Injury Compensation News

A woman who was hit by a van while crossing a busy Dublin street has been awarded almost 178,000 Euros in personal injury compensation in the High Court.

Amy McKernan (36) from North Ewington, Oxfordshire, was crossing the road at the junction of Wicklow Street and Clarendon Street on May 7th 2002, when she was struck by a van driven by Yuk Fong from Dublin. The force of the collision knocked her onto the bonnet of the vehicle, before she landed on the road surface – sustaining facial and back injuries.

In her claim against Mr Fong and the owner of the van – Mr Yau Tsali Li – Amy claimed that the van was driven at excessive speed, as she had seen the van pulling away from the Chinese restaurant outside which it had been parked and felt she still had plenty of time to cross the road.

Yuk Fong and Yau Tsali Li denied the claims, and counter-claimed that Amy had contributed to her own injuries by failing to keep a proper lookout. However, as Amy was about to step onto the pavement when the accident happened, Mr. Justice John Quirke at the High Court determined that Amy had established negligence in the driving of the van, whereas the defendants had failed to show that Amy had in any way been responsible for the accident and her injuries.

A 23 year old woman, who sustained cerebral palsy due to the alleged mis-management of her birth, has agreed to an out-of-court settlement amounting to 2.5 million Euros.

Laura Tinney of Buncrana, County Donegal, was born on May 31st 1988 at the Letterkenny County Hospital after her mother – Eleanor – had been admitted the week previously, when cardiotocography recordings had shown a deceleration in the foetal heartbeat.

Cardiotocography recordings were discontinued on May 29th and when Laura was born it was discovered that she had suffered from oxygen deprivation, causing permanent brain damage. Laura is now confined to a wheelchair, has little use of her left hand and requires significant care.

In an action brought against the Health Service Executive (HSE) by Laura´s mother, it was alleged that had the cardiotocography recordings been maintained, it would have revealed further abnormalities in the heartbeat which would have prompted immediate delivery.

The HSE denied the claims, but at the High Court in Dublin Mr. Justice John Quirke was advised that the HSE had made an offer of settlement without admission of liability which the family was willing to accept.

Approving the 2.5 million Euros compensation settlement, the judge commented that had the case been allowed to proceed, there was a real chance that Laura would have received no damages – a scenario which the judge said would be “a dreadful outcome”.

Mr Justice John Quirke has spoken out against delays in introducing “periodic payment orders” for personal injury compensation cases in which catastrophic injuries have been sustained. Describing the current lump-sum award system as “a lottery situation”, the chairman of the Working Group on Medical Negligence has been pressing for more than a year for a periodic payment system to be introduced.

The judge was addressing lawyers representing the State and Health Service Executive when his concerns about delays in the promised legislation were made public. Mr Justice John Quirke told the assembly that the informal approval of a life-long payments system had already saved the State “tens of millions” of Euros, however he claimed that seriously ill people would be in an unsatisfactory position if the laws were not speedily introduced.

The judge brought to the lawyers attention two specific cases which are due for review in October 2011.

The first concerned Brid Courtney of Ardfert, County Kerry, who was awarded an interim personal injury settlement of 2 million Euros in compensation for alleged negligence at her birth. Now suffering the consequences of birth-acquired brain damage, Brid will need lifelong care – care which should be paid for in periodic payments if legislation is passed in time.

The second case revolved around Elaine Lennon of Balbriggin, County Dublin, who is now severely disabled due to the failure of the Castle Mill Medical Centre to properly diagnose a brain infection during her pregnancy. Elaine too was awarded in excess of 2 million Euros as an interim settlement on the basis that she would benefit from the periodic payments structure once legislation was introduced.

In his comments to the lawyers, Mr Justice John Quirke expressed that if the State failed to quickly make its intentions clear about how soon periodic payment legislation was to be introduced, judges would have no option but to revert to sanctioning lump sum payments – at great expense to the State and Health Service Executive.

