A Selection of Our Cases Completed During Legal Year 2006/2007
Our medical negligence group has again had a busy year. Over the past legal year the Department has concluded a record number of cases successfully. A wide variety of claims have been successfully concluded and compensation totalling nearly 15million Euro has been recovered on behalf of various clients. Most cases were settled out of Court very shortly before trial and a number of cases went to trial and were at hearing for some time before settlement.
A wide variety of different types of medical treatment/specialities were the subject matter of claims. For example, there were a number of cases involving cerebral palsy/birth injury, Erbs palsy (brachial plexus injury) caused by shoulder dystocia, third degree tears involving the anal sphincter during the course of childbirth, cardiac arrest/death due to mis-management of septicaemia, incompetent breast surgery resulting in poor cosmetic outcome, substandard gynaecological surgery resulting in loss of a kidney, substandard neo-natal/paediatric care of the newborn resulting in brain damage/cerebral palsy, misuse/misapplication of injection resulting in the necrosis of subcutaneous tissues and finally misuse/over dosage of anti-coagulants resulting in brain haemorrhage with a consequential stroke and neurological disability.
The year was also notable in that the practice, was involved in a long running cerebral palsy action which ran for 47 days of evidence over a period of five months. This is believed to be a record length of time for the trial of a medical negligence action. The outcome of that action is still pending with Judgment reserved and expected by December 2007 (Paul Fitzpatrick, an infant v The National Maternity Hospital). In addition our group has represented the interests of many families at various inquests held at Coroners Courts into the deaths of hospital patients in medical accidents.
Below are some brief summaries of cases which settled and award which were made during the past 12 months for clients of this firm.
CARDIOTHORACIC SURGERY/ BREAST SURGERY
Removal of excess tissue during a lumpectomy procedure resulting in extremely poor cosmetic outcome for patient (CM –V– ML)
The Plaintiff in this case underwent a lumpectomy procedure following which she repeatedly developed seromas (fluid build up) requiring further procedures to drain the breast on several occasions. A further surgical procedure was then carried out resulting in an extremely poor cosmetic outcome for the Plaintiff. The Plaintiff alleged that an excessive amount of tissue was removed at the time of the lumpectomy in the first instance leading to the recurrent seromas and ultimately to the very poor cosmetic outcome. The Plaintiff alleged that this represented substandard care. The Plaintiff also alleged a failure to properly inform her of the risks involved in the various treatments and thereby to obtain a formal consent. Liability was denied and the matter was fixed for Trial. The case settled a week before the Trial date without admission of liability for a damages amount of €125,000 plus costs.
Failure to obtain informed consent to surgery & delay in removing metal bar in chest surgery resulting in poor cosmetic outcome & adverse physical consequences (JR –v– NJ & VL)
The Plaintiff in this case was born with a pectus excatavatum abnormality of the chest wall. While mainly a cosmetic deformity, this condition can also have implications for respiratory and cardiovascular function. The Plaintiff had undergone an initial repair procedure in childhood and in the 1990’s was advised that he could benefit both physically and cosmetically from a re-do of this procedure. Proceedings were issued against the treating Consultant and Hospital. The Plaintiff alleged that he was not properly informed of the risks involved in the re-do procedure and he was not properly informed about the Consultants experience in carrying out such procedure. He further alleged that the metal bar placed into his chest was left in far too long (a period up to five years) resulting in much pain and discomfort during that time and a poor cosmetic and physical outcome for the Plaintiff. Settlement negotiations commenced prior to the case having been fixed for Trial and the case was ultimately settled without admission of liability for a damages amount of €60,000 plus legal costs.
