A young boy´s claim for the failure to treat meningitis has been resolved in court with the approval of a €3.7 million interim settlement of compensation.
Matthew McGrath was admitted to Wexford General Hospital on 27th May 2004 at the age of 17 months after it was noticed that he was uncharacteristically drowsy and vomiting fluids. Matthew was diagnosed with Haemophilus Influenza Type B – which is known to lead on to meningitis – and he should have been administered antibiotics.
Overnight, Matthew´s condition deteriorated and he was identified as being in shock. Despite medical guidelines recommending against it when a patient is in shock, Matthew underwent a lumbar puncture procedure to confirm suspected meningitis – due to which a compression of the spinal cord took place and Matthew is now permanently paralysed.
Due to the failure to administer antibiotics when Matthew was first admitted to the hospital, and the subsequent inappropriate lumbar puncture, Matthew cannot move his arms or legs and can only breathe through a ventilator. He spent the next two years of his life in hospital until his parents were eventually allowed to care for their son at home.
Through his mother – Cathy McGrath of Gorey in County Wexford – Matthew made a claim for the failure to treat meningitis against the HSE – alleging that, if he had been treated with antibiotics and given fluids at the time of his admission into Wexford General Hospital, he would not have suffered such devastating injuries.
After an investigation into the claim for the failure to treat meningitis, the HSE admitted liability and issued an apology to Matthew´s parents. An interim compensation settlement of €3.7 million was agreed, but first had to be approved by a judge before payment could be made.
Consequently, at the High Court in Dublin, the circumstances of Matthew´s devastating and unnecessary injuries were related to Mr Justice Matthew Cross. Judge Cross approved the settlement, and adjourned the claim for the failure to treat meningitis for five years in order that reports into Matthew´s future needs can be conducted.
The State Claims Agency has said that a consistent set of guidelines should be compiled for birth-inducing drugs to prevent more Syntocinon birth injury claims.
Syntocinon is the brand name in Ireland of oxytocin – a synthetic drug that is frequently used in maternity wards to induce labour and accelerate contractions. The benefits of Syntocinon are that the drug reduces the time spent in labour, prevents excessive bleeding and helps the womb to contract after childbirth.
However, when Syntocinon is administered, both mother and child need careful monitoring to observe any signs of an adverse reaction or foetal distress. Oxytocin is one of the top ten “high-alert medications” in hospitals, and the death of four babies at the Portlaoise Hospital has been attributed to the lack of adequate monitoring.
Children who survive the accelerated contractions have been known to suffer brain damage, and among a series of recent Syntocinon birth injury claims was one in February this year, in which an interim settlement of birth injury compensation amounting to €2.32 million was approved by the High Court.
The State Claims Agency – the authority that pays out when Syntocinon birth injury claims are resolved – recently conducted a study into the use of oxytocin in Irish hospitals, which showed that there is a lack of consistency in how the drug is administered and how the health of mothers and their babies is monitored.
The report revealed that staff at one maternity unit had no guidance on the drug´s use and that at another staff had to refer to a checklist. Thirteen hospitals had similar guidelines – although not entirely consistent, five hospitals had introduced protocols, three had introduced procedures and six relied on policies. Two of the hospitals provided no guidance at all on the monitoring of mothers and babies, and one failed to advise nursing staff on the dosage of oxytocin that should be administered.
Mary Godfrey – the clinical risk advisor at the State Claims Agency – said that the results of the survey were alarming and called for a consistent set of guidelines to be compiled for all birth-inducing drugs to improve outcomes for mothers and babies, and to prevent more Syntocinon birth injury claims being made against the state.
However Ms Godfrey failed to comment on an important area of the report which revealed “No service obtains explicit written consent from women prior to starting them on the drug.” Informed consent is a vital issue for the State Claims Agency to address if it genuinely wishes to prevent more Syntocinon birth injury claims.
A Cork woman has been granted permission to pursue her claim for an adverse reaction to steroids against the pharmaceutical company Pfizer after a High Court hearing.
Lorna Savage (43) from Cobh in County Cork started taking the steroid Deltacortril in 1997 when it was prescribed for her by her GP Dr. Michael Madigan and her consultant Dr. MG Molloy to treat vasculitis – a condition which damages blood vessels and causes a rash.
After using the steroid, Lorna developed a more serious condition – Avascular Necrosis – which results in the interruption of the blood supply causing bone tissue to die and the bone to collapse. By 2001, Lorna had to have both knees and a hip joint replaced. She is now confined to a wheelchair and relies on morphine to manage the continual pain she suffers.
Having sought legal advice, Lorna made a claim for the adverse reaction to the steroids; alleging that its manufacturer – Pfizer – had failed to provide adequate warning in the literature accompanying the tablets that their continued use could cause Avascular Necrosis, and that the company had failed to warn her about drinking alcohol when taking the steroid.
Lorna also made a claim for an adverse reaction to steroids against the estate of Dr Madigan (who died in 1999) and the Southern Health Board – who employed Dr Molloy at the Cork University Hospital – alleging that both doctors were negligent in prescribing the treatment for her, had failed to investigate her symptoms appropriately or suspect that she was developing Avascular Necrosis.
All three defendants denied their liability for Lorna´s adverse reaction and, in a pretrial motion, lawyers representing Pfizer attempted to get Lorna´s claim for an adverse reaction to steroids thrown out on the grounds of “an inordinate and inexcusable delay” in bringing her claim.
