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1. The Plaintiff in this case is a married man and business man who lives in County Kildare. He was born on the 27th November, 1944.

2. He is suing the Defendant for alleged negligence in the carrying out of a dental implant procedure on the 1st July, 1992. As a result of a bone graft which was taken from his chin in the course of the procedure, the Plaintiff suffered damage to the incisive nerve at the front of his chin which, from the time of the procedure, has left him with a condition of severe pain at the mid line of his chin known as chronic neuropathic pain. It is this aspect of the procedure, namely, the bone graft, rather than the insertion of the actual dental implants themselves, which is accountable for the Plaintiff's symptoms.

3. The Plaintiff has also sued the Defendant for failing to disclose to him in advance of the operation the risk that chronic neuropathic pain might eventuate as a consequence of this procedure. This was, in fact, his initial complaint against the Defendant.

4. The hearing before this Court, largely because of the highly technical evidence involved, lasted some twenty days. Two days were taken up with legal submissions on informed consent/duty of disclosure. With a view to shortening the trial and for the purpose of complying with the recently enunciated requirement of the Supreme Court that, even in relation to fact, submissions should be made at the conclusion of the evidence, the parties were invited to make such submissions in writing and the same have been received by the Court prior to the delivery of this part of the judgment.

5. Because of the complex and technical nature of the evidence, the parties have agreed that the Court should be free to deliver its judgment in successive parts. The issue of quantum, should it arise, has by agreement been deferred to a later time. The first part of the Judgment deals with the allegation that the Defendant failed to disclose a material risk.

6. The second part of the judgment, which does not overlap with the first, addresses the central question of fact upon which the claim of negligence is brought: Did Dr Harris, in the course of harvesting a bone graft from the Plaintiff's chin on the 1st July, 1992, take the bone graft at a point on the chin too close to the apices of the Plaintiff's lower incisor teeth? The evidence in the case clearly establishes that general and approved practice in the medical profession is that one should respect a 5 mm zone between the apices of the teeth and the upper margin of any bone graft. The crucial factual issue to be determined therefore, is whether or not Dr Harris transgressed this barrier. Dr. Harris denies that he did. In this regard, the Court has to consider not only Dr Harris's own evidence, but the entire subsequent history of the lower incisor teeth, a detailed anatomical study of the chin and its nervous system, and also the significance and interpretation of a number of X-rays taken in the aftermath of the particular procedure. The evidence in relation to the X-rays alone consumed many days of the hearing and is highly complex. Part of the difficulty arises because the Defendant and his experts challenge the reliability of X-rays, including Dr Harris's own X-rays, when it comes to the accurate measurement of fine distance between two objects or points of reference given that X-rays are two dimensional representations of three dimensional reality.

7. It is therefore my intention to deal separately with the factual issue upon which the claim in negligence is based, and separately also, if necessary or appropriate, with the legal consequences of a finding of fact (if such be the case) that Dr Harris transgressed the 5 mm barrier when taking the bone graft on the 1st July, 1992.

8. Accordingly, in the present section of the judgment, only those facts which are germane to the issue of disclosure will be addressed in detail. All issues addressed by the technical evidence, together with evidence as to the execution of the procedure and the expert views in relation thereto, will be dealt with in the second part of the judgment to be delivered at a later date. No Order will be drawn up until those issues, and their consequences, have been dealt with.

9. However, even this section of the judgment cannot commence without a brief explanation of the history and function of dental implants. In essence a dental implant is a pillar which is inserted into the jaw bone to constitute a post over which an artificial crown or bridge attachment can be fitted. For hundreds, if not thousands, of years crude efforts at dental implantology were carried out, usually with very bad results.

10. However, some 30 years ago in Sweden Professor Branemark made a most important discovery. He discovered that a titanium implant which had been inserted into a rabbit's bone marrow could not later be taken out. The titanium had integrated with the bone in a process which he characterised as osseointegration.

11. The implications for dental science were immediately apparent, because titanium fixtures in the jaw clearly offered a more secure and more predictable support for any tooth replacements to be inserted in the mouth. Dental implants, based on Branemark’s discovery and published work, became available from 1982 onwards.

12. The treatment is divided into three main stages. Firstly, the implants are placed in the jaw bone in an operation usually carried out in hospital under a general, or local anaesthetic, depending on patient preference and the number of implants to be inserted. Post-operatively, patients usually report only minimal discomfort of a type no more than that associated with tooth removal. Usually, any complaints of pain or discomfort clear away within days or within a maximum period of two weeks.

13. The second stage six months later involves a minor procedure carried out under local anaesthesia in which special titanium pillars (abutments) are attached to the implants onto which the tooth replacements are then fixed.

14. The construction of the tooth replacements can usually be completed and fitted within six-seven weeks and while this is being carried out, patients may wear their own denture, specially modified, as a temporary measure.

15. Following completion of the work, a dental hygienist shows the patient how to correctly clean around the fixtures. The procedure has a very high success rate and is associated with many benefits for the patient which are detailed later in this judgment.

16. The Defendant is a highly qualified oral surgeon. He became a fellow in dental surgery of the Royal College of Surgeons in England in 1968. He later received his fellowship of the Faculty of Dentistry from the Royal College of Surgeons in Ireland. He is on the specialist all surgery registry in the UK and Denmark. He has been certified by the Irish Dental Council as having fulfilled criteria for specialist registration in the EU. He has been in private practice in oral surgery since 1973. He moved to the Blackrock Clinic in 1983/4 where he presently conducts his private practice. Most of his work is in implants. He also does private work in London. He is senior lecturer in implant dentistry in Trinity College since 1997. He is also involved in a significant way in major international bodies with a special interest in implant technology.