Drug/ Medication Errors
Overdosage of Anticoagulation Resulting In Brain Haemorrhage/Stroke With Consequential Severe Disability. (P v AB Hospital and other)
The Plaintiff had an artificial heart valve inserted in 1991 and subsequent thereto was required to be on a maintenance dose of Warfarin to prevent clots forming on the valve. The Plaintiff became acutely ill in November 2000 when in his mid 30’s. A provisional diagnosis of bacterial endocarditis was made and he was admitted to hospital for treatment. The Plaintiff was seriously ill for a number of days and then appeared to be making a good recovery. Unfortunately, the Plaintiff was, due to an apparent error prescribed two different drugs, both of which were anti-coagulants (Clexane which is a low molecular weight heparin and also Warfarin). Whilst still in hospital the Plaintiff commenced bleeding through a central venous line in his neck and despite all efforts to stem the trickle over a period of 24 hours the bleeding continued. It was the Plaintiff’s case that this was an obvious sign of the fact that he was over-anticoagulated. After 24 hours of bleeding through this line the Plaintiff, at 10pm at night developed a right sided blindness combined with a very severe headache. It was the Plaintiff’s case that these symptoms were obvious signs of a developing inter-cranial haemorrhage and should have prompted immediate reversal of his anti-coagulation medication and the performance of a CT scan to determine what was the brain pathology. Despite being reviewed medically these steps were not taken. In fact the Plaintiff was prescribed heavy doses of pain relief/sedation overnight and was not the subject of further medical review until the following morning at approximately 9am when his condition remained as it had been the previous night. At that stage a CT scan was directed. The results of this scan were not made known to the treating clinicians until circa 3pm by which stage the Plaintiff had deteriorated markedly. The Plaintiff, as a result of a substantial expansion of the bleeding in his brain, was very severely disabled as a result of the brain haemorrhage and wheelchair bound. He lost out on his lucrative career as a Management Consultant. A full Defence was filed by the Defendants on all issues. Causation was particularly problematical with the essence of the defence being that the Plaintiff could not show that even if treatment had been commenced earlier at or before 10pm the previous night that it would have been possible to stem the haemorrhage and it would have been impossible to show that the result would have been any different. The trial went on for hearing in November 2006 and December 2006 for a total of 9 days and then had to be adjourned due to the trial Judge becoming acutely ill. The trial resumed again in January 2007 for a further number of days hearing and then had to be permanently adjourned due to the tragic untimely death of the trial Judge. It was then necessary to recommence the trial before a new Judge but before this occurred settlement negotiations took place and the case ultimately settled for a sum of €2 million Euro plus costs. This payment was made without an admission of liability and probably represented somewhere in the region of 40-45% of the full value of the case which was a fair reflection of the risks to the Plaintiff of losing the case.
Incorrect Administration of Hay Fever Injection Causing Bodily Scarring- JN v LOH (March 2007):
Kenalog, a topical steroid, is used to treat the inflammation caused by a number of conditions such as allergic reactions (i.e. hay fever), eczema, and psoriasis. Serious side effects such as scarring can be caused by the Kenalog injection. The Plaintiff alleged that the Defendant Doctor failed to administer the Kenalog injection correctly causing bodily scarring. Moreover, the informed consent of the Plaintiff was not obtained to the risks associated with the Kenalog injection. A full defence was filed. A settlement, however, was reached prior to the case being set down for trial. The Plaintiff secured €30,000 damages plus legal costs as a full and final settlement without an admission of liability.
Aulin Withdrawn From The Irish Market and The Dublin City Coroner Finding A Fatal Reaction To Same (May 2007):
The Irish Medicines Board withdrew Aulin and Mesulid (both contain Nimesulide) from the Irish market on 15 May 2007 following information received from the National Liver Transplant Unit at St. Vincent’s University Hospital on six patients who required liver transplants following Nimesulide medical treatment. Nimesulide is a non-steroidal anti-inflammatory medicine used for the treatment of acute pain, osteoarthritis, and period pain. The drug, however, was linked to increased risk of acute liver damage. Augustus Cullen Law represented the family of Sheila Gunn deceased before the Dublin City Coroner’s Court on 25 May 2007. Sheila Gunn suffered from osteoarthritis and was prescribed Aulin in May 2005 for pain relief. Liver Function tests of Sheila Gunn in November 2005 revealed abnormalities. Sheila Gunn died 9 December 2005 at Beaumont hospital. Specialist independent medical advices aided the Plaintiffs’ Barrister in examination of the medical witnesses before the Coroner’s Court. The Coroner entered a verdict of death by misadventure caused by acute hepatic cellular necrosis due to an adverse drug reaction. The European Commission commenced a review of Nimesulide-containing products in late May 2007 due to concerns over serious liver problems. Its report is due September/October 2007.
