News

The settlement of a cyclist brain injury claim has been approved at the High Court after a consideration was made for the cyclist´s contributory negligence.

On 2nd August 2013, the thirty-three year old cyclist was cycling through Dublin when he was hit by a van at the junction of the Ongar Distributor Road and Shelerin Road in Blanchardstown. According to an eye-witness, the cyclist was thrown three metres into the air by the force of the impact. Forensic analysis later determined the van was travelling at 57kmph at the time.

The cyclist – who had not been wearing a cycling helmet – suffered a traumatic brain injury as a result of the accident. He was taken to the Beaumont Hospital, where he underwent a decompressive craniotomy and – after coming out of intensive care – transferred to the National Rehabilitation Centre. Such was the severity of his injury, he suffered amnesia for four months.

The driver of the van – who was uninsured and unlicensed to drive – was jailed for 3½ years in November 2015 for dangerous driving, causing serious harm, and failing to stop after a traffic accident. Following the conviction, the wife of the injured cyclist made a cyclist brain injury claim against the Motor Insurers´ Bureau of Ireland (MIBI). Liability for the man´s injuries was not contested.

After reports had been compiled to assess the man´s future needs, a settlement of the cyclist brain injury claim amounting to €3 million was agreed. Although not required to wear a cycling helmet by law, the settlement included a consideration of the cyclist´s own contributory negligence. As the man was unable to represent himself, the settlement then went to the High Court for approval.

At the approval hearing, Mr Justice Kevin Cross was told the circumstances of the accident, the consequences to the cyclist´s quality of life and the conviction of the negligent driver. Judge Cross approved the settlement of the cyclist brain injury claim, commenting it had been a dreadful incident. The judge closed the hearing by wishing the cyclist and his family well for the future.

A judge at the Circuit Civil Court has put the approval of an eyebrow scar injury compensation settlement on hold until further medical reports are received.

The proposed settlement of eyebrow scar injury compensation was intended to compensate a four-year-old girl for an injury she suffered while travelling with her mother on a Dublin bus in 2015. Although strapped into her buggy, the girl – who was aged twenty-two months at the time – had hit her head on an upright support when the bus driver braked sharply to avoid a collision with an unmarked garda car.

The girl´s mother had taken her to Temple Street Children´s Hospital, where a cut on the young girl´s eyebrow was cleaned and sealed with seristrips. The girl subsequently developed a fear of being put into her buggy and was also seen by her GP in relation to a soft tissue injury. Although a barely visible scar remains, it is possible the girl´s eyebrow will not develop normally.

Through her mother, the girl made an eyebrow scar injury compensation claim against Dublin Bus and the Garda Commissioner. Liability for the girl´s injury was admitted, and an offer of eyebrow scar injury compensation amounting to €10,000 was forthcoming. However, as the claim had been made on behalf of a child, the offer of compensation had to be approved by a judge before the settlement could be made final.

At the Circuit Civil Court, Mr Justice Raymond Groarke heard the circumstances of the accident and the injury that the young girl had suffered. On inspection of the eyebrow, Judge Groarke said he could still see a visible scar and it was difficult to tell if the girl had made a complete recovery. He added he was reluctant to approve the proposed settlement until a medical report was prepared on how the injury may interfere with the growth of eyebrow hair in the girl´s later life. He subsequently adjourned the approval hearing for six weeks.

A judge has approved an interim cerebral palsy settlement for a six-year-old boy and complimented the Health Service Executive for its cooperation.

The six-year-old boy from Ballaghaderreen in County Roscommon was born at Sligo General Hospital in May 2010 after his birth had been avoidably delayed. According to the details of the case told to the High Court, a CTG trace at 5:30pm on the evening of the boy´s birth indicated that he was suffering foetal distress and should be delivered at the first possible opportunity.

However, rather than perform an emergency C-Section procedure within an appropriate period of time, the boy´s delivery took place more than two hours later. Due to the avoidable delay, the boy was starved of oxygen in the womb and was born with cerebral palsy. He now has a weakness on the right side of his body, although this does not appear to have prevented him from becoming a sociable child.

On the boy´s behalf, his mother made a claim for cerebral palsy compensation against the Health Service Executive (HSE). The HSE was quick to acknowledge liability and, as talks began with the boy´s parents to agree a cerebral palsy settlement, senior HSE personnel apologised for the mistake that had led to their son´s birth injuries and explained how it had happened.

The boy´s parents and the HSE agreed to an interim cerebral palsy settlement of €740,000 which will cover the family´s costs for the next five years – the extended period of time being due to the family having moved to Canada. As the claim had been made on behalf of a child, the interim cerebral palsy settlement had to be approved by a judge to ensure it was in the boy´s best interests.

At the approval hearing – and after hearing details of the case – Mr Justice Kevin Cross complimented the HSE for its attitude, and said that an apology and an explanation was “absolutely something to be encouraged”. Approving the interim cerebral palsy settlement, Judge Cross said he was delighted with the progress the little boy had made, and he wished him well for the future.

A family has been awarded almost €810,000 compensation for a fatal accident at work following an admission of liability by Cork County Council.

On 23rd November 2012, Michael O´Donovan (44) from Aghabullogue in County Cork was fatally injured while helping to clear pine trees at the Carr’s Hill pumping station at Arderrig. Michael – who was an employee of Cork County Council – had been standing behind the digger being used to fell a fifty-foot-high Scots pine. But, as the tree fell, it landed on a telephone cable. The pole supporting the cable snapped and hit Michael on the head as it fell.

An ambulance was summoned and Michael was resuscitated. However, the head injuries he sustained were fatal, and he died later that day in hospital. An inquest into the fatal accident returned a verdict of accidental death, but the jury was critical of the “careless and reckless” manner in which the task had been performed and made recommendations about how tree felling operations should be conducted in the future. The recommendations have since been adopted.

Cork County Council was subsequently prosecuted for three health and safety failings, and fined €48,000 by Cork Criminal Court in February 2016. Following the conviction, Michael´s wife – Yvonne – and her three children claimed compensation for a fatal accident at work. Incredibly, Cork County Council denied liability for Michael´s death and contested their claim on the grounds he had contributed to the tragedy by his own lack of care.

The civil hearing to resolve the claim took place last week at the Circuit Civil Court before Mr Justice Robert Eagar. The first day of the hearing, the court heard about the circumstances of the accident and, on day two, was told that Cork County Council was prepared to admit liability and the hearing could proceed for the assessment of damages only. After hearing actuarial evidence on behalf of the family, Judge Eagar awarded the family almost €810,000 compensation for a fatal accident at work.

A childcare worker´s creche employee injury claim has been settled for an undisclosed sum during a hearing to determine liability at the Circuit Civil Court.

In January 2015, Natasha Carberry (26) was working at the Precious Minds creche in Lucan, Dublin, when she was asked by a senior member of staff to help her change nappies in the babies room. Natasha was already looking after a group of one and two year old children, but she complied with the request, taking the children who were not sleeping with her.

The senior member of staff left the babies room shortly after to attend to other matters, and Natasha was left alone with nine children. While she was helping one of the children, she tripped on a plastic plate that had been left on the floor and fell – twisting awkwardly as she landed and damaging soft tissues in her back and leg.

Despite seeking prompt medical attention from her GP, Natasha still suffers from back pain as a result of her accident and may have to look for another career. She applied to the Injuries Board for an assessment of her creche employee injury claim, but Precious Minds withheld their consent for the assessment to proceed and Natasha was issued with an authorisation to pursue her claim in court.

The hearing to determine liability was held recently before Judge Brian O´Callaghan at the Circuit Civil Court. At the hearing, a forensic engineer gave evidence that Natasha had been placed in an unduly stressful situation and that the creche had failed to have regard for her safety on the day of the accident due to the high child/adult ratio that existed once the senior member of staff left the room.

Precious Minds contested the creche employee injury claim on the grounds that one of Natasha´s duties was to keep the floor clear of hazards to protect the children from coming to harm. The creche claimed that, as Natasha had failed to notice and remove the plastic plate over which she had tripped, she was the author of her own misfortune.

However, following a brief adjournment, Judge O´Callaghan was informed that Natasha´s creche employee injury claim had been settled by mutual consent for an undisclosed sum and without an admission of liability. The judge complimented the two parties on reaching an agreement and awarded Natasha her legal costs before striking the claim.

A Dublin nurse has been awarded €48,000 injury compensation for tripping in Tesco after the store was found negligent in its control of customer traffic.

In January 2014, Bernadette Higgins (32) was making her way to the wine section of the Tesco Metro store in Terenure, Dublin, when she tripped over a six-pack of beer that had been left on the floor by a customer waiting to use the self-service check-out.