However, at the High Court, Mr Justice George Birmingham dismissed the application to strike out Lorna´s action – finding that the time lapse was excusable because Lorna had undergone multiple surgeries recently and had found it impossible to brief her solicitors. Judge Birmingham also noted that Avascular Necrosis is a well-established but rare side effect of Deltacortril and he said the case would be listed for a full court hearing later in the year.
A High Court judge has approved a further interim payment of obstetrician negligence compensation in favour of an eight-year-old boy who suffers from cerebral palsy.
Luke Miggin of Athboy, County Meath, suffered brain damage prior his birth on 26th February 2006 at Mullingar General Hospital due to consultant obstetrician Michael Gannon failing to act on decelerations of the child´s heart rate recorded on CTG traces taken throughout the day.
Luke has cerebral palsy due to the obstetrician´s negligence, is confined to a wheelchair and will need 24-hour care for the rest of his life.
Liability for Luke´s birth injuries was admitted by Mr Gannon and the Health Service Executive in 2010 and, in January 2011, an interim settlement of obstetrician negligence compensation was approved by Mr Justice John Quirke, pending the introduction of legislation to allow for a structure settlement to be put in place.
However, with no such legislation yet available, Luke´s mother – Emily – had to return to court to have a further interim payment of obstetrician negligence compensation approved; where she was commended for her patience by Ms Justice Mary Irvine, who apologised for successive Ministers of Justice failing to deliver on their promises of periodic payments.
The judge approved a second interim obstetrician negligence compensation payment of €580,000 to add to the €1.35 million interim payment Luke received in 2011. The payment is in respect of Luke´s care for the next three years, after which time Emily Miggin will have to return to court once again for a further interim payment of compensation or to have the terms of a structured settlement approved.
Ms Justice Mary Irvine expressed her frustration at not being able to approve a final settlement of obstetrician negligence compensation, and commented that the ongoing litigation prevents families such as the Miggins from getting on with their lives.
A County Wicklow teenager´s meningitis medical negligence claim for compensation has been resolved after a High Court hearing at which her settlement of compensation was approved.
Laura Kavanagh (18) from Newtownmountkennedy in County Wicklow had fallen ill on 29 January 1998 at the age of thirteen months with a high temperature and severe fatigue. Her mother – Simone – had telephoned the surgery of Dr Frank Malone and Dr Paul Crean in Greystones in County Wicklow to communicate her daughter´s condition and had been told to keep an eye out for a rash.
Several hours later, Laura´s condition had deteriorated and Simone Kavanagh rang the surgery again – on this occasion speaking with Dr Crean, who said he would make a house call after surgery due to Simone not having transport available.
Three and a half hours later, Dr Crean arrived at the Kavanagh´s home and diagnosed a bowel infection. He left two suppositories and told Simone to call him back in the morning if Laura´s condition had not improved. The following day, Simone called the surgery requesting a home visit, but later cancelled the call as Laura seemed to be looking better.
However, the next morning Laura once again was very ill, and Simone was able to get an on-call doctor to visit straight away. He immediately admitted Laura to hospital, where she was diagnosed with severe meningitis.
As a result of the illness, Laura lost her hearing, and through her mother she made a meningitis medical negligence claim for compensation against Drs Malone and Crean, alleging that Dr Crean had failed to diagnose meningitis and that there had been a failure to attend Laura in good time, ensure proper care or any continuity of care.
The two doctors denied Laura´s meningitis medical negligence claim, however agreed a €5 million settlement of meningitis medical negligence compensation without admission of liability.
At the High Court in Dublin, Ms Justice Mary Irvine heard that if Laura had been admitted to hospital when Dr Crean misdiagnosed her condition as a bowel infection, it was likely that Laura would not have lost her hearing.
The judge was also told that after Laura lost her hearing, she learned to communicate through sign language and lip reading – but has a moderate intellectual disability. Ms Justice Mary Irvine approved the settlement of Laura´s meningitis medical negligence claim, saying that it would never give Laura the life she was meant to have.
The family of a woman who died from an undiagnosed tumour in her abdomen is to receive €62,500 compensation for the failure to diagnose cancer.
Sharon McEneaney (31) from Carrickmacross in County Monaghan died in April 2009 from a cancerous tumour in her abdomen, eighteen months after she had first attended the emergency department of Our Lady of Lourdes Hospital in Drogheda complaining of abdominal pain.
The cancerous tumour went undiagnosed for a further nine months, and was only identified after Sharon was given a biopsy due to the intervention of former TD Dr Rory O´Hanlon in June 2008. By then the tumour had developed to such as size that it was too late for any treatment, and Sharon died the following April.
The Health Service Executive (HSE) conducted an investigation in Sharon´s death and made 38 recommendations to prevent future failures to diagnose cancer, while – in January 2012 – Dr Etop Samson Akpan was found guilty of a poor professional performance by the Medical Council of Ireland´s Fitness to Practise Committee.
At the High Court in Dublin, Margaret Swords – the General Manager of the Louth & Meath Hospital Group – read out an apology to the McEneaney family, admitting that the hospital had failed Sharon, but also stating that the hospital was making progress in making the changes required. The court heard that, five years after Sharon´s death, six of the HSE´s recommendations are still to be implemented.
