News

The High Court in London has approved an £11.5 million settlement of midwife negligence compensation in favour of a five-year-old boy from Brighton.

The young boy – who cannot be named for legal reasons – was born in March 2010 at the Royal Sussex County Hospital after being starved of oxygen in the womb due to a failure by midwives notice his mother´s prolapsed umbilical cord.

Due to being starved of oxygen, the young boy now suffers from athetoid cerebral palsy – a disorder that results in epilepsy and involuntary movements, poor sight and a speech impediment. Because of his disorder, the boy will never be able to live an independent life.

On behalf of his son, the boy´s father made a claim for midwife negligence compensation in 2011. In the action against the Brighton and Sussex University Hospitals NHS Trust it was alleged that if the hospital´s midwives had notice the prolapsed umbilical cord, the child would have been delivered earlier and would not have suffered such devastating injuries.

It was not until the end of 2012 that NHS trust admitted liability for the child´s birth injuries and an interim payment of midwife negligence compensation was paid to the family. Reports were then prepared into the child´s future needs and this week at the High Court in London a care and rehabilitation package valued at £11.5 million was approved in final settlement of the claim.

Speaking after the approval hearing, the family´s solicitor issued a statement about the settlement of midwife negligence compensation. He said: “We are pleased that we secured this settlement for him and his family, they now have the financial security and reassurance that the costs for his future treatment will be met.”

The statement continued: “We hope that lessons are learnt by the Hospital and their staff so that patient safety in this situation can be improved and each and every patient receives the best quality of care at all times.”

The settlement of a medical negligence claim for a mismanaged birth has been approved at the High Court in favour of a couple who lost their two-day old son.

On 20^th November 2012, Fiona Watters was admitted into the Cavan General Hospital in the later stages of a pregnancy. Fiona´s waters were broken at 10:30am on the morning of 22^nd November by consultant obstetrician Dr Salah Aziz, and she was administered Prostiglandin – a synthetic drug similar to Syntocinon – to accelerate her labour.

During the course of the day, the levels of Prostiglandin were increased. By 9:30pm that evening, Fiona´s contractions were so close together that a natural birth was attempted. However, after an hour the midwife rang Dr Aziz to inform him that the child´s head was still not visible and the indications were that the child was suffering foetal distress.

On his arrival at the Labour Ward, Dr Aziz learned that another C-section procedure was occupying the theatre. He attempted a forceps delivery which failed and a vacuum delivery – both of which failed. When the theatre became available, Fiona underwent an emergency C-section, but her son – Jamie – was born in a very poor condition. He was transferred to special care baby unit at the Rotunda Hospital, where he tragically died in his mother´s arms two days later.

An initial investigation into the cause of baby Jamie´s death was quashed by the High Court in August 2013 after Dr Aziz asserted that the correct procedures had not been followed by HSE investigators. However, having received an advanced copy of the report, Fiona and her partner – Francis Flynn – made a medical negligence claim for a mismanaged birth against Cavan General Hospital and the HSE.

The HSE failed to acknowledge liability for Jamie´s death until July 2014, and subsequently commissioned a second investigation into his death – this time to be conducted by an independent review team following two further newborn deaths at the Cavan General Hospital.

An inquest in December 2014 attributed Jamie´s death to a medical misadventure – citing the increase in the administration of Prostiglandin, Dr Aziz´s negligence in not informing the registrar that the drug had been administered, and the lack of a second out-of-hours theatre at the hospital being causative events leading up to Jamie´s death.

Following the verdict, the solicitor representing Fiona and Francis started negotiations with the State Claims Agency to settle the medical negligence claim for a mismanaged birth. Due to the traumatic circumstances of Jamie´s birth and the protracted nature of the investigations into Jamie´s death, a settlement of €70,000 was agreed to account for the long-lasting grief and distress that had been suffered by Jamie´s parents.

Earlier this week, details of the medical negligence claim for a mismanaged birth were related to Mr Justice Richard Humphreys at the High Court. Judge Humphreys approved the settlement, stipulating that €5,000 of the compensation should be paid into court funds for the benefit of Fiona and Francis´ daughter.

Concerns have been raised that an increase in Northern Ireland medical negligence claims will exhaust addition funding allocated to the health service.

The concerns were raised by Ulster Unionist MLA Jo-Anne Dobson after figures from the Department of Health showed that 752 new medical negligence claims had been made against the health service in Northern Ireland in the twelve months to April 2015.

Ms Dobson expressed fears that £47.6 million of addition healthcare funding allocated to the province will be used to settle claims against the health service after the figures also revealed that, during the same period, £41.3 million was paid out in compensation and legal fees to settle Northern Ireland medical negligence claims.

The Ulster Unionist spokesperson for health and agriculture told reporters “Given the worryingly high £41.3 million cost of medical negligence cases last year, and the potential for higher costs this year, I am concerned that this new funding had already been swallowed up by the health service before it was even announced.”

The 3,061 Northern Ireland medical negligence claims that were processed during 2014/15 represent an 11.3 percent increase from five years ago. The majority of the claims relate to negligent treatment, the failure to make a correct diagnosis, the misinterpretation of test results or the failure to act on test results. Other injuries caused by medical negligence in Northern Ireland included child birth injuries and surgical errors.

Peter Walsh – the chief executive of Action against Medical Accidents – commented that the National Health Service should give a higher priority to avoiding patient safety lapses and be prepared to admit that a mistake has been made much sooner after a claim has been made to save legal costs. Northern Ireland medical negligence claims currently take two and a half years to resolve on average.

A spokesperson for the Department of Health said: “The department is committed to providing high quality, safe and effective health and social care services to all patients and clients across Northern Ireland. The treatment and care provided to the overwhelming majority of people is of the highest quality. On occasions, things do go wrong and when they do, it is right that people are compensated appropriately.”

A claim for a hospital death due to meningitis has been resolved in the High Court with the approval of a compensation settlement and an apology from the HSE.

Thirty-nine year old Philip Morrissey attended his GP on 26^th May 2010 complaining of a headache, a high temperature and earache. The GP referred Philip to St Luke´s Hospital in Kilkenny, where he was admitted after being found to have a high pulse rate by doctors in the hospital´s A&E department.

Six hours after being admitted, Philip complained of light intolerance. His wife – Gail – also raised concerns that he was disorientated and drowsy, but she was told by medical staff that Philip´s condition was due to him being constipated.

The following morning – two days before his fortieth birthday – Philip was found slumped in his bed at 6:05am having suffered a cardiac arrest. The cause of the fatal heart attack was later identified as being due to streptococcal pneumonia meningitis.

Gail subsequently made a claim for a hospital death due to meningitis against the Health Service Executive (HSE), alleging that there had been a failure to consider that Philip´s symptoms were attributable to meningitis, to correctly diagnose his condition and provide adequate treatment.

After an investigation into Philip´s death revealed that he had not been attended by a doctor since 3:40pm the previous day, the HSE admitted liability and a €455,000 settlement of Gail´s claim for a hospital death due to meningitis was negotiated.

Due to the nature of Philip´s death, the settlement of the claim for a hospital death had to be approved. The approval hearing took place at the High Court in Dublin earlier this week before Mr Justice Michael Hanna at the High Court.

At the hearing, Judge Hanna heard the circumstances of Philip´s death and a statement read out to the family apologising for the standard of care Philip had received subsequent to his admission.

Judge Hanna approved the settlement of Gail´s claim for a hospital death due to meningitis – commenting that the family had experienced a “huge tragedy” and, while money could never compensate for Philip´s loss, it was the best the law could do.

An undisclosed settlement of a claim for burns due to carers´ negligence has been paid to the daughters of a woman who was injured in a bathroom accident.

Ninety-year-old Jessie King suffered from dementia and was attended daily in her Rotherham home by two carers who helped Jessie out of bed and assisted her to the bathroom for a shower. On 15^th February 2012, Jessie fell while getting ready for her shower and landed with her back against the bathroom radiator.

The two carers contacted Rothercare – a home care services provider – to assist them after Jessie´s fall. Unfortunately, neither of the carers considered that the radiator against which Jessie had fallen was still on. When specialists from Rothercare arrived, Jessie was helped to her feet. She was then helped to finish her shower by the specialists while the two carers prepared Jessie´s breakfast before leaving.

It was not until Jessie was visited later in the day by her daughter and a District Nurse that the injury was discovered. The District Nurse called an ambulance and Jessie was taken to the Northern General Hospital, where she was admitted into the burns unit. Jessie had to undergo several skin grafts due to the burns on her back being so severe.

On Jessie´s behalf, a claim for burns due to carers´ negligence was made against Nestor Primecare Services Ltd trading as Saga Home Care – the company that employed the two carers who had visited Jessie on 15^th February. The company denied liability for Jessie´s burn injuries; but, after court proceedings were issued, the claim for burn due to carers´ negligence was resolved by negotiation for an undisclosed amount.

Speaking after the settlement of the claim for burns due to carers´ negligence, one of Jessie´s two daughters told her local newspaper: “The injuries mum suffered were absolutely horrendous and we can’t believe that her carers failed to notice she was lying against a hot radiator and that she had suffered severe burns. We are absolutely shocked that Nestor Primecare Services Ltd has continued to deny liability for the injuries and that they have never apologised for what happened.”

Sadly Jessie passed away in May 2013.

The HSE has indicated that it will take a High Court cerebral palsy award to the Supreme Court after losing an appeal against the original settlement.

