Injury Compensation News

The Health Service Executive (HSE) has announced that 3,516 patients in Ireland made need corrective surgery for faulty hip replacement device made by DePuy Orthopaedics, unit of Johnson & Johnson.  There are nearly 100,000 people worldwide fitted with the device.

However, data from the UK reveals that about one in eight people using the device may have problems, which implies that perhaps about 400 patient may require corrective surgery in Ireland (replacement of the faulty device).

The  specific products affected by the problem are ASR XL Acetabular System and the DePuy ASR Hip Resurfacing System, both of which are no longer manufactured.

DePuy Orthopaedics has already said it would cover the cost of corrective surgery in any patients affected in Ireland.  However, DePuy Orthopaedics has attached conditions to the offer- providing full medical records and returning the removed faulty hip device (presumably for analysis). There is still no indication of what type of compensation scheme DePuy Orthopaedics will be offering.

Meanwhile, the HSE is also negotiating the issue of medical costs with DePuy Orthopaedics.

Any victim that needs to undergo corrective surgery would be very unwise to sign any sort of legally binding agreement with DuPuy Orthopaedics without legal advice.  Especially an agreement that puts the key medical evidence under the control of DuPuy Orthopaedics prior to any litigation.

It should be pointed out that the HSE is clearly not responsible for the faulty products, which it used in good faith.  It is highly unlikely that any court would find any surgeons or HSE-owned hospital guilty of medical negligence.

A Medical Council fitness-to-practice committee ruling has attracted significant media comment over the past few days in the case involving the removal of the wrong kidney from a young child. After hearing most of the evidence in the case, the committee had decided to invoke Section 67 of the Medical Practitioners Act 2007 that allows doctors to undertake not to repeat their errors while avoiding being found guilty of professional misconduct. The incident occurred at Our Lady’s Hospital for Sick Children in Crumlin, Dublin, in March 2008 when junior doctor Sri Paran, under the supervision of Professor Martin Corbally, removed a perfectly healthy kidney while leaving in place a barely functioning kidney.

The young boys’ parents, Jennifer Stewart and Oliver Conroy, repeatedly asked hospital staff to confirm which kidney was scheduled to be removed before the operation.  Despite this, it was revealed that nobody had reviewed the X-rays that were available in the operating theatre before the operation. The boy, now 8 years old, is left with a right kidney with 9 per cent functionality, leaving him requiring regular dialysis until he obtains a kidney transplant.

Professor Corbally immediately met with the parents of the boy and apologised.

This type of medical error happens all the time as is known as a “wrong-site operation”.  The problem is mainly due to poor procedures in operating theatre, where surgeons seem to resist the ‘checklist’ approach to operations that are common in other professions.  A good example is the pre-flight checklist used by all pilots all over the world, where they check even the most obvious things like fuel levels and radio signals.

Since there were no proper checklists in place for a kidney removal operation, there was no medical malpractice resulting from not following the non-existent checklist.  It was a simple case of human error.

There has been much commentary in the media about the new Health Services Executive (HSE) chief executive Cathal Magee facing a difficult first year implementing significant budget cuts. However, he also has a significant challenge changing the internal staff culture of the HSE, which was most recently criticised by the Ombudsman for its “rotten culture of secrecy” when dealing with medical malpractice.

Cathal Magree should start by reading the paper in August 17th issue of the Annals of Internal Medicine about a program launched by the University of Michigan Health System that encouraged health workers to report medical mistakes. The program included a procedure for telling victims about errors, who exactly made the error, what steps were made to prevent similar mistakes in the future, and mostly importantly, making a sincere apology to the patient or family. The procedure also included a process for offering fair compensation.

Reporting and explaining errors honestly to patients obviously leads to faster resolution of disputes, but also reduced the number of lawsuits by 36%.

Prison Officers were awarded over €2.5m in 2009 for injuries sustained in the line of duty.

The awards were made to 112 prison officers, whose injuries at work included stabbings, broken jaws, and needle attacks.

The highest award was over €500,000 and €329,473, while there were multiple awards of over €50,000.

Prison Officers’ Association (POA) has highlighted that the profile of prisoners has changed in recent years to include more gang members and a new generation of more violent inmates. There were over 150 assaults on prison offers in 2009.

Prison officers get a lot of negative press for their relatively high earnings and a massive overtime bill.  The injuries sustained by so many prison offers put their salaries into perspective.

Denise Blatt has won her discrimination case against the Comfort Inn Parnell Square hotel owned by  Palmece Ltd where she was a general manager prior to being selected for redundancy. It was alleged in court that the Ms Blatt was treated less favourably during two pregnanacies over a period of a year and eight months and then was selected for redundancy because she was pregnant. It was claimed Blatt was awarded pay rises and bonuses prior to informing her company that she was pregnant, after which she received a formal letter pointing out flaws in her work. Ms Blatt developed high blood pressure during her pregnancy and blamed her work environment.

Palmece Ltd was not represented in court and the evidence was not contested.

Ms Blatt was awarded €50,000 in compensation for discrimination and €50,000 in compensation for victimisation.

New statistics from the Injuries Board Ireland show women accounted for 72 per cent of the 1,443 personal liability awards in 2009 that were settled for the amount recommended by the Injuries Board Ireland.

However, when presenting the compensation award statistics, there is no explanation whatsoever regarding the cases that were not settled through the Injuries Board Ireland process but went to the High Court, where the awards can be significantly higher or were settled by negotiation with an insurance company.

The true statistics do not in fact exist, since the vast majority of injury compensation claims that go to court are settled privately.   Presenting a subset of the overall statistics without qualifying explanations is somewhat misleading.