The court also heard that a settlement of compensation for the failure to diagnose cancer had been agreed between the hospital and Sharon´s family, with €10,000 going towards Sharon´s funeral and other expenses connected with her death, €27,100 compensation for the failure to diagnose cancer going to Sharon´s mother Jane, and the remainder to be shared by Sharon´s four siblings.
Ms Justice Mary Irvine closed the hearing after commending Sharon´s family for their courage and tenacity, and commented “You have shown marvellous fortitude in the face of such a loss”.
The High Court has approved an interim settlement of €1.5 million compensation for the delayed delivery of a young girl who now has cerebral palsy due to the hospital´s alleged negligence.
Mary Malee (14) was born on 11th October 1999 by emergency Caesarean section at the Mayo General Hospital after there had been a delay in finding a consultant gynaecologist to assist with the delivery and an alleged breakdown in communicating her foetal distress.
As a result of the hospital´s alleged negligence, Mary is confined to a wheelchair after being born with cerebral palsy and now needs full-time support from her family. Despite her handicap, Mary is a bright and popular girl, who aims to go to university.
Mary made a compensation claim for the injuries she sustained through her mother – Maura Malee of Swinford, County Mayo – alleging that there had been a failure to intervene and perform a Caesarean section delivery in a timely manner when it became apparent that the foetus was suffering distress and likely to need resuscitation.
Mayo General Hospital and the Health Service Executive (HSE) both denied their liability for Mary´s cerebral palsy; but agreed to an interim settlement of compensation for a delayed delivery amounting to €1.5 million, with a further assessment of Mary´s needs to be conducted within two years.
At the High Court, Ms Justice Mary Irvine heard that Maura Malee had attended the consultant gynaecologist who had delivered her three previous children three days before Mary was born. The gynaecologist had informed Maura that he would be unavailable for Mary´s delivery, as he was about to undergo treatment for cancer. However, he had told Maura that arrangements would be made for her to be transferred to another consultant.
Maura saw her family doctor the following day, and he told Maura to go to hospital immediately as she was showing symptoms of pre-eclampsia. Maura was admitted to Mayo General Hospital and transferred to the labour ward, where she underwent a CTG shortly before 6:00am which revealed a series of decelerations.
The first consultant that was called was unavailable to attend Mary´s birth, and second consultant arrived shortly before 7:00am. Allegedly there was a failure to communicate the severity of Maura´s condition, and the Caesarean delivery did not take place until after 7:20am.
In court, after Mary had read out a statement in which she commented “It would have been appreciated had the HSE/Mayo General Hospital said they were sorry”, Judge Irvine approved the interim settlement of compensation for a delayed delivery and adjourned the case.
Ms Justice Bronagh O’Hanlon has reserved judgement in a test result mix-up claim for compensation in which a woman was incorrectly told she had the HIV virus.
Judge O´Hanlon at the High Court heard that Michelle Kenny (35) from Crumlin in Dublin had returned from a holiday in Majorca feeling unwell and – on 17th August 2010 – attended the St James Hospital in Dublin, where she underwent an ECG and blood tests, and had an x-ray taken of her chest.
Michelle was kept in hospital for a week as doctors believed she may have a blood clot on her lung, but was discharged on August 23rd to await the result of a blood test for TB. When she returned to the Outpatients Clinic on October 6th for an assessment, Michelle also underwent a blood test for HIV.
The following week, Michelle´s doctor rang her to say that, although she was clear of TB, her HIV test result had indicated positive. Three further tests showed that a mistake had been made, and that Michelle was not at risk from the HIV virus; however, as Michelle told the court, “I was devastated. I thought I was going to die, that I had no future.”
After an investigation revealed that the doctor at St James Hospital had given her the wrong person´s results, Michelle sought legal advice and made a compensation claim for nervous shock against the hospital – alleging that the news, albeit wrong, had stopped her socializing and caused a change in her lifestyle.
St James contested the test result mix-up claim for compensation on the grounds that Michelle had not suffered any loss or damage. They argued that Michelle had been told quickly after the mistake had been identified that she did not have HIV and denied that she was entitled to any compensation for a test result mix-up.
After hearing arguments from both sides, Ms Justice Bronagh O’Hanlon said she would reserve judgement on the claim for test result mix-up compensation for a later date.
A judge has resolved a forty-year-old woman´s claim for a hospital´s lack of care after the birth of her child which resulted in a significant loss of blood due to haemorrhaging.
Honey Larkin brought her claim for a hospital´s lack of care after the birth of her child following the events of January 2008 at the Letterkenny General Hospital in County Donegal.
Honey had given birth to her final child by Caesarean section, but started haemorrhaging heavily while in recovery. Honey claimed in her action against consultant gynaecologist Eddie Aboud and the Health Service Executive (HSE) that she had a near-death experience due to the loss of blood while she was waiting for the hospital to arrange a further surgery to stop the bleeding.
Honey – who also comes from Letterkenny in County Donegal – claimed that neither the staff at the hospital nor Mr Aboud checked for indications of bleeding after the Caesarean operation; and when the cause of her distress was acknowledged the hospital failed to act appropriately within a reasonable timeframe. The result, Honey claimed, is that she now suffers from Post Traumatic Stress Disorder.
Both Mr Aboud and the HSE contested Honey´s claim for the hospital´s lack of care after the birth of her child; entering the defence that she was treated appropriately throughout and after the Caesarean procedure, and in a timely manner once staff raised the alarm about the haemorrhage. Consequently the case went to the High Court and was heard by Mr Justice Kevin Cross.
