There have been many stories over the past few weeks in Irish newspapers about the deaths of children in state care.
The stories have been confusing, not least by the fact that factual information was simply not available when the story broke. The Sunday Business Post was the first newspaper to focus on the story and produced estimates of as high as 200 deaths over the past 10 years. These numbers are based on extrapolating recent confirmed figures. After multiple efforts to produce accurate information, the government finally released a figure of 188 deaths.
Opposition politicians have repeatedly used the word ‘negligence’ and Eamon Gilmore has blamed the “dysfunctionality in the HSE”. The current budget for child and family services is €536 million, which is clearly a huge sum of money and points to management problems rather than lack of resources. Indeed, the government has announced a new senior position within the HSE to help prioritise spending.
Did the authorities, especially the HSE, have a duty of care for children that are placed in their care?
Clearly the answer is yes.
Is the HSE responsible for all of these deaths?
Certainly not. Many of the teenagers were clearly troubled and short of placing them in prison, there was very little the state could do to prevent them from leaving their state-provided homes.
Is the HSE responsible for some of these deaths?
The Minister for Health Mary Harney clearly blames the HSE. The minister has recently written to the Board of the HSE to point out that the HSE is in breach of numerous statutory duties in relation to foster care services. A copy of this letter would be very useful evidence in an case brought against the HSE. At the very least, there’s probably a lot of cases where the HSE is guilty of contributory negligence.
The report of the Commission to Inquire into Child Abuse, known as the Ryan report, has already identified all the key measures required to reduce or prevent child abuse and neglect. The measured outlined by Justice Seán Ryan include providing a uniform approach to dealing with child protection; greater emphasis on preventive measures and family support; and ensuring all children in care are assigned a social worker and personalised care plan.
Do you or a family member have a negligence claim against the HSE?
Every single case will be different. The only way to determine if you have a case is to talk to a solicitor.
Mr Justice John Quirke of the High Court in Dublin has approved a settlement award of €1.28m to a County Waterford teenager TJ Kearns, who lost a leg in a farming accident. The farm accident occurred on April 20, 2001, when TJ Kearns’ leg got entangled in a power seed sowing machine while working on a farm when he was nine years of age. TJ Kearns was in a tractor with a power harrow attached that was driven by an adult.
The defendants in the case were John Joe Flynn, Eugene Flynn and Gerard Flynn of Dunmore East, County Waterford. As is common in most workplace injury claims, liability in the action had been admitted. As a minor, TJ Kearns of Viewmount, Waterford sued through his father Tom Kearns. The settlement offer had to be approved in the High Court because TJ Kearns is a minor.
While approving the settlement, Mr Justice Quirke stated that “no money could compensate TJ fully for what he had suffered” . TJ Kearns received treatment National Rehabilitation Centre in Dun Laoghire and now uses an artificial leg.
Mr Justice John Quirke of the High Court has approved a €4.5 million settlement for Evan Doyle, of Mountain Close, Cartron View, Sligo, for cerebral palsy that was the result of alleged negligence during his birth at Sligo General Hospital.
After complications, a medical decision was taken to perform a Caesarean section but the consultant unfortunately arrived too late and Evan was delivered by forceps and went on to develop cerebral palsy and spastic quadriplegia.
Because Even Dolyle is under age, the case were taken by the boy’s month Janice Doyle.
Although the Health Service Executive did agree to a compensation payment, it did not admit liability in the case.
William Corrigan-Hayden, aged eight, of Bohernabreena Cottages, Tallaght, was awarded €9,500 damages in the Circuit Civil Court for hurting his foot at the age of six when a slab of marble from a mantelpiece fell on it. The case was taken against Liam Heeney, the Hills Industrial Estate, Lucan, County Dublin, who had installed the fireplace. The boy fully recovered from his injury.
Hollie McNevin from Walkinstown Park, Dublin, has had a settlement of €25,000 approved by Judge Joseph Mathews of the Circuit Civil Court for a swimming pool injury. At the age of nine years, McNevin slipped in the shower in the changing rooms of Templeogue College pool. McNevin claimed that she hurt her foot on a broken plastic drain and therefore Templeogue College was responsible. The result was eight stitches and a parmanent scar on her foot.
Ben McHale, now four years old of Fethard Road, Clonmel, Co Tipperary, had a settlement of €2.9 million approved by Mr Justice John Quirke in the High Court for suffering blindness and brain injuries in a car accident. The car was driven by the child’s mother, Disislave McHale, who was driving the car without insurance. The case was taken against the Motor Insurers’ Bureau of Ireland since the car was not insured. As the plaintiff was underage, the case was taken by his uncle William McHale, acting as the “next friend” guardian.
Emma Dempsey, now aged 11, suffered shoulder injuries during her birth will have limited function in her right arm and shoulder for the rest of her life. As with all childen’s injury claims, the case was brought by her mother, Carol Dempsey, who acted as ‘next friend’ in the case.
The case was taken against the National Maternity Hospital, Holles Street, and against a consultant obstetrician, Dr Peter Lenehan, Blackrock Clinic, Dublin. The defendants denied any medical negligence. Despite advances in medical care, there are still a small percentage of births that will have complications due to natural causes and complications. The infant mortality rate in Ireland is less than 5 per 1,000 live births, which is one of the lowest rates in the world. However, this still means about 200 birth deaths every year.
High Court has approved a settlement of €500,000, which as made without any admission of liability.
Daniel James O’Connell of Portlaoise, County Laois has secured a €300,000 in settlement from the Health Service Executive (HSE) of a High Court claim for alleged medical negligence in which his shoulder was damaged at birth.
The claim was against the Midland Health Board (now the HSE) and consultant obstetrician and gynaecologist John Conway. O’Connell is 14 years old and was born in March 1995, which illustrates the time delay that is often associated with medical negligence claims because it is often necessary to determine the long term impact of any problems.
It should be noted that the settlement was without any admission of liability. In fact, compared with some personal injury claims, it is fairly difficult to make a negligence claim for birth incidents because there is a natural level of risk involved. The infant mortality rate in the Middle Ages in Europe prior to modern medicine was about 200 deaths per 1,000 live births. The infant mortality rate in Ireland is less than 5 deaths per 1,000 live births, one of the lowest in the world. Births are considered a ‘routine’ operation – and the standard procedures are extremely well defined. But no matter how well the medical team performs, there are going to be a few dozen incidents in Ireland every year given the population size and birth rate. The claimant typically needs to be able to prove that the medical team did not follow standard procedures and best practices or just made an obvious mistake.
The parents of two children have just obtained compensation of €6,500 plus legal costs for psychological injury from Budget Travel. Armed intruders broke into their holiday apartment in Lanzarote. The incident happened in May 2002 when the children were 8 and 5 years old. In a separate claim, the parents obtained compensation of €28,400 plus legal costs at the Circuit Court in Killarney in January 2006 for loss of property, personal trauma and the recovery of the holiday cost. The family claimed that Budget Travel failed to provide suitably secure accommodation.
The family were staying at Los Orquideas apartments in Puerto del Carmen, Lanzarote when they were awoken at 3.00 by three intruders, one of whom was in their children’s bedroom with a long screwdriver. The gang removed the content of their security box, including €1,600 in cash, €12,000 in jewellry, passports, and a credit card.