The HSE has finally admitted liability for a birth injury case in which a series of errors around a baby boy’s birth left him with a debilitating disability, after nearly a decade of denying fault.
The boy was born by emergency Caesarean Section at Kerry General Hospital on May 25th 2006. The hospital staff in charge of his birth committed a series of grave errors surrounding his birth. The baby boy´s delivery being delayed by two hours, depriving him of oxygen in the womb. Furthermore, despite an abnormal heart-rate pattern being observed, the consultant obstetrician was not informed. The possibility of foetal hypoxia was not considered by hospital staff, and no action was taken on a CTG trace indicating foetal distress.
Due to oxygen deprivation, the baby suffered devastating brain damage. He was diagnosed with mixed dyskinetic spastic cerebral palsy, a devastating disability. The boy (now ten years of age) requires 24-hour support from his parents, He us unable to speak or walk, and must always use a wheelchair. To exacerbate the family’s suffering, the HSE failed to admit liability for nine years. The boy´s family were forced to care for him relying entirely on their own resources, without the support they were entitled to from the state.
The HSE finally liability early last year after the family’s legal team threatened them with aggravated damages. After initial negotiation, an interim settlement of €2.7 million compensation for brain damage at birth was rushed through the courts. Recently, the family was back in court for the approval of a final lump sum settlement of compensation for brain damage at birth amounting. The two parties had agreed that €15 million was a sufficient sum. The judge presiding over the case described this as an amount that was described as “commercial common and legal sense”. As the boy is a ward of court, the settlement of compensation for brain damage at birth will be paid into court funds and managed by court authorities.
Approving the settlement, Judge Kelly paid tribute to the boy´s parents for the care of their son, and added while no money would compensate the boy and his family, but it was the only form of redress the law could provide. He hoped it would give peace of mind that there is a fund to care for the boy´s needs into the future.
The HSE has paid compensation to a boy who suffers from Erb’s palsy as a result of medical negligence surrounding his birth.
The six-year-old boy was born via a natural delivery on 22nd March 2010 at Kerry General Hospital despite his mother having requested a birth by Caesarean section because of his size in the womb. During the delivery process, the boy´s shoulder got trapped in the birth canal and he had to be extracted with the assistance of a vacuum cup.
Due to the force applied to free his shoulder, the boy suffered a brachial plexus injury and has since been diagnosed with Erb´s palsy. Due to his birth injury, the boy has a weak right arm that will permanently affect him for the rest of his life. After seeking legal advice, the boy´s father made a claim for an Erb´s palsy birth injury against the HSE on his son´s behalf.
The Health Service Executive (HSE) initially denied liability for the boy´s birth injury but after a period of negotiation agreed to a €530,000 settlement of the claim for an Erb´s palsy birth injury without an admission of liability. As the claim had been made on behalf of a child, the proposed settlement had to be approved by a judge to ensure it was in the child´s best interests.
Consequently at the High Court in Dublin, Mr Justice Kevin Cross was told that the boy had been identified as a big baby two months before his birth and that his mother had requested a Caesarean section delivery on two consultations and again when she was admitted to Kerry General Hospital in labour.
Judge Cross also heard that the boy attends mainstream school, has learned to write with his left hand and is very good at maths. An expert witness testified that the boy is unable to tie shoes or close buttons and will struggle at sports, after which the judge approved the settlement of the boy´s claim for an Erb´s palsy birth injury against the HSE and wished the family well for the future.
An editorial published by the an Irish newspaper has made a case for the lack of enforcement of the open disclosure policy for the Health Service Executive.
The open disclosure policy, which sets guidelines for when the HSE should inform families when there are issues with the treatment and healthcare provided to their loved ones, was officially enacted in November 2013. However, the aforementioned open editorial – published by the Irish Examiner – claimed that the policy was beneficial to those involved, yet is still not being utilised in hospitals.
Catherine Shanahan – who wrote the open editorial – made use of seven key medical negligence cases that were in the media over the past twelve months. Shanahan claims that these cases are demonstrative of how the Health Service Executive is not admitting liability and as such, if they want to learn be compensated for their difficulties, patients and their families are forced to take the case to court, which is both costly and emotionally exhausting.
Gill Russell’s case, well known because of the battle with the States Claim Agency, was one case used by Shanahan to illustrate her point. Born in 2006 after “prolonged and totally chaotic” delivery which left her deprived of oxygen in utero, Gill now suffers from cerebral palsy. The HSE only issued an apology in 2012, which was also when an interim settlement of compensation was awarded.
