High Court of Ireland Decisions

1. The Plaintiff in this case is an unmarried chef; now almost twenty-five years of age, who is a native of Sligo but currently lives at Ballintra in the County of Donegal. The Defendants are a statutory authority and, at all times material hereto, were the proprietors of a General Hospital situate at Sligo in the County Sligo, the staff of which included a Consultant Gynaecologist/Obstetrician by the name of Doctor Carthage Carroll, for whose actions, the Defendants are vicariously responsible.

2. Connie Ewing comes before the Court claiming damages for personal injury alleged to have been suffered by her as a result of the alleged negligence and breach of duty of the Defendants' servant or agent, the said Doctor Carthage Carroll, in;

3. In the course of the trial of this action, I heard evidence which satisfied me that, around Easter time in the year 1992; shortly after she had obtained worthwhile employment which she was anxious to retain, the Plaintiff began to experience a severe pain in her abdomen which recurred about three times a week, lasting a couple of hours on each occasion and accompanied by bouts of vomiting. Moreover, she began to experience a progressive weight-loss and the pain was so severe that she was compelled to absent herself from work which was a considerable concern to her because, as I have already indicated, she was anxious to retain the employment which she had so recently obtained. She consulted her General Practitioner, Doctor Frank McCurtin, who was unable to diagnose the cause of her symptoms and accordingly referred her to the Sligo General Hospital for assessment by Mr Peter Morrison, FRCSI, a Consultant Surgeon, attached to the said hospital. On the 21st of July 1992, Ms Ewing was admitted to Sligo General Hospital where she spent three/four days as an in-patient, during which she was subjected to a variety of investigations and tests including blood-tests, a gastroscopy and an ultrasound scan of her abdomen. However, these investigations and tests disclosed no abnormality to account for her on-going symptoms and she was discharged from hospital without treatment. That as it may be, throughout the following weeks, the Plaintiff continued to experience severe abdominal pain although the episodes of vomiting abated and she recovered some of her weight-loss. Moreover, it appears that the pain was somewhat lower down in her body than it had originally been. In any event, because of persistent pain which was very severe and debilitating, the Plaintiff lost a considerable amount of time from work and ultimately resigned her employment because, as she said and I accept, she could not guarantee her employers a five day week. Furthermore, she continued to attend her G.P., Doctor McCurtin, but, to little avail, because, apart from prescribing some painkilling medication for her, he was unable to alleviate her symptoms. The Plaintiff was reviewed by Mr Morrison's team in Sligo Hospital in September 1992 following which she was referred to a Doctor McNamara for an ultrasound scan of her pelvis which he carried out on the 1st of October 1992. Doctor McNamara reported on the results of that scan as follows;

4. As I understand the situation, the phrase "differential considerations" in the said report indicates Doctor McNamara's views with regard to possible diagnoses of the Plaintiff's condition. In this regard, I had evidence from Doctor Caroline Ruben, a Consultant Radiologist with a speciality in ultrasound scans, who, in the light of her examination of the results of the said ultrasound pelvic scan of the 1st October 1992, said that, while she did not criticise Doctor McNamara's report thereon, she could not agree with his suggestion that a differential consideration would include an endometrioma. Doctor Ruben also gave evidence which was not challenged, that that ultrasound scan demonstrated a normal anteverted uterus, a normal left ovary and normal follicles but that there was a cyst on the right ovary, the wall of which was well sealed and she said that there were appearances of bleeding into the ovarian cyst. She also gave evidence that it was common to find cysts on ovaries but that, if it was, it very often happened that such cysts disappeared spontaneously so that, when one was demonstrated on an ultrasound scan, it was normal to do a repeat scan. She said that cysts are not necessarily accompanied by symptoms although bleeding into a cyst can be painful and she agreed that there was evidence of bleeding into the cyst which was manifest on the said scan of the 1st of October 1992. However, she expressed the view that what appeared on that scan was not causing the pain of which the Plaintiff was complaining and she added that, if, following that scan, a clinical examination of the Plaintiff did not determine the mass which was demonstrated on the scan, a review scan was called for. Doctor Ruben also gave evidence which was not challenged that one cannot diagnose cancer from an ultrasound scan.