The customer helped Bernadette to her feet and apologised, but due to a pain in her knee an ambulance was called and she was taken to St. James´s Hospital. At the hospital an x-ray revealed a fracture of Bernadette´s left knee – a knee she had reconstruction surgery on five months previously.

As a result of her accident in Tesco´s, Bernadette had to undergo two further surgeries and is still having physiotherapy treatment. In addition to a visible scar on her knee, Bernadette still experiences pain in her left knee and has had to give up her hobbies of football and running.

Bernadette applied for an assessment of injury compensation for tripping in Tesco to the Injuries Board, but Tesco declined their consent for the assessment to be conducted. Bernadette was subsequently issued with an authorisation to pursue her claim in court.

The hearing of her case took place last week at the Circuit Civil Court before Mr Justice Raymond Groarke, who was told that Tesco was denying liability for Bernadette´s accident as the six-pack of beer had only been on the floor for seconds before Bernadette´s accident, and there was nothing they could have done to prevent it.

However, the judge ruled that the layout of Tesco Metro in Terenure meant that customers entering the store had to negotiate other customers waiting to pay for their shopping. The judge said that Tesco should provide a defined path for customers at the self-service checkout in order to better control customer traffic.

Judge Groarke initially awarded Bernadette €60,000 injury compensation for tripping in Tesco, but after taking into account that she was not properly looking where she was going, he reduced the award to €48,000 to account for her contributory negligence.

The High Court has approved a €7.1 million settlement of compensation for a hypoxic brain injury in favour of a former barrister from County Meath.

In 2014, Frank Cowan (46) from Clonee in County Meath attended the Sports Surgery Clinic in Santry, Dublin, due to suffering from persistent back pain. The former lawyer and barrister underwent routine cervical spine surgery; but, during the procedure, the management of his anaesthetic was inadequate and Frank suffered a hypoxic brain injury due to not receiving sufficient oxygen.

As a result of the anaesthetist´s negligence, Frank now requires around-the-clock care. Although he can smile at his two children and reacts in the presence of his family, he cannot communicate his needs or express when he is in pain. He is currently being cared for in a specialist care home, paid for by a trust set up by family and friends soon after he sustained his injury.

Frank´s wife – Janette – claimed compensation for a hypoxic brain injury on her husband´s behalf. The anaesthetist´s negligence was admitted last month, and a €7.1 million settlement of the claim was negotiated. As the claim for compensation for a hypoxic brain injury had been made on Frank´s behalf, the settlement of the claim had to be approved by a judge to ensure it was in Frank´s best interests.

Consequently, an approval hearing was scheduled for the High Court in Dublin. At the hearing, Mr Justice Kevin Cross was told the circumstances of Frank´s injury and that the family intend using the settlement of compensation for a hypoxic brain injury to provide care for Frank in the family home. The judge also heard that the litigation process had been distressing for the family, and that they were willing to accept the settlement to get the matter “done and dusted”.

After conveying his sympathy to the family for the terrible tragedy they had suffered, Judge Cross approved the settlement of compensation for a hypoxic brain injury and wished the family well for the future.

A judge has awarded a woman €15,000 compensation for an injury working in Dunnes Stores after a damages assessment hearing at the Circuit Civil Court.

In March 2012, Jessica Kelty (23) was working in Dunnes Stores in Tallaght, Dublin, when she was asked to go to the stockroom to bring a trolley of bread. As Jessica starting pushing the two-metre high trolley out of the stockroom, the tray on the top shelf of the trolley fell and struck her on the head.

Jessica – who also lives in Tallaght – was given first aid by a colleague and then attended the A&E department at Tallaght Hospital, where she was detained overnight for observation. Despite being diagnosed with no permanent injury, she has since suffered headaches and neck pain.

Jessica claimed compensation for an injury working in Dunnes Stores, and although the company admitted liability the amount of compensation being claimed was contested. No agreement could be found by negotiation, and the case went to the Circuit Civil Court for the assessment of damages.

At the hearing, Judge Terence O´Sullivan heard the circumstances of Jessica´s accident and was told that she had been knocked to the ground and felt dizzy afterwards. Solicitors representing Dunnes Stores argued that there had been no significant injury and attributed her neck pain to the work Jessica now does as a hairdresser.

Judge O´Sullivan noted that Jessica had not attended her doctor for three years after the accident or gone for any physiotherapy, and commented that she had done a poor job of looking after herself. Jessica´s solicitor told the judge that she had self-medicated with painkillers bought from her local pharmacy.

Saying that the court drew the conclusion she “wasn´t that badly hurt”, Judge O´Sullivan awarded Jessica €15,000 compensation for an injury working in Dunnes Stores, and gave the store leave to appeal the award of compensation provided that a payment of €10,000 was paid immediately to Jessica.

A nine-year-old boy´s claim for electric gate injury compensation has been resolved at the Circuit Civil Court with the approval of a €19,000 settlement.

In May 2010, Joel Gannon was just two-and-a-half years of age when his head got stuck between the railings of an electric gate as it was closing outside of his home in Cabra, Dublin. Joel´s head and shoulders were dragged along the ground as the gate closed, and although his father was able to free him quickly, Joel suffered a fractured left clavicle and abrasions to the left side of his face.

On her son´s behalf, Lyndsay Gannon made a claim for electric gate injury compensation against the Tuath Housing Association – the housing association responsible for the family home – and Dublin City Council. In her claim for electric gate injury compensation, Lyndsay alleged that the gate should have been covered with a metallic net to prevent such accidents from happening.

Liability was contested by both defendants but an offer of compensation amounting €19,000 was made to the family and they accepted it on the recommendation of their solicitor. However, as the claim for electric gate injury compensation had been made on behalf of a child, the offer had to be approved by a judge to ensure it was in Joel´s best interests.

Consequently an approval hearing was scheduled for the Circuit Civil Court. At the hearing Mr Justice Raymond Groarke was told the circumstances of Joel´s accident and that an offer of settlement had been made without an admission of liability. After hearing that Joel had made a full recovery from the accident, Judge Groarke approved the settlement – commenting that Joel was lucky his father was close at hand at the time.

The settlement of compensation will now be paid into court funds until Joel reaches the age of maturity. If funds are required for Joel´s education or related medical costs before he turns eighteen years of age, the family can apply to the Circuit Civil Court to access some or all of the settlement.

A €2.5 million interim settlement of compensation for the misdiagnosis of a chicken pox infection has been approved by a judge at the High Court in Dublin.

Eoghan Keating was soon to be celebrating his second birthday when, on 24th August 2012, his parents took him to the Accident and Emergency Department of Waterford Regional Hospital suffering from a high fever and having developed a rash on his abdomen.

Eoghan was diagnosed as having mumps and discharged. His parents – Larry and Martina – were told to treat him with ibuprofen and Carpol if his symptoms continued but, during the night, Eoghan´s health deteriorated. Larry and Martina called the caredoc GP service when Eoghan became lethargic and developed a swelling on his neck, and were told to return to the hospital.

On their return, Eoghan was correctly diagnosed as having a chicken pox infection. He was intubated and ventilated before being transferred to the Children´s Hospital in Dublin. Unfortunately the correct diagnosis had been made too late to prevent the infection causing a brain injury and – now six years of age – Eoghan is tetraplegic and cannot talk.

Martina sought legal advice and claimed compensation for the misdiagnosis of a chicken pox infection on her son´s behalf. In the action against the Health Service Executive (HSE) it was alleged that there had been a failure to identify the indications of a serious infection and admit Eoghan when the family first presented at the Waterford Regional Hospital.

The HSE admitted liability for Eoghan´s brain injury and an interim settlement of compensation for the misdiagnosis of a chicken pox infection was agreed. As the claim had been made on behalf of a child, the €2.5 million interim settlement had to be approved by a judge to ensure it was in Eoghan´s best interests.

Consequently the sequence of events leading up to Eoghan´s brain injury and the consequences of his injury were related to Mr Justice Kevin Cross at the High Court. At the approval hearing, Richard Dooley – the General Manager of Waterford Regional Hospital – read an apology to the court apologising for the “deficiencies in care provided to Eoghan”.

Judge Cross told the Keatings “your suffering cannot be described or defined” before approving the interim settlement of compensation for the misdiagnosis of a chicken pox infection. The judge then adjourned the case for two years in order that an assessment of Eoghan´s future needs can be conducted.

The High Court has awarded a woman who suffered a recurrence of childhood claustrophobia €25,060 compensation for being trapped in a shopping centre elevator.

Fifty-four year old Marie Dicker – a department store supervisor from Walkinstown in Dublin – was visiting the Square Shopping Centre in Tallaght on August 31, 2012, when she took the elevator to travel down to the ground floor.

Soon after the elevator started to descend, it suddenly stopped. Marie banged on the door and shouted for help after finding the elevator´s alarm button unresponsive. Eventually a security guard heard the noise and was able to release her.

