 25th November, 2011, on the campus at the Limerick Institute of Technology, Thurles, Co. Tipperary. Liability for this accident was conceded by the defendant in his defence dated 17th February, 2014. Causation, however, was hotly contested in the course of the trial.
2. The plaintiff alleges that as a result of the accident in which the defendant’s car was caused to reverse into her car, she sustained injuries to her right elbow and shoulder. She claims to have suffered epicondylitis of the elbow (tennis elbow), with marked tenderness of the right lateral brachioradialis muscle/tendons. She claims that the pain in her elbow persisted and became chronic. Following an arthroscopy in February 2015, the plaintiff experienced relief, but she states that she is still symptomatic.
3. The defendant denies that the injury to the plaintiff’s right elbow and shoulder was caused by the accident. The defendant suggests that the injury was constitutional in nature, or that it may have been caused by the repeated steroid injections administered to the plaintiff by her treating doctor.
Background
4. The plaintiff was driving out of the campus of LIT, Thurles, when a vehicle being driven by the defendant was caused to reverse into her car, and to strike her car on the right driver’s side door at the wheel rim. The plaintiff stated that she was wearing a seatbelt. Her evidence was that, as the accident was taking place, she had the palm of her right hand on the horn on the steering wheel, to warn the defendant about what he was doing. She stated that her right elbow was protruding in the direction of the driver’s door and that it was caused to hit against the door, when the impact occurred.
5. The plaintiff claims to have sustained an injury to her right elbow and her right shoulder, which subsequently had implications for her right wrist and right hand. She suffered from a lack of grip strength in her right hand and she found that even routine tasks, such as turning the lid of a bottle or a tap, or drying or combing her hair, proved to be problematic, because her right hand and fingers did not have the ease of use, which they previously had. Her particular complaint was that she had a stinging sensation going up and down her right arm.
6. The plaintiff stated that she attended her general practitioner with these complaints in the days following the accident. However, the first record of her attending her general practitioner about this complaint was on 11th January, 2012, which was some seven weeks after the accident. The plaintiff was prescribed anti-inflammatories and was also prescribed physiotherapy for her right arm, shoulder and elbow. She underwent physiotherapy from September to December 2012, attending twelve sessions in total.
7. She also received steroid injections. As this was an important aspect of this case, it is necessary to set out in full the injections that were administered to the plaintiff. Dr Sean McCarthy, who treated the plaintiff’s elbow and shoulder complaints from July 2012, administered two injections into the upper and lower areas of the lateral side of the plaintiff’s elbow on the following dates: 17th August, 2012; 30th August, 2012; and 7th September, 2012.
8. Dr McCarthy administered two injections, one into the plaintiff’s elbow and one into the subacromial space of her shoulder, on 4th January, 2013; 15th February, 2013; 26th May, 2013; 4th November, 2013; and on 28th June, 2014.
9. Dr McCarthy also administered one injection, directly into the elbow joint itself, on each of the following dates: 1st August, 2014; 10th October, 2014; and 5th May, 2015.
10. This gave a total of nineteen injections administered by Dr McCarthy between August 2012 to May 2015, fourteen of which were into the plaintiff’s elbow. The plaintiff had also had three single injections into her elbow, administered by her GP, on the following dates: 23rd January, 2012; 22nd June, 2012; and on 2nd August, 2012. In all, she had seventeen steroid injections into her elbow joint.
11. The plaintiff underwent an MRI scan on 19th September, 2012, at Aut Even Hospital in Kilkenny. According to the report of Dr T. Murray, this showed a slight irregularity of the articular surface of the lateral aspect of her humerus, which suggested old trauma, with secondary arthritic changes. There was also an increased volume of synovial fluid, suggesting mild synovitis within the lateral aspect of the joint. He further found that the capsules/ligaments on the lateral aspect of the joint showed altered MRI signal indicating ligament sprain. He concluded that these changes were “possibly secondary to old trauma.”
12. Because the plaintiff continued to suffer from pain in her right elbow, shoulder, wrist and hand, it was recommended that she undergo arthroscopic surgical release of the epicondylitis in her right elbow. She underwent the arthroscopy of her right elbow under general anaesthetic at Barrington’s Hospital in Limerick in February, 2015. This was conducted by Mr Mahalingam, consultant orthopaedic surgeon. This procedure effected a release of the extensor carpi radialis brevis on the lateral side of the right elbow. The surgery resulted in some scarring in the area where the surgery was performed. While this procedure helped, it has not led to a resolution of the problems of pain that the plaintiff has in her right arm. Her symptoms are continuing and she still has to take medication to deal with it.
13. It must be noted at this point that the plaintiff had quite a complicated medical history. She was involved in a road traffic accident in September 2006, when she sustained soft tissue injuries to her neck and back. She was involved in a fall in December 2006, in which she injured her right knee and, on 22nd February, 2009, she lost her balance when dancing and had a loss of consciousness. She was also involved in an accident in August 2011, when she tripped and fell over a stay wire, which was holding up a bouncy castle at a premises; she may have sustained a fracture of her scaphoid at that time. The plaintiff had a further accident in March 2013, when she tripped on a mat at the Supermac’s restaurant in Thurles. She suffered injuries to her head, with minor memory loss, from this event. She was involved in another road traffic accident on 21st October, 2013, when she suffered soft tissue injuries to her neck and back. None of these injuries, however, relate to her right arm. In this case, the plaintiff is placing emphasis on the trouble she is having with her right arm which, she claims, is related specifically to this accident.
14. Special damages in the sum of €6,386.11 is claimed, €1000.00 of which, in respect of travel expenses to and from Dr McCarthy’s practice in Cashel, is agreed.
Evidence of Ms Anna Fogarty
15. The plaintiff was born on 28th December 1957. She finished her college degree in May 2013 and is presently unemployed.
16. The plaintiff left school at fifteen and worked with an engineering company in Clonmel, Co. Tipperary for sixteen years from 1975. Her work there included pricing jobs, preparing contracts and typing up tenders. She left this job following the birth of her daughter, Orla in 1991. She separated from her husband shortly after that. She said that she subsequently worked for three years at the Presentation Secondary School in Clonmel from 2001 to 2004, where she carried out an administrative role. She later worked in the Gallowglass Theatre Company for five years from 2004 to 2009, where she did administration and worked in the bar at night. In 2006, she started at St. Sheelan’s in Templemore, where she completed her Leaving Certificate.
17. The plaintiff subsequently studied for an honours degree in business studies in Limerick Institute of Technology in Thurles from 2009 to 2013. Her daughter was also studying there at the same time. It was on the LIT campus that the accident out of which these proceedings arise, occurred on 25th November, 2011.
18. The plaintiff said that she was leaving LIT and was driving out of the car park. Cars were parked on both right and left. She was in a row of traffic and she saw a black car parked on her right-hand side with a grey-haired man driving; she stated that the back of his head was facing towards her and that he was facing down towards the CD player. She said that he had earphones in his ears. When she was positioned behind him, she stopped her car and his car started coming for her. She blew the horn, but he did not hear her; she said that he failed to look back, as he was looking towards the CD player. The defendant hit the driver’s door of her car, and she stated that she hit her arm against the door as a result of the impact. She was blowing the horn at the moment of the impact, using her right hand.
19. The plaintiff stated that the defendant got out of his car at this point and spoke to her in an aggressive manner. The door of her car would not open - she said it was warped - and she called the guards. This was around 12.20 pm.
20. The plaintiff subsequently attended at a nearby garage and her car was cleared to drive. She drove home to Loughmore. The plaintiff said her arm was stinging all the way up and down. She said it was like pins and needles, but with a severe, throbbing stinging pain. She said that this pain did not lessen in intensity. She rubbed it repeatedly, as she thought it would go away after a while. She rubbed creams into it but a few days later it was still the same. She said that it was the worst pain she ever had; that it was there constantly and she was unable to sleep with it. She stated that she went to her general practitioner, Dr Paul O’Carroll, the following week, who diagnosed tennis elbow. The plaintiff stated that she is allergic to painkillers and could only take one Neurofen a day. The doctor recommended that she get a brace for her hand, which she did. She wore this for a while and was rubbing creams into it, but nothing worked. The plaintiff continued to complain about her elbow over the coming months, and her GP treated her with steroid injections into her elbow on three occasions: 23rd January, 2012; 22nd June, 2012, and on 2nd August, 2012. She stated that these injections were very sore and did not bring about much improvement.