On 12^th July 2006, Gill Russell was born at the Erinville Hospital in Cork suffering from dyskinetic cerebral palsy. The cause of his injury was described as a “prolonged and totally chaotic” delivery by his legal representatives after his mother – Karen Russell from Aghada in County Cork – had undergone a symphysiotomy to assist with the birth.

On her son´s behalf, Karen Russell made a claim for compensation against the Health Service Executive (HSE). Liability was admitted and, in 2012, Gill received an interim High Court cerebral palsy award of €1.4 million. This was followed two years later with a further High Court cerebral palsy award of €13.5 million – the highest settlement ever awarded by the High Court for cerebral palsy.

The HSE and State Claims Agency appealed the level of the High Court cerebral palsy award – arguing that Mr Justice Kevin Cross had based the award on a much lower rate of interest than was traditionally used in Irish courts to calculate the future value of the settlement. The two agencies warned that it was a dangerous precedent that could cost the state and the insurance industry up to €100 million per year.

However, earlier this week, a three-judge panel at the Appeals Court upheld the original settlement – stating that, using the previous formula, a catastrophically injured person would have to take “unjust and unacceptable” investment risks to ensure their financial security. The judges ruled that it was not the courts´ function to inquire what a claimant was likely to do with their award for the purposes of determining its value.

Handing down the verdict of the Appeals Court, Ms Justice Mary Irvine said that a seriously injured child should not be compared with an investor for the purposes of deciding what should be a prudent investment. Furthermore, she added, the HSE and State Claims Agency would not be in this predicament had the government not failed over decades to enact laws that would allow a structured compensation payment system.

Unfortunately for Gill and Karen Russell, the battle to settle the claim for compensation is not yet finished. The HSE has indicated that it will take the High Court cerebral palsy award to the Supreme Court, where its case will be heard by a seven-judge panel. The date of the hearing is not yet known.

A family has resolved its compensation claim for a fatal injury during the hospital admission process at the Queen Elizabeth Hospital in Birmingham.

Thirty-three year old Ross Askew from Selly Oak in the West Midlands attended the Selly Oak Hospital on New Year´s Day in 2010 after developing abdominal pains the previous evening. Ross was diagnosed with severe necrotising pancreatitis and transferred to the Queen Elizabeth Hospital in Birmingham.

During the hospital admission process, Ross started to vomit bile. The bile blocked his respirator, but this went unnoticed by hospital staff until Ross – who was already undergoing treatment for a recurring brain tumour went into cardiac arrest due to acute respiratory failure.

Ross suffered a significant brain injury due to being deprived of oxygen, and – once he had been treated for the pancreatitis condition – was transferred in April 2010 to a specialist rehabilitation unit. He was discharged from the rehabilitation unit into the care of his family in August 2010, but tragically died in October.

After seeking legal advice, Ross´s mother, Carol, made a compensation claim for a fatal injury during the hospital admission process at Queen Elizabeth Hospital. Carol alleged in the claim that the standard of care received by Ross during the admission process fell below an acceptable standard and was directly responsible for his death.

The University Hospitals Birmingham NHS Foundation Trust – the NHS Trust responsible for the Queen Elizabeth Hospital – denied that the care received by Ross during the admission process had been negligent. The NHS Trust contested the compensation claim for a fatal injury during the hospital admission process by arguing that the care Ross received was unrelated to the cause of his death.

After a protracted period of negotiation, the University Hospitals Birmingham NHS Foundation Trust eventually agreed to an undisclosed settlement of compensation without an admission of liability. Although glad that her claim for a fatal injury during the hospital admission process was finally resolved, Ross´s mother was upset about the NHS Trust´s failure to acknowledge liability. She told her local newspaper:

“We are bitterly disappointed that the Trust did not accept responsibility for the failings in his treatment. After he suffered the brain injury in early 2010, Ross needed 24-hour care as he wasn’t able to move independently or look after himself. We are devastated that he was taken away from us so suddenly and it is incredibly difficult for us to come to terms with.”

A woman has been given permission by the High Court in London to pursue an epidural injury compensation claim eleven years after suffering the injury.

In 2004, twenty-four year old Karen Rayner delivered her third child at the Medway Maritime Hospital in Kent. Prior to giving birth, Karen had been given an epidural. Karen claims that, at the time, the epidural caused her to lose all feeling in her legs and caused her to experience pains in her heads and spine.

Three weeks after the birth, Karen was readmitted to the hospital after being diagnosed with water on the brain – hydrocephalus. She underwent surgery to drain the fluid but continues to suffer with headaches and spinal pain.

Eight years later in 2012, a specialist determined that Karen´s ongoing health issues was possibly caused by the epidural needle being contaminated with chlorhexidine – an antiseptic commonly used in hospitals to reduce hospital-acquired infections.

Karen – who had since moved to Leeds – sought legal advice and, following an investigation into the viability of her injury being caused by hospital negligence, made an epidural injury compensation claim against Medway NHS Foundation Trust.

Medway NHS Foundation Trust contested the epidural injury compensation claim on the grounds that it was being made ten years after the event had happened and that the three-year Statute of Limitations for bringing hospital negligence claims had expired.

Karen´s solicitor argued that the epidural injury compensation claim was being made within three years of the “date of knowledge” of how Karen´s injury was sustained, and the case went to the High Court in London for the disagreement over the Statute of Limitations to be resolved.

At the High Court, Mr Justice Wilkie agreed with the solicitor´s interpretation of the Statute of Limitations and granted Karen permission to pursue her epidural injury compensation claim. The judge commented that Karen had been “assiduous” in pursuing her right to compensation, and said it would be wrong to prevent the epidural injury compensation claim from being heard. No date has yet been set for the full hearing.

A judge has increased an award of Anti-D hepatitis compensation by €70,000 after hearing that the plaintiff had developed cirrhosis and encephalopathy.

The unnamed plaintiff was given an anti-D immunoglobulin blood transfusion in 1977 that was infected with the Hepatitis C virus. She received an interim settlement of anti-D hepatitis compensation in 1998, and started undergoing ribavirin treatment in 2013 when test results showed the possibility of cirrhosis.

Unfortunately, the ribavirin treatment resulted in the plaintiff suffering the side-effects of decompensated cirrhosis and encephalopathy – a brain condition that manifests as forgetfulness and slurred speech. Both the decompensated cirrhosis and encephalopathy conditions are irreversible.

The plaintiff made a claim to the Hepatitis C Compensation Tribunal for a further settlement of anti-D hepatitis compensation earlier this year. She was awarded €180,000 but appealed the decision as an earlier plaintiff with similar side effects had received €250,000 anti-D hepatitis compensation.

The Minister for Health opposed the appeal on the grounds that the plaintiff had received treatment for cirrhosis before her conditions were diagnosed, and consequently her case was different to the one in which the higher award had been made

The plaintiff took the appeal to the High Court where it was heard by Mr Justice Bernard Barton. Judge Barton was told that the plaintiff´s conditions had been triggered by the ribavirin therapy and would not have occurred but for the treatment that was necessary to prevent the original diagnosis of cirrhosis.

The judge also heard that and that the plaintiff´s brain disorder in particular had caused her great mental anguish because the symptoms of the condition frightened her grandchildren, who the plaintiff was very attached to and who are a very important part of her life.

Judge Barton found in the plaintiff´s favour – saying that it was “only fair and reasonable” that her settlement of anti-D hepatitis compensation be increase by €70,000 to €250,000 and that it was within the High Court´s power to compensate the plaintiff for the pain and suffering arising from the treatment she underwent in 2013.

Seven women are claiming compensation for negligent hysterectomies against a gynaecologist who was found to have delivered a poor professional performance.

On Thursday, the Medical Council´s Fitness to Practise Committee found gynaecologist Dr Peter Van Greene guilty of failing to deliver a poor professional performance while having responsibility for the care of Helen Cruise – a sixty-one year old patient who had undergone a hysterectomy at the Aut Even private hospital in Kilkenny.

During the hearing, the Committee heard testimonies from Helen and three other women who had been treated by Dr Van Greene. During Helen´s testimony it was revealed that, after undergoing her operation, she had needed six units of blood due to excessive post-operative bleeding. It was also claimed that – due to the doctor´s poor professional performance – Helen has suffered from depression ever since.

Helen also told the Committee hearing Dr Van Greene had only explained the procedure she was about to undergo – and the risks involved with a hysterectomy – while already in the theatre and after she had been administered with a spinal anaesthetic. Although Dr Van Greene denied the allegations, he did admit to not obtaining Helen´s informed consent in a stress-free environment.

The Committee found that Dr Van Greene was guilty of a poor professional performance for failing to obtain Helen´s informed consent prior to her hysterectomy and for communicating with her in an inappropriate manner during a post-surgery conversation with her. The committee has not yet revealed what sanctions it will impose on Dr Van Greene, and these could include a fine or being struck off the medical register.

It was also revealed during the hearing that Dr Van Greene is currently unemployed – having last worked at the Whitfield Clinic in Waterford – and filed for bankruptcy in the UK in January this year. His bankrupt status will not prevent the women from recovering compensation for negligent hysterectomies as, if the claims are successful, the settlement of the claims will be paid by Dr Van Greene´s medical indemnity insurance company.

Health Minister Leo Varadkar has disputed dental healthcare claims made by the IDA that thousands of avoidable tooth extractions are conducted each year.

The dental healthcare claims were made at a seminar for Health Service dentists recently held in Carlow, where the president of the Irish Dental Association (IDA) – Anne Twomey – suggested that cuts in dental funding were responsible for 95 percent of more than ten thousand tooth extractions conducted on children under anaesthetic each year.