However, no system of payments was ever enacted and in 2014, the Russell family were back in the High Court. They awarded a €13.5 million lump settlement – the largest ever awarded by the state for cerebral palsy. However, unsatisfied, the State Claims Agency then made an attempt to appeal the settlement. The appeal was initially rejected, which caused the agency to take it to the Supreme Court – delaying yet again the award of the funds to the family.
Skye Worthington’s and Katie Manton’s cases were also mentioned in the piece. Both suffered similar circumstances to Gill Russell, and both waited for years to receive an apology from the Health Service Executive for their mismanaged births. However, when an apology did come, Katie’s father said it was “too little too late”
Shanahan’s editorial makes a clear and compelling case for the claim that the policy is not being applied in Irish hospitals, and that the money put towards an information campaign concerning the policy was a waste of government funds.
The family of a woman who died from medical misadventure after a routine operation have sought legal counsel to claim compensation for her death.
Susan McGee, a fifty-two year old mother of two, was admitted to the Hermitage Medical Clinic on the 13th July 2013 for an operation to treat a hernia. The surgery, which was described as routine, was initially determined to be successful and Susan was discharged to the care of her daughter three days later.
However, on the 17th July, Susan started to experience extreme abdominal pains and nausea. She was taken back to the Hermitage and readmitted such that she could be monitored. However, over the weekend of the 20th and 21st July, Susan continued to worsen and a CT scan revealed that there was a mass in her small intestine.
An emergency surgery was conducted to remove the obstruction, though Susan did not get better after the surgery. The next day, the 23rd July, Susan was transferred to Intensive Care at Beaumont Hospital. However, she tragically died the next day from multiple organ failure brought on by sepsis, which in turn was caused by a Clostridium difficile infection.
In 2015, an inquest into Susan’s death revealed that the medical staff at the hospital had made several errors in their patients care. Dublin City Coroner’s Court heard how the staff failed to note that there was a brown faecal fluid draining in Susan’s nasogastric tube. Three days before she died, Susan’s vital signs were not recorded for ten hours.
Additionally, over the weekend during which Susan was in hospital, there was just one resident medical officer working in the hospital, Dr Lachman Pahwani. He testified that, whilst he tried to devote as much of his time as he could to Susan due to her condition, he had eighty other patients to care for whilst he was on duty.
The inquest determined that that Susan died because of medical misadventure. After the inquest, Susan’s family consulted a solicitor and have made a claim against the Hermitage Medical Clinic for Susan’s death.
A settlement of compensation for the failure to treat meningitis has been approved at the High Court in favour of an eleven-year-old boy.
Matthew McGrath from Gorey in County Wexford was just seventeen months of age when he was admitted to Wexford General Hospital on 27th May 2004 after he had been uncharacteristically drowsy and vomiting fluids. Matthew was diagnosed with Haemophilus Influenza Type B – which is known to lead to meningitis and would normally be treated by antibiotics and fluids.
However, Matthew´s condition deteriorated overnight and he was considered by doctors to be in shock. Nonetheless Matthew underwent a lumbar puncture procedure to confirm suspected meningitis the following morning, despite accepted medical guidelines recommending against the procedure when a patient is in shock.
During the procedure Matthew´s spinal cord compressed, due to which he cannot move his arms or legs. Matthew spent the next two years of his life in hospital and was only allowed home when his parents campaigned for his discharge from hospital. Matthew´s parents are now his full-time carers, as he is permanently paralysed and can only breathe through a ventilator.
Through his mother – Cathy McGrath – Matthew claimed compensation for the failure to treat meningitis. In the claim it was alleged that if Matthew had been administered antibiotics and given fluids at the time of his admission into Wexford General Hospital, the lumbar puncture procedure would have been unnecessary and he would have avoided his devastating injuries.
After an investigation into the circumstances of Matthew´s admission into Wexford General Hospital, the HSE admitted liability and issued an apology to Matthew´s parents. An interim settlement of €3.7 million compensation for the failure to treat meningitis was agreed, but the settlement first had to be approved by a judge.
Consequently, at the High Court, the tale of Matthew´s devastating and unnecessary injuries was related to Mr Justice Matthew Cross. Judge Cross approved the interim settlement of compensation for the failure to treat meningitis and adjourned the case for five years. During this time reports into Matthew´s future needs can be carried out so that a final settlement can be agreed if legislation is not forthcoming to allow periodic payments of compensation.
The Medical Protection Society has proposed a “pre-action protocol” on a trial basis, which it hopes will be a long-term solution to the costs of medical malpractice claims in Ireland.