17. The Plaintiff was referred to the Defendant by Mr John O'Grady in April, 1992. This arose out of some dental treatment which the Plaintiff had received from Mr O'Grady. The Plaintiff had neglected his dentition for many years and had many gaps in his teeth. He was missing 16 or 17 teeth, including many at the back of his mouth and was doing most of his chewing with the teeth to the front. Eventually Mr O'Grady, having outlined the different options to the Plaintiff, suggested he go to see Dr Harris, who has rooms close to Mr O'Grady's in the Blackrock Clinic, for the purpose of assessing him in relation to three implants at tooth locations second upper right, fourth upper right and fourth upper left (see photo in appendix). For that purpose he had prepared study models and had obtained a panoramic X-ray, which in fact was taken by Dr Harris at a time prior to his involvement with the Plaintiff. These materials were made available to Dr. Harris.

18. The first meeting took place in Dr Harris's rooms in the Blackrock Clinic on the 2nd June, 1992. The meeting lasted about 45 minutes.

19. During the meeting Dr Harris explained the different options available and explained what dental implants would involve. Mr Geoghegan told Dr Harris he wanted a very nice job done and that the cost was not a concern.

20. Following an examination, Dr Harris informed the Plaintiff that there appeared to be a shortage of bone at the site of the proposed implant at the fourth upper right and explained how a piece of bone could be harvested from the Plaintiff's chin to be placed at the site for the purpose of bedding in and securing the implant.

21. Mr Geoghegan's recollection is that he said to Dr Harris: "That sounds very painful", whereupon he asserts that Dr Harris said: "No, there is definitely no pain, no pain whatsoever."

22. Dr Harris for his part vehemently denies that he gave any such representation to the Plaintiff. He has told the Court that he explained the complications of the procedure to Mr Geoghegan as including swelling, bruising and discomfort. He feels sure he mentioned pain and would have told the Plaintiff that there could be pain and discomfort in the first 48 hours but that it could be well controlled with normal analgesia and that after two weeks it should all have settled. Mr. Geoghegan states that the was told only that there could be swelling under the eye and on the chin which would be temporary. In cross-examination he accepted he expected some pain which might last for a couple of days but “nothing major”. He associated any pain he might have with the pain of having a tooth pulled and in this case it would be the equivalent of several teeth, but this had not been any problem for him in the past.

23. There was also a discussion about whether the procedure should be carried out under general and local anaesthesia, in which context Mr Geoghegan revealed he had some concerns. He disclosed he had lost his brother following a coronary bypass operation some six months previously. This seems to have been Mr Geoghegan's principal focus in relation to the operation which, at this meeting, was fixed for the 1st July.

24. Dr Harris explained to Mr Geoghegan that dental implants were a relatively new procedure and that the high success rate for implants could not be applied when grafting was involved. He explained the procedure of taking a bone graft in detail to Mr Geoghegan. He told the Court that he felt Mr Geoghegan was not all that interested in the detail.

25. Mr Geoghegan opted to undergo general anaesthetic and, at the end of the meeting, was quite determined to go ahead. A further meeting was fixed for the 22nd June for a particular reason.

26. Dr Harris explained to the Court that he had a protocol or procedure which he followed in this case as he did in relation to any operation. He would invariably require a patient to attend for two consultations prior to any operation. Following the first consultation he would give an information video and brochure to the patient with a request that the patient peruse same. The purpose of the second meeting would be to discuss any questions which the patient might have as a result of looking at this material and the whole procedure would then be discussed in detail again. The purpose of this protocol was to ensure that the patient was fully prepared and informed prior to his operation. In addition, the patient would be required to undergo a physical check-up prior to any surgery.

27. Mr Geoghegan told Dr Harris he had had a medical check-up done in the previous year. Nonetheless, Dr Harris told him he wished Mr Geoghegan to see a physician at the clinic.

28. Following that meeting, Mr Geoghegan accepts he neither looked at the video or the brochure.

29. It is perhaps pertinent to discuss briefly what each contains insofar as risks or complications are concerned. The brochure contains simply one paragraph dealing with "possible complications and side effects" as follows:-

30. The information video, in addition to contributions from Dr Harris and a narrator who details the history of the technology, contains mainly testimonials from patients who have undergone the procedure. It is hardly surprising that most of these are glowing recommendations in favour of dental implants. Most of the patients describe only minor discomfort associated with the procedure. One patient expresses surprise that such major surgery produced no pain and that she had "no pain whatsoever". Another patient describes symptoms akin to having a tooth removed. One patient refers to having numbness for about one month in the aftermath of the procedure.

31. No reference of any sort to the possibility of chronic neuropathic pain is made in either the video or the brochure. Neither the video or the brochure address the question of bone grafts, which are only required in a small percentage of dental implant procedures where lack of suitable bone at the proposed implant site requires to be supplemented by the graft.

32. The second meeting took place not as arranged on the 22nd June but on the 30th June, the eve of the operation.

33. There is no real dispute about what happened in the interim.

34. Dr Harris's secretary phoned the Plaintiff on the 21st June reminding Mr Geoghegan of his appointment the next day. According to Dr Harris, he was told by his secretary that Mr Geoghegan was too busy to attend. He informed his secretary to tell Mr Geoghegan this was not acceptable to him and that the Plaintiff must come in and have a further discussion or otherwise the operation would be cancelled. Further approaches were made to Mr Geoghegan who was unable to attend a meeting prior to the 30th June, this being the only date which suited him.

35. Mr Geoghegan's recollection in relation to his dealings with Dr Harris's secretary is to the effect that he told her on the 21st June that he did not need this second meeting, that he had been through it all with Dr Harris and was well aware of what was going on. He accepts that some days later Dr Harris's secretary rang back to say the Defendant was insisting on this second meeting.

36. At the second meeting, Dr Harris says that details of the procedure were gone over again with Mr Geoghegan.

37. At this meeting the question arose as to whether or not Dr Harris would also put an implant the premolar area of in his lower jaw. This had not been on the original schedule of work to be carried out.

38. Dr Harris phoned Mr O'Grady there and then about this proposal. Mr O'Grady was quite happy to leave this matter in Dr Harris's discretion, but Dr Harris decided to wait until surgery to see if he could in fact do it. In the event he did not do the fourth implant to the lower jaw because in the course of the operation he noted the bone in the premolar area was quite thin and felt there was a risk he might go too near the mental nerve which innervates the lower lip and the vestibule between the lip and the front of the mandible. (See Appendices for illustrations).