21. The plaintiff therefore decided to seek a second opinion. In July 2012, she went to see Dr Sean McCarthy, who specialises in bone injuries. Dr McCarthy also gave her injections - two every time she went to see him. Dr McCarthy gave her injections on a monthly basis. She was also recommended physiotherapy, which she attended with Audrey Ryan on a twice-weekly basis. She did not find the physiotherapy of any help.
22. Dr McCarthy referred the plaintiff to Mr Mahalingam, orthopaedic surgeon, in Cork in September 2013. Mr Mahalingam said she had a seventy per cent chance of improvement with an operation, and a thirty per cent chance of being worse. She underwent an MRI scan on 19th September, 2013, and Mr Mahalingam recommended that she have the surgery, which she underwent on 20th February, 2015, in Barringtons Hospital in Limerick. She said she had great relief after the surgery. She is able to sleep now, which was not the case prior to the surgery. However, she still has pain in her elbow at night. Her shoulder has improved significantly. She does exercises prescribed by her physiotherapist, using putty to strengthen her fingers.
23. The plaintiff said that on a daily basis she has trouble with her elbow. She cannot turn off a tap, open a bottle of water, open the boot of the car, or do anything which involves stretching. She has to get her daughter to dry her hair for her.
24. The plaintiff said she would like to work in the future in a role that involved figures. However, she does not feel fit for employment at present.
25. The plaintiff was cross examined by Mr Reidy SC for the defendant. It was put to the plaintiff that on the day of the accident, she was asked by two people whether she had received any injury. She said that she told the defendant that her arm was stinging. She was asked whether she had said this to Garda Clodagh Kenny, who attended the scene of the accident. The plaintiff stated that she was rubbing her arm, but she admitted that when asked by the garda whether she was injured, she said she was not. She said that she had not been badly hurt, but that she had sustained a blow to her elbow, and it was only subsequently, when it was investigated further, that it became apparent that she had sustained injury to her elbow and arm. She admitted that she had said to the defendant that she was all right, but that her new car was damaged.
26. The plaintiff was shown photographs of the cars following the accident. When questioned, she admitted that it had been a minor accident, but stated that her car shook when the collision occurred; she had her right hand on the horn and got a bang to her elbow. She insisted that she had stinging in her arm and that she was rubbing it following the accident.
27. It was put to the plaintiff that her accident occurred on 25th November, 2011, and that she had seen Dr Janus Knas on 8th December, 2011, and Dr Eilish Kenny, a doctor with whom the plaintiff was very familiar, on 16th December, 2011, in relation to other health issues, but that on neither of these occasions did she mention any problem with her right arm. The plaintiff replied that it might not have been noted by her doctors, but that she “absolutely positively” went to the doctor about the stinging in her right arm. It was put to the plaintiff that the fact that this was not noted, fitted with her telling both the defendant and Garda Kenny at the scene of the accident, that she was not injured. The plaintiff said that at the scene of the accident there were many onlookers, that she felt embarrassed, and she just said she was okay, but that she had a stinging pain in her arm and she was rubbing her arm. It was suggested to the plaintiff that in fact she had not mentioned any stinging or pain in her right arm to her doctors and that this was why it had not been noted in their records. The plaintiff insisted that she had mentioned it. She stated that she was not responsible for what her doctors recorded in their notes.
28. The plaintiff was asked about her application to the Personal Injuries Assessment Board on 17th September, 2012, in which she stated that she had sought medical attention within a few days of the accident. She was asked why she had relied on a report from Dr Sean McCarthy when, up to that point, Dr O’Carroll had been treating her. The plaintiff said she did not ask Dr O’Carroll for a report for the purposes of her PIAB application. She said she dealt with PIAB through her solicitor.
29. The plaintiff insisted that she mentioned her elbow problems to both Dr O’Carroll and Dr Kenny and that she was not responsible for what they chose to put into the computer. The plaintiff was asked if she was examined by Dr Kenny, but she could not recall. The plaintiff was asked whether she had told Dr Kenny that she had a stinging pain up and down her arm, the worst pain she ever had; the plaintiff said that she had, and she stated that she was sure Dr Kenny examined her. The plaintiff was asked why, if this was the case, the doctor would not have prescribed pain killers for the pain. She replied that she could not take painkillers; that she was taking over the counter medication and gels. She said she is still on a prescription for the cream. She said that Dr O’Carroll examined her two days later, but that he too did not take a note. Counsel suggested that it was odd, if this was the worst pain the plaintiff had ever had, that neither doctor would have noted it. Counsel also expressed surprise that Dr O’Carroll had not increased her medication. The plaintiff replied that they could not increase the medication, as painkillers made her sick and caused vomiting and diarrhoea.
30. The plaintiff attended with Dr Kenny on 11th January, 2012. On this occasion, for the first time, which was seven weeks post-accident, the doctor noted as follows: “Complains of discomfort in the right arm following RTA in November. Tingling, query nerve pain. Could consider Lyrica trial.” It was put to the plaintiff that there was no mention of a stinging or throbbing pain in this note. The plaintiff replied that “discomfort” was the word that the doctor used.
31. Five days later, the plaintiff saw Dr Paul O’Carroll, who had been the plaintiff’s doctor for more than a decade. On that occasion, it was noted: “Right forearm symptoms suggest tennis elbow. Tender lateral epicondyle. Review and consider Depo-Medrol.” It was put to the plaintiff that Dr O’Carroll did not link her symptoms to the road traffic accident; the plaintiff insisted that she never had pain in her right arm until the accident.
32. The plaintiff was also treated by Dr Sean McCarthy, who is based in Cashel. The plaintiff explained that she went to Dr McCarthy because she was not getting any satisfaction from her own doctor for her tennis elbow and that the injections were not working. She stated that she went to Dr McCarthy because, having been brought-up near Cashel, she was aware of his reputation as a specialist in sports injury. The plaintiff saw Dr McCarthy on eighteen occasions between July 2012 and May 2015. She said that the injections he gave her were “very severe”, but that she followed his advice and continued the course of injections, until she had surgery in February 2015. She said that the injections Dr McCarthy gave her, brought some relief. He also referred her to Ms Audrey Ryan for physiotherapy.
33. The plaintiff underwent physiotherapy with Ms Ryan, starting on 11th September, 2012, and continuing until 20th December, 2012. The plaintiff stated that she initially attended once a week, and that this was subsequently increased to twice a week. In all, she attended twelve sessions with Ms Ryan. In her report dated 23rd October, 2012, Ms Ryan stated that on examination, she found the plaintiff had a shoulder problem, as well as an elbow problem. On examination of the right shoulder, she found a loss of internal rotation of approximately five degrees compared to the left. She noted reduced scarf test and loss of power in abduction. She noted that the plaintiff was responding well to the treatment. In evidence, the plaintiff stated that while she did experience an improvement in her shoulder, the problems in her elbow persisted.
34. It was put to the plaintiff that she had an injection from Dr O’Carroll on 23rd January, 2012, for her tennis elbow and that two weeks later, on 6th February, 2012, it was noted by her doctor that her arm was “Much improved since the injection.” It was put to the plaintiff that this was a longer period of improvement, than was subsequently achieved by Dr McCarthy. The plaintiff said that on that particular day, it had improved; she said that it could be improved some days, and the following day it could be worse than ever. It was put to the plaintiff that on subsequent visits to her GP on 25th and 29th February, 2012, and 7th and 26th March, 2012, she did not mention her tennis elbow injury. The plaintiff accepted that she did not mention this injury on every occasion she attended with her GP, and she repeated that her doctors did not write everything down.
35. It was suggested to the plaintiff that one of the reasons why she may have experienced inflammation of the tendon or nerves in her elbow, was that she was getting so many injections; in other words, that the injections themselves caused the inflammation, as she described suffering considerable pain for two days following the injections given by Dr McCarthy. The plaintiff said that she followed the expert medical advice that she was given.
36. It was put to the plaintiff that when Dr O’Carroll and Dr Kenny gave her injections, there was nothing noted about pain in her elbow. The plaintiff said that while the injections caused much soreness and were very severe, she persevered with them in the hope of achieving a result.
Evidence of Dr McCarthy
37. Ms Fogarty first attended with Dr McCarthy on 13th July, 2012. On that occasion, the plaintiff complained of pain in her right elbow, which she said had been banged off the inside of the car door due to a severe impact. Dr McCarthy found on examination of the right elbow that there was quite marked tenderness over the lateral epicondyle, which is known as tennis elbow, and over the extensor muscle. Dr McCarthy noted that the plaintiff’s extensor tendons were damaged and that movement of pronation or supination was painful and reduced. The diagnosis he made was that the plaintiff was suffering from a significant inflammatory epicondylitis affecting the lateral epicondyle of her right elbow.