5. Following the ultrasound scan of the Plaintiff's pelvis on the 1st October 1992, Mr Morrison wrote to the Plaintiff on the 6th of October 1992 advising her that the scan suggested that she had an ovarian cyst and that the Radiologist recommended a repeat scan. In that letter, Mr Morrison also advised the Plaintiff that he was arranging for her to be seen by a Gynaecologist and, by letter of even date, he wrote a letter to Doctor Carroll, which was copied by the Plaintiff's General Practitioner, Doctor McCurtin, requesting that Doctor Carroll should see and assess the Plaintiff. Although it was not clear from the evidence how or when Doctor Carroll arranged for the Plaintiff to see him, I am quite satisfied that he met with her at the Gynaecology out-patients department of Sligo General Hospital on the 5th of November 1992. Before that meeting, Doctor Carroll had received a memorandum dated the 3rd of November 1992 from the Plaintiff's General Practitioner, Doctor McCurtin, in which Doctor McCurtin (inter alia) emphasised the severity of the abdominal pain being experienced by the Plaintiff and the urgent necessity for an opinion on her problems. In this connection, I am persuaded by the evidence of the Plaintiff and, indeed, by that of Doctor Carroll that, by the 5th of November 1992, the Plaintiff was, as it were, close to the end of her tether by reason of the pain which she was experiencing. She told me and I accept that, at that stage, she wanted an urgent solution to her problems because the pain which she was experiencing was extremely severe and she said that she would have done anything to change her situation. As for Doctor Carroll, throughout his evidence, he emphasised that all his decisions with regard to his treatment of the Plaintiff were influenced by the fact that he accepted that she was experiencing very severe pain; indeed, he said that she presented to him on the 5th of November 1992 as a young lady who had the appearance of being very unwell, and that he was very anxious to do everything within his power to diagnose the cause of her problems with a view to alleviating her symptoms. Accordingly, I have no doubt at all but that, when these two people met on the 5th of November 1992, the Plaintiff was prepared to submit to any treatment which Doctor Carroll might have advised in the hope that it would alleviate her symptoms whereas Doctor Carroll, for his part, was concerned to do everything in his power to diagnose the cause of the Plaintiff's suffering with a view to ending it. That as it may be, however, I do not accept the evidence of Professor John Bonner, another Consultant Gynaecologist/Obstetrician who gave evidence on behalf of the defence, that a patient can dictate the course of his or her treatment depending on the degree of pain which, he/she is experiencing. In this connection, Professor Bonner said that it is up to a patient, rather than to his/her medical specialist, to decide whether or not the degree of pain which he/she is experiencing is sufficient to warrant a particular form of treatment which has been suggested by the specialist as being an option. I cannot accept that that is so. While I can understand that a patient, who is in great distress, such as this Plaintiff was, might well be prepared to submit to any treatment which his/her specialist might suggest, it is my opinion that, ultimately, it is for the specialist and not for the patient to decide what form of treatment is in the best interests of the patient, particularly a patient who is only 18 years of age. Accordingly, whatever she may have said to Doctor Carroll, I do not think that Connie Ewing has any responsibility with regard to the treatment to which she was subjected by him. She herself said in evidence "I left it to Doctor Carroll to decide what was best for me" . In my view, that is as it should be and as it was and it is in that light that I view what subsequently transpired between the Plaintiff and Doctor Carroll.