Although she had been trapped in the elevator for fewer than five minutes, the upsetting incident resulted in Marie suffering a recurrence of childhood claustrophobia. She was unable to go into rooms without leaving the door open behind her and had to remain close to the exit of any room she entered.

Marie sought professional medical help and was diagnosed with an adjustment disorder, anxiety and depression. She then spoke with a solicitor and made a claim for compensation for being trapped in a shopping centre elevator against Square Management Ltd and Pickering Lifts Ltd.

The two defendants admitted that there had been a breach in their duty of care, but contested how much compensation for being trapped in a shopping centre elevator Marie was claiming. The case consequently went to the High Court for an assessment of damages and was heard by Mr Justice Anthony Barr.

At the hearing, Judge Barr was told that Marie has been under the care of a psychologist since the incident and has responded well to cognitive behaviour therapy. However, the defendants claimed that Marie showed no signs of anxiety when she was evaluated by a psychiatrist on their behalf.

After being told that Marie´s treatment is expected to last a further twelve to eighteen months, Judge Barr said he was satisfied that the incident had caused a recurrence of Marie´s childhood claustrophobia and he awarded her €25,060 compensation for being trapped in a shopping centre elevator.

Health Minister Simon Harris has said he is going to introduce legislation to enforce the HSE´s guidelines for open disclosure in medical negligence cases.

In November 2013, the Health Service Executive (HSE) and State Claims Agency launched a nationwide program of open disclosure in medical negligence cases to support an “open, timely and consistent approach to communicating when things go wrong in healthcare”.

Although guidelines were published to support the policy of open disclosure in medical negligence cases, critics have claimed that the policy has not been consistently applied, and that a legal duty of candour in Ireland is required to overcome the “culture” of keeping quiet when mistakes are made.

In response to those critics, Health Minister Simon Harris has committed to introduce legislation to enforce the HSE´s guidelines as part of a series of measures intended to improve patient safety in Ireland.

Mr Harris was speaking at the State Claims Agency´s first annual “Quality, Patient Safety & Clinical Risk Conference” at Dublin Castle when he announced a “program of significant patient safety measures” that would be overseen by a new National Patient Safety Office.

According to Mr Harris, the new department will be responsible for:

• Establishing and supporting a nationwide patient advocacy service.
• Implementing a patient safety surveillance system.
• Setting up a national advisory council for patient safety.

Working in conjunction with the Department of Justice and Equality, the National Patient Safety Office will also be responsible for accelerating the Health Information and Patient Safety Bill – a bill creating a national healthcare database to improve the provision and management of healthcare services throughout Ireland.

Due to the bill containing measures to protect patients´ private healthcare information, the proposals are unlikely to be enacted until after the European Union has issued revised data protection standards. However, the fact that Mr Harris has acknowledged the importance of open disclosure in medical negligence cases will please many patient healthcare advocates who believe former Health Minister Leo Varadkar sidestepped the opportunity to introduce appropriate legislation in the Civil Liberty (Amendment) Bill 2015.

The value of a claim for bicycle courier accident compensation, made against a Dublin taxi driver, has been determined at a hearing of the High Court.

In March 2015, bicycle courier Rotimi Omotayo was knocked from his bike when a Dublin taxi driver by Kenneth Griffin pulled out of stationary traffic on Custom House Quay. Fortunately Rotimi suffered relatively minor injuries, but alleged in his subsequent claim for bicycle accident compensation that he had lost three months of earnings because of his injuries.

The taxi driver´s insurance company disputed the amount of compensation being claimed, and also alleged that Rotimi had contributed to the cause of the accident by cycling along the hatched markings between the two carriageways. Unable to conduct an assessment, the Injuries Board gave Rotimi an Authorisation to take his claim for bicycle courier accident compensation to court.

The hearing took place recently at the High Court, where Mr Justice Bernard Barton heard experts from both parties give their account of how the accident happened. He concluded that Mr Griffin´s account was closer to the actual events, as expert witnesses described how the only damage done to the taxi was a broken wing mirror.

However, Judge Barton ruled that, as Rotimi was about to turn right from the Eastbound carriageway, he was entitled to be cycling in, or close to, the hatched markings between the two carriageways. The judge added that Mr Griffin had failed to keep a proper lookout before executing his manoeuvre and, as such, was fully liable for causing the accident.

The judge awarded Rotimi €30,000 general damages in settlement of his claim for bicycle courier accident compensation, but said there was insufficient evidence before the court to justify his claim for loss of earnings. Other items of special damages that had been “properly vouched and agreed” were allowed, including Rotimi´s legal costs.

The High Court has approved a €100,000 settlement of compensation for a scar due to an adverse reaction in favour of a three-year-old girl.

Sophia Ryan was born on the 19^th October 2012 at the National Maternity Hospital in Dublin seventeen weeks premature. Immediately after her birth, Sophia was transferred to the Special Care Baby Unit, where she was administered medication via a series of catheters.

Prior to the insertion of the catheters, Sophia´s skin had been cleaned with chlorhexidine – a different antisepsis lotion from the povidone-iodine usually used on premature babies – as part of the National Children´s Research Centre´s “SKA trial”.

Sophia´s mother – Anne – had given permission for the lotion to be used on Sophia after being assured that it would not have any side effects or cause her daughter any discomfort. However, the morning after Sophia´s birth, nurses noticed she was distressed and had redness and ulcerations on her back.

The condition was attributed to an adverse reaction to the chlorhexidine. Sophia was administered morphine to provide pain relief and a cream used to prevent bacterial skin infections – Fucidim – was applied to her skin.

When a plastics specialist noted that Sophia had suffered a deep dermal skin burn on her back, the Fucidim treatment was discontinued and an alternate cream applied. Sophia´s condition improved, but she has been left with discoloured skin and a scar on her back that was likened by a consultant paediatric dermatologist in May 2014 as being similar to a chemical burn.

Through her father – Tom – Sophia claimed compensation for a scar due to an adverse reaction against the National Maternity Hospital; alleging that her mother would never have consented to the application of chlorhexidine had she been aware about the potential side effects.

The hospital made an offer of compensation for a scar due to an adverse reaction without an admission of liability, at the approval hearing at the High Court, Mr Justice Richard Humphries was told that Sophie will likely need a skin graft in the future to hide the discolouration and permanent scar.

On hearing the details of the hospital´s offer of €100,000, Judge Humphries approved the settlement of compensation for a scar due to an adverse reaction and ordered that the hospital also pay the Ryan´s legal costs.

A woman who injured her ankle in an accident at Dublin Zoo has been awarded €105,000 compensation for a slip on a wet manhole cover by the High Court.

Gwen Kane (43) from Firhouse in Dublin was visiting Dublin Zoo with her family on 12^th June 2011 as a treat to celebrate her son´s first birthday. As Gwen passing the sea lion enclosure, she slipped on a wet manhole cover and fell – injuring her right ankle.

Gwen was taken to hospital, where she was diagnosed as having dislocated the ankle. The ankle was put into a plaster cast for seven weeks and Gwen had to use crutches for a further nine weeks to help support her injured ankle.

Despite regaining her mobility, Gwen continued to experience pain from her accident. She sought legal advice and claimed compensation for a slip on a wet manhole cover – alleging that the Zoological Society of Ireland had been negligent by failing to clear rainwater away from walkways and viewing areas in order to provide a safe environment for the zoo´s visitors.

The Zoological Society of Ireland admitted liability for Gwen´s injury, but rejected the Injuries Board assessment of her claim. Gwen was subsequently issued with an authorisation to pursue her case in court, and a hearing for the assessment of damages recently took place at the High Court.

At the hearing, Mr Justice Anthony Barr was told the circumstances of Gwen´s accident and the consequences to her quality of life. He heard that, as a consequence of her accident, Gwen had to give up her hobbies of Breton folk dancing, cycling and long-distance walking – activities that she participated in for charity.

Judge Barr said he was satisfied Gwen had given a fair and accurate account of the consequences of the accident, and awarded her €105,000 compensation for a slip on a wet manhole cover in respect of her pain and suffering, with a further award of €9,988 special damages to account for the financial cost of her injury.

An interim settlement of compensation for birth injuries due to medical negligence at the Midwestern Regional Maternity Hospital has been approved in court.

On 19 August 2013, Catriona Enright was admitted to the Midwestern Regional Maternity Hospital in Limerick, thirty-seven weeks into her pregnancy with son Charlie. After tests were conducted, the decision was made to induce labour and Catriona was administered Syntocinon.

Despite hyper-stimulation being a known side effect of Syntocinon, Catriona´s condition was not adequately monitored. A subsequent misinterpretation of the CTG tracing and a belated recognition of foetal distress led to Charlie being born “flat” the following day, unable to breathe independently.