38. Dr McCarthy stated that he sent the plaintiff for an x-ray after her first consultation with him on 13th July, 2012. In his second report dated 25th March, 2013, Dr McCarthy set out the x-ray findings and noted that he had prescribed analgesics and anti-inflammatory agents, as well as local anaesthetic. The x-rays showed no evidence of any bony injury or other lesion in the elbow joint, but the clinical picture was that this was a definite epicondylitis of the elbow, with marked tenderness of the right lateral brachioradialis muscle tendon.
39. Dr McCarthy explained that he doubled the analgesic medication to ease the pain. He said he gave the plaintiff some rubs that help on the surface. He stated that the injection was a combination of lignocaine, which is a local anaesthetic and intra-articular cortol, which is a steroid used for treating joints. The first occasion on which Dr McCarthy gave the plaintiff injections was on 17th August, 2012. Thereafter, he stated that he gave her the injections once a month.
40. Dr McCarthy stated that he referred the plaintiff to Audrey Ryan, physiotherapist, as she had a shoulder problem. However, her elbow complaint was sufficiently severe to obscure her shoulder complaints. She had mild tendinitis in her right shoulder which Audrey Ryan successfully treated.
41. Dr McCarthy stated that he gave the plaintiff a number of injections into her shoulder area, into the subacromial space and the subcoracoid space. He said he gave her two injections into her elbow on two occasions, but after that he gave her one injection into her elbow and one into her shoulder. Her shoulder recovered. The injections administered by Dr McCarthy are detailed at paras. 7-10 of this judgment.
42. Dr McCarthy also prescribed oral steroids and in particular prednisolone, 5mg, four times a day; prednisolone is ordinary cortisone, an anti-inflammatory agent. Dr McCarthy said that it was extremely effective: it reduced the inflammation and the first indication that he got that there was something unusual wrong was when he stopped it and the symptoms returned as bad as ever. Dr McCarthy administered prednisolone, which is cortisone. He first gave the plaintiff cortisone on 15th February, 2013.
43. The date of examination referred to in Dr McCarthy’s report of 25th March, 2013, included examinations on 4th January and 15th February, 2013. When Dr McCarthy examined the plaintiff’s right shoulder on 15th February, 2013, he found that there was some reduced movement and pain at the extremity of elevation, internal rotation and abduction. He opined that the shoulder problem had been obscured by the elbow problem.
44. The plaintiff had an injection into the subcoracoid space and subacromial space on 4th January, 2013. Dr McCarthy stated in his report on 15th February, 2013, that he prescribed Vimovo.
45. Dr McCarthy referred the plaintiff for an MRI scan, which was performed at Aut Even Hospital on 19th September, 2013. He stated that he did so because he felt there was something wrong and that they were making very limited progress. The MRI scan showed that there was a definite irregularity of the articular surface of the humerus and there was fluid in the outside of the right elbow joint. There was a significant degree of inflammation and there were some arthritic changes beginning to set in as well. Dr McCarthy stated that this looked to be trauma related.
46. When asked on what basis he concluded that these symptoms were trauma related, Dr McCarthy explained that it looked as if inflammation had been caused in the joint and that had caused secondary arthritis. Dr McCarthy explained that surgical intervention was now being considered, because there were problems not just with the epicondyle, where he had been providing treatment, but with the elbow joint itself. Dr McCarthy referred the plaintiff to Mr Mahalingam, consultant orthopaedic surgeon in Cork, who advised that an arthroscopy be performed. Mr Mahalingam discussed this with the plaintiff, but because he could not guarantee her that the arthroscopy would succeed, it was deferred.
47. In light of the MRI scan, Dr McCarthy decided that he should inject lignocaine and adcortyl into the elbow joint. This brought about a significant improvement. However, Mr Mahalingam recommended that the arthroscopy be performed in view of the failure of other treatment. By the end of 2014 injection therapy had run its course in respect of the elbow, though Dr McCarthy noted in his report of 5th November, 2014, that the plaintiff was asymptomatic as far as shoulder pain and movement was concerned, save for a slight diminution of global movements. The only option then remaining was an arthroscopy, which was carried out on 20th February, 2015.
48. Dr McCarthy’s final report of 19th May, 2015, was based on his examination of the plaintiff on 5th May, 2015. He noted that the pain in the right shoulder was not as severe, though it was not totally gone. He stated that the stinging in her elbow, which was unrelenting, was gone and she now had “a mild throbbing pain” from her elbow down to her hand. The plaintiff told Dr McCarthy that she has no strength in her right elbow and was unable to do housework. She was no longer taking analgesic or anti-inflammatory agents, because they were causing problems with her large intestine.
49. Dr McCarthy noted that the arthroscopy in February 2015, performed by Mr Mahalingam, had given some relief. However, he noted that the plaintiff still had a low grade and pulsating type pain, which was not as severe as it was previously. He noted that he had given her numerous injections into the epicondyle and the brachioradialis insertion, and into the elbow joint. This had brought considerable relief. He observed that the plaintiff had arthritic changes associated with synovitis of her right elbow joint and despite the treatment he provided, and the physiotherapy treatment, the symptoms persisted and he was of opinion that they would do so on an ongoing basis. He stated that it was reasonable to assume that these injuries were caused by the RTA on 25th November, 2011. He was also of the view that the plaintiff will have to continue to live within the limitation and constraints imposed on her. She will need pain relief on a constant and regular basis and she may need further joint injections in the future. Dr McCarthy administered an injection to the plaintiff’s elbow on 5th May, 2015.
50. He went on to note that the symptoms in relation to her right shoulder had largely resolved and that there were just minimal problems of pain at the extremity of elevation, abduction and internal rotation. He concluded that the plaintiff was likely to develop significant osteoarthritic changes with symptoms in her right elbow joint over time.
51. Dr McCarthy was referred to Mr Mahalingam’s letter to him dated 23rd February, 2015, in which he stated that the plaintiff had had an arthroscopy of her right elbow, which had shown damage to the articular surface of the humeral head and showed some area of chondromalacia in the lateral humeral condyle. Dr McCarthy explained that chondromalacia was damage to cartilage, which was a rare injury in an elbow. It is a direct result of trauma caused by blunt force. He explained that the blood that supplies that cartilage from the underlying bone is cut off and some of the cartilage cells die. This causes chondromalacia and pain. Dr McCarthy stated that chondromalacia cannot be caused by repetitive actions.
52. Dr McCarthy stated that Mr Mahalingam released the extensor carpi radialis brevis. He explained that this was to treat the condition of epicondylitis. One of the main tendons in the extensor bundle was damaged, which caused pain, in the extensor carpi radialis brevis. Mr Mahalingam found there was some fibrosis, a knot, and he divided it. Fibrosis is where some of the muscle is damaged and is replaced by fibrous tissue which is not elastic. Fibrous tissue can arise from repetition or trauma, but is more likely due to trauma associated with the elbow, an internal elbow injury, almost definitely in this case due to trauma.
53. Dr McCarthy was asked about his finding that the plaintiff has arthritic changes associated with synovitis of her right elbow joint. Dr McCarthy explained that this was as a result of the trauma to her elbow, i.e. blunt force injury to her elbow. This caused damage to the joint surface, the chondromalacia and the evidence found by Mr Mahalingam on his examination: she has developed arthritic changes; this is osteoarthritis and will persist.
54. In cross examination, Dr McCarthy stated that he did not consider referring the plaintiff for an expert opinion from a qualified surgeon specialising in hand or elbow injuries, when he first saw her, because he felt convinced at that time that the treatment he was undertaking would work. Is was only when it became apparent that the plaintiff’s condition was not being cured, that he decided to look elsewhere to see if an MRI would give him more information.
55. Dr McCarthy saw the plaintiff on eighteen occasions. The first five visits cost €80 each and the next thirteen cost €120 each. He then decided to refer her to Mr Mahalingam who is an expert in orthopaedic surgery including elbows, shoulders, hips and knee joints.
56. Dr McCarthy was asked who made the initial appointment for the plaintiff to see him. He stated that Mr Cian O’Carroll, the plaintiff’s solicitor, had made the initial appointment on behalf of the plaintiff. It was put to Dr McCarthy that Mr Fitzpatrick, the defendant’s solicitor, was dealing with thirty cases brought by Mr O’Carroll and that Dr McCarthy had been retained in all of them. Dr McCarthy admitted that he sees a number of Mr O’Carroll’s clients. He accepted that he had not seen the plaintiff before; he was not her GP.
