A Selection of Some of Our Recent Cases 2005 / 2006
Our medical negligence group has had a busy year. In the past 12 months, the department has brought a large number and variety of claims to a successful conclusion and has achieved compensation for clients totalling in excess of €20 million. A wide variety of claims have been successfully concluded in the past year either at or before trial. For example a number of cases involving Cerebral Palsy/birth injury, punctured bladder/vaginal fistulae, surgical error at laparoscopic (keyhole) surgery causing blindness, dental negligence relating to orthodontics, negligence treatment of recurrent inverted nasal papolima and fatal injury arising from elective endoscopic surgery. In addition we have been involved in several important cases involving important issues of legal practice and procedure e.g. the Statute of Limitations, the extent of the duty to disclose expert medical reports, the obligations of plaintiffs to submit to invasive medical investigations for defendants as part of the litigation process.
Below are some brief summaries of cases which, settled and awards which were made in the past 12 months
Adrian Byrne (A Minor) –v– the National Maternity Hospital
This case settled without admission of liability on 26th April 2005 on day 13 of evidence. The plaintiff who was 16 years old at the time of the hearing suffered permanent brain damage at the time of his birth in September 1988 when he was 41 weeks and 5 days gestation. The brain injury resulted from a cord prolapse at the time the membranes were artificially ruptured. There was a dispute between the parties as to whether it was safe to have ruptured the membranes given the level of descent of the baby’s head at the time of rupture. The Plaintiff argued that to do so where the baby’s head was not engaged was sub-standard care given the risk of cord prolapse in those circumstances. The defendant argued that this was acceptable practice where a baby’s head was “fixed and immobile” in the pelvis. An award of damages in the amount of €3 million plus costs was made without admission of liability which represented just under two thirds of the full value of the Plaintiff’s claim including the nursing care in his family home together with proper allowances for specialised aids, appliances, equipment and adapted housing and this settlement was approved by the Court.
Kurtis Quilty –v– The North Eastern Health Board
The plaintiff was born at 29 weeks gestation on the 12th January 1996 and suffered trauma at delivery due to the negligent management of the defendant medical staff. He subsequently went onto develop spastic quadriplegic cerebral palsy. Causation was initially contested on the basis that the birth trauma was not the cause of the plaintiff’s cerebral palsy but ultimately when the case came on for trial on the date of hearing, liability was admitted. The case was then adjourned to have quantum/the assessment of damages dealt with some 3 months later. The assessment of damages became fiercely contested. The main area of controversy was the defendants were arguing that the plaintiff would probably be cared for in the future for the majority of his life in state residential care rather then cared for by the plaintiff’s mother. Another major area of controversy was the plaintiff’s claim for assistive technology which was a novel head of damage in Irish Courts. Ultimately after a trial on the assessment of damages lasting some 17 days the claim was compromised. An award of damages of €3,750,000.00 plus costs being made in favour of the plaintiff which represented in effect full reasonable care at home for the remainder of the plaintiff’s life.
Seamus Dwyer (a minor) v John Monaghan and the Western Health Board
The Plaintiff was born at 41 weeks gestation on the 24th of March 1999. He suffered a brain injury at the time of delivery due to negligent management by the obstetric consultant, namely over-stimulating the baby’s mother with oxytocin and failing to react to the deteriorating CTG trace recording the baby’s heart rate. Seamus developed spastic quadriplegic cerebral palsy with a dyskinetic element. At first, both negligence and causation were contested until, on the morning of the hearing on 17th January 2006, liability on the part of the treating consultant was admitted and the case against the health board struck out. The case was then adjourned until 21st March for the assessment of damages to be dealt with. The assessment of damages was strongly contested by the defendants, in particular the issue of Assistive Technology. Evidence was part-heard on 3 days and finally a settlement figure of €4 million plus costs was reached. This figure, as explained to Mr. Justice Finnegan who ruled the settlement, represented reasonable care for the remainder of the Plaintiff’s life and included approximately €900,000 for Assistive Technology, €900,000 for nursing care, €290,000 for loss of earnings and €350,000 for suitable housing.