In her speech to the delegates, Ms Twomey explained that children under the age of fifteen were needlessly undergoing multiple extractions under anaesthetic in hospitals each year due to a reduction in the schools screening service and a lack of education. Some children, she claimed, were not receiving any form of dental treatment until the age of twelve.

The reduction in the schools screening service, Ms Twomey claimed, had led to many children suffering chronic oral infections – particularly in areas of Galway, Offaly, Kerry and some parts of Cork. Ms Twomey also presented anecdotal evidence that children were being admitted to hospital for antibiotic treatment to treat the infections while they waited for appropriate dental care.

The IDA says that it warning were given to the government five years ago about the impact of cuts to dental services in Ireland, and the Association claims that the cost of the unnecessary extractions would ultimately be much more than had been saved. The figure of ten thousand avoidable extractions was called a “national disgrace”

However Health Minister Leo Varadkar has disputed the accuracy of the dental healthcare claims. Speaking to reporters, Mr Varadkar said: “The number of publicly-employed dentists has gone down from about 312 to 300 in the last couple of years, so there hasn´t been a significant reduction in the number of publicly-employed dentists”.

Mr Varadkar also denied that avoidable hospital extractions for children were running at five times the rate of the UK. He commented that the figures he had seen suggested that the figure of 3,600 dental extractions on children under the age of fifteen under anaesthetic were more accurate, and added “I think we need to know all the facts before jumping to conclusions”.

The family of Susan McGee, who died from sepsis after undergoing a hernia operation, are claiming compensation for a fatal post-surgical infection.

Susan McGee (52) from Rush in County Dublin attended the Hermitage Medical Clinic on 13^th July 2013 for elective hernia surgery. The surgery appeared to go well, and Susan was discharged on 16^th July to be cared for by one of her two children – Melissa Barry.

On the following day, Susan complained of feeling unwell and having abdominal pain. Melissa took her back to the Hermitage Medical Clinic, where she was readmitted for observation. However, Susan´s condition deteriorated over the next few days and, on 22^nd July, a CT scan revealed an obstruction in her small bowel.

Susan underwent an operation to clear the blockage, but her condition continued to deteriorate and she was transferred to the Beaumont Hospital on 23^rd July. Susan died the following day from multiple organ failure brought on by sepsis that had been triggered by a C.difficle infection.

The initial inquest into Susan´s death in February 2015 had to be adjourned as only the consultants in charge of Susan´s care had given statements, and there was a risk that the evidence given by the nursing staff at the Hermitage Medical Clinic may be contradicted by that forwarded by Melissa Barry.

When the rescheduled inquest was held in June 2015, Dublin City Coroner´s Court heard that there had been a failure by nursing staff at the Hermitage Medical Clinic to report brown faecal fluid draining from Susan´s nasogastric tube, and that Susan´s vital signs had not been recorded between 8:00am and 6:00pm on Sunday 21^st July – three days before she died.

The inquest also heard that there was only one resident medical officer on duty over the weekend of 20^th/21^st July – Dr Lachman Pahwani. Dr Pahwani testified that he had tried to spend as much time with Susan as possible over the weekend, but Susan was one of 81 patients that were staying at the medical facility at the time.

A verdict of death due to medical misadventure was recorded and, after the inquest hearing, Susan´s family sought legal advice before claiming compensation for a fatal post-surgical infection, the failure to identify the infection in an appropriate timescale and the loss of a loved one due to medical negligence. According to the family´s solicitor, a summons has now been issued and served on the Hermitage Medical Clinic.

The Medical Injuries Alliance has called on politicians to fix a “glaringly obvious” problem that would help to improve patient safety in hospitals.

The Medical Injuries Alliance is an organisation that helps patients who have suffered injuries due to mistakes in hospitals get answers about how the mistakes were made. Among the Alliance´s objectives is the promotion of studies into why mistakes occur, so that the results can be used to improve patient safety in hospitals.

In order to meet this objective, the Alliance has frequently called on politicians to introduce laws that would force healthcare professionals to admit when mistakes have been made, to explain how they happened, and to issue an apology immediately. The “Duty of Candour” – the Alliance claims – would also accelerate the settlement of hospital negligence compensation claims.

The Alliance has a statement on its website that reads “the duty of candour in hospitals and doctors should be placed on a statutory footing, entitling injured patients to an accurate account of how they came to suffer medical injury in Irish hospitals” and, to force the issue of patient safety in hospitals, the Alliance has now written a letter to the Irish Times.

The letter was prompted by an article that appeared in the Irish Times that commented on a nine-year delay in the settlement of a cerebral palsy compensation claim. The paper wrote that the delay was due to alleged “stonewalling” by the Health Service Executive (HSE), pointed out that duty of candour laws were implemented in the UK last year, and that similar legislation is clearly needed in Ireland.

The response by the Medical Injuries Alliance was much in agreement with the sentiments of the article and highlighted the necessity to improve patient safety in hospitals. Joice McCarthy – the Secretary of the Medical Injuries Alliance – wrote that many hospital negligence victims are forced to take legal action to get answers that healthcare professionals are reluctant to give.

Ms McCarthy added that injured patients who have been through the legal process often found it to be a stressful and protracted experience; and she alluded to the recent “shabby episode” disagreement between the HSE and the State Claims Agency, in which both blamed the other for a six-year delay in settling a hospital negligence claim.

Ms McCarthy concluded her letter: “Instead of blaming any particular State organisation, or indeed having different State organisations blame one another for the current difficulties, it is high time politicians simply acted to introduce a legal duty of candour in order to fix what seems to be a glaringly obvious problem”.

A couple from Limerick has rejected an HSE apology for the death of their newborn child, saying that the Health Service Executive´s apology is six years too late.

On 11^th February 2009, baby Caoimhe was born to Joan and John Mulcair from Corbally in Limerick after the couple had tried for many years to have a child. Tragically, Caoimhe died 39 minutes later in her mother´s arms.

At last week´s inquest into Caoimhe´s death, the jury heard that a lack of blood and oxygen supply to the baby´s brain had been identified and, that during Joan´s labour, a deceleration of the foetal heartbeat had been recorded.

In line with the coroner´s recommendations, the jury returned a verdict of death by medical misadventure – prior to which the court had heard an HSE apology for the death of the newborn child read out by Collette Cowan, the chief executive of the Midland Regional Hospital in Limerick where Caoimhe was born.

However, Caoimhe´s parents rejected the HSE apology for the death of a newborn child, saying that it had come six years too late. Speaking outside the Limerick courthouse, an emotional John said that it was a disgrace that the HSE had put “an ordinary decent family through the pain and torment we had to endure for over six years”.

John explained to reporters that the HSE had denied that there had been any failure to provide an acceptable standard to Caoimhe before, during or after her birth – until liability for her death was admitted last December, and a settlement of the family´s compensation claim was agreed.

In response, the HSE said it had no control over cases involving medical negligence, which are handled by the State Claims Agency. However, the passing of the buck was described as a “shabby episode” by a columnist in the Irish Times, who wrote:

“A common interest links the HSE and the claims agency and there has been a persistent pattern of denial, prevarication and years of unnecessary delay in dealing with medical claims. The public and aggrieved patients deserve better. So do the vast majority of medical professionals.”

The IMHO has written to 4,200 customers of AIB, encouraging them to “come forward” if they believe they are entitled to make AIB tracker mortgage claims.

In the letter to AIB customers last week, David Hall – the chief executive of the Irish Mortgage Holders Organization – wrote that customers should have been offered tracker mortgages when their fixed rate mortgage agreements expired in a scenario similar to that which occurred at the Permanent TSB.

Mr Hall said that customers who believe they were “denied their contractual right” to a tracker mortgage should “come forward” and make AIB tracker mortgage claims in order to recover their overpayments and ensure they were on the best possible deal going forward.

Although the bank denies that customers are entitled to make AIB tracker mortgage claims, Mr Hall says that three AIB mortgage holders have received offers of compensation from the bank after having their cases investigated. He told the Irish Times:

“Indeed, we are aware of a number of cases within AIB where customers have been returned to their tracker rate, along with a refund of overcharged interest, having been denied the rate for a number of years”.

Who is Entitled to Make AIB Tracker Mortgage Claims?

Prior to 2008, AIB gave customers three options for when their fixed rate mortgage agreements expired. The choice was:

• Either extend the fixed rate mortgage agreement,
• Convert to a variable interest rate mortgage, or
• Convert to a mortgage on a tracker interest rate.

Customers who failed to express a preference – or who were not told about the choice of options available to them – were automatically converted to a variable interest rate mortgage. In 2008, AIB scrapped the tracker interest rate option, as it was losing money for the bank.

Customers who were denied – or not informed about – the tracker rate option ended up paying one of the most expensive mortgage interest rates in the Eurozone, costing some families up to €12,500 per year in extra mortgage repayments. Consumer groups have criticized AIB for a lack of commitment to its customers, and now the IMHO is encouraging mortgage holders to make AIB tracker mortgage claims.

UPDATE March 2016.

The AIB´s 2015 Annual Report revealed that the bank had made a €105 million provision relating to the Central Bank of Ireland’s sector-wide redress programme for tracker mortgage customers. More than 3,000 customers will be eligible to make AIB tracker mortgage claims, with the average compensation-per-house-hold estimated to be €65,000.

You can read more about this development > here < or call our specialist tracker mortgage redress team on 1-800 844 303 for advice on how to make AIB tracker mortgage claims.