57. Dr McCarthy stated that he had been retired from general practice for several years and was no longer able to provide immunization injections to children. He said that when he retired, his resignation was sent to the HSE and this meant that he was not allowed to remain in the immunization injection programme, which is a cornerstone of general practice. He was, however, a sports injury specialist and he was able to administer the injections that were provided to the plaintiff in this case.
58. Dr McCarthy stated that, when the plaintiff first attended him, she made no mention of her shoulder. He agreed that Dr Paul O’Carroll was a highly competent GP. He was asked whether he would expect a competent GP like Dr O’Carroll to record what the plaintiff claims to have told him following her accident in November 2011, namely that she was experiencing the worst pain she had ever experienced in her left elbow. The plaintiff had been seen by four different people in Dr O’Carroll’s practice between the date of her accident and 11th January, 2012, when the elbow complaint is first mentioned in her medical records, but not by Dr O’Carroll himself. She did not see Dr O’Carroll until 21st January, 2012. She was seen by Dr Janus Naas, Dr Ailish Kenny, and also by Siobhan McCabe and Anne-Marie Murphy, both of whom are nurses. Dr McCarthy agreed, however, that Dr O’Carroll would be careful about the doctors he employs in his practice and that he would have confidence in them to record complaints made by patients. Dr McCarthy accepted that the first thing a GP would do would be to write down the history given by a patient.
59. It was put to Dr McCarthy that from the date of her accident on 25th November, 2011, until 11th January, 2012, there was no reference whatever in the notes of her attendances, to the severe elbow pain that she claims to have been experiencing. The first mention of it was on 11th January when Dr Ailish Kenny noted: “Discomfort right arm following RTA in Nov, tingling ? nerve pain, could consider lyrica trial.” The plaintiff therefore passed an entire month before mentioning this severe pain. On 16th January, 2012, Dr Paul O’Carroll noted that the plaintiff had “rt forearm symptoms; suggest tennis elbow; tender lat epicondyle; rx and consider depomedrone.”
60. On her visit to Dr O’Carroll on 21st January, 2012, the plaintiff phoned ahead to say that she needed an injection for tennis elbow. She had the injection with her. She was seen by Dr Ailish Kenny on 23rd January, 2012, and the following note was made of this attendance:
“Here for depo injection. Advise re risks/benefits/possible side effects. Nervous/anxious but happy to proceed. Rt elbow injected with Depo medrone… 2mls mixed with 1ml lignocaine. Advised re expected course.”
61. It was put to Dr McCarthy that although the plaintiff attended regularly with her GP over the following months, she did not on every occasion refer to her tennis elbow. He accepted that that was the case; however he pointed out that she complained of tennis elbow on each occasion that she visited him.
62. Dr McCarthy first saw the plaintiff on 13th July, 2012, on which occasion he gave her no treatment, but simply examined her. He found that she had had epicondylitis, but he decided that it would be appropriate to get a plain x-ray of her elbow in order to confirm that there was no bony injury or fracture or any other lesion underlying the elbow pain. Dr McCarthy stated that the plaintiff was extremely tender in her elbow in July 2012. He first prescribed a rub for the plaintiff’s elbow on 3rd August, 2012. He did not give her an injection on that occasion, as she had received an injection from Dr O’Carroll on the previous day, 2nd August, 2012.
63. In all, from August 2012 to May 2015, Dr McCarthy administered ninteen injections to the plaintiff: fourteen to her elbow joint and five to her shoulder. She had also had three injections to her elbow from her GP, Dr O’Carroll, prior to seeing Dr McCarthy. Dr McCarthy was asked whether he had treated patients before in this manner, with a repeated number of injections. He stated that it was normal practice to warn patients about the risks involved in undergoing injections. It was put to to Dr McCarthy that Mr Colin Riordon, the defendant’s expert, was of opinion that repeated steroid injections can cause problems in the elbow. Dr McCarthy stated that this was not the case here since the plaintiff’s condition of epicondylitis pre-dated the injections.
64. When asked about the wisdom of continuing injection treatment which was not working, Dr McCarthy stated that the treatment he gave was the standard treatment used by many doctors in treating the condition of epicondylitis. Asked whether he agreed that the administration of seventeen injections to the plaintiff’s elbow (fourteen administered by Dr McCarthy and three by her GP) might not have been the best treatment, he stated that it occurred to him there may have been something more serious underlying the plaintiff’s complaints and that this was why he decided to have an MRI scan done. He stated that the MRI scan confirmed his view that there was an underlying problem, namely synovitis, fluid in the joint, and chondromalacia, which is a condition caused by the injury.
65. It was put to Dr McCarthy that since the plaintiff made no complaint about the shoulder pain when he saw her eight months following the accident, it was clear that the shoulder pain, was unrelated to the accident. Dr McCarthy stated that the shoulder problem was first brought to his attention when he referred her to Ms Audrey Ryan, physiotherapist. He stated that Ms Ryan discovered the underlying shoulder problem, which he subsequently diagnosed as mild tendinitis. However, this pain was less intense than the elbow pain and was obscured by the severity of the elbow pain.
66. It was put to Dr McCarthy that the plaintiff had not seen Ms Audrey Ryan, the physiotherapist, until 11th September, 2012, which was ten months post-accident, and that Ms Ryan did not suggest that the shoulder problem was as a result of the accident. Dr McCarthy stated that he could not be certain. The plaintiff last attended with Ms Ryan on 20th December, 2012, and Ms Ryan recorded that the plaintiff was responding well to treatment.
67. It was suggested to Dr McCarthy that he was involved in the case as a doctor to give evidence to promote the plaintiff’s claim. Dr McCarthy said that that was unfair, that he was treating the plaintiff in order to cure her and that he, along with Ms Ryan and Mr Mahalingam, succeeded in getting her to the best possible condition. It was put to him that eighteen attendances at his surgery, five at €80 and thirteen at €120 were unnecessary and excessive. The doctor explained that the appointments were made by the patient, and that he would have advised her to contact him when she felt it was necessary.
68. Mr Riordan’s report was put to Dr McCarthy. Mr Riordan noted that the symptoms in the plaintiff’s shoulder had settled, but that she complained of severe pain in her right elbow, which was diagnosed as tennis elbow. He stated that this was a common complaint and was generally considered to be constitutional in nature. Mr Riordan went on to opine that, despite popular belief that tennis elbow was caused by repetitive trauma or movements to the elbow, there was little evidence to support this. He stated that from the description of the injury, he could see no reason why it could result in the development of tennis elbow. In his view, the plaintiff’s symptoms were unrelated to the RTA.
69. Dr McCarthy did not agree with Mr Riordan. He stated that the plaintiff had injuries to her elbow joint, as shown by the MRI scan, and that these injuries did not appear for no reason. He said these injuries were confirmed by Mr Mahalingam. Dr McCarthy stated that the plaintiff never had elbow pain prior to the accident and that it was reasonable to conclude that the accident was the cause of this pain; the plaintiff said that she banged her elbow off the side of the car and that that caused her trauma.
70. Mr Riordan had further stated that tennis elbow usually settles itself with conservative treatment and that there was little evidence that the use of steroid injections or physiotherapy had any bearing on the outcome of the condition. He opined that surgery was rarely required or helpful, and he considered it inadvisable and unnecessary in the plaintiff’s case.
71. Dr McCarthy said that he did not agree with Mr Riordan’s conclusions. He said that he agreed that tennis elbow usually settles itself, often with no treatment. He stated that there was a wealth of opinion, which suggested that steroid injections are most beneficial, but that others say that steroids probably do not work. He added that there was also a wealth of opinion which suggested that physiotherapy is an excellent form of treatment and that surgery is rarely required or helpful. Dr McCarthy stated that Mr Riordan was incorrect in concluding that surgery would not be helpful: in this case, the surgery performed by Mr Mahalingam had proved successful.
Evidence of Mr K. Mahalingam
72. Mr Mahalingam is an orthopaedic surgeon practicing in Cork University Hospital. He reviewed the plaintiff on 20th September, 2013, and prepared a report. On clinical examination he found that the plaintiff’s main complaints were a very painful right elbow and pain in the right shoulder, as well as a lack of strength and a lack of grip strength in the right hand. Examination of the shoulder was normal. In her right shoulder she had flexion to about 120°, abduction 220°, internal about 20°. Examination of the right elbow showed range of movement was full and she had quite a marked localized tenderness over the lateral epicondyle area. He recommended the plaintiff for arthroscopy surgery.
