THE HIGH COURT
			1999 No. 3610P 
BETWEEN
CHRISTINE CARROLL
PLAINTIFF
AND
VINCENT LYNCH
DEFENDANT
JUDGMENT delivered on the 16th day of May, 2002 by Mr. Justice Johnson.
	The plaintiff in this case is a hospital administrator now aged 45 and resides at 18 Brookfield Court, Brookfield Green, Casey Road, Dublin 6.
	The defendant is a retired cardiothoracic surgeon who carries on practice at the Blackrock Clinic and in St. Vincent’s Hospital.  Whereas it is a medical negligence claim it is somewhat unfortunate that though the plaintiff was represented by Counsel and Solicitors the defendant’s Solicitor came off record some weeks before the trial.  
	The defendant in these circumstances chose to represent himself, until Mr. Nugent came to make submissions.
	 The plaintiff’s claim is for damages for personal injuries arising out of what the plaintiff says is the negligence of the defendant in the execution of a thoracotomy on the 5th of June 1996.
	The plaintiff who was 40 years old at the time was working in the Luciana Clinic, Orwell Road, as the hospital administrator.  In April, 1996 she suffered a pneumothorax which was treated at St. Vincent’s Hospital.  This was extremely painful, was treated, and the plaintiff returned to work some days later.
	She suffered a second pneumothorax on the 30th of May, 1996 and was admitted to Vincent’s Hospital in great pain for the purposes of being treated.
	Here she came under the care of the defendant who undertook to carry out a blebectomy by way of video assisted thoracic surgery otherwise known as VATS.  
	A pnuemothorax is a collapse of the lung caused by a tiny leak which allows the air to escape therefrom and the lung to collapse.  A bleb is a blister present on the lung which has to be repaired surgically in order to get the lung to be re-inflated.  Video assisted thoracic surgery consists of an operation conducted by the insertion into the lung of a camera which enables the surgeon to carry out the operation so to speak by remote control. (Details I will give later).  The plaintiff gave evidence that the defendant described the procedure as a cinch but the defendant denies this.  She signed a consent form for the operative procedure and underwent the operation on the 5th of June 1996.  No complications had been described to her and no alternative was suggested to her nor was it suggested that the possibility of having to switch to an open thoracotomy, or that there was any possibility of long lasting pain.
	Video assisted thoracic surgery as above stated is conducted by the insertion of three ports in what is described as the triangle of safety that is under the armpit to give access to the chest.
	The first port in through which a canuala is placed and through which the camera is put enables the surgeon to look at the chest and decide where to put the other two ports.
	When the surgeon has decided where to put the other two ports he does so once again in the triangle of safety and through these ports the instruments with which he is going to conduct the operation are placed therefore, with the camera through one port and the instruments through the other ports, the surgeon is enabled to carry out the operation.  
	The older method of doing this operation is an open thoracotomy which involves making a much larger incision along the ribcage to enable the surgeon to place his hands inside the ribcage of the chest and carry out the operation visually.  This operation is well known and well established and involves usually the jacking up of the ribs which enables the insertion of the hand between them.
	The advantage of the VATS procedure over the older form of surgery is clearly stated by Professor Smith an expert on behalf of the plaintiff as follows:-
“The amount of surgical damage inflicted on the chest wall in dealing with the problems is much less.  This gives rise to three benefits one of which is a series of wounds which heal much more quickly and are much more immediately controlled by analgesics.  The second one is the metabolic effect of an operation on the general body system of having a big muscles slicing operation is profound.  You lose nitrogen, you lose body weight.  The third is that many patients and it depends on the literature you read some say between 10 and 30% of the patients having a lateral polocotomy end up with persistent pain.”

	It is also agreed in a certain small, very small, number of perfectly executed VATS operations it is necessary sometimes because of some underlying or unaccountable physical aspect to convert to the old fashioned or normal thoracotomy, thereby of course exposing the patient to this risk of persistent pain syndrome, known as post-thoracotomy pain syndrome which would be avoided by the VATS procedure this occurs at a minimum of 2% or a maximum of 15% cases.