Obstetric/ Paediatric Negligence Causing Cerebral Palsy
CN (an infant) v National Maternity Hospital
This case settled without admission of liability in March 2007 on the second day of hearing. The Plaintiff was born in June 2002, five years old at the time of the trial and suffered permanent brain damage during the course of his labour as a full term baby. The brain injury was the result of an acute intra partum asphyxia of unknown cause. There was a dispute between the parties as to whether there was proper monitoring during a crucial one hour period during labour and when it was agreed that the intra partum asphyxia commenced. It was the Plaintiff’s case that there was no foetal monitoring whatsoever during this one hour period as the Plaintiff’s mother was taken off continuous electronic heart monitoring to be allowed to walk the corridor. It was the Plaintiff’s contention that had proper monitoring been continued during the period the foetal distress would have been recognised sooner and steps would have been taken to commence a caesarean section earlier. Ultimately the infant Plaintiff was born by caesarean operation but was born in a very poor condition, suffered Hypoxic Ischaemic Encephalopathy in the newborn period and was ultimately diagnosed as suffering cerebral palsy. The case settled for a compromise figure of €3 million plus costs to take into account the factual disputes in the case and the risks inherent in this form of litigation. In particular that the Court might accept the midwives case that they did in fact carry out foetal heart monitoring (intermittent auscultation) during this crucial one hour period as they claimed. It is believed that the award which was made without admission of liability probably represented just under two thirds of the full value of the Plaintiff’s claim including nursing care together with all proper allowances for specialist aids, appliances, equipment, assistive technology and adapted housing. The settlement also took into account the Plaintiff’s significantly reduced life expectancy. The settlement was approved by the Court.
GB (an infant) v AD – G.P.‘s Failure To Diagnose Premature Labour Resulting In Severe R.D.S. and Cerebral Palsy
This was an unusual case and in fact believed to be the first occasion in this country where a GP was successfully sued for failure to diagnose, the Plaintiff’s mother was in fact in premature labour (his diagnosis was ligamentous stretching caused by the advancing state of pregnancy). As a result of the alleged negligent delay of diagnosis of premature labour the Plaintiff’s mother delayed admitting herself to hospital for a period approximately 36 hours. This resulted in the Plaintiff being born prematurely at 28 weeks gestation and without the benefit of having been administered with pre-birth protective antenatal steroids. It was common-case for the steroids to be effective and to offer protection to the Plaintiff against the development of severe respiratory distress syndrome (RDS) they would have to had been administered to the Plaintiff at least 24 hours before his birth. It was the Plaintiff’s case that had the GP diagnosed premature labour mother would have immediately attended hospital and would have been administered such steroids and would have had the benefit of their protective effect. Unfortunately, the Plaintiff developed very severe RDS, was very acutely ill for a number of months after birth and subsequently was diagnosed as suffering from cerebral palsy. The Defendant filed a full Defence denying any negligence and also disputing that the Plaintiff’s injuries could have been avoided by the prompt administration of steroids. The Defendant further argued that the Plaintiff’s condition was not in fact cerebral palsy but his disabilities were more likely than not related to some underlying, unknown, unspecified genetic condition. The case settled for a compromise figure of 2 million Euro plus costs which was believed to be approximately 45% of the total value of the claim and reflected the risks to the Plaintiff in succeeding in the action.
B v BC Hospital
This again was an unusual case in that the allegation centred around neonatal mismanagement of the Plaintiff who was born at 31 weeks gestation by emergency section to a mother who suffered eclamptic seizures. The birth occurred in a provincial hospital some in excess of 20 years ago and therefore there was a large dispute with regard to the appropriate standard of care/medical standards which were applicable at the time of the Plaintiff’s birth. The Plaintiff was born in a relatively good condition but the allegation was that due to paediatric/neonatal mismanagement the ventilator settings were set far too high with the result that the Plaintiff blew off too much carbon dioxide gas due to the hyper-ventilation. As a consequence the carbon dioxide concentration in his blood was far too low. This condition is known as hypocarbia. As a result of the excessively low levels of carbon dioxide in the Plaintiff’s blood this in turn lead to the Plaintiff’s brain being poorly profused with blood and oxygen. The Plaintiff remained acutely ill for several weeks and developed a condition known as periventricular leukomalacia (PVL) in the new born period and subsequently was suffering from spastic quadriplegic cerebral palsy.
Another aspect of the case on the negligence issue was that it was part of the Plaintiff’s case that there was antenatal mismanagement of the pregnancy such that the mother was permitted to develop full blown eclamptic seizures which ought to have been avoided had the midwifery care in the antenatal period been competent and the Defendants acted upon the mother’s extremely high blood pressure. However, there was great difficulty in the case caused by the fact that there had been many improvements and changes in the standard of paediatric/neonatal care over the past 20 years and there was going to be great controversy at the trial as to what would be the appropriate standard of paediatric care to be expected of a paediatrician in a provincial Irish hospital in the early 1980’s. The Defendant’s case was that it was not appreciated at the time that excessively low levels of carbon dioxide in the blood could have such a noxious and harmful effect. The case settled on a compromise basis to take into account all of the risks both on the negligence issue and the causation issues for the sum of 2,900,000.00 Euro plus costs.
