Cost of both parents accompanying plaintiff for treatment allowed as special damages

A.T. (a minor suing by her mother and next friend K.T.) (plaintiff) v St James's Hospital and M.McH. (defendants).

A.T. (a minor suing by her mother and next friend K.T.) (plaintiff) v St James's Hospital and M.McH. (defendants).

Personal Injuries - Assessment of damages - Special damages - General Damages - Cost of treatment - Pain and suffering to date - Pain and suffering in the future.

The High Court (Mr Justice Kelly); judgment delivered 27 January 2000.

IN an assessment of damage sustained when the plaintiff suffered burns in the course of receiving laser treatment to lighten a port wine stain on her face, the High Court awarded £20,000 for pain and suffering to date and £60,000 for future pain and suffering. In also awarding £19,800 special damages, the court allowed the cost of both parents accompanying the plaintiff to London for treatment under general anaesthesia.

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Edward Comyn SC and Thomas Teehan BL for the plaintiff; Eoghan Fitzsimons SC and Eileen Barrington BL for the defendants.

Mr Justice Kelly said that the plaintiff, a 16-year-old girl, was born with a capillary malformation, commonly called a birthmark, comprising a port wine stain on the skin on the left side of her face affecting her cheek and temple and which covered the greater part of the left side of her face. Mr Justice Kelly said that the condition had greatly concerned the plaintiff and her parents who had diligently attempted to ameliorate the condition. Mr Justice Kelly also noted that the plaintiff also suffered from a tumour in her left eye which required substantial medical treatment and resulted in an almost total loss of sight in her left eye. This, however, was not relevant to the present proceedings. Mr Justice Kelly said that, when the plaintiff was eight months old, her mother contacted the second defendant, a consultant plastic surgeon at St James's Hospital, for advice on what treatment, if any, was available for the port wine stain, and was correctly advised that there was no treatment currently available. Mr Justice Kelly said that the plaintiff's mother demonstrated remarkable application in keeping abreast of medical developments that might assist her daughter. Ultimately, the plaintiff's mother contacted a doctor in Boston who was involved in the use of state of the art laser treatment to treat port wine stains and she learned that a similar laser would be available in England within a short time. Pursuant to the plaintiff's request, the second defendant referred her to the doctor who would be operating the new laser in England, Dr Neil P. J. Walker.

Mr Justice Kelly said that Dr Walker commenced a course of laser treatment on the plaintiff in 1989 when she was six years old. Following an initial test treatment, the plaintiff underwent six or seven treatments of the entire stained area under general anaesthesia and these treatments appeared to have been reasonably successful. Mr Justice Kelly noted that it is never possible to remove a port wine stain of this particular type but that successful laser treatment can result in a significant lightening of the skin colour, thereby enabling a very effective masking to be achieved by using make-up. He accepted Dr Walker's evidence that, with successful lightening and make-up, the port wine stain could then have been rendered virtually unnoticeable.

Mr Justice Kelly said that, while in London for treatment, the plaintiff and her mother coincidentally met the second defendant at Dr Walker's rooms. The plaintiff and her mother became aware that the second defendant was using the same type of laser and they decided to continue with the treatments in Dublin. Mr Justice Kelly noted that this was a sensible decision, having regard to the fact that the skin treatments were expensive and only a limited form of financial support had been provided by the VHI and the relevant health board and the plaintiff's parents had been placed under financial strain.

Mr Justice Kelly said that the second defendant carried out a series of treatments that were similar to those carried out by Dr Walker, the only difference being that Dr Walker tended to treat the entire area whereas the second defendant treated a smaller area at a time. Mr Justice Kelly said that a new laser, known as a Hexascan laser, became available in Dublin in 1994 and that the second defendant decided to use one such laser on the plaintiff because the results obtained under his previous treatments were not proving successful in effecting a lightening of the colour of the affected skin. Mr Justice Kelly said that, on 17 June 1994, the second defendant treated the plaintiff with this laser and, as with the prior treatments, this was administered under general anaesthetic. Mr Justice Kelly said that the plaintiff was very upset when she awoke after the treatment. Usually, her face would have a burning sensation for about an hour after treatment but, this time, her face did not cool down, she felt ill, could not eat and was very tearful.