A High Court judge has approved a €1.75 million settlement of birth injury brain damage compensation in favour of an eighteen year old man from County Sligo.

Thomas O´Connor was delivered by emergency Caesarean Section on September 6^th 1996 at Sligo General Hospital, showing no signs of life due to being deprived of oxygen prior to his birth. He was resuscitated and taken to the hospital´s Intensive Care Unit, but on the way suffered a heart attack and had to be resuscitated once again.

Because of twice being deprived of oxygen, Thomas suffered terrible brain damage. He is spastic quadriplegic, blind, fed through a tube and cared for full-time at a residential home close to his family´s home in Collooney in County Sligo.

Through his mother, Ann, Thomas made a claim for birth injury brain damage against the Sligo General Hospital and the Health Service Executive – alleging that his mother received a poor standard of care prior to his birth, and that his heart attack was due to the tube used to ventilate him being too deeply inserted.

Sligo General Hospital and the Health Service Executive denied liability for Thomas´ brain injury, and contested the claim for birth injury brain damage compensation. Consequently, the case proceeded to the High Court in Dublin, where it was heard by Mr Justice Kevin Cross.

At the hearing, Judge Cross was told by expert witnesses that a CTG trace monitoring the foetal heartrate had been discontinued in the morning of Thomas´ birth. This was despite there being clear evidence of foetal distress. Thomas´ birth was avoidably delayed by up to four hours the judge heard.

The judge was also told that the tube used to ventilate Thomas had been inserted at a depth of 14cms into Thomas´ lungs. The usual depth of insertion is between 9cms and 10cms, and the consequence of this alleged error was that Thomas was not ventilated effectively, causing him to suffer a heart attack which exacerbated the level of brain damage he suffered.

Over the course of the four-week hearing, the Health Service Executive agreed to a €1.75 million settlement of birth injury brain damage compensation. After hearing that the €1.75 million settlement will pay for Thomas´ continued care at the residential home in Collooney, Judge Cross approved the settlement – adding that he was delighted the legal ordeal had come to an end for the O´Connor family.

A judge will decide on the final settlement of a claim for brain damage due to surgical negligence after approving a third interim compensation payment.

In November 2001, Eoin O´Mahony was just nineteen years of age and a Leaving Certificate student when he was referred to the Cork University Hospital complaining of headaches. Eoin underwent brain surgery on 23^rd November to reduce the pressure on his brain and a second procedure on 30^th November to remove part of a tumour that had been discovered.

Due to surgical errors during the operations, Eoin lapsed into a coma on 1^st December. When he came round from the coma, Eoin was diagnosed with locked-in syndrome – a condition in which a patient is fully aware of his or her surroundings, but is unable to move or communicate verbally due to complete paralysis of nearly all the voluntary muscles in the body.

The Cork University Hospital acknowledge liability for Eoin´s brain damage in 2009, and two interim compensation payments amounting to €4.1 million have been paid to his parents while the courts have been waiting for a structured periodic payment system being introduced. On this occasion, Eoin´s parents requested a lump sum final settlement of the claim for brain damage due to surgical negligence as they have already endured thirteen years of litigation on their son´s behalf.

At the High Court, Mr Justice Michael Moriarty agreed to their request; but after nineteen days of hearings – during which reports concerning Eoin´s future requirements were discussed – no agreement could be reached on a final settlement. Mr Justice Michael Moriarty instructed the parties that a final settlement should be between €10 million and €10.1 and briefly adjourned the hearing to allow for negotiations to continue out of court.

When the hearing resumed, Eoin´s legal team advised Judge Moriarty that the family had been prepared to split the difference in the figures that the judge had quoted as the family wanted to resolve the claim for brain damage due to surgical negligence once and for all – but the State Claims Agency would not agree to this arrangement.

The judge said that he would make a decision on the final settlement of the claim for brain damage due to surgical negligence, and promised the family that they would know his decision no later than October. Judge Moriarty then instructed the State Claims Agency to make a third interim compensation payment of €800,000 to cover the medical and care costs that Eoin´s family would incur in the intervening period.

A High Court judge has approved an interim settlement of compensation for a heart attack due to medical negligence amounting to €1.5 million.

In December 2010, Martin Byrne (52) from Swords in County Dublin was admitted to the Mater University Hospital to undergo surgery for unstable angina. The operation appeared to go successfully, but five days later internal bleeding was caused by the removal of pacing wires and Martin suffered a heart attack.

Martin´s heart stopped for fifteen minutes after the heart attack, during which time he suffered profound brain damage. He went into a coma from which he did not awaken until February 2011 and Martin now needs full-time care, which is mostly provided for him by his wife Una.

On her husband´s behalf, Una claimed compensation for a heart attack due to medical negligence – alleging that the pacing wires were removed by junior staff who caused the internal bleeding due to their inexperience. Liability for Martin´s injuries was not acknowledged by the Mater University Hospital until December 2014.

At the High Court, Mr Justice Kevin Cross heard that Martin was a former taxi driver and father of four. The court was told that, prior to his heart attack, Martin had been an active man who enjoyed camping with his family and scuba diving. Una told Judge Cross “we thought it was the beginning of the rest of our lives as our children were working or at college”.

Judge Cross also heard that an interim settlement of compensation for a heart attack due to medical negligence had been agreed amounting to €1.5 million. This interim settlement is due to cover Martin´s medical expenses for the next three years while reports are compiled on his future needs or until a system of periodic payments is introduced in Ireland.

After an apology was read to the family by Mary Day – the CEO of the Mater University Hospital – Judge Cross approved the interim settlement of compensation for a heart attack due to medical negligence, saying that Martin had “suffered something nobody should have suffered”. The judge then closed the case and wished the family well for the future.

A woman has been awarded compensation for negligent post-natal care after she was prescribed antibiotics to deal with a vaginal swab left inside of her.

Claire Lalor (30) from Swords in County Dublin gave birth at the National Maternity Hospital on 24^th December 2012 after a difficult labour and was discharged three days later. On January 2^nd and January 9^th Claire returned to the hospital on the advice of public health nurses over concerns about pain and a smell from her lower body.

On neither occasion was Claire examined internally and, on her second return visit to the National Maternity Hospital, she was prescribed antibiotics. It was only on a third visit the following week that Claire was examined internally – by which time the smell had worsened – and on this occasion it was discovered that a vaginal swab had been left inside of her from the delivery of her child.

On January 18^th – two days after the swab had been removed – Claire returned to the National Maternity Hospital once again, this time suffering from severe physical pain, sweating, chills fever and diarrhoea. She was admitted into the hospital, but told that she was suffering from post-natal depression and later discharged.

Unable to keep food down once she returned home, Claire was taken to the Beaumont Hospital. There she was diagnosed with C.difficile – a consequence of the unnecessary antibiotics she had been prescribed on her second return visit to the National Maternity Hospital. Once she had recovered, Claire sought legal advice and claimed compensation for negligent post-natal care.

After an investigation into Claire´s allegations, the National Maternity Hospital admitted liability for the pain she had suffered as a result of the swab being left inside of her, the discomfort she had experienced from the “disgusting” and “horrible” smell that had developed as a result of the hospital´s error, and for the C.difficle infection she had contracted as a result of the antibiotics she had mistakenly been prescibed.

However, the hospital contested the extent of Claire´s psychological trauma, and argued that her emotional upset was attributable to her post-natal depression rather than any depression or adjustment disorder caused by the events associated with the swab. Unable to reach an acceptable settlement of compensation for negligent post-natal care, the case went to the High Court for an assessment of damages.

At the High Court, Mr Justice Kevin Cross accepted that the traumatic birth of Claire´s child made her more likely to suffer from post-natal depression, and that her continuing symptoms of psychological trauma have some origin in her underlying disposition. However, the judge ruled that were it not for the admitted negligence of the National Maternity Hospital, Claire would have recovered from any post birth upset in a shorter period of time and would not have the level of psychological injury that she has now.

Judge Cross added that Claire was a truthful witness in her evidence and that she was “entirely appropriately extremely distressed” by the episode. Commenting that her fear and distrust of the medical professional was not unreasonable in the circumstances, the judge awarded Claire €140,000 compensation for negligent post-natal care.

A High Court judge has approved an interim settlement of compensation for injuries due to birth complications in favour of a ten year old boy.

Luke Beirne from Mullingar in County Westmeath was born at the Midlands Regional Hospital on 30^th September 2004, eleven days past his due date. Due to alleged circumstances surrounding his birth, Luke was starved of oxygen in the womb and now suffers from cerebral palsy.

His mother – Margaret – alleged that midwives were “chatting in the corridor” rather than monitoring her condition, and that a locked theatre room delayed Luke´s delivery – causing further birth complications. Due to the birth complications, Luke also suffers from asthma and will require surgery as he grows older and his muscles tighten.

On her son´s behalf, Margaret claimed compensation for injuries due to birth complications against the HSE, and also her consultant obstetrician – David Mortell – for allegedly neglecting to discuss the risks associated with a vaginal birth when her first child had to be delivered by Caesarean Section in 2001.

The HSE and the consultant obstetrician denied the allegations, but issued a statement expressing their regret that Luke had suffered such devastating birth injuries. On weighing up the facts supporting the denial of liability, Margaret´s solicitors recommended that she accept an interim offer of compensation for injuries due to birth complications without an admission of liability.

Although not happy with the outcome, Margaret agreed to her solicitor´s recommendation and, when the subsequent court hearing was convened to approve the interim offer of compensation, Margaret told Mr Justice Michael Moriarty that she entrusted the court to make the right decision for Luke and his future.