Charlie was transferred to Cork University Hospital, where he was diagnosed as having suffered an intra-cranial haemorrhage and treated with therapeutic hypothermia (“head cooling”). However, due to the brain damage Charlie suffered prior to his birth, he is severely and permanently disabled.

On her son´s behalf, Catriona claimed compensation for birth injuries due to medical negligence against the Midwestern Regional Maternity Hospital and the Health Service Executive (HSE). Liability was admitted for Charlie´s birth injuries and an interim settlement of €1.75 million agreed while a report is prepared into Charlie´s future needs.

As the claim for compensation for birth injuries due to medical negligence was made on behalf of a child, the interim settlement had to be approved by a judge to ensure it was in Charlie´s best interests. Consequently, at the High Court, Mr Justice Anthony Barr was told the circumstances leading up to Charlie´s birth.

Judge Barr approved the interim settlement, saying it was a very good one that should take care of the boy´s needs for the next two years. After two years, the family will have to return to court for the approval of a subsequent interim settlement of compensation for birth injuries due to medical negligence or the approval of a lump sum payment, assuming that no system of periodic payments is introduced in the meantime.

A permanent scar compensation claim has been resolved at the High Court with the approval of a €106,000 settlement in favour of a seventeen-year-old girl.

In August 2009, Shauna Burke from Corbally in County Limerick was on holiday with her family at Slattery´s Caravan Park in Lahinch, County Clare, when she lacerated her leg on a nail that was allegedly protruding from a box attached to a pole. Shauna – who was ten years old at the time – received medical treatment for her injury, but – now seventeen years of age – has a permanent visible scar above her knee.

On Shauna´s behalf, John Burke – her father – made a permanent scar compensation claim against the owner of the caravan park – Austin Francis Slattery. Slattery denied that he was liable for Shauna´s injury and the resulting scar, but agreed to a €106,000 settlement of the permanent scar compensation claim – made up of €90,000 for Shauna´s pain and suffering and €16,000 for her future medical care.

As the permanent scar compensation claim had been made on behalf of a child, the offer of settlement had to be approved by a judge to ensure it was in Shauna´s best interests. Consequently at the High Court, Mr Justice Anthony Barr heard allegations that the nail on which Shauna cut her leg was a hazard that should have been removed due to it being located in an area often frequented by guests at the caravan park.

After inspecting the scar, Judge Barr said that the proposed settlement of the permanent scar compensation claim was a good one and that he was happy to approve it. Because Shauna is still a legal minor, the judge ordered that the settlement should be paid into court funds, where it will remain in an interest yielding account until Shauna´s eighteenth birthday.

The settlement of a claim for the negligent administration of chemotherapy has been approved at the High Court in favour of a permanently brain damaged woman.

Pauline Carroll (65) from Mountmellick in County Laois attended the Midland Regional Hospital in Tullamore on 1^st November 2010 for an update on her cancer. Pauline had previously undergone surgery to remove a tumour and had been undergoing chemotherapy treatment since August 2010.

Despite requesting that she see a doctor first, Pauline was immediately given another course of chemotherapy. When she was able to see a doctor, she was informed that the chemotherapy treatment should not have been administered because her white blood cell count was too low.

Two days after the negligent administration of chemotherapy, Pauline suffered a cardiac arrest at her home. She was taken to hospital, where she suffered a second cardiac arrest that led to her sustaining permanent brain damage. Pauline is now in a vegetative state and cared for at a nursing home.

After seeking legal advice, Pauline´s husband – Kevin – made a claim for the negligent administration of chemotherapy against the Midland Regional Hospital and the Health Service Executive (HSE).

In his legal action, Kevin alleged that the chemotherapy treatment should not have been administered before Pauline had seen the doctor, especially as it was known that Pauline had complained of cardiac pain three months earlier, and the chemotherapy drugs she had been administered were cardiotoxic.

The HSE denied negligence and claimed there was no connection between the administration of chemotherapy, Pauline´s cardiac arrest and subsequent permanent brain damage. However, after years of negotiations a settlement of the claim for the negligent administration of chemotherapy was agreed.

According to the terms of the settlement, the HSE will pay Pauline´s family €975,000 compensation and pay for Pauline´s care at the nursing home for the rest of her life. As the claim for the negligent administration of chemotherapy was made on behalf of a person unable to represent themselves, the settlement had to be approved by a judge.

Consequently the details of the claim for the negligent administration of chemotherapy were related to Mr Justice Kevin Cross at the High Court. Approving the settlement, Judge Cross commented it was a “very good legal outcome for what has been an unfortunate and tragic outcome”.

A County Monaghan man has been ordered to pay €75,000 compensation for defamatory comments posted on Facebook about the National Director of the NARGC.

Monaghan Circuit Criminal Court heard that on or around December 22, 2015, John Gilsenan from Castleblayney in County Monaghan posted defamatory comments on Facebook relating to the way in which the National Director of the National Association of Regional Game Councils (NARGC) had managed the Association´s finances.

The defamatory comments alleged that Desmond Crofton – from Stonestown in County Offaly – had made decisions regarding the organisation´s finances that had caused the NARGC “to go broke”. After other members of the Association had been alerted to the comments, a confrontation ensued, and Crofton was suspended from his position as National Director on full pay.

Crofton took legal advice and claimed compensation for defamatory comments posted on Facebook against Gilsenan. At the Monaghan Circuit Criminal Court, Judge John O´Hagan was told that Gilsenan had initially contested the claim, but had since abandoned the matter and – as the claim was now uncontested – the case was before the judge for the assessment of damages only.

After hearing the facts of the case, Judge O´Hagan ordered that Gilsenan should pay Crofton €75,000 compensation for defamatory comments posted on Facebook. The judge commented that he was awarding Crofton the maximum amount possible in order to “teach people posting messages on the social media site to be very careful”.

Ireland´s ban on abortions for fatal foetal abnormalities has been described as “inhuman and degrading” by the United Nations´ Human Rights Committee.

According to Article 40.3.3º of the Constitution and the Protection of Life During Pregnancy Act 2013, the right to life of an unborn foetus is protected unless the mother´s health is at risk. The ban on abortions for fatal foetal abnormalities means that mothers carrying unborn children with no hope of survival after birth have to leave Ireland to have a termination.

One such mother was Amanda Mellet. Amanda was given the devastating news in November 2011 that her unborn child would die in the womb or shortly after birth due to a fatal foetal anomaly. Amanda travelled alone to the UK to have a termination and – due to limited funds – had to return to Ireland just twelve hours after undergoing the procedure.

Unlike cases in which women suffer miscarriages, Amanda did not receive any post-operative medical care in Ireland or bereavement counselling – a situation that was aggravated when the ashes of her unborn child were delivered to her by courier three weeks later. Amanda also felt stigmatised by having circumnavigated Ireland´s ban on abortions for fatal foetal abnormalities.

Amanda co-founded the organization “Termination for Medical Reasons” in order to campaign for a change to the ban on abortions for fatal foetal abnormalities. She also contacted the European branch of the Centre for Reproductive Rights – who filed a complaint on Amanda´s behalf with the United Nations´ Human Rights Committee.

Earlier this week, the Committee upheld the complaint and described Ireland´s ban on abortions for fatal foetal abnormalities as “inhuman and degrading”. The Committee said that the ban discriminated against Amanda and jeopardised her well-being by subjecting her to unnecessary financial and emotional suffering.

The Human Rights Committee reported: “The State party should amend its law on voluntary termination of pregnancy, including if necessary its Constitution, to ensure compliance with the Covenant, including effective, timely and accessible procedures for pregnancy termination in Ireland, and take measures to ensure that healthcare providers are in a position to supply full information on safe abortion services without fearing being subjected to criminal sanctions.”

In addition to telling the Government to reverse the ban on abortions for fatal foetal abnormalities, the Committee said that the state should compensate Amanda for failing to take her medical needs and socio-economic circumstances into account. The Committee commented that many of the negative events Amanda had experienced could have been avoided if she had had been allowed to terminate the pregnancy “in the familiar environment of her own country and under the care of health professionals whom she knew and trusted.”

A passenger´s injury claim for a car crash in Antrim has been resolved following a hearing at the High Court in Belfast and an award of £464,655 compensation.

In July 2012, 29-year-old Rosie Sands was a passenger in a friend´s car travelling along the A57 near Doagh in County Antrim, when the car was involved in a head-on collision with an oncoming jeep and trailer driven by Stephen Hamilton.

Rosie´s friend – 21-year-old Michelle Hulford – was tragically killed in the accident, and the driver of the car and two further passengers were also injured. Rosie from Exmouth in Devon was taken to hospital with injuries to her back, abdomen and shoulder.