Mr Justice Kelly said that the plaintiff's 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. When the plaintiff woke up the following day, her face was bleeding and her pillow was bloodstained. There were blisters and blood on her face and some of the blisters had broken. The plaintiff's parents contacted St James's Hospital. They were unable to speak to the second defendant but his registrar indicated that they could bring the plaintiff back to the hospital if they wished to do so. The plaintiff was too ill to travel to Dublin and the registrar recommended that a particular cream be applied to her face. Unable to obtain the cream in any pharmacy in Waterford, the plaintiff was taken to the Accident and Emergency Department of Waterford Regional Hospital. The hospital did not have the recommended cream. Following a conversation between the casualty officer and the second defendant's registrar, a spray was used to try and ease the condition of the plaintiff's face. When the plaintiff returned to the hospital three days later, as directed, the casualty consultant took a photograph of the plaintiff's face. Mr Justice Kelly said that this photograph spoke for itself in demonstrating a number of burnt areas, each hexagonal in shape, over a large part of the left cheek. Mr Justice Kelly said that the plaintiff's parents contacted the second defendant who saw the plaintiff in September 1994. 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 the second defendant indicated that it might take eighteen months for substantial improvement to be demonstrated. Mr Justice Kelly said that, on this occasion, the second defendant said that in using the laser, he had used the strongest strength.

The plaintiff's parents obtained a second opinion from a Mr Lawlor. He also thought it prudent to wait for eighteen months and indicated that he would not be prepared to treat the plaintiff and could see no reason why the second defendant would not continue to do so. Mr Justice Kelly said that, at this stage, the plaintiff's parents were unhappy at the prospect of waiting eighteen months and having the plaintiff treated by the second defendant again. The plaintiff's mother contacted Dr Walker, who saw the plaintiff on 20 April 1995. Mr Justice Kelly said that Dr Walker gave evidence of having treated the plaintiff and that this had resulted in a significant lightening in the port wine stain. Dr Walker recognised that, while burning of the skin is a recognised risk of laser treatment, this did not happen when he treated the plaintiff and the texture of her skin was unchanged when she left him to commence treatment with the second defendant. When Mr Walker examined the plaintiff in April 1995, he considered that the treatment received in June 1994 gave rise to a deep dermal burn with consequent significant textural change and scarring, the principal changes being that the burnt areas were darker in colour than they had been and there was an abnormal and very visible textural change to those areas. Dr Walker was of the opinion that this must have caused pain and discomfort over and above the norm which would follow laser treatment. Dr Walker deferred treatment because surface changes can often improve and, given that laser technology was constantly improving, in time he hoped to be able to give further treatment which would lighten the areas and bring about an improvement to the damaged skin. In due course, he commenced the plaintiff on appropriate treatments.

Mr Justice Kelly said that the present position was that, for the purpose of lightening the overall skin colour, two treatments had been carried out on the plaintiff and she would need between two and four more such treatments and some of these treatments would have been necessary in any event.

Mr Justice Kelly said that Dr Walker estimated that the plaintiff required two additional treatments in order to try and deal with the darkening in colour which was brought about by the incident in June 1994, each of which would cost £700 sterling and would be carried out at his hospital in London and using an anaesthetic gel as opposed to general anaesthetic. Mr Justice Kelly said that, while these treatments would not address the textural changes that were brought about in the skin affected by the burns, Dr Walker considered that the textural changes might be assisted by carrying out treatment using a different type of laser. Mr Justice Kelly said that Dr Walker planned to carry out one or two assessments under local anaesthetic on limited parts of the skin and, assuming a satisfactory result, he proposed to carry out a major treatment over the entire surface under general anaesthetic.

Mr Justice Kelly referred to the fact that this treatment would result in surface burns which would take up to ten days to heal, the plaintiff would be an in-patient in hospital for up to two nights and, following which, she would need to have her face dressed in hospital twice a day for about seven days. This treatment would cost approximately £10,000 sterling. Mr Justice Kelly noted that Dr Walker could not say that the plaintiff's skin texture would return to its pre-June 1994 condition and was of the opinion that some abnormal surface on the skin would remain. Mr Justice Kelly further referred to Dr Walker's opinion that, while the plaintiff's face could have looked normal with the effective use of make-up prior to the burning in 1994, the textural changes caused by the burning made this impossible but he hoped that the treatment would achieve an overall lightening and a sufficient improvement in the texture to enable make-up to be used to considerable effect.