OBSTETRIC / GYNAECOLOGICAL NEGLIGENCE
Eclampsia (AF –v– NMH and AF–v– CMcL)
On the 7th June 1993, the plaintiff suffered a series of eclamptic seizures and was admitted to the National Maternity Hospital where she delivered her child. Some 7 days later she suffered further eclamptic seizures and had to be transferred to the intensive care unit at Beaumont Hospital. As a consequence of the eclamptic seizures as suffered by the plaintiff, she suffered diffuse brain damage resulting in cognitive difficulties, epilepsy and severe vision impairment which rendered her legally blind. In the first instance the plaintiff instituted proceedings against her private personal home birth midwife alleging negligence in the antenatal care. These allegations were strenuously denied. Subsequent to the institution of proceedings against the home birth midwife following further investigation by her lawyers it was ascertained following receipt of expert advice that the second seizure which occurred 7 days post birth ought to have been avoided and had occurred as an alleged result of the failure of the hospital midwifery and medical staff to adequately control the plaintiff’s blood pressure post birth. Causation was extremely complex and difficult and it was exceptionally difficult to determine what damage had been suffered by the plaintiff in the various seizures which occurred on various days. It was of course important to try and differentiate when the damage occurred as this would have a bearing on which defendant could ultimately be responsible to compensate the plaintiff. Proceedings were issued against both defendants. Initially it was necessary for the Supreme Court to rule on whether or not the plaintiff’s claim was statute barred by reason of the 6-year delay in instituting proceedings. Ultimately the Supreme Court held that the plaintiff was under a disability as a consequence of the injuries she suffered in the eclamptic seizures and accordingly time had not run against her claim. Ultimately both actions were brought on for trial together, liability was denied by both defendants and ultimately a compromise settlement with damages totalling €950,000.00 plus costs being paid. This settlement had to be approved of by the Court as a result of the plaintiff being under a disability. The settlement was so approved. The payment of damages was made without admission of liability by either defendant. The full value of the claim was estimated to be in the region of €2 million to include cost of future care but having regard to the risks on liability the amount of €950,000.00 was determined as being a good offer and the case ultimately settled in February 2006.
Third Degree Perineal Tear ( DS –v– VD)
The Plaintiff in this case suffered a traumatic vaginal delivery during the birth of her first child as a result of shoulder dystocia, which caused her to sustain a third degree tear with a persistent defect in the external anal sphincter. The Plaintiff also suffered from dislocation of the pubic symphasis. As solicitors for the Plaintiff we alleged that had an episiotomy been performed the injuries would not have occurred and that it was negligent not to perform this procedure. Liability was denied with a full defence filed. The week before trial settlement negotiations commenced and the case ultimately settled, without an admission of liability, for €150,000 plus costs.
Over-stimulation with Oxytocin causing uterine tear, post-partum haemorrhage and hysterectomy(JK –v– SEHB & HB)
The Plaintiff in this case suffered a post-partum haemorrhage following the birth of her second child. A uterine tear was missed on examination under anaesthetic and the Plaintiff continued to haemorrhage and ultimately required hysterectomy. The Plaintiff alleged that excessive dosage of oxytocin caused uterine hyperstimulation and a uterine tear, which ultimately resulted in the Plaintiff requiring a hysterectomy. The case was fixed for hearing but ultimately settled without admission of liability following ongoing settlement negotiations and a tender by the defendants. The case settled for a damages amount of €154,000 plus costs, which approximately represented the full value of the claim.