6. While it is common case that, when he saw her on the 5th of November 1992, Doctor Carroll conducted an external and an internal examination of the Plaintiff, there was considerable dispute between them as to what he said to her on that occasion. For his part, Doctor Carroll gave evidence that, following his examination of her, he told the Plaintiff that he could not find the mass demonstrated on the ultrasound scan of the 1st of October 1992 although he agreed that he had made a sketch for her of the cyst which was demonstrated on that scan. He said that he had told the Plaintiff that her uterus was retroverted and that he had explained that condition to her and that he had also explained for her the condition of endometriosis, which had been referred to by Doctor McNamara in his report on the scan, and that he had advised her that it was for the reason that he suspected that she was suffering from that condition that he proposed to operate on her. In that regard, Doctor Carroll gave evidence that he told the Plaintiff that the operation which he was proposing was called a laparotomy and that he had explained for her the implications of that operation although he agreed that he never advised her of the possibility that that operation might fail to disclose any abnormality. The Plaintiff gave a very different account of what Doctor Carroll had told her following his examination of her on the 5th November 1992. She said he told her that it would be necessary for him to carry out an operation to remove an ovarian cyst and that it might well be that it would also be necessary to remove one of her ovaries. In this regard, the Plaintiff gave evidence that Doctor Carroll did not tell her that he has been unable to locate the mass which was demonstrated on the ultrasound scan of the 1st of October 1992 but that he did say that he wanted to get her into hospital as soon as possible because he suspected that her condition might be cancerous. She said that Doctor Carroll did not then suggest to her that there were any other possible causes for the pain which she was experiencing and, in particular, he did not mention endometriosis or inflammatory problems. However, he did sketch out for her what she said he described as an ovarian cyst demonstrated on the ultrasound scan of the 1st October 1992 and which he said was three times the size of an ovary. Ms Ewing also gave evidence that, when she learned from Doctor Carroll of the possibility that he might have to remove one of her ovaries, she questioned him as to whether or not that would prevent her from having children and he advised her that that was not necessarily so.

7. It is impossible to reconcile the conflicting accounts of what Doctor Carroll said to the Plaintiff following his examination of her on the 5th of November 1992. Clearly, one or other of them has an imperfect memory of what was said on that occasion. In this regard, it occurred to me that the Plaintiff's recollection of events might have been coloured by the fact that she went to that meeting with Doctor Carroll armed with a letter from Mr Morrison in which he suggested that she had an ovarian cyst and that suggestion, coupled with the fact that, at that meeting, Doctor Carroll had sketched out a cyst for her, had wrongly persuaded her that Doctor Carroll had confirmed that she had an ovarian cyst and that that was the reason that he proposed to operate on her. On the other hand, Doctor Carroll conceded that he had a very busy practise and, perhaps, the demands of that practise has robbed him of an accurate recollection of what he said to the Plaintiff on the 5th of November 1992 and that, with hindsight, he has erroneously reconstructed that conversation in a manner favourable to his own interests. I cannot be certain where the truth lies. However, there are a number of features about this case which suggest to me that, on the balance of probability, the Plaintiff's account of what Doctor Carroll said to her on the 5th of November 1992 is the more accurate one. In this regard, Doctor Carroll gave evidence that, when he met the Plaintiff on the 5th of November 1992 armed with the ultrasound scan of the 1st of October 1992 it was in his mind that she had an ovarian cyst. It was for that reason that he wrote the words "possible ovarian cyst" in his note of that meeting. However, as his clinical examination of the Plaintiff elicited no obvious mass or swelling to confirm the ultrasound scan, he concluded that he was unable to corroborate the existence of such a cyst. (In this connection, Doctor Carroll conceded that, had the mass which was demonstrated in the ultrasound scan of the 1st October 1992 been present when he examined the Plaintiff on the 5th of November 1992, he would have been able to palpate it; a view which was endorsed by Mr Roger Clements and by Professor Ronald Taylor, two Consultant Gynaecologist/Obstetricians, who gave evidence on behalf of the Plaintiff, although it was rejected by Professor Bonner on the grounds that an appropriate examination to detect that mass would have been too painful for the Plaintiff. I prefer Doctor Carroll's concession in that regard). In the light of that conclusion, Doctor Carroll conceded under cross-examination that, had he performed an operation on the Plaintiff for the removal of an ovarian cyst, that would have been an unnecessary operation. Yet, following his examination of the Plaintiff on the 5th of November 1992, he drew a sketch for the Plaintiff of the ovarian cyst demonstrated on the ultrasound scan of the 1st of October 1992 and, in his contemporaneous note, he indicated that his plan of treatment was to arrange for a laparotomy, an ovarian cystectomy and perhaps an oophorectomy but no other investigation which seems to me to be inconsistent with his sworn testimony that, at that stage, he had excluded the existence of an ovarian cyst but would be consistent with the Plaintiff's evidence that he had told her that he proposed to operate for an ovarian cyst and that, in the course of that operation, it might prove necessary to remove one of her ovaries. In the course of his evidence, Doctor Carroll also said that, on his examination of the Plaintiff on the 5th of November 1992, there was no indication of pelvic inflammatory disease and, therefore, in the absence of evidence of an ovarian cyst, he could not make a reasoned diagnosis of the cause of the Plaintiff's problems and so he suspected that she was suffering from endometriosis which could only be confirmed by a laparoscopy or a laparotomy for the purpose of taking a biopsy. Yet, not only is there no mention of such a suspicion, or of such an investigation in Doctor Carroll's contemporaneous note on his examination of the Plaintiff on the 5th of November 1992 but neither are those matters mentioned in two letters, each dated the 6th of November 1992 which Doctor Carroll wrote to Mr Peter Morrison and to Doctor Frank McCurtin following his examination of the Plaintiff on the 5th of November 1992. Moreover, it is not, I think, without significance that, in the record of the Plaintiff's admission to hospital on the 16th of November 1992 it is noted that her complaint had been diagnosed as an ovarian cyst and that she was being admitted to hospital for the removal of such a cyst, that, in the nursing note of that admission, it is also recorded that it was for the purpose of the removal of an ovarian cyst and that, in the informed consent which the Plaintiff signed on the 16th of November 1992 before submitting to surgery on the following day, it is recorded that she consented to a laparotomy, an ovarian cystectomy and an oophorectomy. Indeed, apart from the mention of it in Doctor McNamara's report on the ultrasound scan of the 1st of October 1992, there is no mention whatsoever in the medical records relating to the investigation and treatment of this Plaintiff's complaints that it was suspected that she was suffering from endometriosis and that it was for the purpose of confirming or rejecting that suspicion that Doctor Carroll subjected her to surgery on the 17th of November 1992. In my view, the absence of any record of Doctor Carroll's stated suspicion that the Plaintiff might have been suffering from endometriosis coupled with the repeated references in the Plaintiff's medical records to an ovarian cyst are also more consistent with the Plaintiff's account of what Doctor Carroll said to her on the 5th of November 1992 than they are with his account of that conversation.