73. Mr Mahalingam carried out the arthroscopy on 20th February, 2015. He found that there was inflammation of the synovial, which is the lining of the joint and the joint surface. On the outer part of the elbow, there was damage to the joint surface. This is called chondromalacia. It is a softening of the joint surface. Normal joint surfaces have a rubbery consistency, so it has a rebound. In the plaintiff’s case, the outer part of the elbow joint was softer. This is chondromalacia or evidence of damage to that part of the joint surface. Chondromalacia is considered sometimes as wear and tear. He said that age related wear and tear will be more diffused and all over the joint, rather than localized to one area. Mr Mahalingam was of opinion that, considering the plaintiff’s history and the fact that she never had any problems with her right elbow prior to the accident, her complaints were as a result of the accident.
74. Mr Mahalingam explained that he conducted a release of the extensor carpi radialis brevis. He stated that tennis elbow is usually in the outer part of the elbow and is related to tendinitis of the extensor carpi radialis brevis, which is a small extension muscle, which causes extension of the wrist, which is a deeper muscle, and there were associated findings of synovitis with tennis elbow. He explained that by releasing the extensor carpi he was releasing the origins, so that the pull of the tendons during the extension movement was removed.
75. Mr Mahalingam prepared a second report on 20th April 2015. He recorded that, at that time, the plaintiff’s main complaint was pain, swelling and stiffness in her right elbow. Examination of the right elbow showed a well-healed surgical scar. Mr Mahalingam was of opinion that the plaintiff had sustained injury to her right shoulder and right elbow in the road traffic accident on 25th November, 2011. He stated that the plaintiff was still recovering from the surgery at that stage: this was the usual period of recovery after tennis elbow surgery, which, in chronic cases, was usually about a year to a year and a half from the time the arthroscopy and release was performed. He concluded that the ultimate prognosis in respect of the right shoulder injury and her right elbow was good, other than long rehabilitation.
76. Mr Mahalingam was referred to the MRI report which showed that there was a slight irregularity of the articular surface of the humerus, which suggested old trauma, with secondary osteoarthritic changes and also a slightly increased volume of synovial fluid, suggesting mild synovitis within the lateral aspect of the joint. The doctor stated that his interpretation was that these symptoms were related to the injury suffered in the road traffic accident, in light of the evidence of articular surface changes shown in the MRI scan.
77. Mr Mahalingam expressed the view that steroids do not cause tennis elbow; they are a treatment for tennis elbow. He was asked whether in his view the injection treatment that Dr McCarthy carried out, could have led to the problems, which he ultimately dealt with by way of arthroscopy on 20th February, 2015. He replied that steroid injections are the first line of treatment for tennis elbow: that the first line of treatment is always non-operative. He explained that this usually involved tablets and physiotherapy, and subsequently steroid injections periodically. He stated that because surgical treatment has a higher failure rate, it is a last resort.
78. In cross examination, Mr Mahalingam was asked what type of trauma would cause a chip off the articular surface of an elbow. He explained that usually direct contact, or a fall, or a twist; he stated that a twist could involve tension failure or ligament injury, on one side and impingement on the other side. He stated that depending on the force of the injury, there could be bruising and equally bruising may not be associated with direct injury, or a fall. He stated that bruising, or a chipped fragmental injury to the lateral femoral condyle, for example, will show immediate evidence of bruising or on an x-ray it will show the fragment. The irregularity of the articular surface will never cause bruising; it does not show up at the time of the injury.
79. He was of the view that, at the time of the injury, there was no structural damage to the joint. Basically it was a contusion. It shows as softening, or some irregularity of the joint space; such injuries need not produce bruising. The majority of the joint chondromalacia relate to injuries, which only come to light later. It would not necessarily be evident externally by bruising at the time of the injury. He stated that he had usually seen this injury, without bruising, in cases of tennis elbow, and that soft tissue injury can happen without bleeding. He added that swelling and tenderness is also evidence of injury; in some cases you may have pain, swelling and tenderness without bleeding. His opinion was that the injuries were caused by the accident.
80. Mr Mahalingam was asked when he would expect the victim of a road traffic accident to notice injuries. He replied: “Immediately or a bit later or at a later time.” Mr Mahalingam stated that in his experience, victims of road traffic accidents may notice symptoms as time goes by. He stated that his job is to trust what his patients tell him, not to doubt them. However, he stated that he would have expected the plaintiff to have had complaints about her shoulder and elbow in the period following the accident. He said: “Usually after an injury the plaintiff should appreciate the pain and symptoms in a very short time period.”
81. As regards injection treatment, Mr Mahalingam stated that he would normally give about three injections because, by the time he saw the patient as a consultant, they would already have received a lot of treatment, so he would not pursue non-operative treatment for any more than six months or a year. At that point he would offer to continue the non-operative treatment, or he would offer surgical treatment.
82. Mr Mahalingam stated that a steroid injection causes inflammation and from the inflammation the body heals; this is how a patient’s symptoms may subside. He was asked whether he was aware of cases in which a patient was given seventeen injections as was the case here. He stated that he was; he said that rheumatologists give steroid injections; and that the treatment provided varies, like medical opinion. He stated that he would not go beyond three injections in a young person; in an older person who does not want surgical treatment, he would continue to treat non-operatively and such treatment is either painkillers, the side-effects of which she has to balance in the equation, or physiotherapy, and if the patient’s symptoms are not improved by these treatments, then steroids are the only other non-operative treatment available. Mr Mahalingam reiterated that the approach to the treatment of tennis elbow varies between medical professionals.
83. Mr Mahalingam stated that every medication will have side-effects. Side-effects are the damage. But the injection of steroids on a regular basis in tennis elbow cases, is a standard treatment; surgery is very seldom performed for tennis elbow. He stated that there is no scientific standard as to how many injections ought to be given to a patient. His practice is to explain to patients the risk associated with anti-inflammatories, steroids, surgery, as well as the risk of doing nothing for the condition. He stated that once this advice is given to the patient, it is up to the patient to decide which treatment they would prefer. When asked why a doctor would continue with steroids in circumstances where they were not working, Mr Mahalingam explained that surgery only has a seventy per cent success rate, with more potential complications, so there is a balance to be struck when determining the best course. He agreed that if there was no improvement following steroid injections, he would not repeat them.
84. It was put to Mr Mahalingam that Mr Riordan would state that the inflammatory changes in the soft tissues in the plaintiff’s elbow, shown on the MRI scan of 19th September, 2013, were possibly secondary to the repeated steroid injections. The doctor replied that injections in any area will show inflammation, or swelling, but that it is very difficult to scientifically differentiate between findings or signals related to the steroid injections and those related to the injury, or original pathology. When it was put to him that injecting steroids into a joint space would cause damage to the articular surface, Mr Mahalingam replied that steroid injections were a standard treatment for knee, hip, shoulder, elbow and wrist injuries.
85. It was suggested to Mr Mahalingam that the MRI scan indicated that the trauma to the plaintiff’s elbow was trauma involving an upward movement on the elbow, as opposed to a lateral or sideways trauma as suggested by the plaintiff. Mr Mahalingam stated that he could not say that only one mechanism of injury could have caused the damage that the plaintiff suffered. He stated that all traumas can cause contusion to the joint surface. He said there was no way of telling whether her injuries were related to the trauma from the RTA as claimed. As regards the timing of the plaintiff’s complaint about her injury, Mr Mahalingam stated that it was very common for people to come back a few days later with a complaint.
86. It was put to Mr Mahalingam that his findings, as expressed in his letter of 23rd February, 2015, were at variance with those of Mr Riordan, whose report was based on his examination of the plaintiff in September, 2014. Mr Riordan’s comment on the plaintiff’s history, to the effect that he could see no reason why it could result in the development of epicondylitis, was put to the witness. Mr Mahalingam replied that an RTA involved three hundred and sixty degree force; that the victim would not know or recall which part of their body was impacted, or in what way, when they were thrown about as a result of an accident. The victim would only know that they were bruised, swollen and tender. He stated that lateral injury was not related to one specific force, or mechanism of injury. He said that whether there is bruising, swelling or tenderness depends on the amount of force, and the structural damage done to the elbow.
87. When asked what the significance was of an RTA victim having no swelling, tenderness or bruising, Mr Mahalingam explained that grade 1 ligament injury has no physical appearance and examination is normal, but that an MRI scan would detect these signal changes. Grade 2 injuries, however, will show up bruising and swelling.