The data only covers awards that were proposed by the Injuries Board Ireland and then accepted by both parties – and therefore does not include certain categories of injury compensation (cases where the defendant does not admit full liability, medical negligence claims, complicated cases – perhaps involving contributory negligence, defamation cases, phycological injuries like PTSD,  etc).

What the published statistics do not reveal the reasons why women represent such as high percentage of the settlements made by the Injuries Board Ireland.

Are women more likely to accept the Injuries Board Ireland recommendation whereas men are more likely to want a higher compensation amount? It seems highly likely that this is in fact the case.

It should be remembered that the statistics only represent a small subset of the injury compensation claims in Ireland because they are only award recommendations by the Injuries Board Ireland that have been accepted by both parties.

The category of personal injury known as “slips, trips, and falls” accounted for two thirds of all public liability awards. But perhaps this seemingly very high percentage is because they are precisely the type of small, straightforward personal injury claim that the Injuries Board Ireland is able to handle efficiently. The comparatively fast processing times for these types of simple claim is one of key benefits of the Injuries Board Ireland.

Just over half of the incidents occurred in privately owned buildings such as pubs or cinemas and just under a quarter of the awards were made against public authorities. However, the statistics might perhaps simply mean that public authorities are just more likely to accept the recommendations of the Injuries Board Ireland, whereas private building owners are more likely to defend compensation claims. The only way of determining the true percentage of claims against public authorities is additional statistical information.

The Injuries Board Ireland statistics show that 57 per cent of compensation claims were for amounts of less than €20,000.  However, this is certainly a self-serving statistic aimed at reducing the injury award expectations of the general public. In fact, the Injuries Board Ireland seems keen to promote its role in reducing the costs of injury compensation claims, stating that it is “delivering €100m in savings each year”.  If the figure is great, it is great news for insurance companies and also beneficial to the general public, but comes at the cost of victims receiving lower amounts of compensation.

Mr Justice John Quirke has ruled against a woman claiming €410,000 damages for loss of earnings arising from a whiplash injury claim, finding that it was “highly probably” that she gave misleading evidence regarding her injuries and capacity to work.  Mary Farrell of Finglas South, County Dublin was involved in a car accident with a bus belonging to Dublin Bus on June 14th 2004 at the junction of North Circular Road and Dorset Street.

Dublin Bus provided the court with videos of Ms. Farrell mowing the grass and emptying the grass box over a wall, repeatedly raising her arm in the process despite her injury the nature of her whiplash claims.

Dublin Bus also presented evidence of a comfortable lifestyle, including expensive cars and foreign holidays, that was inconsistent with claims of loss of earnings and future loss of earnings.

Dublin Bus asked Mr Justice Quirke to dismiss the claim under the provision of the Civil Liability and Courts Act 2004 that allows for the dismissal of claims where a judge considers a claimant gave material misleading evidence to increase their compensation claim or in support of a false claim.

Mr. Justice Quirke cited multiple reasons for dismissing the case.

The simply lesson from this case is that while you can work with your solicitor to ensure that you present your case for compensation in the strongest possible manner, you should never exaggerate or even make misleading statements.

Suzanne Kelly of Clonsilla, County Dublin has settled her €38,000 personal injury claim with So Belle beauty salon in the Ashleigh Centre, Castleknock, County Dublin over severe rash burns to her armpits and groin following an unsuccessful waxing.

Ms. Kelly claimed that she suffered a painful rash and swelling in the affected areas.

The beauty salon entered a full defence in the Circuit Civil Court but made an undisclosed settlement.

The President of the High Court, Mr Justice Nicholas Kearns, has approved one of Ireland’s first ever structured personal injury compensation payment  Iarnród Éireann  for a security guard severely injured by collapsing steel gate. The victim suffered frontal lobe damage that changed his personality, reduced his mental capacity, and made him less aware of his surroundings.

As well as €250,000 in general damages and special damages, Iarnród Éireann has agreed to make regular index-linked payments to the injured man, including €160,000 in annual care costs in a unit operated by Acquired Brain Injury Ireland, and €1,200 montly until retirement age for loss of earnings.

The settlement agreement is an interim agreement pending expected legislation on structured compensation payments, with the case adjourned until October 2011. This new type of settlement is aimed at solving the problems associated with serious injury victims where life-expectancy and future care costs were unclear.

Mr Justice Nicholas Kearns described the settlement as “imaginative, forward-looking and eminently sensible”.

It should be noted that this type of structured personal injury compensation payment will be relatively rare – only applying in cases where future long term care costs for serious injuries are unknown.  The vast majority of personal injury claims will continued to be settled in the conventional manner involving negotiations between a solicitor and an insurance company.

A High Court settlement of €40,000 was approved by Mr Justice Michael Peart as compensation for  the distressed family of Ms Louise Butler, aged 21, of Cappa Lodge, Sixmilebridge, County Clare.  Louse Bulter died at Limerick Regional Hospital on November 16, 2006.

The settlement and apology followed a hospital negligence claim, which the HSE had initially denied. The claim was brought against the Health Service Executive (HSE) by Ms Butler’s brother James Butler, on behalf of his family, who insisted that Ms Butler would have lived if she had received proper medical care at Limerick Regional Hospital,

Between October 6-12, 2006, Ms Butler sought help at the hospital for an unbearable headache. Her family and doctor strongly urged the hospital to provide her with a CT cat scan prior to her leaving the hospital. Ms Butler was discharged on October 12 without having received a CT cat scan.  The hospital eventually did provide a CT cat scan for Ms Butler on October 13 that  showed massive bleeding in her brain. The family claimed that this came too later because Ms Butler collapsed and died before receiving the results.

Medical experts testified that if the scan would have shown the need for immediate treatment if it had been provided earlier.

The HSE apologised to the Butler family and admitted medical failures and deficiencies had contributed to Louise Butler’s tragic death.