39. Dr Harris states that he explained to Mr Geoghegan the possibility of nerves being cut in the area which could cause some numbness or altered sensation both in the teeth and in the lip and chin area. Mr Geoghegan's recollection, however, is that Dr Harris only referred to the possibility of some numbness in the chin area, which he indicated by pointing his little finger to the tip of his chin.

40. Dr Harris further stated that he pointed out the mental nerve to him because it was visible on X-ray and emphasised that he was going to stay well away from it in carrying out the procedure. According to Dr Harris there was quite a bit of discussion about this implant to the lower jaw and he put more emphasis for this reason on the possibility of numbness and altered sensation to the lip and chin.

41. Dr Harris accepts that he did not discuss or disclose any possibility or risk of chronic neuropathic pain or prolonged pain which might be associated with damage to any nerves which lay in the area where the implant to the lower jaw and bone graft were to take place.

42. Mr Geoghegan told Dr. Harris he had not looked at the video and explained his failure by reference to his brother's unfortunate death, his explanation being he had some difficulty with medical matters and realised he should pay more attention.

43. Dr Harris went on to tell Mr Geoghegan he himself had never had the operation and that sometimes unanticipated complications could occur in any procedure. He says he repeated the caution about pain and mentioned the possibilities of infection and bleeding.

44. Either before or after the consultation Dr. Harris sent the Plaintiff for a medi-check to Dr Comiskey which was carried out that same day in the Blackrock Clinic.

45. At the end of the meeting Dr Harris asked the Plaintiff to wait while a letter was typed up for him to take away and read.
Mr Geoghegan then went home, watched the video twice and read the brochure. He did not read the letter because he thought it was a repeat of everything Dr Harris had said to him.

46. It is important to quote the letter in full:-

47. Mr Geoghegan only read the letter after his operation. His recollection is that the reference in the letter to possible numbness in the lip had never been mentioned to him by Dr Harris.

48. It is common case that the following morning Mr Geoghegan attended for the operation and, in meeting Dr Harris beforehand, had no queries or questions arising out of his viewing of the video or his reading of the brochure.

49. It is perhaps pertinent to point out that the implant which did not take place, i.e. in the lower right premolar region, is in an area close to the inferior dental nerve (the alveolar nerve) and close to the point where it divides into two branches, namely, the mental nerve and the incisive nerve. While this implant was not proceeded with, no decision to that effect had taken place prior to surgery, so that any requirement to give a warning must include any risks or complications which might be associated with an implant at this particular site also. Dr. Harris believes he complied with any such requirement.

50. Dr Harris in the course of the hearing was cross examined by Mr Ryan as to what he saw as his duty and obligation to give information about rare complications. He indicated that the advice he had always been given was that if the incidence was over 1%, it should be considered. He went on to state that if you knew a complication could occur, then you must tell the patient about it. His standard would be to look at what he himself would want to know if he was in a similar situation so that he could make a decision. He stated that he would give as much information as he could in the context of the particular procedure.

51. However, chronic neuropathic pain did not occur to him as being a risk associated with this procedure. For his part, Mr. Geoghegan told this Court in empathic terms that he would not have undergone the operation had he known of this risk, even if the risk was “one chance in a thousand”.

52. The obligation on a medical practitioner carrying out or arranging for the carrying out of an operation to inform the patient of any possible harmful consequence arising from the operation, was addressed by the Supreme Court in Walsh -v- Family Planning Services Limited & Ors ., (1992) 1 IR 496.

53. The immediate issue the Court had to resolve insofar as the warning was concerned was, firstly, had a warning been given and, secondly, was the warning sufficient. A majority of the Court determined that it would not disturb on appeal the trial Judge’s determination that a warning had been given and that it had been sufficient.

54. In arriving at their conclusions, those members of the Court comprising the majority and who gave judgments (Finlay CJ and O’Flaherty J) did so by reference to different legal principles. I think it is fair to say that the contrasting approaches have caused commentators, Judges and practitioners alike some considerable difficulty for this reason. On the one hand Finlay CJ applied the principles and test set out in Dunne (an Infant) -v- National Maternity Hospital , (1989) IR 91 as indicating the appropriate standard of care.

55. In a nutshell, that test is to determine whether the medical profession generally, or a reputable school of opinion within it, would regard a warning as necessary, subject to the exception that a general and approved practice might contain inherent defects which should be obvious to any person giving the matter due consideration. If that latter position were to obtain, then the fact that a medical practitioner followed general medical practice would not suffice to exonerate him from responsibility.

56. O’Flaherty J., with whose judgment Hederman J concurred, took a different approach from the Chief Justice and did not accept that the question of whether a warning should be given in relation to a particular procedure is to be determined in accordance with the criteria as set out in Dunne as regards general and approved practice. He stated:-

57. This approach, at the other end of the spectrum, concentrates on the patient’s right to determine what is to be done to his body. It requires full disclosure of all material risks incident to the proposed treatment, so that the patient, thus informed, rather than the doctor, makes the real choice as to whether treatment is to be carried out.

58. In relation to the approach set out by Finlay, C.J. Mr. White states (at p. 189):-

59. The concept of materiality may be taken to embrace (a) severity of the consequences and (b) statistical frequency of the particular risk. As was stated in Canterbury (p. 788):-

60. However, in relation to the issue which the Court is called upon to address in this case, an analysis of the judgments yields the same answers, arrived at by the application of the different principles, in relation to two critical questions, that is to say:-

61. All five Judges of the Supreme Court clearly agreed in Walsh that in elective surgery any risk which carries the possibility of grave consequences for the patient must be disclosed. The requirement is set out in the various judgments without qualification in respect of statistical frequency. In fact, this consideration is firmly ruled out.

62. At no point in his judgment did Finlay C.J. resile from the description of the duty so trenchantly stated by O’Flaherty J at p. 535:-

63. Similar views were expressed by McCarthy, J. and Egan J.

64. Finlay C.J. in his judgment stated at p. 510:-

65. He went on to state as follows at p. 511:-

66. In effect, Finlay C.J. arrived at the same conclusion as his colleague, albeit by applying a different principle. While some of the witnesses called in Walsh felt no warning was required, Finlay C.J. clearly felt that the exception for inherent defects provision in Dunne could be invoked in the circumstances of the case so that there was a requirement to give a warning of a remote risk with grave consequences.