Rosie returned to Exmouth on her release from hospital, but suffered from flashbacks and nightmares that prevented her from completing her honours degree at Bath Spa University and competing in the British Sailing Championships.

She was subsequently diagnosed with Post Traumatic Stress Disorder and, after seeking legal advice, Rosie made an injury claim for the car crash in Antrim – seeking compensation for her personal injuries, her loss of earnings and the cost of her care and treatment.

The driver of the jeep admitted liability for causing the accident, and the injury claim for a car crash in Antrim proceeded to the High Court in Belfast for the assessment of damages, where it was heard by Mr Justice Adrian Colton.

At the hearing, Judge Colton heard how Rosie´s life had changed “irrevocably” due to the accident. Formerly a Gold Standard sailor, Rosie´s injuries now prevent her from competing competitively. She has also had to abandon a planned career in the RAF or Navy.

Judge Colton said that the evidence Rosie had given in support of her injury claim for a car crash in Antrim had been “honest, understated, stoical and admirable”. He awarded Rosie £464,655 and wished her well for the future.

A final payment of delayed delivery cerebral palsy compensation has been approved in the High Court in favour of sixteen year old girl described as “heroic”.

Sixteen-year-old student Mary Malee was born on 11^th October 1999 by emergency Caesarean section at Mayo General Hospital after an alleged delay in locating a paediatrician. Due to the alleged delay and a miscommunication when the paediatrician arrived, Mary´s delivery was delayed by eighty minutes – during which time her brain was starved of oxygen and she suffered cerebral palsy.

On Mary´s behalf, her mother – Maura Malee from Swinford, County Mayo – claimed delayed delivery cerebral palsy compensation from the Health Service Executive, alleging that there had been a failure to ensure the presence of a paediatrician when it was known that Mary was in distress in the womb, and that the hospital´s medical negligence led to the failure to conduct Mary´s birth in a timely manner.

An interim settlement of delayed delivery cerebral palsy compensation was approved in March 2014 and Mary´s case was adjourned for two years in anticipation of laws allowing for the introduction of phased payments of compensation for catastrophically injured claimants. As structured settlements are still not available, Mary and her parents returned to the High Court last week to have a €5.56 million final payment of delayed delivery cerebral palsy compensation approved.

At the hearing, Mary explained to Mr Justice Peter Kelly that “the stress of ongoing engagement with the HSE and the courts is not what I want”. The judge also heard that Mary has ambitions to become an advocate for people with disabilities, and describing Mary´s achievements to date as “heroic”, Judge Kelly approved the final payment of delayed delivery cerebral palsy compensation.

Also at the hearing an apology from the Mayo General Hospital was read to Mary, expressing the hospital´s deep regret for “the many challenges that you have faced as a result of the treatment provided to your mother Maura at the time of your birth”. Mary subsequently gave a statement to the press in which she said: “Cerebral palsy won’t kill me but I have to learn to live with it … it’s for life. This shouldn’t have happened to me and others like me. Justice has been done and I’m bringing closure to this, we can move on with our lives”.

A pony ride injury compensation claim, made by a woman left with a permanent scar after her accident, has been settled during a hearing to establish liability.

Maria Gray (35) – a dentist from Belfast – was among a group of friends having a hen weekend in Galway when she went on a pony trek at Feeney’s Riding School in Thonabrocky on 15^th July 2013. The trek started without incident but, as the party slowly descended a steep incline, the legs of Maria´s pony buckled and Maria fell from the saddle.

Maria sustained a deep cut on her chin and a wrist injury. She was taken to hospital, where the cut was cleaned and stitched, but she now has a permanent scar that is visible to her patients. Maria´s wrist injury deteriorated and she had to undergo eight weeks of physiotherapy – during which time she was unable to work because of a splint on her arm.

After seeking legal advice, Maria made a pony ride injury compensation claim against the owners of the riding school – Gerard and Siobhan Feeney. In her legal action, Maria alleged that pony was too small for her 5 foot 8½ inches frame and was only suitable for a child under the age of fourteen. She also claimed that the school had not given her adequate instruction on how to ride the pony.

The Feeney´s denied that the pony was too small for Maria, and argued that she had been offered a larger pony to ride, but had declined the opportunity. Without the riding school owner´s consent to carry out an assessment, the Injuries Board issued Maria with an authorisation to pursue her pony ride injury compensation claim through the courts.

The hearing to determine liability opened before Mr Justice Raymond Fullam at the High Court last week. Maria told the judge it was her belief that the pony had already been out on a trek earlier on that very hot day. Consequently it was hungry and tired, and kept stopping to eat grass. She added that the pony was only suitable for a child under fourteen years of age because of its age.

Before the second day of the hearing could get underway, the judge was told that the parties had come to an agreement and the pony ride injury compensation claim could be struck.

The details of a claim for brain damage due to negligence surgery have been heard in the High Court prior to the approval of an interim settlement.

Jude Miley was born on 16^th July 2011. In January 2012 Jude was diagnosed with a condition affecting the contour of his diaphragm and he underwent surgery at Our Lady´s Hospital for Sick Children to assist his breathing.

Unfortunately, a suture used in the operation was left untied and, due to its proximity to Jude´s heart, damaged the organ every time Jude took a breath. Two days after the operation, Jude went into cardiac arrest – suffering brain damage when his brain was starved of oxygen.

On his son´s behalf, Greville Miley – from Dundrum in Dublin – made a claim for brain damage due to negligent surgery against the hospital; alleging that the suture had been placed without the surgeon having sight of the heart and other vital organs.

Our Lady´s Hospital for Sick Children only admitted liability for Jude´s injury last year – originally contesting the claim for brain damage due to negligent surgery on the grounds that the risk of cardiac arrest was a known risk of the surgery, and nothing could be done about it.

As Mr Justice Anthony Barr heard at the High Court earlier this week, Jude´s parents were also excluded from the hospital´s internal investigation after being asked to be kept informed of any developments. Both Greville and Anne Louise subsequently had to give up their jobs to care for their son.

However, once the hospital had admitted liability, an interim settlement of the claim for brain damage due to negligent heart surgery amounting to €1.8 million was agreed. This interim settlement will allow the family to buy a suitable home to raise Jude and compensate Greville and Anne Louise for their loss of income.

Judge Barr approved the interim settlement of compensation and adjourned the case for an assessment of Jude´s future needs to be made.

The Health Service Executive has admitted partial liability in a claim for undiagnosed bleeding on the brain and settled the claim for €2.7 million.

On 26^th June 2006, Paula Dundon (42) attended the Naas General Hospital complaining of a sudden and severe onset of headaches accompanied by nausea and vomiting. Paula was treated with painkillers and underwent a CT scan on her brain.

The CT scan allegedly failed to determine the cause of her headaches but, as her condition did not improve, Paula – from Brownstown in County Kildare – underwent a second CT scan three days later that revealed a large intra cerebral bleed on the left side of her brain.

Paula was transferred to the Beaumont Hospital, where a further investigation determined that she had suffered an intra cerebral subarachnoid haemorrhage. Due to the length of time between attending Naas General Hospital and being transferred to the Beaumont Hospital, the bleeding on Paula´s brain caused her to suffer brain damage, and the former hairdresser now requires 24-hour care.

On his wife´s behalf, Michael Dundon made a claim for undiagnosed bleeding on the brain. In his legal action against the Health Service Executive (HSE), Michael alleged that there had been a failure to adequately assess Paula´s condition when she attended the hospital in Naas and the failure to carry out a prompt diagnosis that would have accelerated Paula´s transfer to the Beaumont Hospital.

The HSE contested the element of the claim for undiagnosed bleeding on the brain that related to the failure to assess, but agreed that Paula´s brain injury should have been identified sooner – facilitating her transfer to the Beaumont Hospital where she could have received appropriate treatment and her brain damage would not have been so severe.

A settlement of the claim for undiagnosed bleeding on the brain was agreed for €2.7 million. However, as the claim had been made on behalf of a plaintiff who was unable to represent herself, the settlement had to be approved by a judge. The approval hearing took place earlier this week before Mr Justice Kevin Cross.

Approving the settlement, Judge Cross said Michael and his two children should be congratulated for the care they had given to Paula since her injury. He wished the family all the best for the future.

A €550,000 interim settlement of a claim for the failure to diagnose sepsis has been approved in the High Court in favour of a man permanently in a coma.

On 3^rd October 2011, Robert Bolton (71) underwent surgery on his oesophagus at the St James Hospital in Dublin. The surgery was considered to be successful but, the following morning, James suffered a heart attack due to respiratory failure brought on by sepsis.

Due to a combination of the heart attack and respiratory failure, Robert went into a coma and has been in a minimally conscious state ever since. Unable to speak or communicate – and oblivious to the presence of his family – Robert requires around-the-clock specialised care.

