AB –v– HSE and Dr A
Augustus Cullen Law recently (February 2013) secured a very substantial settlement of damages in the amount of €1.85 million for a 6½ year old girl who suffered severe acute hypoxic ischaemic injury in the last hour before her delivery on 28 September 2006. The case has now been adjourned for a period of 2 years to enable the Government to introduce the proposed new scheme for the payment of damages in catastrophic injury cases which will allow for an annual, index linked payment of damages for future care. The case will go back for further assessment of future damages in two years’ time, by which time the anticipated new legislation should have been established in law.
The Plaintiff alleged negligence in this case for the manner in which the labour was induced and the failure of the private obstetric consultant to properly interpret the CTG trace. In essence, it was alleged that there was a negligent failure to recognise various signs of foetal distress which should have been obvious had the CTG trace been correctly interpreted. It was the Plaintiff’s case in particular that there was a failure on the part of the midwifery and the consultant obstetrician to recognise the presence of numerous continuing variable decelerations on the CTG trace. As a consequence of the foregoing, the infant Plaintiff was allowed to suffer progressive foetal distress during the induction process, ultimately resulting in an acute hypoxic ischaemic episode shortly before delivery. Belatedly, during the second stage of labour when the mother had commenced pushing efforts there was a recognition that there was foetal bradycardia present and eventually an attempt made to expedite the delivery by performance of an episiotomy. Unfortunately, by the time the Plaintiff was delivered she had suffered the effects of acute, prolonged bradycardia and was born in very poor condition with low APGAR scores. She was born pale, shocked looking, with no tone, no respiratory effort and no response to stimuli. The cord pH was as low as 7.0. She required vigorous resuscitation.
In the early days of life she suffered the classical features of hypoxic ischaemic encephalopathy and required treatment for this. There were abnormalities on the neonatal MRI scans performed which showed the classical features of selective damage to the deep grey matter of the brain in a distribution characteristically caused by acute, profound intra partum hypoxia. Unfortunately, the Plaintiff went on to develop the classical features of Dyskinetic Cerebral Palsy which greatly affect her mobility and will do so for the remainder of her life. Fortunately, the Plaintiff’s cognitive function is preserved and she is a bright, intelligent girl who is currently attending normal primary school, performing in the higher centile rankings in her class.
Both Defendants initially disputed liability and denied that there was any sub-standard care during the induction of labour or in the correct interpretation of the CTG trace. Indeed, in the early months of the Plaintiff’s life her private obstetrician had categorically reassured the family that the CTG traces showed no abnormalities at all and were entirely normal and re-assuring. On the basis of these assurances the family had not pursued litigation for several years after the Plaintiff was born. Proceedings were brought in 2010 with a full Defence being delivered denying liability. Ultimately, however, shortly before Trial the HSE admitted liability. In return for a personal apology from the Consultant Obstetrician the Plaintiff agreed to discontinue the proceedings as against him. Accordingly, Judgment was entered against the HSE for the sum of €1,850,000 plus costs as an interim settlement of the action. The settlement was facilitated by mediation which was helpful in achieving settlement of many (but not all) of the contentious heads of damages. Ultimately, the case finally settled on the day it was listed to commence Trial. The matter has been adjourned for a period of 2 years, at which time the Plaintiff’s future care needs will be re-assessed and hopefully will be dealt with on the basis of the anticipated legislation to introduce annual periodic payments suitably index linked.
If you have any further queries, please contact any of the following from our medical negligence group:
- Michael Boylan, Partner
- Joice Carthy, Partner
- Gillian O’Connor, Consultant Solicitor
- Jamie Hart, Senior Associate Solicitor
30 April 2013