8. While it may well be that Doctor Carroll's recollection of what he said to the Plaintiff on the 5th of November 1992 is imperfect, he was adamant that the operation which he performed on the Plaintiff on the 17th of November 1992 was necessary because, as he said, he suspected that she was suffering from endometriosis and the only way to confirm that suspicion was to carry out a laparotomy and to take a biopsy. He agreed that another option would be to perform a laparoscopy but he said that, in November 1992, the facilities for performing a laparoscopy with a view to taking a biopsy were not available in Sligo General Hospital and that, therefore, that option was not open to him. Accordingly, he said that he had no alternative but to perform a laparotomy. In this connection, Mr Roger Clements gave evidence that endometriosis in an eighteen year old girl is a wildly improbable condition and Professor Taylor said that such a condition in such a young female was like "hens teeth". Doctor Carroll vehemently rejected those assertions and countered that endometriosis in an eighteen year old is not a rare condition and that, in fact, he had treated many patients in their late teens for that problem. Indeed, he added that it was vital to diagnose endometriosis as soon as possible because, if the condition was left untreated, it could lead to major infertility problems. In this, Doctor Carroll was strongly supported by the evidence of Professor Bonner who said that, in his experience, endometriosis in young women was quite common and that the only way in which it could be diagnosed is by means of a laparoscopy or a laparotomy. Accordingly, I am faced with a total conflict of evidence evenly balanced between four very eminent specialists and, in the light of that conflict, I can only conclude that, in medical circles, the "jury is still out" on the question as whether or not endometriosis in a young person is a vary rare condition. However, in the course of his evidence, Mr Clements challenged Doctor Carroll to refer to literature which would give the lie to his (Mr Clements) assertion that endometriosis in an eighteen year old female is a wildly improbable condition and although, I was referred to a publication entitled "General Gynaecology" in which references are made to teenagers suffering from endometriosis, I am not persuaded that those references necessarily met Mr Clements challenge. However, whether or not they did, I am persuaded that, even if endometriosis in a teenager is not a very rare condition, it seems to me that it is sufficiently rare to warrant a note in a patient's records that the treating specialist suspects the condition together with a note of the grounds for that suspicion. Accordingly, it is, to say the least of it, surprising that, nowhere in Doctor Carroll's notes relating to this Plaintiff is there any mention whatsoever of the fact that he suspected that she was suffering from endometriosis. Moreover, while Doctor Carroll agreed that one on the symptoms associated with the condition of endometriosis is that the sufferer experiences pain with sexual intercourse and, accordingly, it is appropriate to question the patient with regard to her sexual activity, he conceded that, not only had he not made any enquiry of the Plaintiff with regard to her sexual activity but that when, as he said, he had explained to the Plaintiff the nature of the condition of endometriosis on the 5th of November 1992, he could not recall telling her that one of the symptoms associated with endometriosis is pain on sexual intercourse. If, as he says, Doctor Carroll suspected that the Plaintiff was suffering from endometriosis, it is, again, very surprising that he neither made any enquiry of her with regard to her sexual activity or told her that pain on sexual intercourse was a symptom of the condition.