67. It is important to underline, as Finlay C.J. did, that the duty extends to "known complications" of a "carefully carried out operation", so that clearly the duty must be confined to such consequences or to consequences which may be described as foreseeable or predictable consequences arising from such complications. Mere coincidental and unrelated risks, for example, could not properly fall within the compass of any duty, any more than consequences which might flow from the practitioner’s negligence.

68. Hamilton CJ at p. 13 stated:-

69. The questions this Court has to address therefore in the instant case are as follows:-

70. It is submitted on behalf of the Defendant that the Plaintiff’s chronic pain is a unique occurrence, not just a rare occurrence. None of the expert medical witnesses who gave evidence on both sides had ever experienced in any of their patients the development of such a symptom at this site, nor was any one of them aware of a single instance of such a phenomenon being recorded in the medical literature.

71. It was further argued that the mandible and the teeth are commonly and frequently the sites of more radical and invasive surgery carried out by both maxillo facial surgeons and oral surgeons which necessarily involves severe damage to the incisive plexus of nerves and other nerves and yet, not even in those cases, has there been recorded or experienced a single instance of the onset of chronic neuropathic pain.

72. Mr. Cooney cited from Jones Medical Negligence (2nd Ed. 1996) at p. 121 the following passage in relation to “unforeseeable harm” as follows:-

73. Be that as it may, the medical evidence in this case, including that of the Defendants’ experts, is all the one way in respect of the phenomenon of nerve damage.

74. Dr. Sambrook, Dr. Hutchison, the neurologists, Mr. Beirne, the maxilliofacial surgeon and Professor Van Steenberghe, professor of the dental faculty in Louvain, all agree that any nerve which is traumatised can exhibit one or other of the following characteristics:-

75. The mechanism for the severe pain is a distorted message sent to the brain either from damage to or incomplete healing or repair of the nerve in question.

76. Not one expert called in this case on either side however believed then or now that a warning about intractable neuropathic pain was or is necessary having regard to the remote nature of the risk. It is one in multiple thousands. Nonetheless, various experts did instance occasions where nerve damage with lasting consequences had occurred in the facial area which has a sensitive nerve system. The infra orbital nerve of the cheekbone is one such site where chronic neuropathic pain can occasionally result if that nerve is damaged. Equally it is known that the removal of a wisdom tooth can, in rare instances, produce a similar outcome if the alveolar nerve is damaged.

77. Dr. Beirne, one of the Defendant's experts, further mentioned a case he was aware of where four lower wisdom teeth had become devitalised as a result of a bone graft where the surgeon had in fact stayed outside the 5mm zone between the apices of the teeth and the bone graft site which general and approved practice requires.

78. The extremely rare occurrence of chronic neuropathic pain as a consequence of nerve damage is in contrast with the other two possible consequences at (a) and (b) above which are more commonly encountered, although usually only as transient symptoms.

79. There is evidence from Mr. Hutchison in this case that the trigeminal nerve which supplies innervation to different parts of the skull and face is particularly sensitive. The alveolar nerve is one emanation which runs down the lower jaw and bifurcates at the premolar area of the mouth into the mental nerve, which exits the bone and supplies sensation to the lip and soft tissues in the vestibule between the lower teeth and the lower lip, and the incisive nerve which innervates the bone and teeth at the front of the lower mandible. (See Appendices).

80. It is quite clear that the procedure which Dr. Harris was initially proposing to undertake was one which might compromise one or both these nerves having regard to their location in the chin area. Dr Harris stated (B.9.p.151) that it was not possible to put in implants "without damaging the incisive nerves". The same view was expressed in relation to bone grafting (B.9.p.154/5). Dr. Harris’s own letter to Mr. Geoghegan shows an awareness of the possibility of nerve damage in its references to the risk of numbness at both the chin and lip. This was, and could only be, nerve damage. Dr Harris himself mentioned cases where damage to the mental nerve had caused "prolonged pain". (B.9.p.122)

81. Bearing in mind that the procedure which Dr. Harris was engaged was a relatively new procedure, I do not find it at all surprising that there is an absence of any other recorded case of chronic neuropathic pain in respect of either implants or bone grafts in the particular area of the chin. The procedure goes back to 1982. For a number of years grafts (required in a small number of cases) were taken from the iliac crest and only since 1989 from the chin. There was clearly in 1992 a retrievable archive of short duration only and obviously such an archive, insofar as it may be said to exist, must relate to cases where the procedure including bone grafting, was carried out in accordance with approved guidelines and procedures.

82. It seems to me that nerve damage must be seen as a “known complication” of this procedure be it implants per se, or bone grafts, in the chin area. The particular symptom of neuropathic pain is in a subdivision, not in a different species of risk or unrelated risk. It is foreseeable as a consequence of damaging nerves and certainly those nerves with which this case is concerned. Once that is established, the fact that the particular manifestation of the nerve damage is very remote and unusual seems to me immaterial from a legal point of view. It is within the range of what is known or can or should be known by the medical practitioner. By way of example, if it be generally known that, on rare occasions, a piece of coal may explode while burning in a grate, that “known complication” can hardly be said not to exist in respect of coal harvested from a new mine where such an event has not occurred over a fairly short period of time since that mine was opened. It will always remain a known possibility of a generic type.

83. While the issue of quantum has been deferred to a later stage of this hearing, both the medical evidence I have heard in the context of liability and the Plaintiff's own evidence satisfy me that the Plaintiff does have an extremely painful and hitherto intractable version of this nerve damage. He has a burning sensation at the mid line of his chin which, as the day progresses extends up his jaw on either side towards his ears. The condition is exacerbated by talking. He is frequently obliged to drink iced water and broken ice in an effort to get relief from his symptoms. He sometimes drinks too much gin in the evenings to deaden the pain. He has been around the world in a search for a cure, up to now without success.