Obstetrical/ Gynaecological Negligence Causing Maternal Injuries
Third Degree Perineal Tear (TO’R
V RP & BSH)
The Plaintiff in this case suffered a traumatic vaginal delivery during the birth of her first child which caused her to sustain a third degree tear with anal sphincter damage. As Solicitors for the Plaintiff we alleged that there had been a negligent failure to discover and properly repair this tear at the time of the delivery thereby exacerbating the long term adverse consequences for the Plaintiff. Liability was denied with a full Defence filed. Shortly before Trial settlement negotiations commenced and the case ultimately settled without an admission of liability for €150,000 plus costs.
Third Degree Perineal Tear (CB –v– SM & ML)
The Plaintiff in this case suffered a very traumatic vaginal delivery during the birth of her first child resulting in a third degree perineal tear with ongoing defect in the anal sphincter and adverse psychological and emotional consequences. As Solicitors for the Plaintiff we alleged that had an earlier unsuccessful episiotomy been performed, particularly in circumstances where there was an attempt at a vacuum delivery, then this tear would not have occurred and that it was negligent not to perform the episiotomy procedure. Liability was denied with a full Defence filed. One week before the Trial settlement negotiations began and the case ultimately settled on the date of Trial without admission of liability for €130,000 plus costs.
Misuse of Oxytocin & Failure to assess foetal size resulting in uterine rupture, brain damage to baby & subsequent death of baby (CW & CW –v– SEHB & CM)
The Plaintiff in this case took proceedings against the Hospital and a Consultant Obstetrician. The Plaintiff had a history of previous caesarean section and during her pregnancy with her second child underwent a trial of vaginal delivery after a caesarean (VBAC). As Solicitors for the Plaintiff we alleged inappropriate use of Oxytocin and failure to carry out an assessment of the foetal size resulting in a uterine rupture and brain damage to the baby. We also alleged failure to properly inform the Plaintiff of the risks. The baby subsequently died at 11 months of age and proceedings for wrongful death and nervous shock were issued.
The case settled less than a week before the hearing without admission of liability for a damages amount of €185,000 plus legal costs.
Failure to react to CTG abnormalities & meconium staining during labour resulting in uterine rupture & still birth of baby (RF & TF –v– SEHB)
The Plaintiff in this case suffered a uterine rupture at the time of the birth of her third child. It was alleged by the Plaintiff that the Hospital was negligent in failing to react to the abnormal recording of the foetal heart rate and on several other grounds including attempting a forceps delivery when the baby’s head was high and ignoring various warning signs that the baby was in difficulty. The baby was subsequently stillborn and proceedings for wrongful death and nervous shock were issued. Liability was denied and a full Defence was delivered. The case was fixed for hearing, but ultimately settled the day before the Trial date without an admission of liability following ongoing settlement negotiations. The case settled for a damages amount of €70,000 plus costs.
Use of excessive Oxytocin causing uterine rupture, hysterectomy and left oophorectomy (LM –v– RH)
The Plaintiff in this case presented to Hospital where it was discovered that her third baby had died in the womb. It was decided to induce delivery of the baby. As Solicitors for the Plaintiff we alleged negligence on the part of the Hospital in managing this induction of labour and we further alleged that excessive Oxytocin was used causing contractions of the uterus to become too frequent. This resulted in a uterine rupture which ultimately necessitated the Plaintiff having a hysterectomy and having her left ovary removed. Settlement negotiations commenced prior to a defence being delivered and the case ultimately settled without admission of liability for a damages amount of €168,000 plus costs.
Obstruction of ureter during hysterectomy surgery & subsequent laparotomy resulting ultimately in loss of a kidney (CR –v– CH & SK)
The Plaintiff in this case underwent a hysterectomy procedure which was recommended for physical problems she was experiencing including severe dysmenorrhoea. The hysterectomy procedure was duly carried out and following this, the Plaintiff suffered a serious bleed and was returned to the operating theatre where a laparotomy procedure was carried out to investigate the bleed. The Plaintiff subsequently experienced kidney problems resulting ultimately in the removal of one of her kidneys. The Plaintiff alleged that her ureter was ligated or obstructed either during the hysterectomy procedure itself or during the subsequent laparotomy procedure which took place on the same day resulting in the loss of her kidney. The Plaintiff alleged that this represented substandard care on the part of the Defendant Hospital and doctor. The case was fixed for hearing, but ultimately settled without admission of liability for a damages amount of €105,000 plus costs which reflected the risks on the liability issues.