9. Doctor Carroll was unable to explain why endometriosis was not mentioned in the form of consent executed by the Plaintiff before she underwent surgery on the 17th of November 1992. He agreed that that form had been filled up by a Junior Doctor in the hospital; a Doctor Jordan, but he could not say that it was he who had given Doctor Jordan the information which Doctor Jordan had included in the form and, indeed, Doctor Carroll said that he did not know where Doctor Jordan had got that information. However, he conceded that it would have been reasonable to include endometriosis in the form. He also conceded under cross-examination that, if the reason for performing the laparotomy on the Plaintiff was that it was suspected that she was suffering from endometriosis, it would be reasonable to expect a mention of that fact; either in his notes or in the hospital notes but he was adamant that the absence of such mention did not signify that endometriosis was not in his mind when he operated on the Plaintiff. In this regard, even Professor Bonner, who was very supportive of the propriety of Doctor Carroll's conduct with regard to his treatment of the Plaintiff conceded under cross-examination that a patient's medical notes should reflect the treating Doctor's diagnosis of the Plaintiff's condition and he agreed that, in this case, Doctor Carroll could have included in his notes details of his suspicion that the Plaintiff was suffering from endometriosis. Indeed, Professor Bonner agreed that the Plaintiff's hospital and medical notes did appear to reflect a diagnosis of ovarian cyst but he said that endometriosis can be a cyst.

10. Having regard to the foregoing, not only do I think that the Plaintiff's account of what Doctor Carroll told her on the 15th of November 1992 is more accurate than his account of what he said on that occasion, but, for the reasons that I prefer that account and for the reason that Doctor Carroll gave no satisfactory explanation for his failure to enquire into the Plaintiff's sexual history or his failure to note his stated suspicion that the Plaintiff was suffering from endometriosis, I am not persuaded that Doctor Carroll's decision to operate on the Plaintiff on the 17th of November 1992 was motivated by a suspicion that she might be suffering from endometriosis. Apart from his own say so, all the Plaintiff's medical records suggest that that operation was performed for the purpose of excising an ovarian cyst which Doctor Carroll conceded in evidence would have been an unnecessary operation; a view which, as I interpret their evidence, is shared by all the other relevant specialists who gave evidence in this case.