The Health Service Executive (HSE) and the Independent Hospital Association of Ireland have revised their DePuy Patient Consent Forms following complaints from patients and their legal advisers. The demand from DePuy´s parent company – Johnson and Johnson – that they receive patient´s medical notes with the return of a faulty DePuy ASR Hip Replacement System has been dropped, however it is still advised that patients should not sign the DePuy Patient Consent Forms without professional legal advice.

On August 26, 2010, DePuy Orthopedics, Inc., a subsidiary of Johnson and Johnson, issued a worldwide recall for two of its metal-on-metal hip implant devices – the DePuy ASR XL Acetabular System and the DePuy ASR Hip Resurfacing System. These hip replacement systems were withdrawn due to a “higher than expected” failure rate, which meant that people who had them implanted were much more likely to experience pain or swelling in the hip, hip fractures, hip dislocations and metal poisoning from the microscopic metal debris created by the friction between the device´s joints.

Johnson and Johnson originally consented to cover the costs of monitoring patients´ health, and revision surgery where required, on the proviso that those patients signed DePuy Patient Consent Forms which permitted the return of the ASR hip replacement device to Johnson and Johnson – together with tissue and fluid samples plus a copy of the patient´s medical records. Although the company have now dropped the condition that medical records are disclosed, it is still recommended that patients DO NOT SIGN THE DePUY PATIENT CONSENT FORMS without first taking legal advice.

The signing of the DePuy Patient Consent Form potentially damages any future claim a patient may have for personal injury compensation as it still requires that the excised implant is returned to Johnson and Johnson, thus removing the opportunity for the implant to be examined by an independent expert. Furthermore, the latest DePuy Patient Consent Forms being circulated by the HSE and the Independent Hospital Association of Ireland have been drafted in such a way to protect the two parties involved against personal injury claims, with no consideration for the patient.

Both these organisations are still potentially negligent in sanctioning the use of DePuy ASR Hip Replacement Systems long after studies had shown that there was a problem with them. Fine Gael spokeswoman on older citizens, Catherine Byrne, asked the HSE at the time of the recall to clarify why the joint replacement part was not recalled sooner in light of reports coming out of America and Australia indicating that there was a problem with the devices – she is yet to receive an answer.

The HSE has also failed to introduce a comprehensive screening program for neurological injury due to metallosis and cobaltism and claim on their website that only 10-15 per cent of people implanted with the faulty DePuy ASR Hip Replacement Systems may need revision surgery, whereas research published by the British Orthopaedic Association indicates that as many as 49% of the DePuy ASR Hip Replacement Systems implanted in Ireland since 2003 could fail within the next six years.

The British Orthopaedic Association research also confirmed that revision surgery for the faulty DePuy Hip Replacement Systems can be more complicated than the initial implant surgery – with a higher risk of infection, longer rehabilitation period and the potential requirement for hip reconstruction surgery to repair the damage caused by the DePuy systems. Under the Liability for Defective Products Act 1991, victims of this defective product could potentially sue Johnson and Johnson for health issues they may experience for the rest of their lives. The DePuy Patients Consent Form harms a patient´s right to claim damages against the company, and this is why it is recommended that patients DO NOT SIGN THE DePUY PATIENT CONSENT FORMS without first taking legal advice.

The Health Service Executive (HSE) has apologised to a family for the death of their young son from meningitis at Our Lady of Lourdes Hospital, Drogheda, County Louth, and resolved a claim for wrongful death compensation in an undisclosed out of court settlement.

The family of four month old Dean Patrick Kenny from Drogheda, County Louth, brought an action for wrongful death against the hospital and HSE, claiming that the hospital staff had failed to diagnose their son’s condition and discharged him when it was unsafe to do so.

The family alleged in their claim that Dean had been referred to the hospital with suspected meningitis by the family GP early in the morning of July 1st 2002. Dean was examined and discharged, and the family went home where Dean’s condition continued to deteriorate.

After a later visit to their GP – where meningitis was confirmed – they returned to the hospital, but it was too late to save little Dean, who died that night.

In their defence, the hospital and HSE denied negligence, and pleaded it had complied with general approved medical practices. They claimed that Dean did not show clinical features of bacterial meningitis and was feeding well.