At the hearing, Judge Cross was told that no internal haemorrhaging had been apparent when Mr Aboud had finished the Caesarean operation; but, when he was called back to attend to Honey, he performed the second operation quickly and successfully. Judge Cross said he felt that Mr Aboud could not be held liable for any of Honey´s suffering and dismissed the gynaecologist from the case.
However, after considering the actions of the hospital once Honey´s condition had been identified, Judge Cross found that the Letterkenny General Hospital had failed in their duty of care towards her. He ordered the HSE to pay €25,000 compensation in resolution of Honey´s claim for the hospital´s lack of care after the birth of her child.
A High Court judge has approved an interim payment of cerebral palsy compensation for a 12 year old girl who sustained birth injuries due to the negligence of an obstetric consultant.
Roisin Conroy was born at the Midland Regional Hospital in Portloaise on 14th November 2001, four days after her mother – Mary Conroy of Portlaoise, County Laois – had attended the hospital, believing that her waters had broke. Mary was sent home after being reassured that everything was okay but, three days after attended the clinic of Dr John Corristine – her private consultant obstetrician – and, following an ultrasound at the clinic, Mary insisted she be admitted into hospital.
A CTG scan conducted at the hospital failed to indicate any sign of contractions, and Mary was advised to take a bath. However, there was insufficient hot water was available at the hospital so Dr Corristine prescribed Mary with some medicine to induce labour. Thereafter, Dr Corristine was not present during Mary´s labour or Roisin´s birth the next day.
When Roisin was born the following morning, she suffered seizures soon after her birth and was transferred to a neo-natal unit in Dublin. However, her condition failed to improve and Roisin was diagnosed with dyskinetic cerebral palsy – due to which she is permanently disabled and can only communication using eye movement.
Mary blamed herself for Roisin´s condition, and insisted on having her next two children delivered by Caesarean Section. Both Mary and her husband Kevin gave up work to look after Roisin, believing what the hospital had told them that nothing could have been done to avoid the tragedy and that the couple had just been unlucky.
An investigation was launched into the circumstances Roisin´s birth after the couple had spoken with a solicitor and, with evidence of negligence against both the hospital and the obstetric consultant, Kevin and Mary made a claim for cerebral palsy against both the Health Service executive (HSE) and Dr Corristine on their daughter´s behalf.
Both the defendants denied their responsibilities for Roisin´s injuries for almost two years until – five weeks before a scheduled court hearing – the hospital and Dr Corristine admitted that errors had been made in the management of Mary´s pregnancy which led to Roisin suffering birth injuries.
An interim payment of compensation for cerebral palsy amounting to €2.3 million was negotiated between the parties and, at the High Court in Dublin, the interim payment of compensation for cerebral palsy was approved by Ms Justice Mary Irvine.
The family also heard an apology read to them by an HSE representative and Dr Corristine, after which Ms Justice Mary Irvine adjourned the case for two years so that an assessment of Roisin´s future needs can be made and to allow time for the introduction of a system of structured compensation payments.
A High Court judge has approved a second interim cerebral palsy compensation payment for a young girl who was born with severe spastic quadriplegic cerebral palsy in 2004 due to the negligence of her mother´s consultant.
Isabelle Sheehan (now 8 years of age) was born at the Bon Secours Maternity Hospital in Cork on November 29th 2004 by emergency Caesarean Section, after a blood test on her mother – Catherine – had revealed an alarming rise in the presence of certain blood group antibodies.
Unfortunately, Catherine Sheehan´s consultant doctor – Dr David Corr – had failed to refer Catherine to an expert in foetal medicine, who would have identified potential difficulties with the pregnancy due to a clash between the antibodies in Catherine´s blood and those of her husband – Colm Sheehan.
When Isabelle was born, she was in a poor condition and was diagnosed with severe spastic quadriplegic cerebral palsy. Through her mother, Isabelle made a claim for compensation for the negligence of the consultant doctor, who admitted liability for Isabelle´s injuries when the case was first heard in October 2011.
At the original hearing, Mr Justice Iarfhlaith O’Neill approved an interim cerebral palsy compensation payment of €1.9 million, and adjourned the case for two years in the hope that a structured compensation payments system would be in place to assure a life time of care for Isabelle.
However, as no legislation has yet been passed in Ireland which would allow a structured system of compensation payments, the case was back in front of Mr Justice Kevin Cross, who heard that a further interim cerebral palsy compensation payment of €635,000 had been agreed between the parties to provide the care that Isabelle needs for a further two years.
After hearing that Isabelle is “bright and intelligent” and keeping up with children in her mainstream national school class with the help of a home assistant, Mr Justice Kevin Cross approved the interim cerebral palsy compensation payment, adjourned the case for a further two years and wished Isabelle a very good future.
A report compiled for the Royal College of Surgeons in Ireland (RCSI) indicates that the majority of GP malpractice claims for compensation are due to missed or delayed diagnoses.
The report, which was prepared by the Centre for Primary Care Research in Dublin, was undertaken to identify which areas of primary care should be focused on when planning future educational strategies and developing risk management systems for primary healthcare professionals.
It revealed that GP malpractice claims often featured missed diagnoses and medication errors, with the delayed diagnosis of breast cancer and colon cancer being responsible for more malpractice claims against GPs than any other form of medical negligence.