Gynaecological treatment resulting in vesico-vaginal fistula (EO’B –v– MCH, VD & TM)
The Plaintiff in this case took proceedings against 2 consultants and a well-known private hospital. The Plaintiff underwent a hysterectomy procedure but during the procedure, the bladder wall was damaged resulting in the development of a vesico-vaginal fistula which caused the Plaintiff pain and a great deal of distress. A repair procedure was attempted a couple of months after the original injury but this procedure was unsuccessful. The Plaintiff continued to seek treatment and eventually a successful repair was carried out in the UK some 8 months after the initial injury.
The case settled before hearing without admission of liability for very significant damages which represented the full value of the plaintiff’s claim.
GENERAL / DIAGNOSTIC MEDICINE
Failure to take measures to prevent Deep Vein Thrombosis resulting in death of patient due to Pulmonary Embolism (CC –v– FK and ML)
The Plaintiff in this case was the wife of the deceased who died from a Pulmonary Embolism following his release from hospital where he had undergone surgery for bowel cancer. The Plaintiff alleged that the deceased had been a at high risk of developing DVT, that the defendants failed to take the standard precautionary measures to prevent DVT before the operation and that the defendants failed to recognise that a DVT was developing prior to the deceased’s discharge from hospital. The Plaintiff alleged that these failures represented substandard care. Liability was denied and the matter was fixed for trial. The case ultimately settled a month before the trial date for damages of €200,000 plus costs. The assessment of damages in the case was extremely complicated due to the deceased’s existing cancer which reduced his life expectancy.
Failure to act on abnormal liver function tests resulting in development of cirrhosis of liver (PM –v– PS, SEHB, PM and DO’D)
The Plaintiff attended several hospitals and consultants between 1990 and 1992 and abnormal results of liver function tests were recorded on those occasions but not acted upon. The complaints with which the Plaintiff presented at those times did not relate specifically to the liver. Abnormal LFT results were again noted in 2001 at which time same were acted upon. It was discovered that the Plaintiff had genetic haemachromatosis and by that time the Plaintiff also had established cirrhosis of the liver. The Plaintiff alleged that the failure to act on the abnormal LFT results between 1990 and 1992 represented sub-standard care and that on the balance of probabilities had these results been acted upon the Plaintiff would not have developed cirrhosis with the attendant risks of needing liver transplant in the future and of developing a hepatoma (malignant tumour of the liver). The case was fixed for trial but ultimately settled without admission of liability on 27th July 2006 for general damages of €150,000 plus costs.
Median Nerve Injury during mastectomy and breast reconstruction surgery (CC –v– NJ, AH and MO’D)
The Plaintiff was diagnosed with breast cancer and underwent a left mastectomy and latissumus dorsi flap reconstruction surgery. The Plaintiff alleged that during these procedures, her median nerve had been crushed, resulting in a significant brachial plexus injury and that this represented substandard care on the part of the defendants. As a consequence, the Plaintiff’s use of the hand was very limited making it difficult to do everyday simple tasks, parts of the hand were numb and the Plaintiff also had ongoing pain. The case was fixed for trial and ultimately settled on the morning of the hearing for a damages amount of €170,000 which had been lodged with the Court, plus costs. This damages amount represented the value of the Plaintiff’s claim.
Dental Negligence case where elective treatment for cosmetic reasons resulted ultimately in loss of tooth. (DK v- CO’B)
The Plaintiff in this case had inlays inserted into premolar teeth for cosmetic purposes only, as recommended by her dentist. These inlays and subsequent replacements were unsuccessful. A large amount of work was carried out on the tooth including the fitting of a crown to the tooth. More treatment followed and during these procedures at one stage a root canal was perforated and part of a dental instrument was retained within the tooth. An abscess grew from the top of the gum over the tooth and ultimately the Plaintiff was referred to an Orthodontic specialist who concluded the tooth could not be saved. The case settled before hearing for damages of €25,000 plus costs and this amount approximately represented the full value of the case.