On her husband´s behalf, Robert´s wife – Angela – made a claim for the failure to diagnose sepsis against St James Hospital, alleging that the hospital had not met the generally accepted criteria for systemic inflammatory response and sepsis. It was also alleged that the hospital had failed to identify the symptoms of sepsis-related organ failure.

The hospital contested the claim for the failure to diagnose sepsis, but admitted that there had been failings in the standard of care provided to Robert. A €550,000 interim settlement of compensation was agreed to provide Robert´s care for the next two years. However, as the claim for the failure to diagnose sepsis had been made on behalf of a plaintiff unable to represent themselves, the settlement had to be approved by a judge.

Consequently, at the High Court, Mr Justice Kevin Cross was told the circumstances of Robert´s heart attack, its probable cause, and the consequences of his condition to his wife and family. Judge Cross approved the interim settlement after Angela told him that the family was happy that Robert´s care would be provided for. The judge commented that the settlement of the claim for the failure to diagnose sepsis had been well thought out and was obviously the result of hard bargaining.

AIB has announced it has set aside €105 million to pay compensation for tracker mortgage customers wrongfully put on variable interest rate accounts.

After years of denying that it was liable to pay compensation for tracker mortgage customers, AIB has made a €105 million provision in its 2014 Annual Report to pay redress to more than 3,000 mortgage holders. A further €85 million has been set aside for “other related matters” as part of a tracker mortgage review.

Three hundred AIB staff have already started the task of identifying which customers will be eligible for compensation. The bank has said that these customers will be given the option of converting their existing variable interest rate accounts to those tracking the interest rates set by the European Central Bank – potentially saving each household up to €12,500 per year.

The announcement of compensation for tracker mortgages comes as a major surprise. Just weeks ago AIB denied it had wrongly refused to restore tracker mortgages to property owners after their initial fixed rate mortgage term had expired. The bank removed tracker mortgages as an option in 2008 and converted many customers onto variable interest rate accounts which, at the time, were the most expensive in the Eurozone.

Last October the Central Bank launched an industry-wide review of the wrongful removal of valuable tracker mortgages after pressure from consumer groups and following an announcement from Permanent TSB that it was to pay compensation for tracker mortgage customers. The Permanent TSB paid compensation or reduced mortgage arrears in 1,372 cases.

According to the figures released by AIB, the average amount of compensation for tracker mortgage customers should be in the region of €65,000. However, as the calculations of compensation for tracker mortgage customers are being made by AIB, customers are advised to seek professional legal advice to ensure they receive appropriate redress.

A child´s claim for the late diagnosis of hydrocephalus, which allegedly resulted in him suffering from autism, has been settled at the High Court.

Joe Keegan-Grant was born at the Mount Carmel Hospital in Dublin by emergency C-Section on 17^th January 2008 after a scan had revealed an arachnoid cyst near the base of his brain and doctors wanted to avoid any pressure being applied to the cyst during Joe´s delivery.

Discharged in good health, Joe was regularly assessed by public health nurses and paediatrician Dr Vladka Vilimkova; but according to Joe´s mother – Patricia – neither plotted Joe´s head circumference on a chart or exchanged the measurements they had taken.

Due to the failure to exchange information, it was not realised that Joe´s head circumference was expanding faster than a normal child´s. It was only when the family moved to Creggs in County Roscommon that Patricia´s new GP expressed concerns about the size of Joe´s head.

Patricia requested a referral to the Crumlin Hospital for a scan and, in October 2008, Joe was diagnosed with hydrocephalus – a condition that is a known possible consequence of an arachnoid cyst. The condition was attributed to Joe´s developmental delay, behavioural problems and autism.

Through his mother, Joe made a claim for the late diagnosis of hydrocephalus, alleging that – as it was a known possible consequence of an arachnoid cyst – both the public health nurses and Dr Vilimkova should have been on the lookout for the condition.

Medical negligence was denied by the Health Service Executive (HSE), but as Mr Justice Kevin Cross was told at the High Court, a €1.9 million offer of settlement had been made to the family without an admission of liability.

Judge Cross heard that, despite his autism, Joe was doing well at school. However, he would not be able to care for himself when he grew older, live an independent life or earn a living. Joe´s father told the judge: “we just want to ensure that we can look after him and offer him the best care and therapy and interventions that can bring him along.”

It was also explained to the court that although Joe´s legal team had evidence to support the claim for the late diagnosis of hydrocephalus, the HSE had experts that would dispute the link between undiagnosed hydrocephalus, developmental delay and autism. With there being an issue of doubt over causation, Joe´s barrister had recommended that the family accept the offer of compensation.

The judge said it would be prudent for him to approve the settlement of Joe´s claim for the late diagnosis of hydrocephalus; noting that there was a risk that, should the case go to a full hearing, the HSE could win its argument. Judge Cross approved the €1.9 million compensation settlement and wished Joe and his parents all the best for the future.

An interim settlement of compensation for the delayed delivery of a child, who consequently sustained brain damage, has been approved in the High Court.

Mohammad Daud Assad (now aged eleven years) was born at the Rotunda Hospital in Dublin on February 20^th 2004 by emergency Caesarean Section after becoming distressed in his mother´s womb. Mohammad was born in a poor condition and needed resuscitating after the delivery.

Due to being deprived of oxygen immediately before his birth, Mohammad suffered severe brain damage. He now suffers from cerebral palsy and has both mental and physical disabilities. Unable to speak, Mohammad will need full-time care and support for the rest of his life.

Through his mother – Alia Muryem Assad of Ballyfermot in Dublin – Mohammed claimed compensation for the late delivery of a child against the Rotunda Hospital. It was alleged that his mother arrived at the hospital at 9:00am on the morning of his birth – ten days overdue – but that he not delivered until 10:30pm.

In excessively delaying Mohammad´s birth, it was claimed, there was a failure to properly assess his mother and consider a failing of the placental function – particularly after a reduction of the foetal heart rate was recorded several hours before his birth.

At the High Court, Mr Justice Kevin Cross heard that Mohammad attends mainstream school and enjoys music. He was also told that the Rotunda Hospital had only acknowledged liability for Mohammad´s birth injuries within the last two weeks, and that an interim settlement of €3 million compensation for the delayed delivery of a child had been agreed.

The judge approved the interim settlement of compensation for the delayed delivery of a child and commented that the way in which the family had rallied round to help Mohammad´s parents “restored one´s faith in humanity”. The case was then adjourned until 2022, when Mohammad´s future needs will be assessed and a full settlement of his claim resolved.

The High Court will decide this week how much compensation for the mismanagement of cancer a plaintiff should receive after liability was admitted by the HSE.

In July 2010, Kevin McMahon – a 63 year-old truck driver from Roxboro in County Limerick – underwent a biopsy at the Mid-Western Regional Hospital due to the discovery of a lesion on the left side of his vocal chords.

As the lesion could have been an indicator of cell carcinoma, Kevin´s histopathologist scheduled him for a second biopsy in October. However, that appointment was later cancelled and re-scheduled for January 2001.

When Kevin attended the re-scheduled appointment, he was told he would have to undergo urgent surgery to remove his larynx. The operation went ahead, and now Kevin has to speak through an artificial voice box.

On discovering that the lesion on his vocal chords could have been successfully treated with targeted radiotherapy, Kevin claimed compensation for the mismanagement of cancer – alleging that the treatment he received was inappropriate and had caused significant damage and distress.

It was also alleged that there had been a failure to discuss the treatment options available and – as a consequence – Kevin had been unable to give his informed consent for the surgery taking place. A further complaint related to the delay in conducting the second biopsy.

The Health Service Executive contested the claim for compensation for the mismanagement of cancer until this past Tuesday, when – on the day before a court case was due to start to determine liability – the HSE acknowledged that the treatment Kevin had received was inappropriate in the circumstances.

A the High Court, Mr Justice Kevin Cross was told that liability was no longer an issue and the case was before him for the assessment of damages only. The judge will now hear evidence to determine how much compensation for the mismanagement of cancer Kevin should be awarded.

The High Court has approved a €750,000 settlement of compensation for a brain injury in a crash with a lorry in favour of a twenty-five year old man.

Francis Smith from Edgeworthstown in County Longford was just eighteen years of age when – on 27^th January 2009 – he crashed into a stationary council lorry while trying to avoid hitting a car that was heading towards him as he came off of a bend on the southbound carriageway of the road. The stationary lorry had stopped close to where Longford County Council was carrying out roadworks.

Francis sustained a traumatic brain injury in the accident, due to which he suffers from physical and cognitive difficulties and has had to give up his job in a local factory. As he is unable to represent himself legally, Francis´ mother claimed compensation for a brain injury in a crash with a lorry against Longford County Council on his behalf.

