High Court of Ireland Decisions

1. The Plaintiff is sixteen years old and is an only child. She is a pupil at Newtown School in Waterford. She achieved very good marks in her Junior Certificate examination which she sat last year. Her ambition is to go into business. There is no good reason why she should not achieve this ambition given her good academic record and her pleasant personality.

2. The Plaintiff was born with a capillary malformation which is commonly called a birthmark. It involves a port wine stain on the skin on the left side of her face affecting her cheek and temple. It covers the greater part of the left side of her face. This condition has been a cause of great concern to the Plaintiff and to both of her parents. The parents have been very devoted to her and have applied themselves with great diligence in attempting to ameliorate this condition.

3. Unfortunately for the Plaintiff she has also suffered from a condition which sometimes arises as a complication of the birthmark. This involved a tumour in the left eye which, not withstanding the parents’ best efforts, was not diagnosed for a number of years. This condition has required substantial medical treatment and has resulted in an almost total loss of sight in the left eye. Neither this condition nor the treatment given for it have any relevance to the matters that I have to consider in this judgment but I mention them in order to complete the description of the Plaintiff’s medical condition.

4. The Second named Defendant (Mr. McHugh) is a consultant plastic surgeon at St. James’s Hospital. When the Plaintiff was eight months old, her mother contacted Mr. McHugh seeking advice on what treatment, if any, might be available for the port wine stain. He, quite correctly, advised that at the time there was no treatment available to deal with the complaint.

5. The Plaintiff’s mother demonstrated remarkable application in keeping abreast of developments in the world of medicine which might assist the Plaintiff. She made contact with medical personnel in Germany, England and in the United States of America in this regard. Finally, she made contact with a Dr. Tian who was based in Boston in the United States. That doctor was involved in state of the art laser treatment which was being used there to treat people with port wine conditions. That doctor alerted her to the fact that within a short time a laser, similar to the one which she used, would be available in England. Armed with this information, the Plaintiff asked Mr. McHugh for a referral to the doctor who would be operating this new laser in England. Mr. McHugh gave that referral to Dr. Neil P.J. Walker who is a Fellow of the Royal College of Physicians, with appointments at both the Lister and Wellington Hospitals in London and the Churchill Hospital in Oxford.

6. Dr. Walker examined the Plaintiff and commenced a course of laser treatments. These began in 1989, when the Plaintiff was six years old. Initially, a test treatment was carried out and this produced moderate lightening of the skin area to which it was directed. Following that, the Plaintiff underwent six or seven treatments of the entire area of the stain. All of these treatments were carried out under general anaesthesia. These treatments appeared to be reasonably successful.

7. It is common case that it is never possible to remove a port wine stain of the type in suit. However, successful laser treatment can bring about a significant lightening of the skin colour, thereby enabling a very effective masking to be achieved by the use of makeup. Dr. Walker said, and I accept, that with successful lightening and appropriate makeup, the port wine stain could then have been rendered virtually unnoticeable.

8. Whilst in London for treatment the Plaintiff and her mother met Mr. McHugh, who happened to be at Dr. Walker’s rooms. This was a coincidental meeting but it resulted in the Plaintiff and her mother becoming aware of the fact that a laser of the type being used by Dr. Walker was available in Ireland and was being utilised by Mr. McHugh. They, therefore, decided to continue with the treatments in Dublin. This was a sensible decision since these treatments were expensive and only a limited form of financial support was obtained by the Plaintiff from the Voluntary Health Insurance Board and from her local Health Board. Indeed, most of that financial assistance was devoted towards the treatment of her eye rather than her skin condition. Financial strain had been placed upon the Plaintiff’s parents as a result of the treatments in London, so it made sense to have them carried out in Dublin.

9. A series of treatments were carried out by Mr. McHugh, similar to those carried out by Dr. Walker. The only difference between the two was that, whilst Dr. Walker tended to treat the entire area, Mr. McHugh would treat a smaller area at a time.

10. By 1994, a new laser became available in Dublin. It was known as a Hexascan laser. Mr. McHugh decided to use that on the Plaintiff since the results obtained under the previous treatments given by him, were not proving successful in effecting a lightening of the colour of the blemished skin.

