Injury Compensation News

A boy who sustained cerebral palsy due to a mismanaged birth has had the settlement of his hospital negligence claim approved by the High Court in Dublin.

Kyle McMahon from Nenagh in County Tipperary was born at the St Munchin’s Regional Maternity Hospital in Limerick the day after his mother – Theresa – had been admitted suffering from raised blood pressure. Labour had been induced to speed up Kyle´s birth, but during his delivery Kyle suffered severe foetal stress and was starved of oxygen. Following his birth, Kyle was diagnosed as suffering from cerebral palsy and now needs round-the-clock care.

In a claim for mismanaged birth injury compensation made through his mother, it was alleged that Kyle´s injury could have been avoided with a better handling of the situation. Neither St Munchin’s Regional Maternity Hospital nor the Health Service Executive disputed the allegations, and a compensation package was agreed in respect of Kyle´s hospital negligence claim.

The High Court in Dublin heard that the case was before them only for approval of the compensation settlement as Kyle is still under eighteen years of age.

The Clinical Indemnity Scheme has been criticized in The Irish Times today for granting anonymity to medical professionals. The State Claims Agency has operated the Clinical Indemnity Scheme since 2002 for all medical malpractice cases taken against hospitals and doctors. The State Claims Agency ‘assumes responsibility for the vicarious negligence by act or omission on the part of doctors, nurses, midwives and allied healthcare professionals”

The State Claims Agency has advised solicitors that it is ‘neither necessary nor appropriate” to include the names of doctors in medical malpractice documentation.

This means that negligent doctors are effectively protected from public record unless the lawsuit is heard in the High Court.  The vast majority of medical malpractice cases, like most other types of personal injury cases, are settled prior to going to court .

This effectively means that medical professions are granted anonymity for their negligent actions.

A seven year old boy, who was born with spastic cerebral palsy due to the negligence of nursing staff prior to his delivery, has had a partial settlement of more than one million Euros approved in the High Court.

Shane Kenny of Ballyduff, County Waterford, sued the Health Service Executive through his mother Catherine, due to alleged negligence in the events leading up to his birth at the Erinville Hospital, County Cork, on November 2nd 2004.

In the birth negligence compensation claim, Mr Justice John Quirke at the High Court heard that there had been a failure to act on the results of a cardiotocogragh trace (CTG) which showed that the boy´s foetal heart rate was abnormal. Due to this oversight, Shane was delivered by forceps, which resulted in a partial hypoxic event.

The court heard that, although Shane is able to attend mainstream education, he is not expected to achieve the required cognitive capacity to sit State exams and will never be capable of independent living.

Liability for Shane´s birth negligence injury was admitted by the Health Service Executive, and an interim settlement of 1,004,000 Euros had been agreed between the parties to cover past costs and expenses, and to provide care and education for Shane for the next two years.

Approving the birth negligence settlement, Mr Justice John Quirke stated that he hoped legislation would be introduced within the next two years to facilitate periodic payments to those who had suffered catastrophic injury. The birth negligence settlement does not account for Shane´s future loss of earnings, which will be agreed in a hearing to be scheduled next year.

A former director the Mid-Staffordshire Health Service in the UK has warned that fatality rates in Irish hospitals will rise unless there is some easing of budget cuts.

Mike Gill was speaking from experience when he addressed the Irish Nurses and Midwives Organisation (INMO) at a conference in Croke Park, Dublin – during his tenure at the Mid Staffordshire NHS Foundation Trust, an enquiry concluded that between 2005 and 2008 up to 1,200 patients had died unnecessarily due to the management´s prioritising of finances over patient care.

Mr Gill also stressed the importance in his speech of Irish nurses and midwives speaking out about the issues they encounter at the frontline of the health service. Condemning what he referred to as the “culture of non-reporting” he encountered while at the head of the Mid Staffordshire NHS Foundation Trust, Mr Gill insisted that “the patient must always be the priority”.

His sentiments were echoed by the union’s general secretary Liam Doran who stated that “Mid Staffordshire has said that nurses and midwives cannot be silent. They cannot be silenced by the system, they cannot be emasculated by the system, they have to have the courage, when they believe care is being compromised, to speak up and speak out.”

He continued, “When that doesn’t happen, patient care and mortality rates actually increase and we have to listen and learn. We can’t pretend that we are not going to make the same mistakes as other health systems have when finance has been given priority.”

Before the start of the conference INMO had released a statement saying that the Irish Health Service was under unbearable pressure and Mr Doran had words to add to this also. “At the moment I don’t see any floor for the Irish health service, we still have the moratorium in place, we still have beds closed on an increasing basis, we still have community services being cut back and now we are told X hundreds of millions more has to come out for the fourth year in a row.

The conference also heard how the closure of 2,317 beds and loss of almost 3,000 nurses meant that union members had “never been more frustrated” at the failings of the system to listen to and act upon what they were saying. The union warned of increased mortality rates and wrongful deaths in Irish hospitals unless the Government reverses its policy of prioritising budget cuts over patient care.