88. Mr Mahalingam stated that tennis elbow does not normally come on without trauma. He stated that it is a repetitive type injury. In this regard he was in disagreement with Mr Riordan’s views.
89. Mr Mahalingam stated that the fact that Dr McCarthy continued injecting the plaintiff for thirteen months before he referred her to him, in order to explore the possibility of surgery, was “nearly normal.” He said that the majority of GPs know that surgery is the last option. He said it was significant that the plaintiff had not made any complaint about her elbow prior to the accident, as is evidenced by the voluminous medical records which were discovered in this case. He stated that tennis elbow is a chronic condition and if the plaintiff had problems with it prior to the accident, then she would have had symptoms. In circumstances where she had no symptoms until after the accident, it was more likely than not that the symptoms were related to the accident.
90. Mr Mahalingam was asked about the significance of the plaintiff’s evidence to the effect that she had placed her right hand on the horn of her car, and that her right elbow was sticking out, when the impact occurred. Mr Mahalingam replied that he agreed with the report of Dr Murray, who reported on the MRI. Dr Murray stated that there was slight irregularity of the articular surface of the lateral aspect of the humerus, which suggested old trauma, with secondary osteoarthritic changes. Mr Mahalingam stated that in his view the joint changes, or softening of the joint in that particular area, was probably related to the injury sustained in the accident.
Evidence of Garda Clodagh Kenny
91. Garda Kenny stated that she attended at the scene of the road traffic accident at 12.20 pm on 25th November, 2011, in the car park of LIT in Thurles. She observed the two vehicles that had been involved in the accident. She breathalysed both drivers and both showed a negative result.
92. She stated that the Citroen C4, which the defendant was driving, had minor damage to the right-hand side rear bumper, while the Hyundai i30, which the plaintiff was driving, had damage to the front right-hand side wheel rim. She stated that the driver’s door of the plaintiff’s car could not open fully, although she observed no damage to the door. She said she would describe the impact as minor damage to both vehicles. Garda Kenny stated that no injuries were reported to her on the day of the accident. She said she would note if somebody was injured, but that there was no note of any injuries in her notebook.
93. In cross examination, Garda Kenny stated that she had recorded in her notebook that the plaintiff had stated that the defendant was wearing headphones and did not hear her when she blew the horn at him. Garda Kenny accepted that she would take it from that, that the plaintiff had put her hand on the horn of the car. She agreed that in doing so with her right hand, the plaintiff’s right elbow would have been forced to stick out. She further agreed that given the dimensions of the Hyundai i30, if the plaintiff’s right hand was on the middle of the steering wheel, her elbow would probably reach the inside of the door. Garda Kenny stated that her note regarding the door probably indicated that the door would not open, but she was unable to recall whether there was damage to the door. She accepted that the impact had been to the front right-hand side of the plaintiff’s car, at the rim of the wheel.
Evidence of Mr Riordan
94. Mr Riordan is a hand and plastic surgeon in the Blackrock Clinic in Dublin.
95. He stated that tennis elbow, or lateral epicondylitis, is a syndrome of pain in the outer aspect of the elbow. It was for many years and is still considered by some to be a condition of overuse. However, that was not borne out by the facts and the scientific literature. He stated that if one biopsies the tissue on the lateral part of the elbow, there is actually no inflammation there. Tennis elbow is now considered to be a degenerative process, i.e. a breakdown and a failure of repair, rather than inflammation, as it was originally considered.
96. As to the “itis” part of the word “epicondylitis”, Mr Riordan described that as a misnomer, as there was no inflammation there. Tennis elbow was no more common in people who play tennis than in other groups in society. He stated that it might be more painful or cause more of a problem in people who engage in repetitive pursuits or strenuous work.
97. Mr Riordan saw the plaintiff on 30th May, 2014 and reported on 22nd September, 2014. Mr Riordan took a history from the plaintiff and he also had Dr McCarthy’s report of 30th July, 2012.
98. It was put to Mr Riordan that the first mention of the elbow complaint was on 11th January, 2012, forty-nine days after the accident, when Dr Kenny noted that the plaintiff was “complaining of discomfort in right arm following a road traffic accident in November.” Mr Riordan stated that if the plaintiff had suffered an injury forty-nine days previously involving trauma to the epicondyle within the elbow, he would have expected pain and swelling, and maybe some loss of movement. He stated that if the trauma was sufficient to cause such an injury, there may possibly have been some discolouration to the skin.
99. On 16th January, 2012, the plaintiff’s GP noted that she had right forearm symptoms, which suggested tennis elbow; he further noted that she was tender over the lateral epicondyle. Mr Riordan stated that, in his opinion, these symptoms could not have been related to the accident in light of the history provided.
100. Mr Riordan noted that the plaintiff had received three steroid injections from Dr O’Carroll and a further nineteen from Dr McCarthy. He stated that a steroid is a potent drug and it can cause problems, as well as being used in treatment. He stated that there was no evidence supporting the use of steroid injections for a tennis elbow; he stated that this had been shown conclusively to be counter productive, as it delays healing and recovery. Mr Riordan stated that he had reviewed the medical literature relating to this matter, and that it indicated a poor outcome, with the use of steroids after three injections. He stated that he had never seen a person having over twenty injections into a joint, as happened here.
101. Mr Riordan explained that a steroid injection is an anti-inflammatory medication. He stated that it dampens inflammation, but that sometimes the inflammation is a positive thing, as it is part of the healing process; thus, by administering steroid injections, the healing process is affected and thinning of the skin may occur. Steroid injections may also cause atrophy of the soft tissue and can damage to the underlying cartilage. It can also cause the death of chondrocytes.
102. Mr Riordan explained that his examination of the plaintiff was confined to the right upper limb. He could find no abnormality of her right shoulder, hand or wrist. When he examined her elbow, she complained of pain over the lateral epicondyle to the extent that she visibly winced and withdrew her arm to pressure. He could find no sensory abnormality present and she had a full range of movement in the arm. Significantly, Mr Riordan stated that considering the patient’s history, and considering the number of steroid injections she received into her elbow, the damage shown on the MRI was caused by the repeated steroid injections. He said that in light of her failure to complain about her elbow following the accident, he would be less likely to be of the view that she suffered an injury to her elbow in the accident.
103. Mr Riordan stated that the likely cause of the plaintiff’s pain, was lateral epicondylitis or tennis elbow, which was a degenerative process. He stated that the medical literature showed that it is a degenerative process. He stated that it was frequently associated with activities of repetitive use, but that this was because it was more symptomatic in such cases; there was no evidence that it was causative. He stated that tennis elbow was not caused by trauma. He expressed the view if there was soft tissue trauma, it would have been apparent on examination by a doctor within six weeks, but that Dr O’Carroll had not observed any such trauma on examination on 16th January, 2012.
104. Mr Riordan stated that Mr Mahalingam operated on the plaintiff in order to cure her tennis elbow and, despite his comment in his report that surgery was rarely required or helpful, he acknowledged that this was a difficult case and he said that he respected the treating doctor’s decision to do what he felt was appropriate. Mr Riordan stated that, in this case, he did not detect any measurable loss of function in the plaintiff’s right arm.
105. Mr Riordan stated that he saw the plaintiff for half an hour on 30th May, 2014. He reiterated that lateral epicondylitis was degenerative and not traumatic in origin. Reference was made to the report of the MRI scan conducted on 19th September, 2013, by Dr Murray, in which he suggested that there was old trauma with secondary osteoarthritic changes. Mr Riordan agreed that Dr Murray’s use of the word trauma contra-indicated degenerative change. Mr Riordan stated that steroid injections are traumatic. He said that the old trauma, which Dr Murray mentioned, might have been caused by repeated steroid injections, which could cause damage to the cartilage.
106. Mr Riordan stated that in his view there were two factors in this case. First, there was a diagnosis of lateral epicondylitis; and secondly, there would be secondary steroid damage to the joint. He stated that he did not accept that there was a simple trauma or traumatic injury to the elbow at the time of the accident. Mr Riordan disagreed with the suggestion of counsel for the plaintiff that the injections would have reduced the synovitis. He stated that in this case, there was a secondary inflammatory response mounted by the immune system, which was secondary to the damage in the elbow. He accepted that steroid injections are used to reduce inflammation but that there could be a secondary inflammatory response to trauma, to tennis elbow, or to damage to the joint caused by repeated steroid injections which were intended to repair that. He accepted that the view of the radiologist, who carried out the MRI, was that the inflammation and irregularity on the articular surface was related to the trauma.