In her claim for compensation for a brain injury in a crash with a lorry, Francis´ mother alleged that the council had been negligent by failing to warn motorists of the roadworks on the southbound carriageway. She claimed that there were no warning signs, no bollards around the roadworks and that the council´s lorry projected into the road – creating a further hazard for motorists.

Longford County Council initially refused to accept responsibility for Francis´ injury and argued that Francis had been negligent by taking the bend at an excessive speed. However, after a period of negotiation, the two parties agreed on a €750,000 settlement of compensation for a brain injury in a crash with a lorry.

As the injury compensation claim had been made on behalf of a plaintiff unable to represent himself, the settlement went to the High Court to be approved by Mr Justice Kevin Cross. Judge Cross heard the circumstances of the accident and the impact it had on Francis´ life before approving the settlement of compensation for a brain injury in a crash with a lorry.

The judge noted that the €750,000 settlement represented a quarter of the claim´s full value and said that, in the circumstances, the settlement was a good one. Judge Cross closed the approval hearing by wishing Francis all the best for the future.

A claim for a retained swab during childbirth has been resolved at the High Court with the award of €117,000 compensation to the injured mother.

On 22^nd April 2013, Sarah Daly (38) from Rathfarnham in Dublin gave birth to a healthy child at the Mount Carmel Hospital. Three days later, Sarah was taken back to the hospital by her husband in extreme pain.

No internal examination was conducted for a further three days, when a swab “the size of a plum” was discovered and removed. However, as the swab was removed without any antibiotics being prescribed, Sarah developed a significant infection which caused her further pain and discomfort.

Sarah made a claim for a retained swab during childbirth against consultant Valerie Donnelly and Charles Julian Dockeray – who had managed the delivery and was standing in for Ms Donnelly – alleging that the swab was wrongfully inserted, that the presence of the swab was not identified for three days after she presented at hospital, and that she was discharged without antibiotics, resulting in an infection.

Liability was admitted by the medical professionals and the claim for a retained swab during childbirth went to the High Court for the assessment of damages. At the High Court, Mr Justice Kevin Cross said what ought to have been a very joyous occasion for Sarah had become something that will live with her for the rest of her life.

The judge awarded Sarah €117,000 in settlement of her claim, commenting that the award was “fair and reasonable”. The judge added that the size of the award represented the hospital´s negligence in failing to conduct an internal examination when Sarah first complained three days after the birth of her child. Had the swab been detected immediately, Sarah would not have developed the subsequent infection.

Note: Normally a claim for a retained swab during childbirth would not warrant this level of compensation. As Mr Justice Kevin Cross noted, Sarah sustained a series of avoidable injuries and the amount of the compensation awarded to Sarah reflects the injuries she sustained, rather than the level of negligence demonstrated by the hospital´s medical professionals.

A High Court judge has approved the settlement of twenty-two claims for abuse at a crèche relating to alleged assaults at the Links Abington Crèche in Dublin.

The Links Abington Crèche in Malahide, Dublin, was the subject of an RTÉ documentary in March 2013. The documentary – “Breach of Trust” – saw pre-school children being physically and verbally abused by staff at the childcare facility.

Following broadcast of the documentary, the parents of twenty-two of the children made claims for abuse at a crèche against Links crèche Southside Ltd, Links crèche Montessori Ltd, and the owners of the crèche – Padraig and Deidre Kelly.

The defendants entered a full defence against the claims for abuse at a crèche but, at the High Court, Mr Justice Kevin Cross heard that offers of settlement had been made to the parents of the children without an admission of liability.

The settlements were divided into three categories for children who had been physically or verbally abused during the broadcast of the documentary, for children who had been sitting alongside those who had been abused, and for children who were present at the time of the alleged abuse, but not shown in the broadcast.

The judge was told details of some of the treatment that the children received. One boy with mobility issues had been grabbed roughly and placed forcibly onto a mat when he tried to crawl away during “circle time”. Other cases involved children who were shouted at during mealtimes, and one involving a child who had a hand slapped and was sworn at for handling food.

It was alleged in the claims for abuse at a crèche that many of the children exhibited a high level of stress around nappy changing time and had developed “behavioural difficulties” that had stopped once the children were removed from the crèche. However, none of the children appear to have suffered any long-term consequences of the alleged mistreatment.

After hearing that a separate claim made by the parents for nervous shock had been settled out-of-court, Judge Cross approved the settlements of the claims for abuse at a crèche, which ranged from €40,000 to €75,000 depending on the category of alleged abuse each child had suffered.

Leading barrister Doireann O’Mahony has called for a legal duty of candour in Ireland to prevent unnecessary delays resolving medical negligence claims.

Writing in the Irish Examiner, Ms O´Mahony claims that the practice of keeping quiet when mistakes have been made has become a culture within the Health Service, and that this culture has resulted in the failure of the Health Service to admit when it was wrong and learn from its mistakes.

According to Ms O´Mahony, the culture has developed despite a national policy on open disclosure being launched by the Health Service Executive and State Claims Agency two years ago. Unfortunately, the barrister alleges, the policy is not working and what is needed is a legal duty of candour in Ireland.

Ms O´Mahony continues by explaining that a legal candour of duty was introduced in England and Wales last year which makes it a criminal offence not to advise a patient when – for example – a procedure has gone wrong or a medication has caused an adverse effect.

She also repeats comments made by health minister Leo Varadkar last year that it was the equivalent of a motoring hit and run for doctors and healthcare professionals to fail to make such disclosures and to live up to their duty of candour.

With a legal duty of candour in Ireland – and proper risk management thereafter – Ms O´Mahony suggests that lessons would be learned when mistakes are made so that they will not be repeated over and over again. She highlights recent scandals in Portlaoise, in Cavan and in Portiuncula as examples of when lessons should have been learned, but weren´t.

The barrister explains that, in many cases, the motive behind a claim for medical negligence compensation in Ireland is for patients and their families to get an explanation of what went wrong. Only when long-term care for a child has to be paid for is the amount of any compensation settlement of significance.

A legal duty of candour in Ireland, Ms O´Mahony claims, would prevent the need for victims of medical negligence and their families to endure protracted and often hostile litigation just to receive an apology they are entitled to. When mistakes are admitted and properly assessed afterwards, patients would not need assurances that “lessons have been learned” and “changes have been made” so that what happened to them will not happen to anybody else.

Litigation can be a force for good and provide the impetus for improvement – Ms O´Mahony claims in the conclusion of her article – provided there is a proper risk management feedback loop. She hopes that, through the introduction of long-overdue procedural reform in medical negligence cases and a legal duty of candour in Ireland, a culture of more openness and honesty will develop.

A woman has settled her claim for DVT due to medical negligence, made against the hospital at which she underwent a hysterectomy procedure.

Forty-four year old Tina Grace from Kirkby in Nottinghamshire underwent the hysterectomy procedure at the Kings Mill Hospital on 13^th August 2012. Tina was discharged on 18^th August despite her parents raising concerns with the hospital authorities that she was not well enough to care for her two children aged 2 and 13 at the time.

Three weeks after her hysterectomy, Tina complained of feeling breathless and of a burning sensation in her leg. Her parents called an ambulance, which took Tina back to the Kings Mill Hospital. Tina was diagnosed with deep vein thrombosis (DVT) and, worryingly, the blood clot in her leg had broken up and travelled up to her lungs – resulting in a pulmonary embolism.

Tina remained in hospital for eleven days receiving treatment for the pulmonary embolism. After she was discharged, she had to take Warfarin for a further six months. Tina sought advice from a solicitor about the treatment she had received and made a claim for DVT due to medical negligence – alleging that the hospital should have provided with surgical stockings and anti-clotting medication on 18^th August discharge.

Liability for Tina´s injuries was acknowledged by Sherwood Forest Hospitals NHS Foundation Trust in November 2012. The NHS Trust said that, on the balance of probabilities, Tina´s pulmonary embolism would likely have been avoided if surgical stockings and anti-clotting medication had been provided following her hysterectomy procedure.

After protracted discussions, an undisclosed settlement of the claim for DVT due to medical negligence was negotiated with the NHS Trust. Speaking after the settlement had been agreed, Tina told her local newspaper she was afraid that her children would be left motherless due to the hospital´s medical negligence. “I really felt like I could have died. I was terrified and it felt like every breath I took would be my last,” she said.

Negotiations are underway to settle a claim for negligent post-operation care after a teenage girl was brain damaged following an appendectomy procedure.

In September 2011, fifteen-year-old Anna White from Wigan was admitted to the Royal Albert Edward Infirmary for a routine appendectomy procedure. The operation was performed successfully but, while Anna was recovering, she started convulsing.

Anna´s mother called a nurse for assistance, but Anna suffered a cardiac arrest while waiting for medical help to arrive. Due to the delay in resuscitating her, Anna´s brain was deprived of oxygen – due to which she suffered brain damage and now has catastrophic disabilities.