Lead researcher of the report – Dr Emma Wallace – acknowledged that family doctors are practicing more defensively as the number of malpractice claims in Ireland increases, and this has led to more patients being unnecessarily referred to consultants – enabling an identifiable condition to deteriorate.
In addition to the misdiagnosis of breast and colon cancer, the report identified other cancers which were often misdiagnosed or identified later than they should have been. These included cancers of the skin, female genital tract and lungs; while children with appendicitis and meningitis were most likely to be misdiagnosed.
Admitting that GP malpractice claims are “not a perfect substitute for adverse events”, Dr Wallace – who is herself a GP – said that when malpractice claims are made against GPs, the doctors facing litigation often experience higher levels of stress – reducing the level of service they are able to offer and placing more patients at risk of a missed diagnosis or medication error.
She commented “this systematic review is timely considering the increased interest in focusing on primary care as a way of improving patient care and safety” and hoped that the review provided an insight into the types and causes of adverse effects in clinical practice which would reduce the number of GP malpractice claims in Ireland.
The High Court has heard that a family has settled its compensation claim against the HSE, made after the death of Eileen Maloney at Mayo General Hospital in February 2009.
Eileen (69) from Pullathomas in County Mayo had been admitted to Mayo General Hospital on 1st February 2009 complaining of a severe pain in the abdomen. Because it was the weekend and no doctor was available, the family alleged that an X-ray showing an obstruction in her small intestine was not reviewed and her perforated bowel misdiagnosed.
It was not until the following Friday that Eileen was given a CT scan – which revealed a tumour had developed in her large bowel – but despite Eileen being in constant pain, surgery was not scheduled until the Thursday of the next week. The family claimed in their action against the HSE that, had this scan be reviewed properly, Eileen´s perforated bowel would have been identified and surgery brought forward.
Eileen died five days after the operation to remove the tumour, and the family alleged in their compensation claim against the HSE they were told that Eileen – who was suffering from cancer – would have survived the surgery, and would have had at least six months to live, had the correct diagnosis been made at the time of her admission and the appropriate treatment provided.
Mayo general Hospital and the HSE denied their responsibility for Eileen´s wrongful death and disputed the family´s right to claim compensation for mental anguish due to hospital negligence. However, at the High Court, Mr Justice Michael Peart was told that an agreement had been reached which would see the compensation claim against the HSE settled for €50,000 without admission of liability.
After hearing the circumstances of Eileen´s death – which Mr Justice Michael Peart described as “very, very tragic” – the judge approved the settlement of the family´s claim.
An interim cerebral palsy compensation settlement has been approved in the High Court for a thirteen-year-old boy who sustained irreversible brain damage during his birth.
Ryan Brennan from Cahir in County Tipperary was born at St. Joseph´s Hospital in Clonmel in January 2000; hours after abnormalities had been discovered in the foetal heart rate tracing. Following his delivery, Ryan had to be resuscitated and later in the day suffered seizures.
It was claimed by Ryan´s parents – Lorraine and Raymond – that Ryan suffered irreversible brain damage and cerebral palsy due to a failure to act by the hospital´s consultant obstetrician – Dr Brendan Powell – and that Ryan´s injuries could have been avoided if staff at the hospital had acted with greater diligence.
On behalf of their son, the Brennans made a claim for cerebral palsy compensation against Dr Powell and the Health Service Executive (HSE) for alleged negligence, breach of duty and breach of contract.
The two defendants denied responsibility for Ryan´s injuries but, at the High Court in Dublin, Ms Justice Mary Irvine heard that an interim cerebral palsy compensation settlement of €1.7 million had been agreed with the HSE without admission of liability and that the claim against Dr Powell could be struck out.
The interim settlement of compensation for cerebral palsy is for two years to allow for reports on Ryan´s future needs to be conducted and to allow for the possible introduction of a periodic payment system. After commenting that the settlement was ‘in the upper parameters of these types of cases’, Ms Justice Mary Irvine approved the settlement.
Speakers at a major Justice for Health conference in Dublin have called on the government to provide better access to Legal Aid for Medical Negligence.
Delegates at the conference recently hosted at the Radisson Blu Royal Hotel by Action against Medical Accidents (AvMA) heard guest speakers including Sheila O´Connor from Patient Focus and Dublin City Coroner, Dr Brian Farrell, discuss whether it was now harder than ever for those affected by medical negligence in Ireland to seek justice and if the lack of accessible legal aid for medical negligence claims was in breach of the European Convention on Human Rights.
The conference was chaired by AvMA´s Chief Executive, Peter Walsh, who told the conference over 100,000 ‘adverse events’ were reported in the health system by the Health Service Executive (HSE) last year. Although not every ‘adverse event’ would necessarily result in an injury, only 635 court summons were issued in respect of medical negligence claims and it was the conference´s opinion that thousands of patients are unable to take legal action against a negligent medical practitioner or hospital because access to legal aid for medical negligence is limited.
Legal Aid for Medical Negligence
Access to legal aid for medical negligence compensation claims in Ireland is currently means tested and only available to those with a small disposable income. Even those simply enquiring to find out if they are qualified to make a medical negligence compensation claim are expected to contribute towards the costs of running the Legal Aid Board.
Footnote: If you have suffered a loss, an injury or the preventable deterioration of an existing condition which you believe may be due to an ‘adverse medical event’, many medical negligence solicitors in Ireland will offer free, confidential legal advice without any pressure on you to make a medical negligence compensation claim thereafter.