107. Mr Riordan accepted that chondromalacia can be caused by direct traumatic injury to cartilage. However, he disagreed with the suggestion that the fact that Mr Mahalingam found chondromalacia in the humeral condyle when he carried out the arthroscopy, pointed towards injury to the cartilage. He stated that that was not the case here, as the plaintiff’s symptoms were caused by repeated steroid injections. He agreed that chondromalacia could be caused by injury to the cartilage.
108. The fact that the plaintiff had not experienced any pain in her elbow prior to the accident was put to Mr Riordan as being very significant. He disagreed: he stated that there are many reasons why patients have pain after an accident, particularly where there is an underlying problem that only comes to light after a relatively minor accident. He stated that he frequently encountered patients who have degenerative changes that they were unaware of which only become apparent after a minor fall. He stated that it was completely natural for the plaintiff to attribute her symptoms to the accident, but that does not mean that it was the cause. In his view, there was no connection between the plaintiff’s lateral epicondylitis and the accident.
Submissions on behalf of the defendant
109. Mr Reidy SC on behalf of the defendant submitted that the first and most important issue to be decided in this case was: did the plaintiff suffer an injury to her elbow in the accident and, if so, what injury did she suffer? It was submitted that there were two aspects to this. First, the court had to be satisfied, on the balance of probability, that the plaintiff suffered an injury, and secondly, had to be satisfied, on the balance of probability, that the injury gave rise to a traumatic epicondylitis. It was submitted that in order to discharge that burden of proof in the first period immediately post-accident, the plaintiff ought to have called Dr O'Carroll or Dr Kenny, or one of the other doctors in her GP practice. He submitted that it was quite clear from the notes, that Dr O’Carroll’s practice kept very careful notes both prior to and subsequent to this incident and it was clear that the plaintiff was present in the practice seeing four different people in December without making a complaint about her elbow. He stated that the Plaintiff had come into court and sworn that, apart from those four occasions where there was no note, that she was also there on two other occasions, which are not recorded at all. This means that the court has to be satisfied that the plaintiff is accurate, on the balance of probabilities, that on six occasions in December 2011 that she was present in the practice complaining of her right arm and nobody bothered to take a note. Mr Reidy suggested that that was incredible.
110. It was submitted that even if she did hit her elbow, the court had to consider what the nature of that injury was. Counsel submitted that it was quite clear from the angle at which an elbow would be sticking out from the steering wheel, that it would be nowhere near the epicondyle, which is on the upper outer side of the elbow and not on the point of it, and would therefore, not be injured.
111. It was submitted that all of that was consistent with Dr O'Carroll, who was the senior doctor in the practice, in January 2012 diagnosing a tennis elbow and making no reference at all to it being caused by the road traffic accident. While plaintiff may say he was speculating on that, but he argued that he should not have to be in any way defensive about making that submission, because the GP that the plaintiff had attended both, prior to and subsequent to this accident, and continues to attend, has always been available to be called to give evidence by the plaintiff. It was submitted that this showed a failure on the part of the plaintiff to discharge the burden of proof that was on her.
112. It was submitted that in the first seven weeks post-accident there was no proof of injury and, in fact, there was an inference, from the absence of notes, that the plaintiff had not been injured at all. He submitted that that leaves the court looking for an explanation for her symptoms thereafter and he suggested that the explanation is that, as Mr Riordan has said, this is a degenerative condition that can come on spontaneously and did come on spontaneously according to the notes in January of 2012.
113. Mr Reidy SC submitted that the plaintiff’s condition, if left alone, would have perhaps righted itself, but the damage that was subsequently shown on the MRI scan was entirely explicable as having been traumatically induced by repeated steroid injections causing chondromalacia, causing synovitis, causing an osteochondral defect on the humerus just beside where the epicondyle was located, which was also the site of most of these injections.
114. The defendant urged the court to find that the plaintiff had not established any injury; secondly, that she had not established an injury to the epicondyle; and, thirdly, that the defence had established as a matter of fact that by repeated injections thereafter, any defects shown either in an arthroscopy or on the MRI scan, were explicable by reference to the repeated injections which had been administered to the plaintiff.
115. It was submitted that, in that context, the concept of novus actus interveniens did not arise. Counsel stated that the defendant had denied that there was an injury in the accident and in circumstances where damage was caused by treatments subsequent to the accident, which was not related to the accident in any way, and there was no question of the defendant joining Dr McCarthy as a third party. He submitted this was not necessary because it was not an injury that was in any way related to the accident, so novus actus interveniens did not arise in this case.
Submissions on behalf of the plaintiff
116. Mr Treacy SC on behalf of the plaintiff submitted that there was a legal question arising, i.e. the question of novus actus interveniens. He stated that if it was going to be alleged by the defendant, that the medical treatment given by Dr McCarthy gave rise to the problems which were found on the MRI scan in September 2013, and in the course of the arthroscopy in February 2015, that was such a serious allegation to make against a medical practitioner, that it should have been specifically pleaded that there was an intervening cause, i.e. that the medical treatment of the plaintiff had given rise to her complaints.
117. It was submitted that the only notice that the plaintiff's legal representatives had that such a case was being made was an oblique half line in the concluding paragraph of Mr Riordan's report before he gave an opinion and prognosis. He stated that all that was ever given by way of notice to the plaintiff, in purported compliance with S.I. No. 391 of 1998: Rules of the Superior Courts (No. 6) (Disclosure of Reports and Statements) 1998, was the line in Mr Riordan’s report which says, “possibly secondary to repeated steroid injections into the area.” It was submitted that the whole purpose of the statutory instrument was to stop the parties being taken by surprise. This, however, was a double surprise because, firstly, it was not stated as an issue on the pleadings, so it could not have been picked up by counsel in the preparation of his advice on proofs.
118. Secondly, it was only obliquely and tangentially referred to in the medical report of Mr Riordan. In the course of the hearing, the defendant had sought to blow this aspect into an enormous issue, when there had been no notice given about it. If that was properly pleaded and disclosed, by way of a proper report, rather than by way of viva voce evidence, the plaintiff would have had the benefit, for instance, of getting a report from an expert, a consultant in pain management and in anaesthesia to actually explain to the court the manner in which injections are actually permissible, the history of injections, and the specific treatment of such injection therapy for elbow injuries.
119. It was submitted that the plaintiff was not in a position to do that, because she did not have the plea in the defence of novus actus interveniens, or of the matter actually being properly disclosed by way of compliance with the statutory instrument.
120. It was submitted that the defendant put significant emphasis on the fact that Dr Paul O'Carroll was not called as a witness, while Dr Sean McCarthy was called to give evidence. Counsel for the plaintiff argued that the reality of the situation was that the person who primarily treated the plaintiff in this case was Dr Sean McCarthy; and, if there was something irregular or improper about the non-calling of Dr O'Carroll, if the court was in some way being deprived of vital information, it was open to the defendant to actually bring Dr O'Carroll to court should they have wished to do so and, as has been established on many occasions previously, a personal injury litigant waives all privilege between a general practitioner and him or herself in the conduct of the litigation. It was submitted that Dr O’Carroll was not necessary to prove the plaintiff’s case. What was necessary was for the defendant to prove its assertion that the plaintiff was in someway dishonest or exaggerating her claim, or did not have a bona fide complaint. The Defendant never called her own general practitioner to establish that. Mr Treacy SC submitted that it was not fair to the plaintiff to suggest that her injection therapy was the cause of her problems, without either pleading or calling evidence to establish such assertion.
121. It was further submitted that what was being suggested was that Dr McCarthy, as a medical practitioner, effectively engaged in medical negligence in the course of his treatment of the plaintiff, and that he repeatedly administered injections to her which gave rise to a problem, which she would not have otherwise had. That was a clear allegation against Dr McCarthy that he behaved negligently in the treatment of the plaintiff.
122. However, it was submitted that that allegation was ultimately contradicted by one fact, namely that Dr McCarthy repeatedly administered shoulder as well as elbow joint injections, and the shoulder injury improved in the course of the injection therapy which the plaintiff received.
123. It was therefore submitted that the defendant was misguided in alleging medical negligence against Dr McCarthy, when it was quite clearly shown that the injection therapy that was administered to the shoulder was very successful; and Mr Mahalingam had given evidence that the appropriate course of action was to see whether the elbow problem could be treated without rushing into surgery, to try everything else effectively before surgery, a fact which was underlined by Mr Riordan saying that surgery is rarely successful. It was submitted that this showed that the conservative approach of administering injections in the first instance was the correct approach.