84. None of the medical practitioners have to this point queried the genuineness of the Plaintiff's condition which, the Plaintiff says, has destroyed his life.

85. The Plaintiff himself in the witness box was agitated and emotional when describing his difficulties and understandably somewhat obsessed about his condition. This is not intended as any criticism of Mr Geoghegan, who struck me as a decent and honourable person, but a person who has lost objectivity because of his ongoing symptoms. His condition merits the description of being severe, though clearly it is well short of the category which may include conditions such as paralysis, loss of a limb or reproductive function. The requirements of Walsh -v- Family Planning Services Limited are therefore met in the instant case.

86. Even though the views of the medical experts were all to the effect that no warning was necessary of the remote risk of neuropathic pain, the decision in Walsh must nonetheless bind me. I accordingly hold there was an obligation to warn.

87. The legal principles to be applied in cases of alleged medical negligence have been settled by the decision of the Supreme Court in Dunne (Infant) -v- National Maternity Hospital [1989] IR 91. In Dunne's case they are detailed by Finlay C.J. at p. 109 of the report:-

88. In applying the third principle from Dunne to the duty of disclosure considered in Walsh, Finlay C.J. invoked the exception in the following manner (p. 511):-

89. With considerable diffidence, I venture to suggest that this statement really only highlights the unreality of relating or contrasting the duty of disclosure to or with complicated medical treatment which is a separate and quite different function.

90. Beyond indicating that a lower threshold may be sufficient for the Court to intervene, the criteria for doing so are not further elaborated. The ease or otherwise of the Court's task is hardly an appropriate marker for intervention.

91. Where the medical professional standard is adopted, subject to a caveat or saver, then, to me at least, it makes no great sense to oust from any meaningful role the views of the self-same medical practitioners as to the materiality of a risk or the need for a warning. Their views are received and relied upon in ordinary medical negligence cases. Who else can supply evidence of inherent defects? To substitute its own view, effectively in opposition to the experts on whose views, at least in the first instance, it purports to rely, the Court sets at nought the professional standard test and the result in the instant case is that the Defendant must be found to be in breach of duty when not a single expert from either side believes a warning to be necessary.

92. The Court has such power, for as Mr John Healy points out in his erudite "Medical Negligence: Common Law Perspectives" (1999) at p. 71:

93. However, the author continues:

94. This passage would suggest that very good reasons indeed should exist before the Court should act in this way. That these are the criteria for applying the saver is clear from the Supreme Court decision in Roche -v- Peilow (1986) ILRM 189 where the Court found that a professional practice (whereby solicitors failed to conduct pre-contract searches when advising purchasers with regard to the purchase of houses provided by a system of a building contract followed by a lease) contained such inherent defects that they ought to have been obvious to any person giving the matter due consideration.

95. At p. 197, Henchy, J. stated:-

96. At p. 204, McCarthy, J. stated

97. Elsewhere, Walsh, J. stated at p. 193

98. The application of the reasonable patient test seems more logical in respect of disclosure. This would establish the proposition that, as a general principle, the patient has the right to know and the practitioner a duty to advise of all material risks associated with a proposed form of treatment. The Court must ultimately decide what is material. 'Materiality' includes consideration of both (a) the severity of the consequences and (b) statistical frequency of the risk. That both are critical is obvious because a risk may have serious consequences and yet historically or predictably be so rare as not to be regarded as significant by many people. For example, a tourist might be deterred from visiting a country where there had been an earthquake causing loss of life, but if told the event happened fifty years ago without repetition since, he might well wonder why his travel agent caused him unnecessary worry by mentioning it at all.

99. The reasonable man, entitled as he must be to full information of material risks, does not have impossible expectations nor does he seek to impose impossible standards. He does not invoke only the wisdom of hindsight if things go wrong. He must be taken as needing medical practitioners to deliver on their medical expertise without excessive restraint or gross limitation on their ability to do so.

100. The decision in Walsh effectively confines the test of materiality to severity of consequences only. This approach is best encapsulated in the memorable passage of McCarthy, J. when he stated (at p. 521):-

101. However, the attractiveness of the observation should not occlude the possibility that at times a risk may become so remote, in relation at any rate to the less than most serious consequences, that a reasonable man may not regard it as material or significant. While such cases may be few in number, they do suggest that an absolute requirement of disclosure in every case is unduly onerous, and perhaps in the end counter productive if it needlessly deters patients from undergoing operations which are in their best interest to have.

102. As pointed out by Mr Healy (p. 99): "materiality is not a static concept". If the assessment of materiality is to "abide a rule of reason", any absolute requirement which ignores frequency seems much at variance with any such rule.

103. Each case it seems to me should be considered in the light of its own particular facts, evidence and circumstances to see if the reasonable patient in the Plaintiff’s position would have required a warning of the particular risk.

104. It is not sufficient to establish that a warning should have been given but was not given to entitle a plaintiff to recover damages. He must also establish that, had he been given a proper warning, he would have opted to forego the procedure.

105. Probably because of the finding that a warning, an adequate warning, had been given in Walsh -v- Family Planning Services , the Court did not consider in any detail the question of causation as an element in the duty of disclosure.

106. Finlay C.J. concluded his discussion on negligence in relation to the warning by stating at p. 512:-

107. Mr Justice McCarthy stated at p. 521:-

108. Egan J. stated at p. 537:-

109. The views of Egan J. on this point appear to be at variance with established legal principles on causation and the Plaintiff accepts in the instant case that causation is an issue which this Court must address. It is not perhaps as simple an issue as McCarthy J. suggested. It is a very easy thing for a disappointed patient to say, in the aftermath of a procedure, as Mr Geoghegan has done, that he would not have undergone the operation had he been warned of the particular risk which came to pass. There may be many instances where the only evidence available to a Court is that of the patient and/or a spouse, one or both of whom may be prejudiced by bitterness and the wisdom of hindsight. It is a most unsatisfactory backdrop to the task which the Court must face in these cases.