Judge Moriarty heard that the family were concerned that the €800,000 offer of interim compensation for injuries due to birth complications was not realistic and would not be sufficient to pay for Luke´s future care needs. However, he was also told that, if the case went to trial, the HSE and consultant obstetrician would testify that everything that could have been done in the circumstances was done.

Mr Justice Michael Moriarty said that he believed Margaret´s solicitors had engaged in some “very hard bargaining” to obtain the offer of settlement, and ruled that it was in Luke´s best interests given the possibility that a full trial may have resulted in a successful defence. He approved the interim settlement of compensation for injuries due to birth complications, and adjourned the case for eight years when Luke´s future needs will be reassessed.

A judge at the Circuit Civil Court has approved the settlement of a teenager´s sports injury compensation claim after a previous offer was rejected.

In June 2012, Rhian Holohan from Kentstown in County Meath was just fifteen years of age when she was playing in a game of soccer between Kentstown Rovers FC and Ayrfield United in the Dublin Women´s Soccer League.

Rhian was playing in goal and, as she dived to make a save, she cut her knee on a piece of broken glass that was on the surface of the pitch. The game was stopped so that Rhian could receive first aid treatment and she was taken to Our Lady of Lourdes Hospital in Drogheda.

At the hospital Rhian´s lacerated knee was cleaned and sutured under anaesthetic. Because of the depth of the cut, Rhian experienced months of pain and swelling and had to use crutches for support. She was unable to play football again for several months and now has a visible 1.5 cm circular scar on her knee.

Rhian made a sports injury compensation claim against Dublin City Council, the Trustees of Dublin Women´s Soccer League and the Trustees of Ayrfield United FC through her mother, Anita. Liability for Rhian´s cut knee injury was accepted by the three defendants.

A settlement of €22,000 was negotiated, but because the sports injury compensation claim was made on behalf of a minor, the settlement first had to be approved by the court. Consequently Mr Justice Raymond Groarke was told how Rhian suffered her sports injury and its consequences.

Judge Groarke considered the original offer of settlement inappropriate to the level of injury that Rhian had sustained, and he asked the parties to reconsider the offer. Following further negotiations, the offer of settlement was increased to €30,000. Judge Groarke approved the revised settlement and closed the case.

The number of medical negligence claims against the HSE has almost doubled over the past five years according to figures released by the State Claims Agency.

According to recently released data, 936 new medical negligence claims against the HSE were lodged with the High Court last year – almost double the number reported in 2010. In addition to these new cases, and 218 already lodged in 2015, the State Claims Agency is already dealing with more than 3,000 historical medical negligence claims against the HSE dating back to 2013 or earlier.

The true number of medical negligence claims against the HSE is likely to be much higher than that reported by the State Claims Agency, as it fails to take into account proceedings issued in lower courts, public liability claims for accidents in hospitals and employer liability claims when medical staff are injured while working in Irish Hospitals.

Issues with maternity services have recently come under the spotlight following the publication of the Hiqa report into failings at the Portlaoise Hospital. The damming report prompted HSE chief Tony O´Brien to call for a “clear-out of uncompassionate staff”, but Health Minister Leo Varadkar believes that a “wall of silence” is to blame for the spiralling increase in medical negligence claims against the HSE.

Minister Varadkar said that an “open disclosure” initiative by the HSE and State Claims Agency – which was implemented to handle grievances by patients – was failing to work and, rather than being contained within a hospital, patients who had a negative experience were going to the courts to get answers to what went wrong because hospital management are failing to engage with them.

The Minister added: “When something goes wrong, it’s OK to say that you’re sorry about what happened. It does not mean you’re accepting liability. There is a never a good reason to conceal the truth from a patient or their family once the facts are known. Aside from making sense from a human point of view, it’s the right thing to do financially”.

The Department of Health is said to be drawing up legislation to underpin the policy of open disclosure in the Health Service and to enable healthcare employees to provide information to patients and their families without prejudicing any future medical negligence claims against the HSE.

A settlement of compensation for negligent spinal surgery has been approved at the High Court in favour of a young woman from Dublin.

On December 8th 2009, Emily Casey from Dalkey in Dublin was admitted to Our Lady´s Hospital for Sick Children having been diagnosed with scoliosis – the curvature of the spine. The condition was due to Emily having contracted meningitis when she was four years of age and only being able to walk thereafter with the help of a frame.

An operation was scheduled in which a special screw – known as a pedicle – would be inserted to help adjust Emily´s spine and reverse the curvature; however, the screw was incorrectly inserted into her spinal cord and Emily was left paralysed from the chest down. Now 18 years of age, Emily is confined to a wheelchair and unable to live an independent life.

Through her mother – Stephanie – Emily claimed compensation for negligent spinal surgery against Our Lady´s Hospital for Sick Children and the consultant orthopaedic surgeon whose care she had been under – Dr David Moore. The defendants refused to accept their joint liability for Emily´s injuries until Friday of last week; when an interim €1.668 million settlement of compensation for negligent spinal surgery was agreed.

As the claim for negligent spinal surgery had been made on behalf of a minor, the case was presented to Mr Justice Kevin Cross at the High Court. After hearing that Emily had remained in hospital until April 2010, and was then transferred to the National Rehabilitation Centre for further treatment, Judge Cross said that he had no hesitation in approving the settlement.

The judge then adjourned the case until later in the month for issues to be resolved which prevented the settlement from being a full settlement of compensation for negligent spinal surgery. Representatives of Our Lady´s Hospital are also preparing an apology, which will be read to the family in the High Court. Emily’s mother said the family, and especially Emily, were relieved that liability had been admitted. “Nobody would admit that a mistake had been made until last week” she said.

The High Court has approved a €2.1 million interim settlement of compensation for cerebral palsy due to the use of Syntocinon in favour of a seven-year-old boy.

Patrick Brannigan was born in poor condition by emergency Caesarean Section at the Cavan General Hospital on 20th July 2007. Prior to his delivery a cardiotocography (CTG) trace had shown signs of foetal distress and Patrick´s mother – Niamh – had been administered Syntocinon to accelerate her labour.

However, rather than result in a healthy birth, the Syntocinon had the effect of starving Patrick of oxygen in the womb and he was born suffering from dyskinetic cerebral palsy. Now seven years of age, Patrick is confined to a wheelchair and has no means of communication.

Through his mother, Patrick claimed compensation for cerebral palsy due to the use of Syntocinon – alleging that the drug should never be administered when there are signs of foetal distress. The claim also stated that Cavan General Hospital mismanaged his birth and there was a failure to monitor the baby while labour was in progress.

Cavan General Hospital admitted that a “catalogue of errors” had resulted in Niamh and Patrick receiving a sub-standard level of healthcare. The hospital apologised to the family and an interim €2.1 million settlement of compensation for cerebral palsy due to the use of Syntocinon was agreed upon, subject to approval by a judge.

Consequently at the High Court in Dublin, Mr Justice Kevin Cross was told the circumstances leading up to Patrick´s birth. He also heard that Patrick is a cheerful, good humoured boy who is cared for full-time by his parents. The judge approved the interim settlement of compensation for cerebral palsy due to the use of Syntocinon and adjourned the hearing for three years.

In three years time, it is hoped that a periodic payment system is introduced so that awards to plaintiffs can be made more accurately and fairly. If no legislation is passed to allow for a periodic payment system, a final settlement of compensation for cerebral palsy due to the use of Syntocinon will be approved.

For more information about Syntocinon and the birth injuries it can cause when administered incorrectly, please read Syntocinon Compensation Claims.

An interim settlement of compensation for the misdiagnosis of meningitis has been approved at the High Court in favour of a young boy who suffered devastating injuries due to medical negligence.

On 27th May 2004, Matthew McGrath was referred to Wexford General Hospital at the age of 17 months when it was noticed that he was vomiting fluids and uncharacteristically drowsy. At the hospital Matthew was diagnosed with Haemophilus Influenza Type B and admitted into the special care baby unit.

Overnight, Matthew´s condition deteriorated and he went into shock. Despite guidelines recommending against the procedure when a patient is in shock, a lumbar puncture was performed on Matthew to confirm a diagnosis of suspected meningitis. However, due to a compression of the spinal cord during the procedure, Matthew is now permanently paralysed.

Haemophilus Influenza Type B is acknowledged to be an indicator of meningitis, and – had the correct diagnosis been made when Matthew was admitted – he could have been treated with antibiotics and fluids, and the lumbar puncture procedure would have been unnecessary.

As a result of the hospital´s medical negligence, Matthew cannot move his arms or legs and relies on a ventilator to breathe. Once the correct diagnosis had been made, Matthew spent two years in hospital until his parents won a prolonged battle to care for him at home in Gorey, County Wexford.

After seeking legal advice, Cathy McGrath made a claim for compensation for the misdiagnosis of meningitis on Matthew´s behalf against the HSE – alleging that, if her son had been correctly diagnosed at the time of his admission and treated with antibiotics and fluids, he would not have suffered such devastating injuries.

Following an investigation into the claim, the HSE admitted liability for Matthew´s injuries and issued an apology to Matthew´s parents. An interim €3.7 million settlement of compensation for the misdiagnosis of meningitis was agreed, but the settlement first had to be approved by a judge before the claim could be resolved.

Consequently, at the High Court in Dublin, Mr Justice Matthew Cross heard about the sequence of events that resulted in Matthew´s devastating injuries. At the end of the hearing, Judge Cross approved the interim settlement of compensation for the failure to diagnose meningitis, and adjourned the claim for five years in order that Matthew´s future needs can be assessed.