The family of a girl who suffered brain damage at her birth due to hospital obstetric negligence have had their claim for birth injuries due to a lack of staff resolved at the High Court in Dublin.
Alex Butler (8) from Dunmore East, County Waterford, was born at the Waterford Regional Hospital in April 2005; however, due to the hospital´s failure to have an adequate number of properly trained competent medical staff to deal with the Alex´s delivery, and to ensure that an adequate and properly competent obstetrician was available, Alex´s delivery was delayed by twelve minutes – during which time she suffered brain damage which led to permanent tetraplegic injury.
Through her mother – Sonya – Alex made a claim for birth injuries due to a lack of staff at the hospital, alleging that her consultant obstetrician had been allowed to take leave at the same time as the hospital´s two other obstetricians and that the hospital had employed a locum obstetrician without ensuring that he competent. It was further claimed that Sonya´s pre-operative assessment was substandard and there was a failure to recognise the necessity for a Caesarean section.
The High Court heard that the Health Service Executive (HSE) admitted liability for Alex´s injuries, and the claim for birth injuries due to a lack of staff against the consultant obstetrician – John Bermingham – and locum obstetrician – Mahmud Khbuli – were dismissed. A representative from Waterford read out an apology for the mismanagement of Alex´s birth and accepted that the mistakes that were made should never have happened.
The Court also heard that an interim settlement of Alex´s claim for birth injuries due to a lack of staff amounting to €1.4 million had been agreed upon between the HSE and Alex´s parents. The compensation settlement is to be reviewed again in two years when an assessment of Alex´s care needs for the future has been made, and by which time it is hoped that the option of a structured settlement is available.
A woman, who underwent a symphysiotomy procedure at Our Lady of Lourdes Hospital in 2000, has been awarded €591,297 compensation for injuries from symphysiotomy by the High Court.
Tracey Nelson (45) from Navan in County Meath underwent the procedure prior to the delivery of her second child, when medical staff at Our Lady of Lourdes Hospital in Drogheda failed to correctly diagnose the symptoms of symphysis pubis dysfunction (SPD).
After suffering for many years with the physical discomfort from the symphysiotomy, Tracey underwent surgery in 2004 to stabilise her condition and again, in 2007, had to have a spinal cord stimulator fitted – since when Tracey has been relatively free of pain.
However, as Tracey related toMr Justice Iarfhlaith O’Neill at the High Court, she has also suffered emotionally due to the negligence of the medical staff who failed in their duty of care to manage her pregnancy.
Tracey told the court she had developed fibromyalgia – where she had constant pain in her muscles and joints – and due to the pain, started to drink alcohol heavily. This resulted in the break-up of her marriage and, in turn, to depression.
Our Lady of Lourdes Hospital denied their liability for Tracey´s injuries, but Mr Justice Iarfhlaith O’Neill ruled that he was satisfied from the medical evidence there was a failure to diagnose SPD on February 2nd when Tracey attended the hospital complaining of pain in the pelvic area.
The judge said there was no doubt that the “primary cause” of Tracey´s physical and psychological injuries was the negligence of the HSE and “terrible consequences” of it. “I am quite satisfied that the failures in this regard fell substantially below the standard of care to be expected of doctors practising obstetrics in a maternity unit such as Our Lady of Lourdes in Drogheda,” he said.
Awarding Tracey €591,297 in compensation for injuries from symphysiotomy, Mr Justice Iarfhlaith O’Neill said that he was also satisfied the doctors and midwives who attended Ms Nelson were “oblivious” to her SPD condition and consequently took no precautions to prevent the risk of avoidable injury during the course of her labour.
The High Court has awarded a mother €100,000 compensation for a failed sterilisation after the son she was never supposed to give birth to died after only six months of life.
Karen Hurley-Ahern (41) from Newcastlewest, County Limerick, underwent the sterilisation procedure in February 2001 after discovering from her GP that she had a rare blood-clotting disorder that would pose a risk to herself and her unborn child if ever she were to fall pregnant again.
The operation was performed by gynaecologist Dr Victor Moore at the Tralee General Hospital in County Kerry, but in April 2002 Karen fell pregnant again and, after a difficult pregnancy, gave birth to baby Samuel on 10th October 2002 – six weeks early and by emergency Caesarean section.
Samuel suffered from severe abnormalities which were unrelated to Karen´s sterilisation procedure, and remained in hospital for six months – kept alive by a series of life -support machines. In April 2003, Samuel suffered a severe heart attack and Karen and her partner – Garrett Ahern – made the painful decision to switch off the life-support machines.
After seeking legal advice, Karen and Garrett made a claim for failed sterilisation compensation against Dr Moore and the Southern Health Board (now the Health Service Executive), for the suffering and trauma the couple had been through due to the unsuccessful procedure.
Dr Moore and the HSE denied liability – claiming that the procedure had been performed correctly and the couple had been warned that there was a risk of failure. However, in the High Court in Dublin, Mr Justice Sean Ryan found in favour of the now-separated claimants – acknowledging that Samuel´s disability was not a consequence of the failed sterilisation procedure, but stating that Karen had suffered to a significant extent due to the defendant´s negligence.
Awarding Karen €100,000 compensation for a failed sterilisation, Mr Justice Sean Ryan said that the award of compensation was in respect of the worry she had experienced when she discovered she was pregnant, the pain of childbirth, the distress of Samuel´s condition and distress after his death. However, no award was made to Garrett as – according to Mt Justice Sean Ryan – while he had undoubtedly endured emotional anguish, there was no proof Garrett had suffered a defined psychiatric injury.