110. As stated by Mr. White at p. 193 of “ Medical Negligence Actions ”:-

111. These concerns prompted the United States Court of Appeals for the District of Columbia in Canterbury -v- Spence , (1972) 464 F 2D 772 and the Supreme Court of Canada in Reibl -v- Hughes , (1980) 114 DLR (3D) 1 to require that the issue of causal connection be determined upon an objective basis, i.e, for causal connection to be established the plaintiff must show that proper disclosure would have caused a reasonable person in the plaintiff’s position to decline the treatment in question because of revelation of the risks involved. This is by way of contrast to a subjective test where the Court endeavours to determine what the particular plaintiff in the particular case would have decided had a proper warning been given.

112. Robinson J. in delivering the opinion of the Court in Canterbury -v- Spence explained the preference for an objective test at p. 15:

113. In relation to the subjective test, he stated as follows at p. 15:-

114. However, the subjective approach has been adopted in Australia in Ellis -v- Wallsend District Hospital [1989] 17 NSWLR 553 and in two other Australian cases, Bustos -v- Hair Transplant Pty Limited & Anor (unreported judgment New South Wales Court of Appeal 15th April, 1997) and O'Brien -v- Wheeler (New South Wales unreported judgment 23rd May, 1997).

115. He later went on:-

116. Shortly afterwards he stated:-

117. In short, therefore, the subjective test caters for the idiosyncratic patient who does not conveniently fit into the box which contains “the reasonable patient” for reasons peculiar or particular to that individual patient.

118. In Britain, the subjective approach has also been preferred in Chatterton -v- Gerson , (1981) 1 QB 432 and Hills -v- Potter , (1984) 1 WLR(4). The problems of causation were well described by Mr Justice Hutchison in Smith -v- Barking HA [1995] 5 Med LR 285 as follows (p. 288):-

119. I would very much agree with these sentiments except to say that in relation to the last sentence in the quoted passage, the converse is surely preferable given the risks of prejudice and hindsight. It seems to this Court that both approaches are valuable in different ways and that both should be considered. In the first instance it seems to me that the Court should consider the problem from an objective point of view. What would a reasonable person, properly informed, have done in the Plaintiff's position? This is the yardstick against which the particular plaintiff’s assertion must be tested.

120. Purely subjective factors would include not only the matters referred by Hutchison J. in Smith -v- Barking , (which may overlap to some degree) but also the dialogue between the particular patient and the medical practitioner, information to be gleaned from contemporaneous notes or correspondence, admissions to third parties (particularly contemporaneous admissions), and, perhaps most importantly, evidence of the actual conduct of the patient prior to surgery, given that actions generally speak louder than words.

121. There may be many instances where there is a shortfall of subjective material or information in which case the Court will have to decide a causation issue on its own best estimate from the evidence of what a reasonable person would have done in the particular circumstances. That is another good reason for starting with the objective test.

122. However, it seems to me that any objective test must sometimes yield to a subjective test when, but only when, credible evidence, and not necessarily that of the Plaintiff, in the particular case so demands. While obviously the Court must accord due deference to the testimony both of the patient and the medical practitioner, the cases already cited highlight the difficulties each may have in providing an account on which the Court can safely or absolutely rely. Wherever possible, the Court should look elsewhere for credible confirmation. If a reliable picture in fact then emerges, the Court can act on it to reach a conclusion one way or the other. If this dual and combined approach smacks of pragmatism so be it. It is in my view well justified if it achieves a better result in terms of deciding what probably would have occurred. At the end of the day it seems to me that the different approaches are more about methodology than any legal principle. It is an exercise in “fact construction”. In any such hypothetical though necessary exercise, there are dangers in dogmatically adopting one approach to the exclusion of the other, and certain aides to analysis would be forsaken by doing so.

123. In determining what a reasonable person would do, it seems to me that the views of medical practitioners as to the statistical likelihood of the risk occurring, are extremely important. A point must come where on medical evidence a risk is so remote that a reasonable person would be unlikely to be deterred by it. This is the evidence of ordinary everyday life where people make journeys by air, sea and road, conscious of a small but nonetheless acceptable level of risk. Indeed, I would guess that any one of the forms of travel mentioned might contain statistically more proximate or serious risk than that identified in the instant case.

124. Insofar as elective surgery is concerned, I agree with the following passage contained in Mr. John White’s “Medical Negligence Actions ” at p. 190:-

125. This is surely where “elective” significance lies, ie, in causation, rather than the duty to inform. Further, it is obvious common sense to hold that a person may forego surgery when he has a real choice in the matter.

126. However, even in making a decision as to whether or not to undergo elective surgery, the reasonable man, in my view, would be greatly influenced by the statistical likelihood of the particular adverse consequence ever taking place. If the risk is virtually off the spectrum, then I believe a reasonable man might accept or disregard such a risk where it is not in the more serious category and when he has regard to the perceived benefits attaching to the proposed procedure.

127. In the context of any warning he was obliged to give about neuropathic pain, Dr Harris would have told such a patient that the risk in question was extremely remote, perhaps one in multiples of thousands, and, while some damage to nerves might be involved in the procedure, chronic neuropathic pain had never yet been known to occur either from the implants or at the bone graft site as a complication of this particular procedure.

128. A reasonable patient would then place in the balance in making any decision the benefits associated with the procedure. In Mr Geoghegan’s case, the surgery was undoubtedly elective, but it had both a cosmetic and functional component. From the cosmetic point of view, the proposed implants would have improved the appearance of his teeth and preserved his jaw profile. The evidence suggests that lack of teeth is associated with resorbtion of bone, or loss of bone through thinning which, over the years, produces the sunken-cheek appearance associated with elderly people in the past. From a functional point of view, Mr Geoghegan could look forward to dentition which was more secure in his mouth than a denture, improved capacity to chew and masticate food and the provision of additional support for his existing teeth. These are very real and tangible benefits, lest it be supposed that elective surgery is an option to be declined at the slightest suggestion of a remote risk or danger. I am satisfied in the instant case that all of these benefits were conveyed to Mr Geoghegan by Dr Harris both through the video and brochure and in the course of their two consultations.