11. On the 17th of June 1994, which was a Friday, the Plaintiff was treated by Mr. McHugh with the Hexascan laser. Like the other treatments, this was administered under general anaesthetic. When the Plaintiff awoke following the treatment, she was very upset. Normally, her face would have a burning sensation for about an hour after laser treatment. On this occasion, the Plaintiff’s face did not cool down; she felt ill, could not eat and was very tearful. This was quite unlike her reactions to earlier treatments. Her parents took her home to Waterford where she continued to complain of her face being very hot and they used an ice pack to try and cool her.

12. On the following day, when she woke up, her face was bleeding and her pillow was bloodstained. There were blisters and blood on her face and some of the blisters had broken. Her parents made contact with St. James’s Hospital but were unable to speak to Mr. McHugh. They did, however, speak to his Registrar and he indicated that if they wished to come back to the hospital, they could do so. However, the Plaintiff was too ill at that stage to travel the hundred miles or so to Dublin. He recommended that they apply a particular cream to her face, but they were unable to procure that cream in any pharmacy in Waterford.

13. Faced with this difficulty the Plaintiff’s parents took her to the Accident and Emergency Department of Waterford Regional Hospital. That hospital did not have the recommended cream either. The casualty officer made contact with St. James’s Hospital and spoke to Mr. McHugh’s Registrar. On foot of that conversation a spray was used to try and ease the condition of the Plaintiff’s face and the Plaintiff was told to return on the following Tuesday to see the Casualty Consultant. This she did. On that occasion he took a photograph of the Plaintiff’s face which was put in evidence before me. The photograph speaks for itself. It demonstrates a substantial number of burnt areas, each hexagonal in shape, over a large part of the left cheek. There was really nothing more that could be done at that stage but the Plaintiff’s parents made contact with Mr. McHugh who saw her in September of that year. They explained their anxiety to him. He indicated that the face would take a while to heal and that he would see her again in December. By December, the face had not healed very much and he indicated that it might take eighteen months for substantial improvement to be demonstrated. On this occasion he said that in using the laser, he had used the strongest strength.

14. The Plaintiff’s parents were not happy with this situation and so they sought a second opinion from another plastic surgeon, a Mr. Lawlor. He took a similar view to that of Mr. McHugh. He thought it prudent to wait for eighteen months to allow for an improvement to take place. He indicated that he would not be prepared to treat the Plaintiff and could see no reason why Mr. McHugh would not continue to do so. The Plaintiff’s parents were, at this stage, unhappy at the prospect of simply doing nothing for eighteen months. Neither were they content to continue to have the Plaintiff treated by Mr. McHugh. Whilst the Plaintiff’s mother, in evidence, accepted that Mr. McHugh had done his best for her daughter, it is understandable that, in the circumstances, she would no longer wish the Plaintiff to be treated by him.

15. In February 1995, she contacted Dr. Walker, who saw the Plaintiff on the 20th April of that year.

16. Dr. Walker gave evidence before me. He told me of the treatments which he had given to the Plaintiff, prior to her being treated by Mr. McHugh. During his initial treatments, a significant lightening had been brought about in the port wine stain. This was a good result and, moreover, the texture of the skin had not been altered as a result of the treatment.

17. Dr. Walker recognised that burning of the skin is a recognised risk of laser treatment. Such burning had not occurred while he treated the Plaintiff and so the texture of her skin was unchanged. Whilst there would be discomfort for a few days following the treatments, the surface of the skin was never broken and there was no scarring. Consequently, the texture of the skin had not been altered when she left him to take up treatment with Mr. McHugh.

18. When he examined her in April 1995, he formed the view that the outcome of the treatment which she had received the preceding June was such as to give rise to a deep dermal burn with consequent significant textural change and scarring. He took the view that this must have given rise to pain and discomfort over and above the norm which would follow laser treatment. He decided to wait before giving any treatment because surface changes can often improve. The principal changes observed by him on this examination were that the areas affected by the burning were darker in colour than they had been. There was also an abnormal textural change to those areas which was very visible. Another reason for delaying further treatment was the constant improvement in laser technology. In time he hoped to be able to give further treatment which would lighten the darkened areas and also bring about an improvement to the damaged skin.