11. Arising from the foregoing, while, as I have indicated, all the relevant specialists who gave evidence in this case (including Dr Carroll himself) agreed that it would have been inappropriate for Dr Carroll to operate on the Plaintiff for an ovarian cyst, that evidence, in the case of Mr Clements and Professor Taylor, was given in the context that, on a consideration of the Plaintiff's hospital and medical records, they believed that Dr Carroll had, in fact, operated on the Plaintiff for an ovarian cyst and in the case of Professor Bonner and Dr Carroll, in the context that Dr Carroll had operated on the Plaintiff because he suspected that she might be suffering from endometriosis. In this regard, when it was put to them, both Mr Clements and Professor Taylor also expressed the view that it was inappropriate for Dr Carroll to operate for endometriosis because it was their view that the indications for the existence of that condition were not present, whereas Professor Bonner expressed the view that the indications for the possible existence of endometriosis were classical and, of course, Dr Carroll himself, was quite satisfied that he was justified in operating for endometriosis. Accordingly, once again I am confronted with a conflict of evidence evenly balanced between four eminent specialists and, were I satisfied that Dr Carroll had operated on the Plaintiff with endometriosis in mind, it might not have been easy to resolve that conflict. However, as I have already indicated, I am not persuaded that Dr Carroll's decision to operate on the Plaintiff on the 17th November, 1992 was motivated by a suspicion that she might be suffering from endometriosis, I do not have to resolve that conflict. I might add in this regard that, whereas Dr Carroll told me that the only way in which he could confirm his suspicion that the Plaintiff might be suffering from endometriosis was to perform a laparoscopy or a laparotomy for the purpose of taking a biopsy, his notes on the surgery which he performed make no mention of his having taken a biopsy and neither did he suggest in evidence that he had done so. It may well be that his failure to do so was motivated by the fact that, in the course of operating on the Plaintiff, he found that both of her ovaries were normal which, as I understand the position, indicates that the pathology for his stated reason for undertaking the operation was not present. However, while that is as it may be, I would have thought, that had he been undertaking the operation for the purpose of taking a biopsy, he would have noted as much on the operation chart.

12. One of the principle complaints directed against Dr Carroll was that he negligently failed to carry out a review pelvic ultrasound scan prior to operating on the Plaintiff as had been suggested by Dr McNamara in his report on the ultrasound scan of the 1st October, 1992. In this regard, Dr Ruben gave evidence that, when an ovarian cyst is demonstrated on an ultrasound scan, it is very often appropriate to have a review scan before proceeding to surgery. Mr Clements was more emphatic; he went so far as to say that, in the light of Dr McNamara's recommendation, it was incompetent of Dr Carroll not to have arranged for a review scan before proceeding to surgery; particularly if his clinical examination of the Plaintiff on the 5th November, 1992 did not elicit the mass demonstrated on the ultrasound scan of the 1st October, 1992. In essence, Professor Taylor shared that view but without being quite as disparaging of Dr Carroll as Mr Clements had been. For his part, Professor Bonner said that it was not necessary for Dr Carroll to arrange for a review scan, but, as I interpreted his evidence, that view was expressed in the context that Dr Carroll was operating for endometriosis and not for any other reason. Dr Carroll, himself, gave evidence that, in the light of the result of his clinical examination of the Plaintiff on the 5th November, 1992, he did not give any weight to the suggestion that there should be a review scan because it was his opinion that it was unlikely that such a review scan would demonstrate any abnormality and that one cannot rely on a negative scan to rule out a cyst. In any event, he said that he was not operating for a cyst, because of his suspicion that the Plaintiff might be suffering from endometriosis and that, therefore, a review scan was not called for. In this regard it seems to me that, if Dr Carroll had operated on the Plaintiff for the purpose of confirming a suspicion that she might be suffering from endometriosis, no useful purpose would have been served by arranging for a review ultrasound scan because, as I interpreted the evidence, the condition of endometriosis cannot be demonstrated on an ultrasound scan. Accordingly, Dr Carroll's failure to arrange for a review ultrasound scan might be considered to be corroborative of his evidence that he was operating for endometriosis, in which event, failure to arrange for such a scan would be justified. However, apart from the fact, as I have already indicated, that, for the reasons which I have stated, I am not persuaded that Dr Carroll was operating for endometriosis, it seems to me that the fact that one of his excuses for his failure to arrange for a review ultrasound scan was that it was unlikely to demonstrate any abnormality and that one cannot rely on a negative scan to rule out a cyst, is another reason for doubting that his motive for embarking upon surgery was limited to the suspicion that the Plaintiff might be suffering from endometriosis and, if it was not so limited, there does not appear to me to be any justification for his failure to arrange for a review ultrasound scan before proceeding to surgery.