129. Commencing with the objective test, it seems to me that had a proper warning been given by the Defendant to a reasonable patient in Mr Geoghegan's position, such a reasonable patient was more likely, for the reasons stated, to have proceeded with this operation. However, as a credible and reliable picture emerges overall on analysing the evidence particular to this case, the issue can and must be resolved by reference to the subjective test of what Mr. Geoghegan himself, again as a matter of probability, would have done.

130. Mr Geoghegan struck me as a man haunted by pain and somewhat overwhelmed by his condition. As previously mentioned, he has been around the globe in search of both a cure and for the purpose of marshalling expert witnesses for his case. He has been to California where, in the context of a psychological evaluation, he informed doctors that he harboured feelings of hatred towards the Defendant because of what had happened. In Mr Geoghegan's view, Dr Harris should have done the honourable thing and admitted to having gone too close to the apices of his teeth when taking the bone graft. Dr Harris, it must be said, adamantly denies that he did so.

131. Further, Mr Geoghegan admits that, in the immediate post-operative period, he wanted to stop Dr. Harris from carrying out this kind of operation ever again. He also indicated to Dr O'Grady that he would make Dr Harris pay for what he had done. He declined to pay his bill for the Blackrock Clinic. He commenced to follow medical negligence cases in the newspapers and indeed, on one occasion wrote to a particular Plaintiff who was suing a dentist to offer his assistance. These are very good reasons for the Court to be sceptical of the Plaintiff’s assertions made now as to what he would have done then.

132. I imagine the Mr Geoghegan who attended Dr Harris prior to his operation in 1992 was a very different person from the witness in Court, free as he was at the time of the pain shortly to dominate his personal life as a result of this procedure. There is nothing in the material before this Court to indicate that in 1992 he was hypersensitive, or unusually cautious or the kind of man who would back away at the mention of a remote risk.

133. Mr. Geoghegan’s conduct and behaviour in 1992 speak more eloquently than any oral testimony. He was keen to undergo a cosmetic procedure because he had neglected his teeth over a period of years. He was well aware of all the benefits to be gained. He was given a video and brochure by Dr Harris after their first meeting, but did not look at either until the evening prior to the operation and only then at Dr. Harris’ insistence. He did not adhere to the protocol which Dr Harris followed by way of preparation for the surgery. Dr Harris had to chase him down to come in to his surgery for a second consultation and threaten to cancel the operation if he failed to do so. Mr Geoghegan had refused one request to come in on the 21st June, 1992, because he felt he had been over things with Dr Harris and was "well aware of what was going on." On the occasion of the second meeting, Dr Harris gave to Mr Geoghegan a letter intended to be read before the operation which addressed certain possible complications, including complications of nerve damage. Hard as it is to credit, the Plaintiff never read the letter. Nothing could be more revealing as to his mindset. I conclude he was simply so busy throughout the pre-op period and had his mind so well made up to proceed that he was not concerned in any real way with detail.

134. Mr Cooney characterised Mr Geoghegan's approach to the surgery as "casual" and "cavalier". I think that is greatly overstating the position, but I am satisfied that Mr Geoghegan's conduct clearly suggests that he was not going to be put off having his operation because of some very remote risk when balanced against what he saw or perceived as the benefits the procedure would bring.

135. I therefore find against the Plaintiff on the issue of causation.

136. The Plaintiff has stated that he was assured by Dr Harris that there would be "no pain, no pain whatsoever" associated with this procedure.

137. This is vehemently denied by Dr Harris, who has explained that some pain is inescapable following on a procedure of this nature. He says he never told Mr Geoghegan that there would be “no pain whatsoever”, nor was it ever part of his practise to make any such assertion to a patient. I find Dr Harris's evidence on this specific point to be more credible, not least because the Plaintiff gave a somewhat different account to his own expert, Dr Vaughan, telling him that Dr. Harris had stated it “would not be accompanied by much pain”. Further, the phrase "no pain whatsoever" is uttered by a patient on the video to describe her experience of the procedure and I cannot avoid thinking that the Plaintiff unconsciously picked up the phrase from this source.

138. However, that said, I do not think that my conclusion carries with it any connotations of the sort suggested by Mr Cooney in his closing submission to the effect that the Plaintiff can hardly pursue a claim based in negligence for failure to disclose if in fact his case in reality is one of misrepresentation.
I should say that any such representation, even if it was made, would have to be seen and understood as limited to the context of the procedure itself. It had nothing to do with the long term extremely unusual condition which the Plaintiff suffered as a result of damage to his incisive nerve.

139. In short, I do not think the resolution of this specific allegation of fact against Mr Geoghegan can in any way affect the obligation of the Court to consider the question of the requirement for an adequate warning and to consider further whether, if such a warning had been given, Mr Geoghegan would nonetheless have undergone his operation

140. Mr. Trainor on behalf of the Plaintiff submits that, quite apart from a medical practitioner's obligation to offer information concerning proposed treatment, a patient is entitled to full and comprehensive information when he specifically asks for advice. He referred to the following passage in " Medical Negligence Actions " by Mr. White at par. 9.3.01 where he says as follows:-

141. These views receive support in Jackson & Powell " Professional Negligence " (3rd Edition) (1992) at par. 6.128 as follows:-

142. Mr. Trainor submits that Mr. Geoghegan expressed a particular concern about pain connected with the bone graft procedure, and thus, by implication, about any sequelae also.

143. However, on further analysis the assertion appears to be based on evidence given at the trial to the effect that Mr. Geoghegan in the course of one of the two preoperative visits made a query about the possibility of pain arising from the procedure along the lines of "... Dr. Harris that sounds very painful" at a time when Dr. Harris was explaining that the procedure would involve a bone graft from the chin. However, as Dr. Harris has told this Court that it never occurred to him that there could be long term neuropathic pain as a result of any part of the procedure, that evidence alone really precludes the possibility of any specific question in response to which any meaningful reply by Dr. Harris could have been given in respect of chronic neuropathic pain associated with the particular procedure.