A woman, who was just hours from death after contracting an infection during a breast enlargement operation, has had her claim for plastic surgery errors settled for an undisclosed sum.
Kate Murray (28) from Dun Laoghaire, Dublin, made her claim for plastic surgery errors after undergoing surgery at the Cosmedico Clinic in Kilmacanogue, County Wicklow on 15th March 2008; within three days of which she had started to experience pains across her abdomen and chest and started vomiting.
On 20th March, Kate returned to the clinic, where she was examined by her surgeon – Marco Loiacono – and advised that there were no signs of infection. However Kate was forced to return to the clinic each day for the next five days to have her wounds dressed, as they were seeping yellow-green fluid and blisters were developing on other areas of her breasts.
On none of these latter occasions was Kate attended to by Mr Loiacono, and it was not until the 31st March that Loiacono acknowledged that something may have gone wrong during the original plastic surgery. An emergency operation was organised and Kate´s breast implants were removed that evening.
However, Kate continued to suffer severe pain and, on 3rd April, Kate´s mother summoned her GP. The GP had Kate rushed to St. Vincent´s University Hospital where doctors discovered a severe infection on her chest, in her back and in her stomach.
Kate was diagnosed with such a severe case of “sepsis and extreme infection” that, at a later Irish Medical Council´s Fitness to Practice committee, consultant surgeon Denis Evoy testified that the infection could have killed Kate if she had been hospitalised nine hours later.
Mr Loiacono was barred from practising medicine by the Irish Medical Council in 2011 after he was found guilty of professional misconduct and, although she has to still go through many years of reconstructive surgery, Kate made a claim for plastic surgery errors against both Mr Loiacono and the Cosmedico Clinic.
With liability already established, the High Court was due to hear Kate´s claim for plastic surgery errors for the assessment of damages only but, with neither Kate nor Mr Loiacono present in court, the announcement was made that the case had been settled for an undisclosed sum.
A former student, who suffers severe spasticity of the limbs and has eye movement problems allegedly due to the negligence of a Galway hospital, has had his delayed diagnosis of a brain tumour claim heard in court.
Seamus Walshe Jnr (27) of Taylor´s Hill, Galway, was a 21-year-old student studying construction studies when he first started suffering problems with his eyes in 2006 whenever he looked upwards. His symptoms deteriorated to the point where upward eye movement left him feeling nauseous and he would start to vomit.
Seamus attended Galway University Hospital with his problems, but was told after a neurological examination that there was nothing seriously wrong with him and he should get used to having problems with his eyes.
Seamus returned to Galway University Hospital later in the year when he started to develop pains in his head and underwent a scan which revealed a brain tumour. He was referred to Dublin´s Beaumont Hospital where he underwent surgery to remove the tumour in May 2007.
However, complication during the brain tumour operation resulted in severe haemorrhaging around the brain and Seamus was kept in intensive care for nine weeks following surgery. When he started to recover, he was transferred back to Galway University Hospital in November 2007.
Ms Justice Mary Irvine at the High Court heard that in September 2008 Seamus was sent to the National Rehabilitation Centre in Dún Laoghaire but, because of the alleged negligent treatment he had received, was confined to a wheelchair with spasticity of the limbs and had problems moving his eyes.
Seamus made a compensation claim for the delayed diagnosis of his brain tumour through his father, Seamus Snr, claiming that had he had a scan when he first attended the Galway University Hospital, the tumour would have been diagnosed earlier and he would have been referred to the Beaumont Hospital sooner.
A second claim was made against the Beaumont Hospital for choosing to perform brain surgery when treatment with chemotherapy and radiotherapy had resulted in long term survival rates of up to 90 percent.
Both the Health Service Executive – on behalf of Galway University Hospital – and the Beaumont Hospital denied their liability for Seamus´ injury, but Ms Justice Mary Irvine heard that a negotiated settlement of 2.5 million Euros in compensation for the delayed diagnosis of a brain tumour had been agreed without admission of liability.
The settlement of compensation is intended to provide Seamus with the care he needs for the next three years, after which time a structured periodic payment system would provide for his future care if legislation was passed by the Government in time to allow such a payment procedure.
The family of a woman who died giving birth to her second child has been awarded 850,000 Euros in compensation for medical misadventure following a High Court hearing.
Evelyn Flanagan (38) from Castlebar in County Mayo died at Mayo General Hospital on October 19, 2007, following the birth of her daughter Niamh as a result of serious complications. An initial post-mortem suggested that Evelyn´s death was attributable to an amniotic fluid embolism; however Evelyn´s family contested the findings – claiming that the deterioration in her condition was due to a postpartum haemorrhage which could have been prevented with greater care.
Inquest proceedings in 2008 and 2009 resulted in a verdict of death by medical adventure, following which Evelyn´s husband – Padraic Flanagan – made a claim for medical misadventure compensation against the Health Service Executive and consultant obstetrician, Dr Murtada Mohamed. It was alleged in the action that Evelyn suffered a postpartum haemorrhage as a result of a rupture of her uterus which was not detected or adequately dealt with.