Endoscopic Polypectomy/Sinus clearance causing blindness
DS –v– PG – In September 2001, the plaintiff underwent the above type of nasal surgery electively which had been recommended by his ENT surgeon whom he was seeing privately. Unfortunately during the operation, the defendant surgeon somehow managed to penetrate the orbital floor with one of the surgical instruments (debrider) severing or damaging the inferior rectus muscle of the eye thereby effectively blinding the plaintiff in one eye. In the pre-operative informed consent procedure the defendant surgeon had maintained that such a type of complication was exceptionally rare and that he had never personally had such a complication with any of his patients. In fact his representation was inaccurate and a previous patient of the defendant had in fact suffered a similar injury during a similar procedure at the hands of the defendant surgeon. Liability was initially denied by the defendant but subsequent to the discovery process when the details of the previous surgical mishap emerged liability was admitted and substantial damages were recovered in the sum of €250,000.00 plus costs.
Recurrent Nasal Papilloma
RC –v– KM – The key facts are that between 1996 and 1998 the plaintiff attended his ENT surgeon with a recurrent inverted papiloma. The defendant carried out a number of operative interventions namely three intra-nasal polypectomies and ethomoidectomies for the recurrent papiloma. The expert evidence was that it was inappropriate to repeat these procedures and once the inverted papiloma had reoccurred more radical surgery was necessary. In the event the defendant surgeon did not carry out such radical surgery and the papiloma (tumour) grew in size to eventually penetrate the barrier between the nasal cavities and the frontal lobe of the plaintiff’s brain. The papiloma invaded the frontal lobe of the plaintiff’s brain causing him severe sequelae and pain. Eventually in New York the plaintiff was properly diagnosed and radical surgery to remove the tumour from the frontal lobe of the brain was performed. Remarkably, the plaintiff made an almost complete recovery from his injuries. However, he was left with significant sequelae in the nature of metal plates which were necessary to reconstruct his forehead and skull. Apart from the foregoing the plaintiff made a remarkable recovery and returned to work at a senior professional level within a remarkably short period of time. Proceedings were issued, negligence was initially denied by the defendant but ultimately on the day of trial negligence was admitted and after negotiations damages were agreed in the sum of €175,000.00 plus costs to compensate the plaintiff for all of the extra unnecessary operative procedures and pain and suffering that the plaintiff had to undergo by reason of the negligent delay on the defendant’s part in providing the correct surgical treatment.
Endoscopic trans-thoracic symphpathectomy (ETTS) resulting in severance on subclavian artery causing death
Synnott –v– Leahy – In March 2003, the plaintiff who was a solicitor aged 43 at the date of treatment agreed to electively undergo transthoracic endoscopic symphpathectomy to alleviate his symptoms of severe blushing, perspiration and consequential social phobia. During the course of the keyhole surgery the defendant in the course of making an operative incision for a porthole used a surgical instrument (trocar) to puncture the hole in the plaintiff’s abdomen. Somehow the defendant managed to sever the plaintiff’s subclavian artery in the vicinity of the plaintiff’s collar bone which caused a catastrophic bleed. Despite corrective surgery in an attempt to stem the blood loss the plaintiff suffered irreparable brain damage and subsequently died 3 days later. The plaintiff was a very successful legal practitioner with his own practice who had a wife and three young children. Proceedings were issued and initially were met with a full defence with a denial of liability. Very shortly before the trial date negligence was admitted and the case proceeded as an assessment of damages only. The case was listed for hearing in late November 2005 and on the date that the trial was commenced protracted settlement negotiations took place and ultimately the case was settled for a sum of €5 million plus costs and the settlement was approved by the High Court. The sum reflects the fact that the deceased was a high earner with a young wife and three children who had to be adequately compensated for due to the loss of the sole bread winner for the family.
