Charlotte Barry –v- National Maternity Hospital and other (High Court 13 July 2010).
The infant Plaintiff was born at the National Maternity Hospital on 9 September 2005 in poor condition and required extensive resuscitation and admission to the neonatal intensive care unit. The Plaintiff was acutely ill in the newborn period suffering from hypoxic ischemic encephalopathy (HIE) and seizures. Ultimately the Plaintiff’s condition stablised but unfortunately it was obvious from an early stage that the Plaintiff had sustained irreparable brain damage resulting in Dyskinetic Cerebral Palsy. The Plaintiff is very severely physically handicapped but fortunately has relative preservation of cognitive ability. The Plaintiff is non-verbal but communicates largely with eye pointing and has great understanding of her environment and receptive language.
The essence of the claim in negligence against the hospital was that there was an unnecessary and unjustified misuse of oxytocin to accelerate the dilatation of the cervix. There was evidence of uterine hyper-stimulation and heart rate abnormalities from an early stage and notwithstanding the presence of these abnormalities the midwives and medical staff continued to prescribed Oxytocin in increasing doses. It was the Plaintiff’s case that due to the misuse of Oxytocin the Plaintiff was caused to suffer progressive and prolonged foetal distress which ultimately caused a collapse in the foetal heart output shortly before delivery which caused the brain damage.
Initially there was a full denial of liability and the action came on for hearing initially in May and for a Trial of the liability issues only. On day 2 of the liability Trial the Defendants admitted liability and the case then proceeded on the basis of an assessment of damages. The case was adjourned for a period of weeks to enable the Trial of damages to be arranged and/or settlement negotiations to take place.
On the 13 July 2010 Augustus Cullen Law, with the help of eminent Senior Counsel adopted a novel approach in the negotiation and settlement of a birth injury action on behalf of the Plaintiff. The terms of settlement involved agreeing to an interim payment of damages of €1.65 million and costs with the action being adjourned for a period of two years for final determination. It is envisaged that by two years, legislation will have been enacted to enable damages in catastrophic injury cases to be awarded on an annual basis. If such legislation is enacted over the next year or two, it would then be possible for an annual sum to be awarded to cover care and other future expenses and this sum would be index linked against inflation in carers salaries. This approach would almost certainly guarantee that there would be sufficiency of funds to pay for all items of future care and medical expense for the entire of the infant’s lifetime.
If such legislation was enacted it would have the advantage of removing the risk inherent in a lump sum award approach which could prove inadequate should the cost of future care rise at a greater than anticipated rate and/or the Plaintiff’s life expectancy be greater than predicted. It would also remove the risk of the lump sum fund not earning the anticipated rate of interest due to poor investment returns. For all of these reasons Augustus Cullen Law decided to negotiate an upfront lump sum payment to be paid within 21 days of the date of settlement in the amount of €1,650,000.00 made up as follows:
|General Damages for pain and suffering||€450,000.00|
|Plaintiff’s Loss of earnings||€350,000.00|
|Interim payment in respect of future housing adaptation/acquisition¹||€350,000.00|
|Adaptations carried out to the parent’s existing house (agreed)||€100,000.00|
|Interim payment in respect of care costs for next two years:||€250,000.00|
|Retrospective care provided by the parents for the first 4½ years of life (agreed)||€130,000.00|
|Travel and miscellaneous expenses to date||€5,000.00|
|Cost of purchasing vehicle (agreed)||€15,000.00|
|Total Interim Payment (agreed)||€1,650,000.00|
The action was then adjourned for a period of two years to enable sufficient time for the proposed legislation to be enacted to allow for payment of damages for future care to be made on annual index linked basis by way of periodic payment order.
It is believed that this was a novel approach to the settlement of such an action and only the second such settlement agreed in the Irish Courts. It was also agreed that if the legislation giving effect to periodic payment orders was not enacted by the Dáil within the next two years, then the action would come before the High Court again for the assessment of damages on a traditional lump sum basis. However, no prejudice would have been caused to the infant Plaintiff by the delay in the final assessment of damages as the amount of the interim settlement permitted the infant and her family to secure all of the necessary care, aids and appliances, equipment and assistive technology in the interim.
(1) There was a major dispute between the parties on the issue of future housing costs and also the proper approach to be adopted by the Court when assessing this head of loss. This issue was therefore fully litigated before the High Court and Judgment was reserved and is currently awaited (due in October 2010).
23 July 2010