A woman has resolved her claim for a broken ankle in a pothole accident for an undisclosed amount after the first day of a hearing at the Circuit Civil Court.

Pamela Duffy (52) from Shankill in County Dublin broke her ankle due to tripping over a pothole outside of the Tel El Kebir (TEK) United Football Club after celebrating her husband´s fiftieth birthday at the venue on 1st October 2011.

Pamela was taken to hospital, and fitted with a below-the-knee plaster cast that remained in place for the next six weeks. She also had to wear a boot brace and use crutches to assist her when she was walking.

After seeking legal advice, Pamela made a claim for a broken ankle in a pothole accident against the football club – who contested her claim on the grounds that Pamela had admitted to drinking ten pints of beer prior to her accident and had contributed to her injury due to her own negligence.

The club also argued that, as a member of the football club, Pamela was prohibited from making a claim for a broken ankle in a pothole accident as she would effectively be suing herself. Pamela disputed that she was a member – although it later emerged that her husband had once submitted an undated application on Pamela´s behalf.

At the Circuit Civil Court in Dublin, Judge Jacqueline Linnane told the parties that there would have to be a preliminary hearing to determine whether Pamela was indeed a member of the football club, and she adjourned the hearing to give the two parties an opportunity to resolve the claim for a broken ankle in a pothole accident by negotiation.

When the two parties returned, Judge Linnane was told that Pamela´s claim for a broken ankle in a pothole accident had been resolved for an undisclosed amount and that the case could be struck off.

The State Claims Agency has called for national guidelines to be issued for the use of a birth-inducing drug to prevent future Syntocinon compensation claims.

Syntocinon is the brand name of a synthetic drug (oxytocin) frequently used in maternity units to induce labour and accelerate contractions. For many women it speeds up the delivery process, helps the womb to contract after childbirth and prevents excessive bleeding.

However, both mother and child have to be carefully monitored during the administration of the drug. Syntocinon can caused adverse reactions with other medication and escalate foetal distress when a baby is deprived of oxygen.

Syntocinon is listed as one of ten “high-alert medications”, and has been identified as one of the causes for the death of four babies at the Portlaoise Hospital in the past six years. There have also been several Syntocinon compensation claims made against the HSE when children have survived foetal distress, but have been born suffering from cerebral palsy.

One of the more recent Syntocinon compensation claims was heard at the High Court in February. It resulted in a three-year-old girl being awarded an interim settlement of €2.32 million due to a failure to monitor her heartbeat after Syntocinon had been administered to her mother.

Lack of Consistency in Syntocinon Use

A report recently released by the State Claims Agency – the agency that pays settlements of Syntocinon compensation claims – has shown an alarming lack of consistency in the way Syntocinon is used in maternity departments and how mothers and babies are monitored.

The report revealed that one maternity unit had no guidance on the drug´s use; thirteen had dissimilar guidelines; six had introduced policies; five relied on protocols; three had developed procedures and one had a “checklist”.

The State Claims Agency’s clinical risk adviser, Mary Godfrey, has said that national guidelines are required to improve outcomes for mothers and their babies, and to reduce the number of Syntocinon compensation claims made against the state.

However Ms Godfrey neglected to comment on one area of the report which stated “No service obtains explicit written consent from women prior to starting them on the drug.” This is an important issue which needs to be addressed if the State Claims Agency wishes to reduce the number of Syntocinon compensation claims made against the HSE.

The number of compensation claims for needlestick injuries made by employees of Dublin City Council has increased over the past three years.

The year-on-year increases in compensation claims for needlestick injuries was revealed by Fianna Fáil Councillor Jim O’Callaghan, who has analysed personal injury claims made by Dublin City Council employees over the past three years.

According to Councillor O´Callaghan, it is of particular concern that employees´ claims for needlestick injuries have increased in each of the past three years, and he called on Dublin City Council to “review its measures and introduce safer systems of work for its employees immediately”.

Councillor O´Callaghan also raised the question of whether cutbacks in the council´s finances had resulted in a reduction of appropriate training and the provision of personal protection equipment for council employees. A spokesperson for Dublin City Council later told the press that this was not the case.

The data relating to compensation claims for needlestick injuries was included in figures that revealed Dublin City Council paid out more than €8 million in the settlement of personal injury claims during 2014.

Although the majority of the €8 million paid in settlement of personal injury claims was paid to members of the public who most commonly suffered broken limbs, and shoulder and back injuries, due to slips, trips and falls on council-maintained property, €617,000 was paid to council employees.

Claims for Needlestick Injuries Made by the Public

There was no information in Councillor O´Callaghan´s revelations relating to claims for needlestick injuries made by the public against Dublin City Council, but – historically – these have not proved to be successful.

In 2013, simultaneous claims for needlestick injuries against Dublin Council were made by the mothers of two toddlers who had been playing with syringes discarded in Killinarden Park. Neither child had suffered an injury after piercing their hands with the syringes, and the claims were dismissed.

The judge presiding over both claims for needlestick injuries – Mr Justice Matthew Deery – commented that Dublin City Council was making reasonable efforts to prevent the risk of needlestick injuries to park users, and the claim that the local authority had acted “with reckless disregard of the children” could not be substantiated.

Another High Court judge has added his voice to the calls for periodic payments for medical negligence claims to avoid errors in compensation payments.

For many years, high-profile High Court judges have called for legislation to be passed in order to enable periodic payments for medical negligence claims. Mr Justice Iarfhlaith O’Neill, Mr Justice John Quirke and Ms Justice Mary Irvine have each expressed their frustration at the lack of a structured payment system which, they claim, results in awards of medical negligence compensation becoming a “lottery”.

Inasmuch as reports are always compiled into a plaintiff´s future requirements and compensation awarded on the basis of “anticipated life expectancy”, the judges are conscious that a long-living plaintiff will find their settlements inadequate for their needs. There has also recently been a case in which a judge increased a settlement of medical negligence compensation to account for the decline in interest rates.

Now Mr Justice Bernard Barton has added his voice to the calls for periodic payments for medical negligence claim,s after refusing an application by the National Maternity Hospital to award an interim payment of compensation to a child suffering from catastrophic birth injuries, and have the child´s needs reviewed again in ten years. The case is O’Neill vs National Maternity Hospital.

Although the National Maternity Hospital has admitted negligence, the settlement of the claim is being delayed because the two parties cannot reach an agreement on how much medical negligence compensation the plaintiff is entitled to. Whereas some consensus of opinion has been reached in terms of general damages for pain and suffering, there is a wide difference between what the plaintiff´s counsel are claiming for the child´s future aids and appliances (€445,000) and what the National Maternity Hospital is prepared to pay (€37,000).

Other areas of disagreement include future care and accommodation requirements and future loss of earnings, and the National Maternity Hospital argued that a ten-year adjournment of the case would help to resolve the areas of uncertainty. Mr Justice Barton agreed that the proposals was not without it attractions, as a more accurate settlement of medical negligence compensation would be more ascertainable by the time the injured girl reached the age of majority; however, the injured girl´s mother disagreed with the proposal – citing the psychological harm that her daughter might experience due to years of assessments.

The judge said that in the absence of agreement between the parties, there were no exceptional circumstances that would make it permissible for the Court to intervene against the express wishes of the child’s mother. The judge dismissed the proposal by the National Maternity Hospital, saying that she had exercised her constitutional rights as part of the family unit under the Constitution, and that if a system of periodic payments for medical negligence claims was in place, this situation would not have arisen.

Irish Barrister Doireann O’Mahony last week wrote an opinion piece for the Irish Times, in which she commented on informed consent in medical negligence cases.

Doireann O´Mahony qualified as a Junior Counsel in 2012 and specialises in Medical Law. Her book “Medical Negligence and Childbirth” is due to be published later this year, and – due to her expertise in the area – Ms O´Mahony was the perfect legal professional to comment on a recent UK case in which a new benchmark was set on what constituted informed consent in medical negligence cases.

The case in question was Montgomery vs Lanarkshire Health Board – a case that had been appealed to the Supreme Court in the UK, after the mother of a child who suffered avoidable birth injuries at Bellshill Maternity Hospital in 1999 had been denied compensation by both the Outer and Inner Houses of the Court of Session in Edinburgh.

The mother – Nadine Montgomery – is petite in stature and suffers from Type 1 diabetes. Women who suffer from Type 1 diabetes are more likely to have larger babies and – prior to the birth of her son – Nadine had expressed concerns about being able to deliver her child safely. When her son – Sam – was born, his shoulder got trapped in the birth canal and he suffered shoulder dystocia as medical staff tried to free him.

Due to the umbilical cord also being trapped, Sam was deprived of oxygen during his delivery and – in addition to sustaining a permanent brachial plexus injury during his birth – also suffers from cerebral palsy. Nadine Montgomery subsequently sued the Lanarkshire Health Board (now NHS Lanarkshire) on the grounds that she would have chosen a birth by Caesarean Section had the risk of shoulder dystocia in a natural birth been explained to her.

During the Supreme Court hearing, Nadine´s consultant gynaecologist – Dr Dina McLellan – admitted that Nadine had repeatedly expressed concerns about giving birth naturally, but said that she had chosen not to explain the risk of shoulder dystocia because if she explained to diabetic women, they would all want it. Dr McLellan told the court that, in her view, it was “not in the maternal interests for women to have Caesarean Sections”.