Now aged nineteen, Anna´s intellectual ability is unimpaired, but she is unable to get out of bed or move from her wheelchair without specialist equipment. Anna cannot feed herself or wash without help and is only able to communicate by looking at letters on a board to spell out words. Doctors say Anna will remain “locked in” her body for the remainder of her life.

The care that was provided for Anna after her surgery was investigated and it was discovered that the tube used to deliver anaesthetic to Anna during the appendectomy procedure was not flushed out properly after it had been used. A small dose of the anaesthetic remained inside it and, when fluids were administered to Anna through the same tube during her recovery, the remaining anaesthetic was delivered into her body, causing her to go into cardiac arrest.

Anna´s mother sought legal advice and made a claim for negligent post-operation care against the Wrightington, Wigan and Leigh NHS Foundation Trust. After a lengthy delay, the NHS Trust admitted liability, and negotiations to settle the claim for negligent post-operation care have started to provide Anna with the funds to support the specialist care she will need for the rest of her life.

A spokesperson for the Wrightington, Wigan and Leigh NHS Foundation Trust said: “The Trust has admitted that the care it provided to Anna White fell below an acceptable standard, and has apologised unreservedly to Ms White for this. The Trust has implemented a number of changes to eliminate the possibility of this type of failing occurring in the future”.

The Director General of the Health Service Executive – Tony O´Brien – has criticised the State Claims Agency for forcing medical negligence litigation.

The head of the HSE was addressing the Oireachtas health committee when he commented that the State Claims Agency contests too many claims for medical negligence compensation and forces plaintiffs to take their claims to court.

Mr O´Brien criticised the adversarial framework used by the Agency, and said that medical negligence litigation delayed compensation to families to whom it was rightfully due for up to a decade. “These cases go on for up to 10 years and the State loses 99 per cent of them,” he said, “so why all that trauma for people to get what they need.”

The Director General added that medical negligence litigation was also damaging to the healthcare professionals involved in each hearing. He said that, although the healthcare professionals were not on trial, they faced cameras at the entrance to “show trials” when the outcome of the hearings was likely to be in the plaintiff´s favour.

Mr O´Brien is keen to promote accountability and said that the State Claims Agency had an “unrealistic” view about risk and safety in healthcare. His solution to excessive medical negligence litigation, Mr O´Brien told the Oireachtas health committee, would be the creation of a compensation fund to support a different system of resolving cases involving cerebral palsy and other avoidable birth injuries.

In response to Mr O´Brien´s criticisms, the State Claims Agency issued a statement saying that 97 percent of cases are resolved without medical negligence litigation; and, in cases where liability is contested, courts find in the Agency´s favour 75 percent of the time.

In October the State Claims Agency published a review of maternity and gynaecology services in Ireland in which it was revealed that total expenditure on cerebral palsy compensation claims had increased from €27 million in 2010 to €47 million in 2014. The increase was partly attributed to more cerebral palsy compensation claims being resolved with a lump sum payment than an interim payment due to the failure to introduce a system of periodic payment orders.

Stafford Crown Court has fined the Mid Staffordshire NHS Foundation Trust for health and safety failings that resulted in four avoidable deaths in hospital.

Following an investigation by the Health and Safety Executive into four fatalities at the Stafford Hospital – three of them following a patient fall in the hospital, and the fourth attributable to a patient being administered drugs she was known to be allergic to – charges were brought against the Mid Staffordshire NHS Foundation Trust last year.

At Stafford Magistrates´ Court in November, the NHS Trust pleaded guilty to “very significant failings” in the care provided for the four patients and magistrates referred the case to Stafford Crown Court for sentencing. At the sentencing hearing, Mr Justice Haddon-Cave was told that three of the charges related to the lack of a proper risk assessment that would have identified measures to prevent falls.

The judge – who, in 2007, fined the NHS Trust £200,000 for health and safety failings related to the death of Gillian Astbury – was read extracts from relatives´ victim statements. Judge Haddon-Cove said that the failings responsible for the avoidable deaths in hospital could be blamed on the lack of a robust management system for safeguarding patients.

Sentencing the Mid Staffordshire NHS Foundation Trust to a £500,000 fine, the judge said: “I hope today brings some closure and finally draws a line under the past, and that Stafford and Cannock Hospitals can open a new and bright chapter and become the hospitals that their dedicated staff and local communities can once again be proud of.”

The fine for the avoidable deaths in hospital will have to be paid by the Secretary of State for Health as the Mid Staffordshire NHS Foundation Trust has been closed own following an unprecedented number of deaths in the hospitals it was responsible for. The Secretary of State for Health will also have to pay the £35,517 costs incurred by the Health and Safety Executive during the investigation of the fatalities.

Speaking to reporters after the sentencing hearing´s conclusion, Wayne Owen – one of the inspectors involved in the Health and Safety Executive´s investigation – issued a statement on behalf of the victims´ families. Mr Owen said: “The families acknowledge the NHS Trust´s unreserved apology. The conclusion of this case goes some way towards bringing the closure that they all need”.

A family from West Yorkshire is to receive a six-figure out-of-court settlement following a claim for a fatal delay in identifying surgical complications.

On 28^th April 2009, thirty-eight year old Tracy Hall was admitted to the Pinderfields Hospital in Wakefield for the reversal of a stoma. The elective surgery took nine hours to complete, after which Tracy suffered complications including internal bleeding and an infection.

Tracy´s condition continued to deteriorate and, on 4^th May, nursing staff identified blood in her stoma bag. Tracy was returned to theatre, where it was discovered that an artery had been cut during surgery and that the cause of the blood was that her abdominal wall had burst.

Tracy had been diagnosed with Crohn´s disease in 1996 and, prior to her surgery, her condition had been particularly active. She had suffered from abdominal pain and lost nearly three stones in weight in the months leading up to her operation.

In a very weak condition, Tracy was moved into the hospital´s High Dependency Unit. She was sedated and put onto a life support machine, but tragically died eight days later from multiple organ failure caused by sepsis.

Tracy´s husband instructed medical negligence solicitors to investigate the care his wife had received subsequent to her surgery. The solicitors discovered that there had be a delay in identifying and treating the complications and that, due to Tracy´s condition prior to the operation, surgery should not have even taken place.

Tracy´s husband subsequently made a claim for a fatal delay in identifying surgical complications against the Mid Yorkshire Hospitals NHS Trust. The NHS Trust admitted that the standard of care Tracy received both before and after her surgery were sub-standard, and a six-figure settlement of the claim was negotiated.

Speaking after the claim for a fatal delay in identifying surgical complications had been resolved, Tracy´s mother told reporters: “We have been completely heartbroken since losing Tracy – it was incredibly difficult for the whole family to see her suffer like she did and deteriorate so quickly in front of our eyes. We never imagined that just two weeks after surgery she would no longer be with us. I just hope that this doesn’t happen to any other families and that the NHS Trust learns from its mistakes.”

A woman has successfully resolved her claim for a doctor failing to consider a phobia while he was performing a thyroidectomy on her.

Sylvia Ramsay (66) admits she has an irrational fear of medical instruments and surgical items, but it is something that has plagued her since she was a child. In 2010, Sylvia needed a thyroidectomy and only agreed to undergo the procedure when she heard that the procedure could be performed using dissolvable stitches rather than metal clips.

Prior to undergoing the procedure at the Spire Roding Hospital in Essex, Sylvia explained her phobia to consultant surgeon Dr Akinyada Ojo. As far as Sylvia was aware, Dr Ojo understood that she had a phobia about medical instruments and that he would conduct the surgery using the dissolvable stitches.

However, a year after undergoing the thyroidectomy, Sylvia was referred to a specialist after complaining of breathing difficulties. In order to assist with his diagnosis, the specialist took an X-ray of Sylvia´s throat that revealed the presence of twenty-five metal clips.

Sylvia told her local newspaper she panicked and became a nervous wreck. She had to undergo months of therapy before she was even able to contemplate surgery to have the metal clips removed. Eventually she found the strength to undergo more surgery in 2013.

After speaking with a solicitor, Sylvia made a claim for a doctor failing to consider a phobia against Dr Ojo and the Spire Roding Hospital. Dr Ojo denied that he had deliberately gone against her wishes and attributed the error to a misunderstanding.

A lengthy period of unsuccessful negotiation was followed by the issuing of court proceedings. Only then was a satisfactory resolution to Sylvia´s claim for a doctor failing to consider a phobia forthcoming – although the settlement was made without an admission of liability.

“I know this is not a rational reaction but it is not something I can control,” Sylvia told her local newspaper after her claim for a doctor failing to consider a phobia had been settled. “It’s like putting an arachnophobe into a room full of spiders and telling them not to be so silly.”