Due to the expenses involved in supporting legal action, the costs of medical malpractice claims in Ireland can be sky high. A recently proposed “pre-action protocol” by the Medical Protection Society (MPS)– an organisation that provides legal help to medical professionals – aims to cut the costs of medical malpractice claims and reduce the length of time it takes for claims to be resolved.
The protocol encourages openness and transparency between solicitors acting on behalf of plaintiffs and defendants, so that the opportunity exists for medical malpractice claims to be investigated and resolved before court action is necessary. If successful, it should cut the costs of medical malpractice claims by creating a less adversarial process and by using mediation to settle claims quicker.
The MPS´s Director of Claims – Emma Hallinan – is proposing that the protocol be trialled voluntarily before legislation is introduced to compel solicitors to take advantage of this option. She 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.”
Currently in England and Wales financial penalties are imposed on solicitors who go straight to litigation without first attempting some form of mediation. In the MPS´s proposed trial, a tariff of general damages would be used – similar to the Book of Quantum – to calculate the “value” of an injury caused by medical malpractice.
The tariff would provide a scale of general damages for specific physical injuries from dental damage to catastrophic brain injuries. General damages for loss of amenity and emotional injuries – as well as special damages for the financial costs of medical malpractice – would still have to be resolved by negotiation, but many observers looking at the MPS´s proposals are in agreement that it is a step in the right direction for lowering the costs of medical malpractice claims in Ireland.
A woman in Philadelphia has won her claim for an adverse reaction to medication which caused her to go into cardiac arrest from which she suffered permanent brain damage.
In June 2010, Jacqueline DiTore attended the Outpatient´s Department of the Abington Surgical Centre in Pennsylvania for scheduled surgery on her nose. Prior to starting the surgery, her surgeon – Dr Warren Zager – asked a nurse to prepare an injection for a local anaesthetic and soak some cotton balls in a nasal decongestant (Afrin) so that they were ready if there was excessive bleeding during the procedure.
The nurse poured the nasal decongestant into a cup in order to soak the cotton balls before preparing the injection; but a second nurse mistook the contents of the cup as the anaesthetic, drew the Afrin into a syringe and handed it to the doctor. Unaware that the syringe had been filled with nasal decongestant, Dr Zager injected the Afrin into Jacqueline´s nose, and then left his patient to prepare for the surgery.
An anaesthetist present in the operating room saw that Jacqueline´s heart rate had decreased to 36 beats per minute and – unaware that Jacqueline had been injected with sufficient Afrin to cause a 100-fold narrowing of the blood vessels – administered an anticholinergic which brought Jacqueline´s heart rate up to 80 beats per minute.
Dr Zager returned to the operating room to begin the procedure, but Jacqueline still had feeling in her nose. The doctor asked for another injection of anaesthetic to be prepared, and it was then that the mix-up was realised. Unaware of the effect that the Afrin had on Jacqueline´s heart rate, Dr Zager chose to continue with the surgery and injected more anaesthetic into Jacqueline´s nose.
Following the second injection, Jacqueline´s heart rate suddenly increased to 140 beats per minute and her blood pressure registered 260/150. Dr Zager administered Labetalol (a drug used to lower high blood pressure) and Jacqueline´s blood pressure fell so low so quickly that she went into cardiac arrest. Jacqueline was rushed to nearby Abington Memorial Hospital where she was resuscitated.
Soon after her recovery from the cardiac arrest, it became apparent that Jacqueline´s adverse reaction to medication had caused brain damage which left her with impaired cognitive abilities, short-term memory loss and difficulty with her speech. Doctors told Jacqueline that her brain injuries were likely to deteriorate as she gets older and, after seeking legal advice, she made a compensation claim for an adverse reaction to medication against the Abington Surgical Centre and Dr Zager.
Both defendants denied that they were liable for the adverse reaction that caused Jacqueline to go into cardiac arrest but at the Montgomery County Court in Philadelphia before Judge Thomas M. Del Ricci, a jury delivered a verdict in Jacqueline´s favour and awarded her $5.1 million in settlement of her claim for an adverse reaction to medication. The jury found Dr Zager to be 38.5 percent negligent for the adverse reaction and the Abington Surgical Centre 61.5 percent negligent for the circumstances which caused it.
An interim settlement of medical negligence compensation for cerebral palsy relating to a boy aged 13 who was born with irreversible brain damage has been approved in the High Court.
The compensation action for cerebral palsy birth injury for Ryan Brennan from Cahir, County Tipperary, by his parents following allegedly preventable complications before and during his (Ryan´s) birth in January 2000 at the St Joseph´s Hospital in Clonmel.
