In March 2008 a 50 year old woman underwent a craniotomy (first procedure) to remove a large AVM (Arteriovenous malformation) from the woman’s right inferior temporal lobe. The operation was partly successful but there was a residue that could not be surgically removed in this procedure. Later the same month the Plaintiff underwent two microsurgical procedures to seek to remove the residue. During the second microsurgical procedure (an embolisation) the Plaintiff sustained a massive subarachnoid haemorrhage when the micro-catheter was being removed following the embolisation procedure. This caused the Plaintiff significant brain damage resulting in paraplegia, memory loss, poor concentration and some behavioural and emotional issues.
The Plaintiff first consulted another firm of solicitors and senior counsel who gave unequivocal advice that there was no case to be made and that there was no prospect of the Plaintiff succeeding in a claim for damages. The Plaintiff then sought a second opinion from ACL who were instructed in February 2010. ACL instructed new UK based experts in interventional neuroradiology and neurosurgery who both offered supportive opinions although each expert was critical of different aspects of the care and there was a mutual inconsistency between the opinions of the two experts. Ultimately following a consultation with the experts and upon further consideration of the expert reports a decision was made to pursue the case on the basis of the opinion of one expert only. In addition ACL upon further consideration of the records and notes realised that the Plaintiff may not have been offered an alternative treatment option, namely that of non-invasive stereotactic radiotherapy or gamma knife radiosurgery. In fact gamma knife radiosurgery was not an available treatment option in Ireland at the time of the relevant events.
However ACL upon further investigation discovered that many Irish patients have been referred by Irish teaching hospitals to the UK centres for this novel cutting edge treatment. The case was therefore made that the Plaintiff ought to have been referred following the first procedure (the craniotomy) for gamma knife radiosurgery in the UK to shrink the residue of the AVM. This would have avoided the significant risk of subarachnoid haemorrhage which is inherent in the more invasive embolisation treatment that the Plaintiff was in fact offered and provided with. The case made by the Plaintiff therefore was largely one of lack of informed consent.
The strength of the Plaintiff’s case was considerably undermined as a consequence of the Plaintiff’s brain injury and having little or no reliable memory of the pre-surgical consultation which she had with the treating doctors. Therefore the Plaintiff’s case on the issue of informed consent was considerably weakened evidentially. Notwithstanding the foregoing ACL with counsel negotiated a settlement of the proceedings on the basis that the Defendants agreed to have damages assessed on the basis of one-third of the full liability if the case had been won. The action was therefore adjourned to enable settlement negotiations to take place and ultimately in December 2015 a compromise settlement was agreed at €1.6million plus costs (on the basis of a one-third liability). The settlement was on the basis that the Plaintiff had an agreed future life expectancy of 11 years. The Plaintiff’s damages will also be increased depending on what real rate of return assumption the Supreme Court decides following the appeal in the case of Russell v HSE.
This was an excellent settlement having regard to the significant difficulties and complexities in the case and the significant evidential deficits that the Plaintiff would have faced in proving a case for lack of informed consent having regard to her memory deficits.
For further details contact: Michael Boylan, Partner, Augustus Cullen Law.
15 February 2016