Conclusions
124. I am satisfied that the plaintiff in this case suffered an injury to her elbow and shoulder in the road traffic accident which occurred on 25th November, 2011, when the defendant reversed his car into the right hand side of the plaintiff’s car. I accept the plaintiff’s evidence that she had placed her right hand on the horn of her car, in order to alert the defendant about what he was doing. I further accept that the plaintiff’s elbow was sticking out and that it was caused to bang off the door of her car when the impact occurred.
125. Much was made by the defendant of the fact that the plaintiff did not, according to the medical records from the practice of her GP, Dr Paul O’Carroll, make complaint about her elbow problem until 11th January, 2012, which was some seven weeks after the accident. Although there is no record of it in her medical records, the plaintiff insists that she complained to her doctors about the pain in her elbow in the days following the accident, and on a number of occasions before the note dated 11th January, 2012. In the absence of contradictory testimony from the plaintiff’s doctors, I am prepared to accept that the plaintiff did in fact make complaint to her doctors, but that for one reason or another it was not noted. If the defendant wished to raise this issue, it was open to them to call the plaintiff’s doctors in order to contradict the evidence of the plaintiff, that she had sought medical attention for her elbow in the days following the accident.
126. It is well established that the furnishing of documents on discovery, voluntarily or in answer to a court order, does not render the documents admissible as evidence. In the absence of agreement, the relevant witnesses must be called to prove the contents of the documents.
127. As regards the plaintiff’s omission to complain about her shoulder problems until she saw the physiotherapist, Ms Audrey Ryan, in September 2013, I am of the view that the evidence of Dr McCarthy, to the effect that the severe pain in the plaintiff’s elbow had masked the shoulder problem, explains her delay in seeking medical assistance in this regard. I therefore draw no negative inferences against the plaintiff in respect of her failure to complain about her shoulder problem until some nine months following the accident.
128. I am fortified in my view that the plaintiff sustained injury to her right elbow and shoulder in the accident, by the fact that the plaintiff did not have any problems with her right arm prior to the accident; it was only after the accident that these symptoms arose. I accept the plaintiff’s evidence in this regard. It points strongly to the conclusion that her elbow injury was caused by the accident.
129. Both Dr McCarthy and Mr Mahalingam were of the view that her injuries, namely epicondylitis in her right elbow and mild tendinitis in her right shoulder, arose as a result of the trauma she suffered in the accident. Mr Mahalingam had the benefit of seeing at first hand the structures in the plaintiff’s elbow when he carried out the arthroscopy in February 2015. He found inflammation of the synovium, which is the lining of the joint. In addition, there was damage to portion of joint of the joint surface in the form of chondromalacia. This was present on the lateral side or outer part of the joint surface.
130. Mr Mahalingam stated that one can have chondromalacia due to wear and tear in the joint. However, where it was caused by general wear and tear due to age, it will be more diffused and cover most of the joint, rather than being localised in one area, as it was in this case.
131. Mr Mahalingam agreed with the findings in the MRI report dated 9th September, 2013, which slowed a slight irregularity of the articular surface of the humerus which suggested old trauma with secondary outer arthritic changes. There was also a slightly increased volume of synovial fluid, suggesting mild synovitis within the lateral aspect of the joint. The capsular ligaments on the lateral aspect of the joint showed altered MRI signal indicating ligament sprain. The report stated that the above changes were possibly secondary to old trauma. Mr Mahalingam stated that this fitted with the history of the plaintiff having suffered an injury in 2011.
132. I prefer the evidence of Mr Mahalingam and Dr McCarthy to the evidence of Mr Riordan in relation to the likely cause of the plaintiff’s elbow injury. I find that, on the balance of probabilities, the epicondylitis in the plaintiff’s right elbow was caused as a result of the injury sustained in the road traffic accident in November, 2011.
133. Turning to the issue of the number of injections given by Dr McCarthy, I am not prepared to find fault with the approach of Dr McCarthy in administering repeated steroid injections in circumstances where Mr Mahalingam agreed that this treatment was appropriate and indeed was the standard treatment for such injuries. Although Mr Riordan had a very different view of the appropriateness of repeated steroid injections, which he suggested could have caused the trauma which was visible on the plaintiff’s MRI scan, I am satisfied that this was a difference of opinion between medical professionals. I am not convinced that the injections caused the trauma visible on the MRI scan and in this regard I observe that the plaintiff’s diagnosis of epicondylitis pre-dated any injections.
134. I accept the submission made by counsel on behalf of the plaintiff that if the defendant wished to make the case that the injury to the plaintiff’s elbow was caused, not by the road traffic accident, but by the administration of inappropriate treatment to the plaintiff by her treating doctors, this would constitute a novus actus interveniens, which would break the chain of causation. This would have to be specifically pleaded in the defence so that the plaintiff could obtain medical opinion as to the appropriateness of the treatment which she had received. Depending on the content of that expert opinion, she may have had to consider whether she should initiate separate proceedings against one or more of her treating doctors. In this case, no such plea was made in the defence filed on behalf of the defendant. In such circumstances, they cannot be permitted to come into court and say in answer to the plaintiff’s claim, that her problems were caused, not by the accident, but by the negligence of her treating doctors.
135. Even if the defendant were permitted to run such a defence, on the basis of the defence pleaded, the evidence called by the defendant did not go far enough to establish that the plaintiff’s problems were caused by any inappropriate or negligent treatment by her treating doctors. Mr Riordan was careful in his evidence. He stated that, while he would generally not give more than three injections to a patient, and while he was of the opinion that the plaintiff’s problems probably arose as a result of the number of injections administered by Dr McCarthy, he did not say that Dr McCarthy acted inappropriately or negligently in giving the injections to the plaintiff.
136. Finally on this aspect, it should be noted that plaintiffs are often criticised for not complying with the instructions of their treating doctors. In this case, the plaintiff complied with the advice of Dr McCarthy and underwent a total of nineteen injections from him, to her elbow and shoulder. She also had three injections from her GP. It would be very harsh to criticise the plaintiff, when all she did was to submit herself to prolonged and painful treatment as advised by her treating doctors. I do not criticise her for doing so.
137. The injuries that the plaintiff sustained in the accident caused her a significant degree of pain and suffering. She described the pain in her elbow as the worst pain she had ever experienced. Her ability to carry out activities of daily living were significantly restricted: she suffered from a lack of grip strength in her right hand and she found that even routine tasks, such as turning the lid of a bottle or a tap, or drying or combing her hair, proved to be problematic because her right hand and fingers did not have the ease of use which they previously had.
138. While the plaintiff’s shoulder is asymptomatic, following successful physiotherapy treatment by Ms Audrey Ryan, her elbow continues to cause some pain; however, the arthroscopy in February of 2015 did bring about a significant improvement. The prognosis for the future, according to Mr Mahalingam, in respect of the right shoulder injury and her right elbow was good, other than long rehabilitation. He was of opinion that it would take a year to eighteen months from the date of surgery for a recovery to be made.
139. Dr McCarthy, however, was less optimistic in his assessment. In his final report dated 19th May, 2015, he noted that the arthroscopy in February 2015, performed by Mr Mahalingam, had given some relief. However, he stated that the plaintiff still had a low grade and pulsating type pain which was not as severe as it was previously. He noted that he had given her numerous injections into the epicondyle and the brachioradialis insertion, and into the elbow joint. This had brought considerable relief. He observed that the plaintiff had arthritic changes associated with synovitis of her right elbow joint and despite the treatment he provided, and the physiotherapy treatment, the symptoms persisted and would do so on an ongoing basis. He was also of the view that the plaintiff will have to continue to live within the limitation and constraints imposed on her.
140. Dr McCarthy was of opinion that she will need pain relief on a constant and regular basis and that she may need further joint injections in the future. He went on to note that the symptoms in relation to her right shoulder had largely resolved and that there were just minimal problems of pain at the extremity of elevation, abduction and internal rotation. He concluded that the plaintiff was likely to develop significant osteoarthritic changes with symptoms in her right elbow joint over time. Insofar as there is a divergence of opinion between Mr Mahalingam and Dr McCarthy in relation to the plaintiff’s prognosis, I prefer the evidence of Mr Mahalingam in this regard.
141. In the circumstances, I award the plaintiff general damages for pain and suffering to date of €85,000.00, together with the sum of €30,000.00 for pain and suffering into the future. To this must be added the sum of €6,386.11 for special damages, giving an overall award of €121,386.11.