19. In due course, he commenced the Plaintiff on appropriate treatments. The present position is that the Plaintiff has had two treatments carried out which have as their object the lightening of the colour of the skin overall. She will need between two and four more such treatments. Some of these treatments would have been necessary in any event. He estimates that she requires two additional treatments in order to try and deal with the darkening in colour which was brought about as a result of the incident of June 1994. Each of these treatments costs £700.00 Sterling. If he is to do them, they will require attendance at his hospital in London. Fortunately, it is now possible to carry out these treatments without the necessity for a general anaesthetic; instead an anaesthetic gel is used. The object of the treatment is to make the affected part of the face as pale as possible whilst at the same time avoiding textural changes to the skin.

20. The treatments which I have just described will not address the textural changes which were brought about in the skin affected by the Hexascan laser burns. Dr. Walker is of the view that that situation may be assisted by carrying out treatment using a different type of laser. He plans to carry out one or two assessments on very limited parts of the skin to see how they react to such treatment. If a satisfactory result is achieved, then he proposes to carry out a major treatment over the entire surface. The assessments will require the administration of local anaesthesia, but the treatment will require a general anaesthetic. The Plaintiff will suffer surface burns as a result of this treatment and they will take up to ten days to heal. During those ten days, she will require to have her face dressed in hospital twice a day for about seven days. She will be an in-patient in hospital for up to two nights. This treatment will cost approximately £10,000.00 Sterling. Even with this treatment, he cannot say that her skin texture will return to its pre-June 1994 condition. There will remain, he believes, some abnormal surface on the skin.

21. He demonstrated, by reference to the Plaintiff’s face, the areas which he proposes to treat. The hope is that he will achieve an overall lightening and a sufficient improvement in the texture to enable make-up to be used to considerable effect. However, given the changes in texture to the skin, the make-up will never be as effective as it might have been had the burning not taken place. Before the burning in June 1994, the skin texture was normal and would enable the face to look normal with the effective use of make-up. Now he says that that is not possible.

22. The case proceeded before me as an assessment since liability was conceded by the Defendant. I therefore turn to a consideration of the special damages.

23. I am of the opinion that the Plaintiff is entitled to recover the cost which will be involved in the carrying out of this treatment in its entirety. Whilst the full treatment will not be proceeded with unless the two pre-treatment assessments are successful, it seems to me that, as a matter of probability, the full treatment will take place. The Plaintiff has never had an adverse reaction to laser treatment carried out by Dr. Walker; such only occurred in June 1994 in circumstances where it does not appear that any pre-treatment assessment was carried out before the use of the Hexascan laser. It does not appear to me to be unreasonable for the Plaintiff to want to have this treatment carried out in London under Dr. Walker. There is no suggestion that such a treatment could be carried out in this jurisdiction. Even if it could, I am of the view that the Plaintiff is entitled to repose confidence in Dr. Walker and to have her treatments carried out by him.

24. I find that two assessments will probably be necessary, each of which will involve her going to London with an overnight stay in that city. It is not unreasonable that she should be accompanied by one parent on each such occasion. I accept that the Plaintiff is somewhat vulnerable, is not familiar with London, and on all occasions to date, has been accompanied by her two parents whilst having treatments or assessments carried out. I do not think it reasonable to visit the Defendant with a liability for the cost of a second parent going to London for these assessments. I was not furnished with a figure as to the costs of these assessments and it may be that their cost is encompassed in the overall figure of £10,000.00 Sterling which was specified by Dr. Walker as being the cost of the entire treatment. Insofar as the assessments are concerned, I will allow the sum of IR£300.00 in respect of air tickets for each of the two treatments together with the sum of IR£250.00 per trip in respect of bed and breakfast. I will also allow a further IR£100.00 for each trip to cover miscellaneous expenses such as taxi-fares and meals. This totals IR£1,300.00.

25. I will allow a sum of IR£12,500.00 to cover the costs of the full treatment. This is a treatment which will have to be carried out under general anaesthesia, will involve two days hospitalisation and regular attendance for the purpose of dressings twice a day thereafter. I do not regard the Defendant’s suggestion that the post treatment dressing should be carried out in Dublin as reasonable. Whilst it may be possible to have such wounds dressed in Dublin, it seems to me unsatisfactory to require the Plaintiff to return to Dublin to have this done. In the event of something going wrong she would have to return to London to have it dealt with. It is reasonable that the Plaintiff should remain in London and attend at the hospital where her consultant practices and where he will be readily on hand in the event of complications.