13. Another issue which arose in this case relates to the events which occurred at Sligo Hospital on the evening of the 16th November, 1992; that is the evening before the Plaintiff's operation. While the Plaintiff herself, purported to have no recollection whatsoever of meeting Dr Carroll on that evening, he gave evidence that he had what appears to have been a fairly long discussion with her; the details of which he noted on her hospital chart. Essentially, that discussion appears to have arisen from fears expressed by a Dr Reynolds, an anaesthetist, who, having learned that the Plaintiff was taking the oral contraceptive pill at the time, was concerned that that fact would increase the risk that she might develop a thrombosis in the course of surgery and, accordingly, suggested that the surgery contemplated by Dr Carroll might be postponed. Dr Carroll gave evidence that he conveyed to the Plaintiff the concerns expressed by Dr Reynolds and that he had explained to her the risks of a thrombosis but that, nevertheless she was anxious to proceed with the surgery and that he agreed that was a reasonable decision on her part. Despite the fact that the Plaintiff has no recollection of that discussion or, indeed, any recollection of having met with Dr Carroll on that evening, I do not for a minute doubt Dr Carroll's evidence in that regard. I can think of no reason; good, bad or indifferent, why Dr Carroll would invent such a story and commit it to the Plaintiff's hospital notes. So far as the Plaintiff is concerned, I can only conclude that her apprehension of the prospect of having to undergo surgery has robbed her of the memory of that meeting. In any event, I am not convinced that what transpired on that occasion is relevant to any issue which I have to decide in this case.

14. Apart from the foregoing, the Plaintiff complains that, in the course of surgery, Dr Carroll carried out a procedure involving plication of the round ligaments; a procedure which the Plaintiff maintains was unnecessary and, in any event, was carried out without her consent. That Dr Carroll performed such a procedure, there can be no doubt because it is well documented on the Plaintiff's operation chart and it is also true that the Plaintiff never specifically gave her consent for such a procedure. In this regard, I am not impressed by the complaint that the procedure was carried out without the Plaintiff's specific consent because, in the form of consent to surgery which she executed on the 16th November, 1992, she agreed to "such further or alternative operation measures or treatment as may be found necessary during the course of the operation". Accordingly, I am satisfied that if the procedure carried out by Dr Carroll was necessary, it follows that the Plaintiff had consented to it. For their part, Mr Clements and Professor Taylor gave evidence; not only that that procedure was neither indicated or necessary but that, as a result of it, the Plaintiff was on risk of developing adhesions. The thrust of their evidence appears to me to have been that, as the Plaintiff's uterus was mobile and asymptomatic, the plication carried out by Dr Carroll served no useful purpose. For his part, Dr Carroll said that, in the course of surgery, he found the Plaintiff's uterus in a retroverted position. In this regard, I accept his evidence that the reference in the Plaintiff's operation chart to the uterus being in an anteverted position is an error, because it was common case that one only performs a plication when the uterus is retroverted. Dr Carroll agreed that the uterus was mobile and he did not think that the position in which he found it was the cause of the Plaintiff's abdominal pain. However, he said that, in his professional judgement, a procedure of plication was potentially beneficial to the Plaintiff and he vehemently rejected the suggestion that that procedure was out of date or that he had performed it in order to justify the surgery which he had embarked upon. In my opinion, as the operating surgeon, Dr Carroll was in a much better position to judge the necessity for the procedure which he performed than anyone who relies on surgical notes to challenge its necessity. Apart from the error with regard to the position of the Plaintiff's uterus in her operation chart, there is no suggestion that Dr Carroll's notes with regard to the plication are either inadequate or inaccurate. Accordingly, what is called into question is his judgement on how to deal with the situation. It was apparent to him and to no-one else. While, for the reasons which I have already indicated, I cannot accept his stated reason for embarking upon the surgery, I have no reason to doubt his professional judgement when, in effect, he says that, in the course of operating on this Plaintiff, he observed a situation which, in his opinion, indicated that a plication of round ligaments would be beneficial to the Plaintiff, and accordingly, carried out that procedure. In those circumstances, I am not satisfied that it was an unnecessary procedure.