Some hours before his delivery, a foetal trace had uncovered abnormalities in Ryan´s heart rate and, after he was given birth to, he had to be resuscitated and suffered seizures throughout the following day. Due to his delayed birth, Ryan now suffers from irreversible brain damage and cerebral palsy.
In the action it was claimed by Ryan´s parents – Lorraine and Raymond Brennan – that Ryan´s cerebral palsy could have been avoided if the consultant obstetrician – Dr Brendan Powell – and staff at St Joseph´s Hospital had applied greater care to their work, and a birth injury medical negligence compensation action was made against Dr Powell and the HSE.
Both parties did not accept the allegations of a failure to act, negligence, a breach of duty by Dr Powell and a breach of contract by the hospital which resulted in the brain damage suffered by Ryan but, at the High Court in Dublin, Ms Justice Mary Irvine were told that an interim settlement of cerebral palsy birth injury compensation had been agreed upon with no admission of liability.
The €1.7 million temporary payment is for the next two years to allow for the introduction of a new structured payment system and a review of Ryan´s future needs. Ms Justine Mary Irvine described the interim settlement as ‘in the upper parameters of these types of cases’ as she approved it.
The family of a girl, who sustained brain trauma at birth when a locum doctor did not recognise the necessity for a Caesarean section, have had their birth negligence claim for hospital obstetric errors settled at the High Court.
Sonya Butler from County Waterford was taken to Waterford Regional Hospital in April 2005, after a normal and healthy pregnancy, to give birth to her first child. However, her consultant obstetrician – John Bermingham – and the Waterford hospital´s two other obstetric doctors on staff had all been allowed to take annual leave at this time, and the hospital had brought in a locum – Mahmud Khbuli – to cover int he absence.
Unfortunately, Dr Khbuli neglected to see the necessity for a Caesarean section during Sonya´s pre-operative assessment and, when Sonya´s daughter – Alex – was given birth to, she had suffered an oxygen deficiency in the womb which lead to the little girl suffering brain damage and being born tetraplegic.
Sonya’s mother, Alex, made a birth negligence claim (on her behalf) for hospital obstetric errors against the hospital, Dr Bermingham and Dr Khbuli; alleging that Waterford Regional Hospital was negligent by failing to have an adequate number of properly trained and competent staff to oversee her delivery, that Dr Bermingham should not have taken annual leave when the family had opted for private medical treatment and that Sonya´s pre-operative assessment by Dr Khbuli was not completed correctly.
The Health Service Executive (HSE) admitted, at the High Court, that mistakes were made which should never have occurred and an apology was read out to the family by a representative of the hospital. The court heard that the birth negligence action against Drs Bermingham and Khbuli had been dropped and a compensation settlement of €1.4 million had been agreed as an interim settlement of the family´s birth negligence claim for hospital obstetric errors.
The figure is to be reviewed in two years time, when Alex’s future rest of life needs have been assessed and there may be the option of a structured compensation settlement.
The first claim to be heard in court has resulted in an award of $8.3 settlement for DePuy ASR hip replacement device being made to a former prison officer.
The compensation claim filed by Loren Kransky (65) was brought forward ahead of the Multi District Litigation (MDL) due to be heard in Ohio in May, as the Mr Kransky is terminally ill from heart disease, diabetes and kidney cancer.
Solicitors at the Los Angeles Superior Court argued that Kransky had to have a follow-up hip replacement operation – causing him pain and suffering – due to serious levels of chromium and cobalt in his bloodstream caused by metal-on-metal friction inside his ASR XL Acetabular hip replacement device.
They, the solicitors, claimed that Johnson and Johnson – the father company of DePuy Orthopaedics – marketed the faulty hip replacement devices knowing that the ASR systems were defective, effectively accusing them of fraud along with negligence which would have permitted Kransky to qualify for significant punitive damages.
Johnson and Johnson disputed that they were aware that the ASR hip replacements were faulty in 2007 – the year in which Kransky had his first hip replacement surgery – and argued Kransky´s claim for DePuy ASR hip replacement device compensation on the grounds that Kransky´s pain and suffering was due to his pre-existing health conditions.
The jury at the Los Angeles Superior Court found that Johnson and Johnson had not behaved “with malice” by promoting their product in 2007, but were in agreement that the product was defective and awarded Kransky $8 million in settlement of his DePuy ASR hip replacement claim, with a further $338,000 to account for the medical expenses he has built up to date.
After the ruling was announced Johnson and Johnson revealed that it intends to appeal the decision, as the precedent of $8 million in DePuy hip device compensation for pain and suffering could be greatly inflated when claims for claimants who do not have a terminal illness are heard in the MDL action in Ohio.