26. The Plaintiff maintains that she is entitled to be accompanied by both her parents in respect of this period of hospitalisation and the days subsequent thereto. I accept the Tobins are a very united family. To date, both father and mother have accompanied the Plaintiff to any treatments which have been carried out. Given that history and the fact that this is a major treatment requiring a general anaesthetic, it does not appear to me to be unreasonable that both parents should be present during the period of the Plaintiff’s actual hospitalisation in London. Thereafter, however, I take the view that it would be unreasonable to expect the Defendants to fund the presence of both parents in London for a period of about twelve days. As the Plaintiff will be under medical care, will have had a difficult procedure carried out and is unfamiliar with London, it is reasonable that she should be accompanied during that period by one parent. I will, therefore, allow the cost of travel and subsistence in London for two days to both parents and for a further ten days to one parent. During this period of ten days, the Plaintiff herself will require accommodation, since she will only be an in-patient for two days.

27. On the basis of the evidence that I have, I will, therefore, allow a sum of IR£450.00 to cover the cost of plane tickets to and from London and I will allow a sum of

28. IR£250.00 in respect of bed and breakfast for one parent for two days, the second parent for twelve days (IR£1,500.00), and the Plaintiff for ten days (IR£1,250.00). In addition there will be miscellaneous expenses of IR£750.00 which I will also allow. This totals IR£16,700.00.

29. I accept the evidence of Dr. Walker that two additional lightening treatments have been necessitated as a result of the burning which took place in St. James’s Hospital. I will allow a sum of IR£900.00 in respect of the costs of each of these treatments. They will also necessitate the Plaintiff’s travelling to London. They do not require to be carried out under general anaesthesia and it does not seem to me reasonable that she should be accompanied by both parents for these treatments. It is, however, reasonable that she should be accompanied by one parent and I will, therefore, allow a sum of IR£300.00 in respect of air tickets, IR£250.00 in respect of bed and breakfast and IR£100.00 in respect of miscellaneous expenses in respect of each of these trips. This totals IR£3,100.00.

30. There is no doubt but that the Plaintiff suffered considerable pain and discomfort as a result of the burning which took place. From her demeanour in the witness box, it was clear that she was greatly affected by this reversal in her treatment. She has been caused a good deal of distress and upset by it and is very conscious of the darkening effect of the burns and the changes in skin texture brought about by it. She will, as a result, have to have the treatments which I have already described. As they lie in the future, I propose to deal with the general damages aspects of those treatments under the heading of pain and suffering into the future. The Plaintiff has had to bear, to date, not merely the discomfort associated with these injuries, but also, the embarrassment and disappointment of an already unhappy condition being made worse. It seems to me that in these circumstances, the appropriate figure to award for pain and suffering to date is £20,000.00.

31. As a direct result of the burns sustained by her, the Plaintiff is going to have to undergo one major treatment which requires to be carried out under general anaesthesia. It will give rise to considerable burning and discomfort and wounds to her face which will have to be dressed twice daily for a period of about ten days. She will also have to sustain the two pre-treatment assessments. In addition, she will have to have two ordinary laser treatments which she would not have required had the burns not taken place. Whilst these do not require general anaesthesia, they, nonetheless, give rise to considerable discomfort, albeit for a shorter period of time. Even at the end of all of this, and assuming as much success as is possible, the evidence of Dr. Walker is that the Plaintiff can never be fully returned to the position which obtained prior to June 1994. This is because of the textural changes which have been brought about in the skin. There was a reasonable prospect, prior to June 1994, of the birthmark being lightened to such an extent that it would be practically incapable of being noticed with the effective use of make-up. That will not now be possible because the textural changes can never be completely ameliorated. In assessing a sum for future pain and suffering, I have to bear in mind that this treatment may not be as successful as is hoped. In these circumstances, it appears to me, that the appropriate figure for future pain and suffering should be £60,000.00.

32. There will, accordingly, be a decree for a total sum of £80,000.00 general damages and £19,800.00 special damages, giving a total of £99,800.00.