Current proposals for health service funding could see a further 500 million Euros cut from the existing budget, following a 1 billion Euros reduction in 2011.

A young woman, who was found to have cerebral palsy shortly after her birth, has had a compensation settlement of 1.4 million Euros approved in the High Court.

Deborah French (24) of Ballymitty, County Wexford, was diagnosed with cerebral palsy shortly after her birth in August 1987 at Wexford General Hospital. Her parents brought a claim for birth injury compensation against consultant obstetrician Harry Murphy and the South Eastern Health Board, alleging that Dr Murphy had been negligent in the hours leading up to and during Deborah´s birth.

The case was settled without admission of liability by the defendants, a course of action supported by Mr Justice John Quirke as he approved the settlement, stating that the conflicting opinions offered by medical experts may have put the family at risk of getting nothing in a trial.

The judge recommended that the funds be released to Deborah´s parents – Ann and John French – in annual increments of 100,000 Euros.

The High Court in Dublin has heard that a claim for wrongful death compensation has now been settled for an undisclosed sum by the Health Service Executive in the case of David O´Leary.

David of Ballinascarthy, County Cork, was 12 years old when he died of acute myocarditis in February 2007, after having been diagnosed with a winter vomiting bug by doctors at the Cork University Hospital.

David´s parents alleged in their action against the hospital and the Health Service Executive that David had tried to explain to doctors how ill he was and that he had difficulty breathing. They claimed that, had the doctor´s listened to what their son was trying to tell them, his condition would have been diagnosed and David would still be alive today.

The Health Service Executive denied the allegations, but had expressed in a letter to the parents its sincere regret for any deficiencies or inattention in the care of their son. The letter, which was read out to Mr Justice John Quirke at the High Court also stated that the family could take comfort from the “lessons that have been learned by all concerned with David´s care”.

Mr Justice John Quirke heard that the medical negligence claim against the Health Service Executive had been settled for an undisclosed sum without admission of liability, and had included the maximum amount payable of 33,000 Euros for the nervous shock and mental distress of the parents as a result of David´s death.

A huge increase in the number of patients left overnight on Emergency Department trolleys could escalate hospital negligence claims made against the Health Service Executive (HSE).

According to the Irish Nurses and Midwives Organisation’s “trolley watch”, 6,624 patients were left overnight on trolleys in August due to a lack of beds, with 401 patients bed-less on August 31st alone. The figures indicate a 35 per cent rise on those from last year and are attributed, according to the Irish Nurses and Midwives Organisation General Secretary, Liam Doran, on the rising rate of bed closures due to the pruning of funds by the government and HSE.

“A Serious Negative Impact upon Patient Care”

Selecting Limerick as an example of how the situation has got out of control, Mr Doran noted that despite assurances in 2009 from the HSE that any reconfiguration of services “would not require any additional beds”, 50 acute beds were closed at Ennis General and Nenagh Hospitals, followed by 25 further bed closures at St. John´s Hospital in Limerick and – in the middle of the August crisis – the HSE closed 25 acute beds at Limerick Regional Hospital. This has had, according to Mr Doran, “a serious negative impact upon patient care”.

“An Unsafe Situation”

The Irish Nurses and Midwives Organisation’s claims that HSE cuts were resulting in “an unsafe situation” were echoed by Mr Fergal Hickey, President of the Irish Association for Emergency Medicine. Mr Hickey, quoting research conducted in Australia which was supported in the British Medical Journal, stated that Emergency Department overcrowding could be responsible for as many as 350 unnecessary deaths in Irish hospitals each year. He added that, for the first time ever, children admitted through the Emergency Department procedure were also facing delays in treatment due to the overcrowding situation.

“The Solution is Complex”

In response to the claims, Minister for Health James Reilly – who promised after his appointment in March that there would never again be 569 on trolleys in hospitals as there were earlier in the year -stated that “the solution is complex and will require an enhanced capacity by hospitals to deal with the inter-related issues involved”. Nonetheless, staff working in the country´s Emergency Departments are deeply concerned about the forthcoming months.

The Situation May Get Worse Before it Gets Better

The Irish Nurses and Midwives Organisation is concerned that the increase in bed shortages and subsequent high numbers of patients being left on hospital trolleys is occurring at the height of the summer – traditionally a “quiet” time of year – and has called on statutory bodies such as the Health Information and Quality Body (HIQA), An Bord Altranais and the Medical Council, to inspect all affected hospitals.

However, it is already known that HIQA has been unable to carry out independent hygiene inspections of hospitals throughout 2011 due to a lack of resources. This raises the fears for MRSA and other hospital infections being acquired by patients waiting in hospital corridors for a bed to become available. Furthermore, according to the HSE’s own performance system, five out of the six main Dublin hospitals are ranked as “unsatisfactory” in terms of the performance of their emergency departments.

The Health Service Executive (HSE) could be liable for massive compensation claims following a report produced by the Health Information and Quality Authority (Hiqa) which condemned the HSE´s current system for transferring patients abroad for urgent medical attention as “not designed to be reliable”.