Mayo General Hospital initially denied that negligence had occurred but, as Mr Justice Michael Peart heard at the High Court, an acknowledgement of liability had been made during mediation prior to court proceedings. The judge awarded the family 850,000 Euros in compensation for medical misadventure to include the maximum allowable 25,395 Euros for mental distress and payments for each of Evelyn´s two children as they grow older.
The State Claims Agency has forecast that compensation claims against the State for hospital negligence could increase by more than a quarter in 2012.
Writing in the Clinical Indemnity Scheme newsletter, Ciaran Breen – Director of the State Claims Agency – commented that “It appears that people, injured as a result of a medical negligence event, are more likely to sue doctors, dentists and hospitals in these more difficult economic times” after attributing the increase on the economic downturn.
Mr Breen´s comments were in complete contrast to those made by Patricia Byron – Chief Executive of injuriesboard.ie -after the Injuries Board Interim Report was released last month, which saw only a 4.1 percent increase in claims over the first six months and not the “recessionary spike” that had been predicted. However, both public officials mentioned that there had been a significant increase in claims related to the DePuy hip replacement recall.
As 345 compensation claims were made against the State in the first six months of 2012 (as opposed to 542 in the whole of 2011), and the Statute of Limitations expired in August 2012 for many victims of the DePuy hip replacement recall, Mr Breen´s outlook may appear unjustifiably depressing. However, some compensation claims against the State are finding their way to court long after they might previously have been time-barred.
In July this year, the Supreme Court upheld a High Court judgement in favour of Olivia Kearney who, forty-three years beforehand, had undergone a symphysiotomy procedure which the High Court determined was “entirely unjustified and unwarranted”. Should the remaining two hundred survivors of the symphysiotomy procedure be allowed to make compensation claims against the State, Mr Breen´s forecast could be very conservative indeed.
Compensation claims against the State for hospital negligence represent a small number of claims managed by the State Claims Agency – the majority are for public liability and employer liability – but account for almost 90 percent of the value of claims each year. In 2011, the value of the 542 compensation claims against the State for medical negligence amounted to 860 million Euros.
The Medical Council is investigating claims of doctor negligence against a Dublin GP who allegedly over-prescribed psychoactive benzodiazepines.
It is claimed that Dr Mohammed Ahmed Khan, who practices in Wicklow Street, Dublin, prescribed up to four times the recommended dosage of drugs such as Valium to patients suffering from anxiety and depression. The Medical Council are also looking into claims that Dr Khan failed to make adequate enquiries as to whether any of the patients he was prescribing these drugs to were already being treated by another doctor.
Dr Khan has also been accused of poor professional performance due to his alleged failure to refer patients with a dependency on benzodiazepines to drug treatment centres or specialist substance misuse practitioners and due to his reliance on prescription drugs where an alternative form of treatment may have been more beneficial to the patient or in their best interests.
The Medical Council regulates doctors to practise medicine in the Republic of Ireland. Its statutory role, as outlined in the Medical Practitioners Act 2007, is to protect the public by promoting and better ensuring high standards of professional conduct and professional education, training and competence among registered medical practitioners.
Catherine Blake (62) of Clonmel, County Tipperary, had alleged negligence and a breach in the doctor´s duty of care following an accident she had been involved in 1998. Two crates she had been seated on tipped over and Catherine had sustained injuries to her head and back.
She had attended Dr Gerard Sullivan at the Mary Street Medical Centre in Clonmel, County Tipperary in July 2000 complaining of pains in her legs and difficulty walking. It was claimed in Catherine´s compensation claim for late diagnosis that Dr Sullivan had ignored her complaints of symptoms which might have led the doctor to diagnose deep-vein thrombosis.
In September 2000, Dr Sullivan diagnosed that Catherine was suffering from thrombophlebitis, a vein inflammation due to a blood clot, but it was alleged in the failure to diagnose compensation claim that he failed to follow up his diagnosis with adequate treatment and continued to rule out the possibility of deep vein thrombosis. Catherine´s condition continued to deteriorate and she eventually had to have both legs amputated – allegedly due to Dr Sullivan´s failure to diagnose.
Dr Sullivan denied the claims but shortly before the trial was due to begin the High Court in Dublin heard that a settlement had been reached without admission of liability. No details were provided to the court about how much compensation Catherine was to receive.
The parents of a young woman who died after her doctor failed to recognise the symptoms of deep vein thrombosis have agreed to a 125,000 Euros settlement in their doctor negligence claim.
Ray and Angela Hennessy of Douglas, County Cork, had brought the action against Dr Hassan Al Bayyari of Castlenock, Dublin, following the death of their daughter Julie in March 2007. It was claimed in the case against Dr Bayyari that Julie had twice visited him in earlier in the month to complain of pains in her leg which she believed were due to a skiing accident four weeks previously.
Despite Julie raising the possibility of deep vein thrombosis, Dr Bayyari failed to prescribe any medication for the Hennessy´s daughter or refer her to the hospital for further tests. Two days after Julie´s second visit to Dr Bayyari´s surgery she was dead in her home in Blanchardstown. A post-mortem into Julie´s death revealed that Julie had died from deep vein thrombosis/pulmonary embolism, exacerbated by the oral contraceptive prescribed for her by Dr Bayyari.
After seeking legal advice, the Hennessy´s brought a doctor negligence claim against Dr Bayyari which was due to be heard in the High Court. However, shortly before the trial was due to commence, Mr Justice John Quirke was told that the two parties had agreed to the out-of-court settlement and that the matter was now resolved.