	In this case criticism of the defendant by the plaintiff is that the second port which was placed by the defendant through the main portion of the plaintiff’s breast caused a bleed which was perfectly foreseeable which resulted in the conversion to an ordinary or open thoracotomy as a result of which the plaintiff was exposed to the post-thoracotomy pain syndrome and from which she now suffers.
	There is no criticism of the defendant in the manner in which the open thoracotomy was performed and the allegation of negligence against the defendant relates
solely to the placing of the second port.  On the question of liability the plaintiff called the evidence of Professor Smith and Dr. Mackey who are both thoracic surgeons but neither of whom had actually completed a full VATS procedure.
	However Professor Smith indicated that he himself and I believe him had been the leader of a team which dealt with this operation that he himself had supervised the conduct of numerous operations and had himself on numerous occasions inserted the ports for the purpose of carrying out the operation.
	Having regard to the fact that the negligence claimed in this case relates solely to the positioning of the ports I am quite satisfied that Professor Smith is well qualified to give evidence in this regard.  In this regard the first port according to the medical notes was inserted in a manner which caused no difficulty whatsoever.  The insertion of the second port 2.5 cm lateral to the right nipple was the one that caused the difficulty. 
	The medical notes indicate that in the course of the insertion of the second port the defendant struck the internal mammary vessel or gland which caused a bleed as a result of which the defendant had to convert from VATS to the open thoracic surgery procedure.  The defendant indicated that this mammary vessel was out of position.  Both Mr. Smith and Mr. Mackey another expert on behalf of the plaintiff who had done many many operations on the chest were astonished to find that the internal mammary gland was in the position which the defendant says it was but was not in the least bit surprised to find that there was another vessel which would have caused a bleed having regard to the extremely vascular structure, which is the breast.  
	And they both held that and swore that under no circumstances should this port have been placed where it was, namely, right in the middle of the breast.
	The experts were quite clear that the defendant was perfectly correct once the bleed occurred to switch to open thoracic surgery.  However it is quite clear from the evidence of Mr. Smith and Mr. Mackey that had the port not been placed in that 
position that on the balance of probabilities of 85% at least that there would have been no need to switch over and it was the sworn evidence of the experts that the present plaintiff’s condition is caused by the open thoracotomy and the necessity to switch to it.
	It is quite clear from their evidence that under no circumstances whatsoever should a port have been placed in the breast in the position in which it was and no justification whatsoever could be made for placing it in that position.
	In dealing with the defendant’s response to this evidence it is necessary to look at a number of documents and other matters which were produced during the case.  The first item is the operating sheet filled in at the time of the operation which indicated that the second port was put in 2.5 cm lateral to the nipple and it went on to say that this port hit the interior mammary vessels which were in an aberrant position and there was a loss of blood.
	The defendant then took the unusual course of telephoning the plaintiff’s Solicitor Mr. Boylan and despite Mr. Boylan’s reluctance to speak to him insisted on talking to him.  In the course of that conversation Mr. Boylan referred to the operation note and indicated that the damage was caused by the from the second port and its insertion which was 2.5 cm lateral to the nipple.  The defendant’s immediate reaction was to dispute that the port had been inserted in such a position and that the operation note must be wrong.  When it was pointed out to him that the photographic evidence indicating a scar exactly where his operation note indicated he had put the port the defendant accounted this by stating that this could have been the mark of a chest drain.  
	This document which indicated in what apparently is the defendant’s own script that he had struck the mammary gland or vessel which was in an inappropriate place figured in the case when, the defendant attempted to suggest to Mr. McCullough Counsel for the plaintiff that in fact the document read query mammary gland or vessel.
	It is quite clear that at this point the defendant attempted to introduce a false or fabricated document by having it altered to include a squiggle which he said was a query.
	That squiggle did not appear on the original nor on the copies which had been provided to Mr. McCullough or to the Court.  	
	The defendant then attempted to brush off this matter as irrelevant.  However it is quite clear that the documents in the main had been photostatted, whereas the document produced by the defendant which was retained on the Court file had clearly been altered by what appeared to be a biro as the indentation of the squiggle is visible to the naked eye.
	It was most unusual to have the defendant conducting his own case and initially I thought many aspects of the defendant’s attitude in Court might be put down to naivety, however, as a result of a number of incidents which took place in the course of the case which I will detail my views have changed.