The report, which was produced following an inquiry ordered by Minister for Health James Reilly, focused on the July 2011 case of fourteen year old Meadhbh McGivern from Ballinamore, County Leitrim.

Meadhbh and her family had been overjoyed to receive a call informing them that a suitable liver had been found to replace her ailing organ, after Meadhbh had been on a priority waiting list for more than a year.

However, having been told that no helicopters were available to transport Meadhbh to King´s Hospital in London, the family travelled to Strandhill Airport where they were told a Coast Guard helicopter would be waiting for them.

On arrival at Strandhill Airport, they were informed that, due to fuel stops, it would be impossible to arrive in London by the 2.00am deadline and Meadhbh´s operation had to be cancelled.

Meadhbh´s father, Joe McGivern, said that his family was shocked that the system for transporting patients for emergency operations was not reliable and Minister for Health James Reilly went on record as saying that these circumstances “must not be allowed to happen again”.

Hiqa´s report concluded that the current system was “inherently risky and logistically challenging” and high-lighted several key points which needed urgent attention.

• There was no single agency or person in charge of ensuring Meadhbh was transported in time
• There was an absence of knowledge about the transport of patients by air and the time scales involved
• There was no evidence that Our Lady’s Children’s Hospital in Crumlin, the HSE or the National Ambulance Service understood the risks involved
• There was confusion between the ambulance service and hospital in relation to who was responsible for the transfer and transport logistics
• There were no contingency plans in the event of a lack of State aircraft or private air ambulance service being available

The authors of the report also commented that they were particularly concerned that Our Lady’s Hospital in Crumlin did not have the required skills or competencies to effectively undertake the role it had taken on to co-ordinate road and air travel.

In response to the Hiqa report, the HSE and Our Lady’s Hospital said a revised protocol for patient transfers had been agreed between them, the Air Corps and the Irish Coast Guard, however it remains to be seen as to whether Meadhbh and her family will claim compensation from the HSE resulting from their poor administration.

Joe McGivern father admitted that when Meadhbh might be called again for a liver transplant was a “lottery” and noted that, had the transplant gone ahead as planned in July, his daughter would now be on her way from hospital with a new liver.

The medical records of more than 100 patients have been found in a rubbish bin within the grounds of Roscommon General Hospital – many of them relating to patients who attended the Accident and Emergency Department in Mullingar General Hospital in May 2011.

The records, which were discovered by a woman walking her dog on the grounds, are believed to contain patients´ personal details such as name, address, diagnosis, treatments, doctor’s name, comments and next procedures, and were handed by the woman to the Roscommon Hospital Action Committee.

After reviewing the content, informing the Gardai and taking legal advice, the Roscommon Hospital Action Committee handed the documents to deputy data protection commissioner, Gary Davis, who has called for an investigation into how the Health Service Executive (HSE) stores its medical files.

Speaking from the data protection commissioner´s offices in Portarlington, County Laois, Mr Davis described the matter as a serious breach and said his office would be insisting that all patients involved were notified.

The HSE issued a statement soon after the news broke, saying that clear policies were in place for the disposal of confidential documents and that they took any potential breach of these policies seriously. The statement concluded, “The HSE has established an immediate investigation into claims that confidential patient information was disposed of inappropriately at Roscommon County Hospital”.

A woman, who was transferred between hospitals while in severe and continuous pain from her ectopic pregnancy, has been awarded 75,000 Euros in personal injury compensation at the High Court.

Anne English (47) from Clonmel, County Tipperary, had attended the St Joseph’s Hospital, Clonmel, in 1996, with a suspected molar pregnancy – an unusual condition in which abnormal growth occurs instead of foetal tissue.

Anne was examined by consultant obstetrician and gynaecologist, Dr. Raymond Howard, who dismissed the molar pregnancy and suggested that Anne was suffering from a condition known as acute retrocecal appendicitis. Dr Howard then organised for Anne to be transferred to Our Lady’s Hospital, Cashel, for a surgical opinion.

However, as Mr Justice Sean Ryan at the High Court heard, Dr. Howard had overlooked Anne´s true condition which was a ectopic pregnancy – one in which the embryo implants outside of the womb – and, when the pregnancy finally ruptured while Anne was at Our Lady’s Hospital, she was returned to St Joseph´s Hospital by hospital despite bleeding heavily and being in a critical condition.

On Anne´s return, Dr Howard immediately transferred her to the operating theatre, where anaesthetic measures had to be taken to resuscitate her and three litres of blood were removed from her peritoneal cavity. Despite making a physical recovery from the incident, Anne claimed she had been severely psychologically damaged by the incident and continued to suffer from it.

Finding the Dr. Howard 40 per cent liable for the injury due to his oversight, and the Health Service Executive 60 per cent liable for the injuries suffered by Anne, Mr Justice Sean Ryan announced a personal injury compensation award of 75,000 Euros should be paid to Anne stating “The decision to transfer her from the Cashel Hospital to Clonmel in this state amounted to gross negligence”.