CASES INVOLVING IMPORTANT QUESTIONS OF PRACTICE AND PROCEDURE
Requirement to submit to an invasive examination – Hassett (A Minor) –v– South Eastern Health Board – (Herbert J extempore Judgement delivered on the 25th day of February 2005)
On the first day of the Trial of the action, the Defendant applied to have the Plaintiff submit to an MRI Scan investigation which they contended would have assisted their experts in determining the nature and precise timing of the Hypoxic Insult which damaged the Plaintiff’s brain resulting in Cerebral Palsy. The Plaintiff was at that stage seven years of age. After a full hearing on Affidavit, the Trial Judge declined to direct that the Plaintiff would undergo such an MRI Scan investigation for three reasons:
- the delay in bringing the application,
- the main reason was that there was a slight but real risk to the Plaintiff that she would suffer or could suffer significant injury to her health (reactivation of epilepsy), if she was forced to undergo a general anaesthetic which would be necessary to perform the MRI Investigation.
- The preponderance of the evidence was that there was unlikely to be a significant benefit in determining the precise timing of the Hypoxic Insult even if the scan was performed.
Disclosure of Expert Reports (SI391 of 1998) – Payne
v St Vincent’s Hospital – Supreme Court Judgement 9th February 2006
The meaning of “substance of evidence to be adduced” by a party at the Trial was considered and the Court and the definition of report contained in Statutory Instrument 391. In this instance a preliminary report of the Plaintiff’s Consultant Neurologist which he had prepared before he had the benefit of the views of other expert medical experts which he had recommended is disclosable pursuant to the relevant Rules of Court and comes within the definition of report.
The issue as to whether or not “Devil’s Advocate” type letters or commentaries from one’s own expert, on the expert reports of the other side are disclosable or remain privileged was not dealt with or determined. This case is currently under appeal to The Supreme Court.
Statute of Limitations 1991 – Statute Barred or Not? – Angela Fortune (A Person of unsound mind not so found) –v– Cliona McLoughlin (Judgment delivered on the 9th day of June 2004)
The requirement in Section 2(1)(c) of the 1991 Statute of Limitations (Amendment) Act (See “Time Limits” section of this site) was not satisfied in that the Plaintiff did not at the relevant time have knowledge that the injury, eclamptic brain damage in course of giving birth, was attributable in whole or in part to any act or omission of the Defendant, but rather that her view was that “it was one of those things”. The Plaintiff fell within exception in the Act in that the consequences of her injury prevented her from acquiring knowledge of facts relevant to the injury. She did not make the connection between her injuries and the actions or omissions of the Defendant and therefore her “date of knowledge” was not activated and she was not Statute Barred from taking legal proceedings. This decision was appealed to the Supreme Court.
Held by the Supreme Court – ( McCracken J, Keane CJ and Murray J)
The Claim was not Statute Barred. The Plaintiff knew that the injury was significant for the purposes of Section 2(1)(b) of the 1991 Act only when the relevant records were obtained and advice was received from an independent medical The Trial Judge was correct in holding that the Plaintiff did not have the relevant knowledge under Section 2(1)(c). Further, under Section 2(3)(b), by reason of the Plaintiff being under a disability following the Brain damage suffered while giving birth, the Plaintiff was not Statute Barred. The Court held that the Plaintiff’s argument that this subsection also prevents the statutory period from running is correct. The appeal was dismissed and the judgment of the High Court was affirmed.
Choosing a Solicitor / Having Augustus Cullen Law run your claim
Medical negligence claims can, as already noted, be very complex to run, requiring some understanding of the medical issues involved and requiring your solicitor to liaise with various other experts in order to fully investigate the claim and quantify the appropriate damages in a particular case. Our department has over 20 years of experience in running these types of claims. As a result, we understand the process and we also understand that an injury due to medical negligence has significant emotional and financial consequences for you and your family. For someone who has suffered an injury or has lost a loved one due to negligence, money in the form of financial compensation is rarely the issue. More often, they want to understand the reason for the injury or death and have a strong desire to ensure the same thing does not happen to somebody else. Our department recognises that the work we do for claimants helps to maintain the standards of risk management upon which good hospital practice will always depend.
10 August 2006