The seven Supreme Court judges unanimously disagreed with the consultant gynaecologist and said in their judgement that social and legal developments “point away from the relationship between the doctor and patient based on medical paternalism”. The judges ruled that a doctor has a duty of reasonable care to ensure that patient is aware of any material risks involved in any recommended treatment and that “it was incumbent on Dr McLellan to advise Mrs Montgomery of the risk of shoulder dystocia if she were to have her baby by vaginal delivery, and to discuss with her the alternative of delivery by caesarean section.”

The Supreme Court awarded Nadine £5.25 million compensation for the birth injuries that her son had sustained during his delivery, and said it would be a mistake to view patients in the modern world as “uninformed, incapable of understanding medical matters or wholly dependent upon a flow of information from doctors” – effectively moving the goalposts in respect of informed consent from the “doctor-knows-best professional standard test” to a “reasonable patient test”.

Implications for Informed Consent in Medical Negligence Cases in Ireland

Doireann O´Mahony welcomed the judgement of the UK Supreme Court and the implications for informed consent in medical negligence cases in Ireland. Ms O´Mahony commented that a patient-centred approach to the issue of informed consent has been adopted in virtually every major common law jurisdiction – including the United States, Canada and Australia.

A patient-centred approach to informed consent in medical negligence cases has twice been the preferable test to resolve medical negligence claims in Ireland – in Geoghegan vs Harris (2000) and in Fitzpatrick vs White (2007). Interestingly, in both cases the presiding judge was Mr Justice Nicholas Kearns, who took the opinion that medical professional had a duty of care to impart certain information regarding risks, where those risks were likely to be relevant in the eyes of a reasonable patient.

Although the two cases mentioned above were in respect of dental medical negligence and eye surgery medical negligence, Ms O´Mahony compared the two cases to the rights of a pregnant woman prior to and during childbirth. She wrote:

A pregnant woman must be given sufficient understanding to enable her to make a choice in circumstances where she is free to exercise choice. That is what consent is all about and pregnancy is a particularly powerful demonstration of it. Once pregnant, there are only two possibilities, vaginal birth or Caesarean section. There is no third alternative. While most doctors are meticulous in obtaining “consent” for operative intervention, they seem to have little appreciation of the need, equally great, for proper consent to the non-surgical alternative.

Ms O´Mahony concluded her article on informed consent in medical negligence cases by saying that a professional standard test has no place in the 21st century when it comes to childbirth. She welcomed the move away from a paternalistic philosophy in Ireland, and set a question for those who opposed to the reasonable patient test – “what risks of elective Caesarean section could outweigh the known risk, in any particular case of vaginal delivery?”

A Circuit Court judge has approved a €25,000 settlement of a girl´s claim for compensation for being injured on the Luas.

On 14th February 2008, six-year-old Aoife Heron boarded a Luas ahead of her mother at Connelly Street. Aoife´s mother – Elaine – was pushing a buggy containing Aoife´s younger sister, but failed to get inside the train before the doors closed – trapping the buggy between them.

The automatic doors opened again, allowing Elaine to retrieve the buggy; but, as Aoife attempted to join her mother and sister on the platform, the automatic doors closed once again – trapping Aoife´s head between them.

Aoife suffered a head injury, which was treated at Connelly Street by an ambulance crew. She was later examined by the family GP, who diagnosed soft tissue damage to Aoife´s head and a small amount of bruising.

As a result of the accident, Aoife has a scar on her head and has developed a phobia about travelling on the Luas. The family´s GP has said that Aoife may need psychotherapy in the future to overcome her fear.

On her daughter´s behalf, Elain Heron from Raheny in Dublin claimed compensation for being injured on the Luas against Veolia Transport Dublin Light Rail Ltd – the operators of the Luas – for negligence and breach of duty.

The transport company initially denied liability and prepared a full defence against the claim. However, after a period of negotiation, the two parties agreed to a settlement of €25,000 in compensation for being injured on the Luas.

At the Circuit Civil Court in Dublin, Court President Mr Justice Raymond Groarke heard about Aoife´s accident and the injuries she had sustained. He approved the settlement of compensation for being injured on the Luas, which will be held in court funds until Aoife (who is now thirteen years old) reaches the age of eighteen.

A claim for a failure to treat the mother of a brain damaged girl has been resolved in the High Court after a judge approved a €2.6 million compensation settlement.

Caoimhe Flood (8) was born at the Rotunda Hospital in Dublin in April 2006, suffering from cerebral palsy after an alleged failure to treat her mother – Marlis – who had a history of ante partum haemorrhage associated with abdominal pain.

Marlis had attended the Rotunda Hospital on a regular basis from February onwards, and was an inpatient from March 30th to April 2nd because of her abdominal pain. On April 3rd Marlis returned to the hospital for a scan and complained of other symptoms.

It was alleged that the scan was not performed and that Marlis was discharged home. However, the following day Marlis again returned to the hospital with increasing abdominal pain. An examination revealed that she was dilated, and Caoimhe was born later that evening – after what Marlis considered to be an avoidable delay.

After her daughter was born, Marlis made a claim for a failure to treat on Caoimhe´s behalf – alleging that the little girl´s birth injuries could have been avoided if the hospital had responded appropriately to her history of ante partum haemorrhage and abdominal pain.

The allegations were denied by the Rotunda Hospital; but, in 2012, the hospital agreed to a €1.3 million interim settlement of compensation for a failure to treat without an admission of liability. This week, the claim for a failure to treat was back at the High Court again for a final settlement to be approved.

At the hearing Mr Justice Bernard Barton heard how Caoimhe had to be fed via a tube during the first year of her life and now needs full time care as she is a spastic quadriplegic. Approving a final settlement of €2.6 million, the judge said that he was very relieved for the Flood family that the claim for a failure to treat had finally and completely been resolved.

The High Court has approved an interim settlement of compensation for a three year old girl after hearing of cerebral palsy medical negligence at Kerry General Hospital.

Skye Worthington (now 3 years old) was born at the Kerry General Hospital on 22nd April 2011, after her mother – Colleen – had been given syntocinon to speed up her labour. Although the syntocinon resulted in Colleen´s contractions accelerating, a prolonged deceleration of Skye´s heartbeat in the womb was ignored.

Skye – from Castlegregory in County Kerry – sustained brain damage due to a lack of oxygen in the womb and now suffers from cerebral palsy. She has to be fed through a tube, has difficulty sitting still, and can only communicate by using her eyes. A review of the management of Skye´s birth found that if she had been born just fifteen minutes earlier, she would not have suffered the devastating injuries.

On her daughter´s behalf, Colleen made a claim for compensation against the HSE – alleging cerebral palsy medical negligence at Kerry General Hospital. The HSE acknowledged that errors had been made in the management of Skye´s birth and an interim settlement of €2.32 million compensation was arranged while an assessment takes place to consider Skye´s future requirements.

At the High Court, Skye´s parents were read a statement in which the HSE and Kerry General Hospital apologised unreservedly for the errors in the management of Skye´s birth. The statement also said that lessons had been learned from a review of Skye´s birth in which her parents had participated, which had helped clarify a number of important issues.

Mr Justice Kevin Cross described the apology as “out of the ordinary” and explained to Skye´s parents that the interim settlement of compensation for cerebral palsy medical negligence at Kerry General Hospital was for the next three years. Once the assessment of Skye´s future requirements had been concluded, the family would have the option of annual periodic payments subject to legislation being passed, or take a lump sum payment in final settlement of Skye´s hospital negligence claim.

A €250,000 settlement of compensation for Erb´s Palsy has been approved in the High Court in favour of an eleven-year-old girl.

Keelan Murray from Newtownmountkennedy in County Wicklow was born at the National Maternity Hospital in January 2004. During her delivery, Keelan was identified as having shoulder dystocia – an obstetric emergency in which the shoulders fail to clear the pubic symphysis – which can lead to damage to the brachial plexus nerves if excessive force is used to extract the shoulders.

Damaged brachial plexus nerves can heal themselves over a period of time but, as in Keelan´s case, sometimes the damage is permanent – a condition known as Erb´s Palsy. Now eleven years of age, Keelan is unable to fully use her right arm due to nerve damage she sustained during her delivery and has had to adapt to writing with her left hand.

An operation to repair the damage in 2012 failed to improve her condition and through her mother – Sharon – Keelan made a claim for compensation for Erb´s Palsy against the hospital. In her legal action Keelan alleged that traction was incorrectly applied to facilitate her delivery despite shoulder dystocia having been diagnosed.

The National Maternity Hospital denied that Keelan´s condition had been caused by medical negligence but an offer of compensation for Erb´s Palsy amounting to €250,000 was made without admission of liability. As Keelan is still a legal minor, the offer had to be approved by a judge before the settlement could be accepted.

Consequently, at the High Court, Mr Justice Kevin Cross was told how Keelan is a bright young girl who still manages to participate in sports despite her disability. The judge said that it would be prudent to accept the offer of compensation for Erb´s Palsy in the circumstances and approved the settlement – wishing Keelan well for the future.

A judge has approved the settlement of a claim for a fatal injury caused by a drunk driver relating to an accident that happened almost ten years ago.  

In December 2006, thirty-one year old Martin McDonagh was fatally injured in a single-car accident on the Kilgarvan-Killarney road. Martin was the front seat passenger in a car driven by his brother – Thomas – that, at the time, was being pursued by the Garda at a distance after it had been reported that the car was being dangerously driven.

Thomas McDonagh was arrested and, after it was found he had been driving with excess alcohol in his system, without a license or insurance, charged with dangerous driving causing death. He was given a three-year prison sentence by the Circuit Criminal Court in Tralee in 2008 after the court heard that Martin was the third member of the family to be fatally injured in a car crash.

