Medical Malpractice Claims

Terminally-ill Limerick Woman Awarded €2.5m following Cervical Cancer Smear Negligence

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Ms Vicky Phelan – a resident of Annacotty, Co Limerick Vicky Phelan – a terminally ill mother of two, has settled her an wrong diagnosis compensation action for €2.5m from US lab Clinical Pathology Laboratories Inc.

The US company tested Mrs Phelan’s smear sample in 2011 and incorrectly told her that she did not have cervical cancer at that time. In January 2017 she was advised that she has less than 12 months to live. This followed from  a 2014 review which exposed the 2011 lab results as flawed. Despite the company being aware of this they failed to notify Mrs Phelan of the 2011 error for another three years.

Mrs Phelan’s legal counsel revealed, during  the High Court action if the cancerous cells had been correctly identified in 2011 she would have had a straightforward surgical procedure and normally gives the person receiving treatment a 90% chance of surviving cervical cancer.

In an interview with RTÉ television Ms Phelan revealed that she felt that a minimum of three women who had earlier got an all-clear smear result had since died due after suffering from cervical cancer. Later this week the Health Service Executive (HSE) will release the amount of women who passed away once the review has been completed.

The legal action filed against the HSE was thrown out and the settlement was awarded against the US laboratory Clinical Pathology Laboratories Inc, Austin, Texas only. There was no acceptance of liability.

Vicky Phelan has been prescribed a new drug recently and it is also hoped that she will be accepted on to the US-based programme that provides a radical new innovative treatment and has raised €200,000 through a Go Fund Me web page to date.

According to figures released yesterday, 206 cervical cancer cases reviewed featured the delay in the cancer being diagnosed after the smear tests suggests that these women missed out on an earlier intervention.

Birth Cerbral Palsy Action Sees Woman’s (20) Awarded €1.9m Interim Pay out

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Shauni Breen, a 20-year-old woman with cerebral palsy, has been awarded a €1.9m birth negligence pay out from the HSE due to the events surrounding her birth.

The High Court was advised that Ms Breen was delivered approximately 40 minutes after her Nicole, her healthy twin sister in Wexford General Hospital. She (Ms Breen) suffers from cerebral palsy, spastic diplegia and must use a wheelchair.

Ms Breen, who now live in Co Cork, took the legal action against the HSE over the circumstances of her December 30, 1997 birth. When the twins were 33 weeks and three days, it was claimed that their mother Marie Foley was admitted to Wexford General Hospital at 5am. Following this Nicole was delivered healthy at 6.10am.

It was alleged that that the management of the subsequent delivery of Shauni, which lasted for 40 minutes, was incompetent. As well as a failure to have an anaesthetist at the delivery a qualified team should also have been ready and prepared, it was argued. Due was due, it was argued, to the failure of those present to see that this was a high-risk labour.

In the Hight Court HSE refuted these claims and countered that manner of Ms Breen’s delivery complied with general and approved practice at the time in 1997. They (the HSE) claimed that the treatment adhered with conventional medical practice for a district hospital maternity unit at the time.

As Ms Breen had an abnormal presentation she should have been delivered by caesarean section within 15 minutes of her sister, her legal representatives argued.

They advised the Hight Court that Ms Breen had to be resuscitated before being moved to another hospital.

Counsel said the young woman was now doing well in her life and the day to day provided by her mother throughout her life had been of an extraordinary level.

Ms Breen is due to come back to court in five years’ time when her future life care needs will be re-assessed. Mr Justice Kevin Cross approved the €1.9m interim settlement.

Lobby Groups Call for Full Review on Use of Epilim

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Calls have been made, by Epilespy Ireland, for a review of 40 cases of birth defects and disabilities that involved the use of the drug Epilim.

Epilim, a drug which the group has urged doctors not to prescribe for new child patients, is currently under review by the European Medicines Agency. Findings of the review are expected to result in new guidelines regarding its use being issue. Epilim is the brand name in Ireland for sodium valproate.

Epilepsy Ireland, and other campaigners, have asked that females being treated with the drug be considered for alternatives medications as a precaution. 1,700 female patients between the ages of 16 and 44, according to official figures released by the Health Service Executive (HSE), were prescribed Epilim during the calendar year 2016.

Issues experienced in Irish births involving the use of the drug include:

  • Foetal malformation
  • Tumours
  • Spina bifida
  • Cerebral palsy
  • Autism
  • Developmental issues
  • Spontaneous abortion

Epilim is currently being implicated in 40 cases of birth defects and disabilities, reported to the Health Products Regulatory Authority (HPRA). Lobby groups are of the opinion that this figure might actually be closer to 400 in the 43 years that the drug has been prescribed for treatment in Ireland.

Additionally it has been reported that, in France, in excess of 4,000 children have been born with malformations since 1967 when the use of the drug on children in the womb began there. Dr Mahmoud Zureik, the scientific director of France’s ANSM, said that reports have shown the possibility of experiencing significant birth defects was, worldwide, four times higher in children born to a woman treated with Valproate (Epilim) for epilepsy, when cross referencde with females who were not prescribed the drug.

Commenting on the use of Epilim, the HPRA said that it has liaised with neurologists, obstetricians, paediatricians, psychiatrists, GPs, family planning clinics, specialist epilepsy nurses, pharmacists and HSE clinical leads on an ongoing basis. Following the completion of the review by the European Medicines Agency is it expected that the HPRA will meet to review the use of Epilim in Ireland by medical professionals.

The Minister for Health, Fine Gael TD for Wicklow, Simon Harris is also due to meet with mothers of children who are believed to have suffered following being prescribed the drug to treat their epilepsy.

Legal Expert: 1,000 Deaths Due to Medical Errors Annually

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Roger Murray, joint Managing Partner at Callan Tansey solicitors – speaking at a conference on medical negligence with solicitors, medical professionals and patients in attendance in September – said that roughly 1,000 unnecessary deaths are caused every year in Ireland due to medical negligence.

The legal expert went on to add that up to 160,000 hospitals visitors suffer injuries due to human error. Mr Murray was speaking at the Pathways to Progress conference on medical negligence and stressed that there is “no compo culture” to be seen when it comes to Irish medical negligence compensation legal cases, saying that he believes that what we are seeing currently is just “the top of a very murky iceberg”.

From his experience in working on a number of high-profile medical error compensation cases,  Mr Murray said that he believes that not all people suffering due to medical negligence report it while the HSE is made aware of 34,170 “clinical incidents” every year. Of these 575 resulted in compensation claims against the HSE, a rate of less than 1.7 per cent.

Mr Murray told those at the conference that the most often experienced cases are involving surgery (36 per cent) medicine (24 per cent), maternity (23 per cent) and gynaecology (7.5 per cent).

He also stressed that while injured parties and families do have empathy for medical workers who make errors what “they cannot abide is systemic and repeated errors”.

The legal expert called for thorough reviews when mistakes are experienced, saying that he had witnessed many inquests where families of those who had died learned that desktop reviews had been completed after a death, and the results were not presented to the appropriate staff members.

HSE Finally Admits Liability for Birth Injury Claims

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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.

HSE Pays Compensation to Boy’s Family in Erb’s Palsy Case

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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.

Editorial Claims HSE Open Disclosure Policy is not Enforced

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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.

 

Family Initiate Claim for Wrongful Death

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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.

 

Compensation for the Failure to Treat Meningitis Approved in Court

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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.

MPS Proposes Trial to Cut Costs of Medical Malpractice Claims

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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.