	It was only in my own presence and in the presence of the two experts that the defendant when actually presented with the plaintiff’s breast and the scar, finally admitted that it was where the second port had been put.  
	On the 3rd of July 1996 the defendant wrote a letter to Dr. Duignan the plaintiff’s General Practitioner indicating in third paragraph thereof:-
“A video assisted thoroxompy was done on the 5th of June 1996.  That night she developed a massive bleed as she had a berrant internal mammary artery in the right chest wall.”

	Quite clearly this letter was in contradiction to the note of the operation.  The defendant initially said he had never written it and then when it was quite clear that he had written, it indicated that there were only two words wrong with it and namely where it said that night.
	All through the case the defendant continually referred to the level of the intake of drugs of the plaintiff.  And appeared to ignore the fact that all of the drugs which the plaintiff got were prescribed by doctors and the two experts for the plaintiff indicated that whereas there was a high level of drug intake it was not unusual.
	The defendant then relied great emphasis on the fact that the plaintiff had been suffering pain before the operation.  He appeared to be completely unaware of the fact that it was for the purposes of the removal of the pain which she was suffering that the plaintiff was undergoing the operation.
	Then in the course of his conversation with Mr. Boylan he indicated that the plaintiff’s problems may have come from some other source namely her personality. 
	Then in the course of giving his own evidence the defendant indicated that the second port was inserted for the purposes of looking up and down the chest cavity.
	This was a completely new suggestion which had never been put or made under any circumstances to the plaintiff’s experts and in my view demonstrated nothing short of dishonesty on behalf of the defendant.  The defendant then went on to say that in reality the VATS operation was not as good as the old fashioned open thoracotomy and in a bizarre piece of evidence towards the end of his evidence he indicated that the people who sell the equipment will tell you anything for the purposes of selling.
	This particular turn of events where the defendant was now so to speak reneging on the effectiveness of the VATS procedure which he himself had introduced into Ireland he said, and indicating that it was not as good as the old operation demonstrated to me that, what I had thought initially had been naivety was far from it.  I had the opportunity of watching the defendant (a) conduct his own case and (b) give evidence and (c) be subject to cross    examination and at the end of the case I came to the conclusion and I am satisfied that when it came to a dispute on questions of fact I would not accept the defendant’s evidence on any of the facts which were in dispute between the parties.
	The words which may be displayed on the transcript are only part of the case, and the body language which emanated from the defendant demonstrated to my mind, with absolute clarity, where the truth of this case lay.
	Therefore I am satisfied that in accordance with the plaintiff’s case that the defendant was negligent in placing the second port in the breast where he did.  This caused the transfer to the thoracotomy.  This exposed the plaintiff to a danger of pain to which she should not have been exposed and she has suffered that pain.  I am satisfied that this pain was suffered as the result of the negligence of the defendant.
	I am satisfied that on the basis of Dunne -v- National Maternity Hospital (1989) IR where Mr. Justice Finlay at p. 109 stated:-
“allegations of negligence against medical practitioners based on proof that he deviated from a general and approved practice, that will not establish negligence unless it is proved that the course he did take was one which no medical practitioner of like specialisation and skill would have followed had he been taken the ordinary care required for a person of his qualifications.”
	And I am satisfied that in the insertion of the second port in the manner in which it was done the defendant failed to live up to that necessary degree of care.  Therefore having found that the defendant was negligent and that that negligence led to the necessity to carry out an open thoracotomy.  I then had to consider what the result of the finding was.
	There does not appear to be any previous Irish authority on the case and the English authorities namely Bonnet & Castings Limited -v- Wardlaw (1956) 1 ALL ER 615 and Magee -v- National Coal Board (1972) 3 ALL ER 1008 and the case of Wilshire -v- The Essex Area Health Authority (1988) 1 ALL ER p. 871 appear to be in contradiction with each other.  And therefore for the purpose of this decision having read the text on the matter I find and I adopt the proposition put forward by Dr. White in his book Civil Liability for Industrial Accidents at p. 111 which appears to me properly to state the law as it is:
“Where the defendant has voluntarily assumed a status vis-a-vis the plaintiff which results in a duty of care and that duty is breached by the defendant with the result that a material risk that injury will result to the plaintiff is created, or an existing risk of injury materially increased, and that injury in fact occurs (being damage which the duty was intended to guard against), and the existence and extent of the contribution made by that breach of duty is capable of being expressed as the loss of a particular chance of avoiding that injury, than the defendant’s breach of duty is deemed to be causally connected to that lost chance of avoiding that injury and the plaintiff is entitled to recover damages based on a valuation of that lost chance.”