However, shortly before High Court proceedings were about to commence, Mr Justice John Quirke was informed that the HSE had made an undisclosed offer of settlement, which was accepted by the family, and the case was to be struck out.

A man, whose wife died from breast cancer after being misdiagnosed as all clear, has had a 110,000 Euro settlement approved in the High Court.

Ann Moriaty was just 51 years of age when initially diagnosed with breast cancer in April 2005. She underwent a mastectomy operation the following month, followed by chemotherapy and radiotherapy at St. James´s Hospital in Dublin. Thereafter she attended six-monthly reviews at St. James´s, where she was considered to be doing well and in remission from the cancer.

In June 2007, Ann started to suffer from weight loss and nausea. She attended, and was admitted to, the Mid-Western Regional Hospital in Ennis, County Clare, on June 11th, where a diagnosis of a urinary tract infection was made and Ann was discharged on June 15 with a course of antibiotics. A chest X-ray was taken at the time which was reviewed and considered to be normal.

Ann once again attended the Mid-Western Regional Hospital on August 11th suffering from the same symptoms and unable to eat or drink. An out-patient appointment was arranged for August 13, where she was prescribed an anti-emetic and discharged. However, an X-ray taken on August 9th at the hospital had shown, it was claimed, a local bulge opacity and vague shadowing in the mid-left zone.

Although the family were relieved that there had been no re-occurrence of the cancer, Ann´s GP was still concerned about her health. On August 14th, she was referred to the Galway emergency clinic where she was immediately admitted and a series of tests carried out. On August 16th, Ann and her family were advised that the cancer had recurred and that it was at an advanced stage.

The distressed family sought verification of the later diagnosis at St. James´s Hospital, where it was confirmed that Ann indeed had extensive breast cancer with liver, brain and lung involvement. The hospital advised the family that the extent of cancer meant Ann´s illness was terminal and, despite undergoing further radiotherapy, Ann died in April 2008.

Alleging that had his wife´s condition been diagnosed sooner, she would have survived longer with fewer symptoms, Ann´s husband – Karl Henry of Ennis, County Clare – and son Ciarán sued the Health Service Executive (HSE) for damages for personal injuries, mental distress, loss, damage and loss of dependency. Karl claimed that Ann´s death had a devastating effect on both him and their son and that the consequent HSE public investigation had also caused significant distress.

The HSE denied the claims, but Mr Justice John Quirke at the High Court heard that they were willing to make an offer of 110,000 Euros in compensation without admission of liability. Counsel for the bereaved family said that they were willing to accept the offer and, stating that this was a “very sad case”, it was approved by the judge.

A woman who suffered a spinal injury after a bus in which she was a passenger drove over a speed ramp too quickly, has been awarded 121,493 Euros in personal injury damages.

Ciara Whelan (23) from Drumcondra, Dublin, was aboard a Dublin Bus being driven through the grounds of the Connolly Memorial Hospital in Blanchardstown in April 2006, when it hit a speed ramp too quickly and caused Ciara to hit her head severely on the roof of the bus.

After collapsing into a nearby seat, Ciara was unable to catch her breath or speak. Fortunately another passenger witnessed what had happened and alerted the bus driver who stopped the bus. An ambulance was summoned, and Ciara was admitted into the hospital where she was treated for a crush fracture of the L3 lumbar vertebra.

Mr Justice John Quirke at the High Court heard that Ciara remained in hospital for eight days, after which she was required to wear a neck brace for three months. Ciara told the court that she still suffers frequent back pain but it is controlled by anti-inflammatory drugs and ongoing physiotherapy. The court also heard that Dublin Bus had admitted liability for Ciara´s injuries and the case was before Mr Justice John Quirke for assessment of damages only.

Awarding Ciara 121,493 Euros in personal injury compensation, Judge Quirke said that it was established that Ciara had suffered a very serious injury which would cause her continuing pain and restriction of movement in the future.

A twenty six year old woman, who was left irreparably brain damaged after her car was involved in a collision with a truck, has had a 7 million Euro compensation package approved in the High Court.

Valerie Bourke of Carrick-on-Suir, County Tipperary, had just turned 21 in May 2006, when the red Nissan Micra she was driving on the road between Carrick-on-Suir and Waterford was struck by a truck driven by Patrick Holden of Carigee, County Waterford.

