Boy (4) awarded 2 million euro plus costs arising from birth injuries
Dylan Kenny - v - HSE
On 9th October 2014, Mr Justice Cross in the High Court approved a settlement achieved by Augustus Cullen Law in a claim on behalf of a 4 year old boy who, it was alleged, suffered from asphyxia during labour and delivery. The Plaintiff’s legal team alleged that his injuries resulted from the failure by the attending Midwives to recognise that Dylan was severely distressed during labour and to call for Senior medical assistance. The Plaintiff’s legal team alleged that had he been born 25 – 30 minutes earlier, he would have avoided his injuries. The Plaintiff suffers from spastic quadriplegia with dystonic elements and is affected both cognitively and also very significantly in terms of his motor function. The Plaintiff cannot walk, but he can crawl. He has some word sounds which his parents can understand, but is unable to speak properly. His understanding is very good.
Proceedings issued in January 2012 and a Defence was delivered on 20th June 2013. In the Defence, the Defendant admitted that it was negligent and in breach of duty in failing to request earlier obstetric review of the Plaintiff and his mother, but did not admit that this negligence caused the Plaintiff’s injuries. The matter was fixed for Trial for 8th October 2014 and on 26th June 2014, liability was admitted by the Defendants and a written apology was delivered to the Plaintiff’s family which stated:-
“University Hospital Waterford formerly known as Waterford Regional Hospital wishes to sincerely apologise to Dylan Kenny and his parents for the devastating injuries which the Hospital accepts should not have happened. The Hospital sincerely regrets the injuries caused to Dylan and the undoubted trauma which have been suffered by his parents, Claire and Lloyd”.
Mediation of the case was attempted on 29th September 2014, but same failed. At all times up to the date of Trial, it was understood by the Plaintiff and indeed confirmed in writing on various occasions by the Plaintiff, that the matter would be dealt with by way of a 3 year interim payment pending the introduction of Periodic Payment Order legislation. This was by far the better option for the minor Plaintiff given his youth and how difficult it is to make long term predictions for a 4 year old child. However, on the Trial date, the Plaintiff’s family were most surprised to learn that the Defendants were now taking the position that if the 3 year figure could not be agreed between the parties, then the case would have to be litigated before the Judge on the basis of a once off lump sum payment. Counsel for the State indicated that this applied, not just in this case, but in all cases of this type going forward. This caused the Plaintiff’s parents a great deal of distress, as they were extremely reluctant to make these kinds of predictions when their son was only 4 years old. The Judge in the case allowed the parties further time to prepare for a case based on a lump sum award, as it was clear to the Court that the Plaintiff’s parents had only learnt the Trial would be run on a lump sum basis on the morning of the Trial.
The case was opened on the afternoon of 8th October 2014 and on 9th October, the Defendants offered an amount of €2 million for a 3 year period, which was accepted by the Plaintiff and ruled by the High Court.
The Plaintiff’s claim included claims for suitable accommodation, a carer to look after the Plaintiff, Speech & Language Therapy, Assistive Technology, Aids and Appliances and Physiotherapy. The Plaintiff’s claim also included the cost of a Dorsal Rhizotomy procedure which his family want him to undergo and which it is hoped will significantly reduce his pain and improve his movement and mobility. The Defendants agreed to pay for this surgery, should it proceed.
The matter was ruled on 9th October 2014 with a 3 year interim payment of €2 million plus costs.
15th October 2014
- Joice Carthy, Partner
04 November 2014