Martin left a widow – Anne Marie – and five children. On behalf of one of the children – Melissa – Anne Marie made a claim for a fatal injury caused by a drunk driver against the Motor Insurers´ Bureau of Ireland (MIBI) – an organization that pays injury compensation to the victims of accidents and their families when a negligent driver is uninsured or untraceable.

Liability for the accident was not in doubt due to the custodial sentence delivered by Tralee Circuit Criminal Court, and an offer of settlement was made amounting to €15,000. As the claim for a fatal injury caused by a drunk driver had been made on behalf of a child, the offer had to be approved by a judge before the claim could be concluded.

The approval hearing was held at the Circuit Civil Court in Dublin, where Mr Justice Raymond Groarke was told the circumstances of the accident. Melissa´s counsel also told Judge Groarke that, if the claim for a fatal injury caused by a drunk driver went to a full hearing, the settlement of the claim might be reduced because Martin had got into his brother´s car knowing he was drunk and had failed to wear his seat belt.

Judge Groarke approved the €15,000 settlement of the claim for a fatal injury caused by a drunk driver and closed the hearing by expressing the court´s deep sympathy to Anne Marie and her family.

The Medical Protection Society has proposed a trial “pre-action protocol” with which it aims to reduce the cost of medical negligence compensation claims in Ireland.

The Medical Protection Society (MPS) is an organisation that provides legal help to medical professionals from consultants to dental assistants. Its “pre-trial protocol” is a voluntary process which aims to increase transparency and openness between lawyers representing parties in a claim for medical negligence compensation, so that claims can be resolved quicker and the costs of medical negligence compensation claims in Ireland can be reduced.

Due to the expense involved in litigating medical negligence compensation claims in Ireland some plaintiffs never recover the compensation they are entitled to. The MPS hopes that – with the opportunity for medical negligence claims to be investigated and resolved before litigation is necessary – the protocol should reduce the cost of medical negligence compensation claims due to using mediation to settle claims quicker in a less adversarial environment.

Emma Hallinan – Director of Claims at MPS – said “We recognise the important role that the MPS must play, and have committed to trialling procedural reform before it is introduced in statute. We are in the process of writing to plaintiff lawyers with large medical negligence practices to request that they work with us to pilot this.” A similar protocol currently exists in England and Wales which penalises solicitors who do not attempt a resolution by mediation before taking a claim to litigation.

During the proposed trial of the “pre-action protocol”, a tariff of general damages would provide a scale of compensation values for specific physical injuries caused by medical negligence. This is not dissimilar to the Injuries Board´s “Book of Quantum” or the UK´s Judicial College “Guidelines for the Assessment of General Damages in Personal Injury Cases.”

General damages for psychological trauma and loss of amenity would still have to be resolved by negotiation as would special damages for the financial implications of medical negligence – but many people looking at the MPS´s “pre-action protocol” proposals agree that it is a positive step towards reducing the cost of medical negligence compensation claims in Ireland.

A €150,000 settlement of compensation for being bitten by a dog has been approved in the High Court in favour of a twelve-year-old girl.

Lauren Kelly from Abbeylara in County Longford was playing “hunting the wren” with family and friends on St Stephens Day in 2011, when she was attacked by a Rottweiler that had escaped its home by jumping over a wall and was roaming the streets.

Lauren suffered twenty-six puncture wounds to her upper right arm and injuries to her neck and right shoulder as she was “tossed around like a rag doll”. Lauren escaped further injury when her mother and friends intervened, and she was taken to hospital.

At the hospital, Lauren was treated for her injuries and subsequently had to undergo skin graft operations which left her with twenty visible scars on her arm. She still has to wear a protective medical sleeve when swimming to prevent infections from developing.

Through her parents – Michael and Marcella Kelly – Lauren claimed compensation for being bitten bya dog against the Rottweiler´s owner – William Crawford also of Abbeylara, County Longford – alleging that Crawford had been negligent by having inadequate measures to stop the dog from escaping.

The compensation claim was initially disputed, but a settlement of compensation for being bitten by a dog was eventually agreed amounting to €150,000. However, before the claim could be finalised, the settlement of compensation had to be approved by a judge due to Lauren´s age.

Consequently, at the High Court in Dublin, Mr Justice Kevin Cross was told the circumstances of the attack and the injuries that Lauren had sustained. The judge approved the €150,000 settlement of compensation for being bitten by a dog, which will be held by the court in an interest-bearing account until Lauren reaches the age of eighteen.

A third interim settlement of compensation for birth injuries has been approved at the High Court after the judge turned down a request for a full payment to be made.

Nineteen-year-old Connor Corroon from Mallow in County Cork was born on February 6th 1995 at the Cork City General Hospital after being starved of oxygen in the womb. As a result of the hospital´s negligence, Connor is now permanently disabled with cerebral palsy, cannot speak and is confined to a wheelchair.

In 2010, Connor made a claim for compensation for birth injuries through his mother – Judith Corroon. The Cork City General Hospital acknowledged its liability for his injuries and an interim settlement of €1.6 million was approved pending the introduction of structured payment legislation. Connor´s was the first case to be dealt with in this way.

Last year Connor received a second interim settlement of compensation for birth injuries claim amounting to €475,000 and was due to receive a third payment. On Connor´s behalf, his mother appealed to the High Court that this third interim settlement of compensation for birth injuries should be a full and final payment.

Mrs Corroon explained to Mr Justice Bernard Barton at the High Court that Connor has to undergo a series of assessments each time he re-appears in court and she wanted her son to be able to get on with his life and go to college. Under the current arrangement, Connor has undergone more than twenty assessments each time an interim payment is due.

Judge Barton turned down the request for a full settlement of compensation – stating that it would be catastrophic for Connor if the court were to approve a final settlement and the money run out later in his life. He also explained that he had recently received a consultation paper relating to the proposed Civil Liability (Amendment) Bill that aims to introduce periodic payments system next year.

After hearing that the family had agreed to another interim settlement of compensation for birth injuries, the judge approved an interim settlement of €1.45 million and adjourned Connor´s case for a further five years.

The HSE is two launch two investigations into claims of negligent care at a home for intellectually disabled residents following revelations made in the RTÉ documentary Primetime.

The RTÉ documentary focused on negligent care at a home for the intellectually disabled in Swinford, County Mayo – Áras Attracta. “Inside Bungalow Three” contained video footage of residents being physically and emotionally abused that had been secretly recorded by a member of RTÉ´s investigative team posing as a work experience student.

Among the most disturbing examples of negligent care shown in the documentary were scenes of the residents being kicked and slapped, denied access to the bathroom and being sat upon. The abuse of defenceless residents prompted Taoiseach Enda Kenny to described the negligent care at the home for the intellectually disabled as “sickening”.

Prior to the broadcast of the program, RTÉ contacted the Health Service Executive (HSE), who have now launched two investigations –  Christy Lynch, chief executive of the KARE organisation for people with disabilities in County Kildare will chair an investigation into the allegations specifically made in “Inside Bungalow Three”, while Dr Kevin McCoy, a consultant and former member of the Commission to Inquire into Child Abuse, has been appointed by the HSE to lead a review of services at Áras Attracta generally.

The director general of the HSE, Tony O’Brien, said in a statement that the examples shown of negligent care at the home for the intellectually disabled “falls well below the standards that we expect in the health services”. Several members of staff have subsequently been suspended, and the Gardaí and the Health Information and Quality Authority (HIQA) are also conducting investigations into the alleged abuse at Áras Attracta.

Tony O´Brien also apologised to the residents of Áras Attracta and their families for the negligent care that had taken place. He said that the HSE did not wish to “pre-empt the findings of an independent investigation” but that it has taken several immediate actions to “guarantee that a safe and caring environment exists for the residents of Bungalow Three”.

The daughter of an engineer, who was exposed to asbestos when working on ships, has successfully claimed compensation for mesothelioma cancer from her father´s former employers.

Peter McCormack died at the age of 73 in December 2013, eighteen months after being diagnosed with mesothelioma cancer – a cancer that forms in the lining of the lungs and is caused by the inhalation of asbestos dust and fibres.

Before he died, Peter – from Whickham in Tyne and Wear – had sought legal advice to see if he was entitled to claim compensation for mesothelioma against his former employers, on the grounds that they failed to protect him from exposure to asbestos.

From 1957 to 1962, Peter had served as an apprentice for EON UK before becoming a mechanical fitter. During his time with the company, he worked alongside laggers who mixed and applied asbestos lagging to new pipes and fittings.

From 1965 to 1997, Peter was again exposed to asbestos when employed at OSG Ship Management (formerly W A Souter Ltd) as an engineer. His duties at OSG included repairing pipes that had been lagged with asbestos onboard the company´s ships.

It was also alleged that there a prevalence of surface asbestos dust on some of the ships managed by OSG, and when the dust was disturbed it was released into the air and inhaled by employees of the ship management company.

After Peter passed away, the claim for compensation for mesothelioma cancer was pursued by his daughter Elke (41) on behalf of herself and her sister, Natalie. Elke worked with the solicitors originally engaged by her father until liability was acknowledged and the claim for compensation was settled.

Elke and Natalie will now share in a six-figure settlement of Peter´s claim for mesothelioma cancer compensation, and Elke commented “Hopefully, this settlement will highlight to employers the need to protect people from exposure to asbestos, so other families do not have to watch their loved ones deteriorate so quickly.”