Valerie was taken to the Waterford Regional Hospital suffering from catastrophic brain damage. She remained there until the following April, during which time she was unable to communicate, required twenty four hour care and was fed via a tube.

Valerie was then transferred to the National Rehabilitation Centre in Dun Laoghaire and six months later moved to a neuro-rehabilitation centre in England for further assessment of her needs. It was not until December 2008 – two and a half years after the accident – that she was able to return home.

Valerie´s parents built a special extension to their family home in order to accommodate her special needs but, although Valerie made a little progress with her mobility and cognitive functions, Mr Justice Iarfhlaith O’Neill at the High Court heard that prospects for Valerie´s future remained limited.

In an action against Patrick Holden and the owner of the truck – Stefan Gilchrist of Piltown, County Kilkenny – it was alleged that their negligent actions were responsible for Valerie´s injuries. Liability was admitted and the case was before Mr Justice Iarfhlaith O’Neill for assessment of damages only.

Announcing the settlement package of just over 7 million Euros, Mr Justice Iarfhlaith O’Neill said that 4 million Euros was to be put aside for Valerie´s future care and that an application was to be made to have Valerie made a ward of court.

A 22 year old woman, who contracted a rare disease while working in a Limerick pet shop, has been awarded what is believed to be the highest ever structured compensation settlement in a High Court personal injuries action.

Patricia Ingle from Weston, County Limerick, worked throughout 2007 and 2008 at the Petmania Pet Store in the Jetlands Retail Park, County Limerick. In August 2008, she fell ill with violent headaches and vomiting, was attended by a doctor and sent to the Mid-Western Regional Hospital in Dooradoyle.

Doctors at the hospital treated Patricia and sent her home, but a few weeks later the symptoms returned and she was again sent to hospital by her GP. Within two days, Patricia´s condition had deteriorated to such an extent that she was technically voiceless, had difficulty swallowing, suffered from blurred vision and could not move.

Patricia had suffered irreversible brain damage and can now only breathe through a ventilator, has to be fed via a tube and can only communicate by using a voice-box. She is confined to a wheelchair and is an inpatient each night at the Mid-Western Regional Hospital.

Claiming that she had contracted the chlamydia psittacosis infection from a cockatiel parrot purchased by the pet store, Patricia sued Petmania and their parent company O’Keeffes of Kilkenny Limited, Springhill, County Kilkenny. She also alleged that her condition had been mismanaged by the hospital, and claimed that, had doctors recognised that she needed an examination by a neurologist, she could have been transferred to Cork Hospital earlier for specialist treatment.

Mr Justice Iarfhlaith O’Neill at the High Court heard how chlamydia psittacosis can be passed from parrots to humans through inhalation of airborne dried faeces dust, and that Patricia had never received any health and safety training throughout her employment at Petmania.

He also heard expert testimony to state that the single most significant risk of working in a pet store was the risk of contracting an infectious disease, yet because of the animals´ low value, pets at Petmania were never screened or treated against the potentially fatal diseases.

In respect of the action against the Health Service Executive (HSE), the court heard that doctors at the Mid-Western Regional Hospital had watched Patricia´s condition deteriorate for 58 hours before transferring her to Cork Hospital, even though they were aware that she worked in a pet shop due to a previous hospital attendance when she was bitten by a rat.

It was claimed that had there been a proper recognition of her symptoms, some, if not all of her current condition would have been avoided.

Although the case was anticipated to last for several weeks, protracted talks on the fourth day of court proceedings resulted in the HSE agreeing to settle the claim, and pursuing Patricia´s claims against the other defendants.

The settlement package consists of 3 million Euros to be paid to Patricia immediately in respect of her injuries, with further lifetime payments to be considered in two years time once new legislation is in place to facilitate structured payments.

The health Service Executive have estimated that it currently costs around 500,000 Euros to provide Patricia with the treatment she needs, so the total compensation package is likely to exceed the record High Court award of 7.5 million Euros paid to a child who sustained cerebral palsy at birth.