Mr Justice Kelly said that the defendants conceded liability and the case was therefore one of an assessment only. As regards the cost of laser treatment to deal with textural changes, Mr Justice Kelly held that the plaintiff was entitled to recover the cost of carrying out the entire treatment and that, while the full treatment was dependent upon the success of the two pre-treatment assessments, it was probable that full treatment would take place. Mr Justice Kelly said that it was not unreasonable for the plaintiff to want to have the treatment carried out in London under Dr Walker and that, even if the treatment could be carried out in this jurisdiction, the plaintiff was entitled to repose confidence in Dr Walker and to have her treatments carried out by him.

Mr Justice Kelly found that two assessments would probably be necessary. However, while the plaintiff was accompanied by both parents for all prior treatments and assessments, it would be unreasonable to require the defendants to pay for more than the cost of the plaintiff being accompanied overnight by one parent. Mr Justice Kelly allowed the sum of £300 in respect of air tickets for each of the two treatments, £250 per trip for

accommodation and £100 per trip for miscellaneous expenses, totalling £1,300.

On the basis that the figure of £10,000 sterling for the treatment was inclusive of the assessments, Mr Justice Kelly allowed a sum of £12,500 to cover the entire treatment costs. He said that this treatment would be carried out under general anaesthetic, require two days hospitalisation and regular attendance for the purpose of dressings twice a day. Mr Justice Kelly dismissed the defendants' suggestion that that the post-treatment dressing should be carried out in Dublin and said it was reasonable that the plaintiff should remain in London and attend the hospital where her consultant practices so that he would be readily on hand in the event of complications.

Having regard to the fact that the treatments would be carried out under general anaesthetic, and the fact that the plaintiff was previously accompanied by both parents for her treatments, Mr Justice Kelly said that it was not unreasonable for both parents to be present during the plaintiff's hospitalisation. However, he considered it unreasonable to expect the defendants to fund the presence of both parents in London for a period of about twelve days. Mr Justice Kelly therefore allowed the cost of travel and subsistence in London for two days to both parents, a further ten days to one parent, and the cost of accommodating the plaintiff for ten days after her discharge from hospital. On the basis of the evidence, Mr Justice Kelly allowed £450 for air tickets, £250 for accommodation for one parent for two days, £1,500 for the second parent for twelve days, £1,250 for the plaintiff for ten days and £750 for miscellaneous expenses which, together with the treatment costs, amounted to £16,700.

Mr Justice Kelly accepted Dr Walker's evidence that the burning that occurred in St James's Hospital necessitated two additional lightening treatments, which would not require a general anaesthetic. In respect of this treatment, Mr Justice Kelly allowed £900 for the cost of each treatment, and travel costs for the plaintiff and one parent consisting of £300 for air tickets, £250 for accommodation and £100 in respect of miscellaneous expenses for each trip, thereby totalling £3,100.

Mr Justice Kelly said that the plaintiff suffered considerable pain and discomfort as a result of the burning, her demeanour in the witness box showed that she was greatly affected by this reversal in the treatment, she was caused a good deal of distress and upset by it and was very conscious of the darkening effect of the burns and resultant textural skin changes. He said that, to date, the plaintiff had not only borne the discomfort associated with her injuries, but had also suffered the embarrassment and disappointment of an already unhappy condition being made worse. Mr Justice Kelly awarded £20,000 for pain and suffering to date.

Mr Justice Kelly said that, as a direct result of the burns, the plaintiff would have to undergo one major treatment under general anaesthetic which would give rise to considerable burning and discomfort and wounds to her face which would have to be dressed twice daily for about ten days. The plaintiff would also have to sustain the two pre-treatment assessments and undergo two ordinary laser treatments which she would not have required had the burns not taken place and although, not requiring general anaesthesia, these would still cause considerable discomfort. Furthermore, assuming as much success as is possible, the plaintiff could never be fully returned to the position which obtained prior to June 1994 because the reasonable prospect, that the birthmark could have been lightened so that it would be practically incapable of being noticed with the effective use of make-up, was no longer possible after the plaintiff sustained the textural skin changes. Having regard to the fact that the treatment might not be as successful as was hoped, Mr Justice Kelly awarded £60.0 00 for future pain and suffering. Mr Justice Kelly made a decree for £80,000 general damages and £19,800 special damages, totalling £99.800.

Solicitors: J. F. Williams & Co. (Dungarvan) for the plaintiff; Hayes & Son (Dublin) for the defendants.