15. In the course of a judgment of the Supreme Court given in a case of Dunne -v The National Maternity Hospital (1989 I.R. at page 91) it is stated that the true test for establishing negligence in diagnosis or treatment on the part of a Medical Practitioner is whether he has been proved to be guilty of such failure as no Medical Practitioner of equal specialist or general status of skill would be guilty of if acting with ordinary care. I believe that to be a true statement of the law with regard to the liability of Medical Practitioners to their patients as it applies in this country. In this case, for the reasons which I have already given, it is my judgment that Doctor Carroll's decision to operate on the Plaintiff on the 17th of November 1992 was for the purpose of excising an ovarian cyst and not for his stated purpose of confirming a suspicion that she might be suffering from endometriosis. In this regard, it was the unanimous opinion of all the relevant specialists who gave evidence before me; including Doctor Carroll, himself, that the indications to justify surgery for the removal of an ovarian cyst did not exist and, in fact, no such cyst was found in the course of the operation performed by Doctor Carroll. Accordingly, it was, in my view, an unnecessary operation and one which no Medical Practitioner of equal standing to Doctor Carroll acting with ordinary care would have undertaken. I am further persuaded that Doctor Carroll's failure to arrange for a review ultrasound scan of the Plaintiff's pelvis before undertaking that operation was equally blameworthy. In those circumstances, it is my opinion that the Plaintiff is entitled to damages by way of compensation for the insult done to her and for the sequelae thereof.

16. Insofar as damages are concerned, the Plaintiff gave evidence which I accept that she continues to experience the pain which had troubled her prior to her operation and she expressed great anger at the fact that she had been subjected to the trauma of surgery under general anaesthetic, with all its inherent risks, for no good purpose. In my view, that reaction is both justified and very understandable. Ms Ewing also complains that, as a result of the surgery, she has been left with an abdominal scar some five inches in length just above her bikini line; the appearance of which embarrasses her to the extent she will no longer wear a bikini. In this regard, she gave evidence which was not challenged that, from time to time, this scar becomes itchy and she experiences a burning sensation in it. While the Plaintiff, herself, expressed the view that the scar was very prominent, I was furnished with reports from Mr Matt McHugh FRCSI, a Plastic Surgeon, who indicated that, in fact, the scar is flat, pale, and of good quality and that it is really only visible on very close inspection. As I was not afforded the opportunity of seeing the scar myself, I think that I must prefer the views of the specialist with regard to its appearance to those of the Plaintiff. Nevertheless, it is a blemish which the Plaintiff will carry for the rest of her days because, as I interpret Mr McHugh's reports, there is no treatment whereby its appearance can be improved and if, as I believe, that appearance upsets the Plaintiff, I must take that fact into account when assessing her compensation. Moreover, while she did not purport to quantify a loss of earnings, I think that I must also have regard for the fact that, as a result of hospitalisation associated with her surgery and that she would require a period of rehabilitation following her discharge from hospital, her return to work must have been delayed with a consequential loss of income.

17. For the insult of the unnecessary surgery with all its attendant risks and fears, the futility of hospitalisation and rehabilitation, the disruption of lifestyle including the probability of a loss of income consequential on the delay in returning to work and the anger, frustration and disappointment which the Plaintiff experienced on the realisation that it was all for nothing, I will allow for general damages to date the sum of £25,000. As for the future, the Plaintiff has been left with a residual abdominal scar which, to a greater or lesser extent, will disfigure her for the rest of her life. In this regard, while I am mindful of Mr McHugh's views with regard to the appearance of this scar, I accept that the Plaintiff is troubled by its appearance and that she is also troubled by itchiness and a burning feeling in association with it. Accordingly, for general damages into the future, I will allow a sum of £10,000. I understand that special damages are agreed in the sum of £505 and, accordingly, there will by Judgment for the Plaintiff for £35,505.