144. I do not believe Mr. Geoghegan directed any question to Dr. Harris about the possibility of continuing or long term pain. I am further satisfied that any mention of pain was in the context of the procedure itself and its immediate aftermath.

145. Mr. Geoghegan admits that he did expect there would be some discomfort, "a bit of pain, a bit of a sting in his face for maybe a few days, for which he would take some pain killers and then the thing would be gone". He would have had no problem with that type of sequelae, but "the idea of aggressive pain or anything like that just turned him off".

146. As far as Dr. Harris is concerned, his recollection is to the effect that he would have told the Plaintiff that there could be some pain and discomfort from the procedure, particularly in the first 48 hours, but that in his experience that could be well controlled with analgesics and that after a period of two weeks it should all have settled.

147. It is further submitted on behalf of Mr. Geoghegan that the Plaintiff was particularly conscious of any unusual complications that the procedure might entail for him. This arose because his brother had some time before hand died as a result of a complication which occurred subsequent to a bypass operation at the Blackrock Clinic. His brother had been advised of a 2% risk with the procedure. Had it been a 3% risk, he felt his brother would not have undergone the procedure. Again, I can see no correlation between this concern and any possibility of chronic neuropathic pain.

148. Finally, it is suggested that particular significance should be attached to the evidence given by Mrs. Geoghegan. She testified that she put it to Dr. Harris during the course of a telephone call after the operation that he had told her husband that this was a painless procedure, whereas he was in dreadful pain. She says that Dr. Harris replied "It is most unusual, I have never known it to happen before", or words to similar effect. She was not subject to cross-examination on this conversation, but I do not see this exchange establishing anything more than Dr. Harris's surprise at the turn of events in the aftermath of the operation.

149. Specifically, I do not see it as supporting the allegation of a misrepresentation by Dr. Harris, nor do I see it having any particular significance in the context of the supposed "inquisitive patient".

150. Having regard to the heavy obligations imposed on medical practitioners by Walsh -v- Family Planning Services , it seems to me that any real consideration of the "inquisitive patient" is subsumed by the onerous obligations of disclosure set down by the Supreme Court. Current Irish law requires that the patient be informed of any material risk, whether he inquires or not, regardless of its infrequency.

151. From a perusal of the authorities, it appears to this Court that the "inquisitive patient" doctrine, if such it can be called, arose in England because of the limited duties of disclosure imposed on medical practitioners by Bolam -v- Friern Hospital Management Committee , (1957) 2 All E.R. 872.

152. As Lord Scarman stated in Sidaway (at p. 881) the Bolam principle may be described in the following terms:-

153. In conclusion, I am not satisfied the Plaintiff has made out any collateral or alternative case that he asked a question which could reasonably be construed as relating to ongoing pain, or any question which required disclosure to him of the risk of chronic neuropathic pain.

154. Photograph and illustrations

155. The summary which follows was distributed with this judgment].

156. This part of the judgment deals exclusively with the issue of the medical practitioner's duty of disclosure of risks attending operative procedures.

157. The Court has received submissions of fact from the parties in relation to the separate issue of fact relating to the location of a bone graft which was taken from the Plaintiff's chin in the course of the procedure as a result of which the Plaintiff suffered damage to the incisive nerve or nerves at the front of his chin which has left him with a condition of severe pain at the mid line of his chin known as chronic neuropathic pain. A judgment on that issue will be given at a later date and no order of any sort will be drawn up prior to that time.

158. It is the view of this Court that current Irish law imposes the following obligations on a medical practitioner in relation to disclosure of risks as follows-

159. That being so, the questions which the Court has to address in the instant case are as follows:-

160. In short, I have found the answers to these questions to be as follows:-

161. Different legal principles were applied in the different judgments of the Supreme Court in Walsh -v- Family Planning Services to arrive at its conclusions.

162. This Court is of the view that the 'reasonable patient' test, which requires full disclosure of all material risks incident to proposed treatment, is the preferable test to adopt, so that the patient, thus informed, rather than the doctor, makes the real choice as to whether treatment is to be carried out. It is the view of this Court that assessment of the duty of disclosure on this basis is more logical than the professional standard test, whereby the Court adopts the standard of the medical profession, yet reserves the right to override the views of the medical experts as and when it sees fit.

163. Different jurisdictions adopt different approaches to causation. In some jurisdictions, the test is to inquire whether the reasonable patient, in the Plaintiff's position, would have elected to undergo or decline the procedure (the objective test). In other jurisdictions, the matter is determined by reference to the Courts best estimate of what the particular Plaintiff in the instant case would have done (the subjective test).

164. It is the opinion of this Court that this problem of retrospective "fact construction" demands a pragmatic approach, whereby the Court first considers what a reasonable person in the Plaintiff's position would have done. That will usually determine the issue. However, that approach must at times yield to a subjective approach where clear and convincing evidence exists from which the Court can safely and reliably infer what the particular patient would have decided. The strength and credibility of the evidence determine whether or not a subjective test can apply in a particular case.

165. In the instant case, such evidence is available and, in the opinion of this Court, it points in a coercive way to the conclusion first stated above, namely, that Mr Geoghegan, even if properly warned, was more likely to have proceeded with his operation. On this issue, therefore, the Plaintiff fails on the requirement of causation. I would add that if an objective test applied, I would have reached the same conclusion.

166. While such an observation was made by a patient on a video which was given to Mr Geoghegan prior to his operation, I do not believe it could be construed as a representation or as relevant to the Plaintiff's condition because the expression is clearly limited to the immediate procedure itself. The risk which eventuated in this case was of a totally different character in the sense it is a long term enduring consequence. Equally, I do not believe the Plaintiff is precluded from pursuing his claim in negligence for breach of the duty of disclosure despite the finding that Dr Harris did not make the particular statement or representation.

167. While obviously a doctor must answer as fully as he can and to the best of his knowledge and ability any questions a patient may ask, the issue essentially is subsumed in the wider obligation imposed on medical practitioners by the Supreme Court decision. In any event, I do not believe Mr Geoghegan asked any specific questions which would demand a warning about the possibility of chronic neuropathic pain.