	  Under these circumstances it appears to me that the defendant’s negligence having caused the switch to the thoracotomy and thereby increased by 85% at least the likelihood of injury and pain from which the plaintiff now suffers that damages should be recovered on the basis of 85% of the amount awarded.
	  After the operation the plaintiff woke in great pain and discomfort, and has continued to be in pain and discomfort ever since, despite a number of treatments for this pain, none of which have been effective.  To date she has been treated by Dr. Declan O’Keeffe a Pain Specialist who has conducted two rhizotomies on her and also she has undergone a long and sustained course of physiotherapy.
	The plaintiff has attempted to go back to her old job which was as a senior member of the St. John of God’s Order as an Administrator, but has been unable to sustain the job.  She was unable to take up a place in a course in Trinity College, because of her disability.  This course was offered to her by the Order and was to be funded by them but she was unable to undergo it..  As stated the plaintiff has undergone an extremely intensive course of physiotherapy together with painkilling drugs which she was taking in the hope of curing her condition and to enable her to cope with the disability from which she now suffers.  She has been totally unable to resume her interest in tennis, golf or to continue her piano playing at which she was a very proficient performer.
	 She has now managed to wean herself off the drugs through the continual build up of physiotherapy and hopes to be able to return to work at some level shortly.
	However the effects of the pain from she now suffers as a result of the negligence of the defendant have totally altered and changed her life.
	The evidence is uncontradicted from Dr. O’Keeffe she will continue to have right sided chest wall pain for the rest of her life.  It has been suggested that a spinal cord stimulator might be inserted but the plaintiff is reluctant to have any further surgery and I quite understand that.
	Special Damages, I will deal first of all with the special damages which are as follows:
Voluntary Health Payments 		£15,670.17
Dr. Ethel Brady Medical Exercise Therapist		£      967.00
Ailsebury Street Physio Clinic		£   2,025.00
Adrian O’Sullivan Chartered Physiotherapist and Licensed Acupuncturist	£        60.00
Dr. Michael Burke Blackrock Clinic		£        70.00
X-rays St. Vincent’s Hospital		£        75.00
Blackrock Clinic			£       551.00
Vincent Lynch Blackrock Clinic		£       330.00
Mount Carmel				£    1,380.74
Declan O’Keeffe			£    1,180.00
Dr. Harry Beacham			£      484.00
Medicines				£   2,732.58
Dr. John Duignan GP			£      874.50
St. Michael’s Hospital			£        12.15
Physio Extra				£      625.00
Pain Management Group		£      550.00
Dublin Spine and Sports Physio		£       52.00	Travel				£  1,200.00
Loss of Earnings to March 2001 approximately		£34,000.00
Total				£62,839.14
	 With regard to the future I think on the balance of probabilities the evidence indicated the plaintiff is never going to be pain free and is highly unlikely to get back to the level of earnings which she was at prior to this incident.
	It is quite clear the plaintiff will be unable to get back to her pre-injury occupation however she will be capable of doing a great deal of valuable work. 
	It would appear that her loss her net basis will be likely to vary between £152 and £204 a week.  Doing the best I can I take an estimate of £170 per week being the loss in the future and take a multiplier of £860 as described by the actuary.  That gives a future loss of earnings of £146,200.
	To these figures must be added a sum for general damages and having regard to the fact the plaintiff’s life has been disturbed and disrupted as it has despite the fact that the
 prognosis for future is comparatively hopeful, she will in the future continue to have permanent consequences of a disabling nature and I will allow a figure of £40,000 to date and £40,000 in the future added together this makes a total of £289,039.14 which amounts to £245,683.26 at 85% thereof and under those circumstances I will make an award to the plaintiff of €311,953.39 the costs of these proceedings.