Erbs Palsy, Shoulder Dystocia resulting in Grade IV Brachial Plexus Injury to infant during delivery (MS A Minor –v– VD)
The delivery of the infant Plaintiff in this case was complicated as a result of shoulder dystocia. As Solicitors for the Infant Plaintiff we alleged that there was negligence in failing to perform the McRobert’s manoeuvre in conjunction with supra-pubic pressure and that excessive traction was applied in delivering the Infant Plaintiff causing him to suffer a Grade IV Brachial Plexus Injury which affected all five spinal nerves in the infant’s shoulder and causing him to have very little use of his right arm. Liability was admitted by the Defendant; however the matter progressed to trial to decide on the level of damages which the Infant Plaintiff would be awarded in respect of his injuries, his future loss of earnings and the cost of aids and appliances for him into the future. During the course of the trial the case ultimately settled in the sum of €800,000 plus legal costs and the sum was accepted by the Court as being reasonable. This settlement figure included the sum of €190,000 which was claimed in respect of cost of care provided by the Infant’s mother both to the date of the trial and into the future. The settlement reached is believed to be the largest amount of damages ever reached in an Erbs Palsy case in Ireland.
Our office has also dealt with a number of obstetric/gynaecological cases against Our Lady of Lourdes Hospital and Dr Michael Neary, Consultant Obstetrician (Bernadette Smith –v– Michael Neary & Others; Marie Lanney –v– Health Service Executive & Michael Neary; Valerie Lynch –v– Michael Neary & Others; & Rita McCluskey –v– Michael Neary & The North Eastern Health Board
The specific circumstances of the Plaintiffs in these cases vary in so far as one of the Plaintiffs was a 19 year old woman who gave birth to her first child following which a hysterectomy was carried out on her. In another case the Plaintiff had four other children and only attended Hospital for an evacuation of retained products of conception following a miscarriage. In all cases hysterectomies were carried out and in some cases either one or both of the Plaintiffs’ ovaries were also removed. The Plaintiffs alleged that the removal of their wombs and/or ovaries were unnecessary in all the circumstances and obtained supportive medical reports confirming this. Proceedings had reached different stages. One case had been fully defended whereas others were at Replies to Particulars stages or awaiting receipt of a Defence. The Civil proceedings were then effectively stayed pending the institution of the Lourdes Hospital Redress Board established to deal with these cases. All of the above cases fell within the remit of the Lourdes Hospital Redress Board and the claims are currently being processed by the Board and should be finalised by September 2007. The damages awarded will be based on the points system set up by the Lourdes Hospital Redress Board. This system takes into account the age of applicant and the number of children they had at the time of the hysterectomy or oophorectomy and does not take into account any psychiatric/psychological reports.
Devlin –v– the National Maternity Hospital
In May 2007, the plaintiffs appeal against the earlier High Court decision to dismiss her action arising from the alleged wrongful retention of her babies organs without consent went on for hearing before the Supreme Court. The facts of the case briefly are that the plaintiff who is the mother of a stillborn baby who delivered in the National Maternity Hospital in 1988 explicitly refused to give consent for an autopsy and despite this explicit refusal to give consent the hospital authorities proceeded to carry out an autopsy. As part of the hospital autopsy process a substantial portion of the child’s organs were removed including all of the major organs and the brain. The plaintiff was upset when she learned that an autopsy had been carried out but was advised that this was normal hospital policy. However, the plaintiff did not know at that time that as part of the autopsy process the baby’s organs had been retained by the hospital. The plaintiff did not learn that the organs had in fact been retained until the public controversy about organ retention came into the public domain in or about the year 2002. At that stage the plaintiff’s spouse made enquiries of the hospital and the plaintiff then was informed by letter that the hospital in fact still retained the baby’s organs in jars and test tubes kept within the hospital. This came as a great shock and the plaintiff developed psychiatric sequelae. The case was fully fought before the High Court for a period of 7 days and the Trial Judge dismissed the case on technical legal grounds holding that for technical legal reasons there was no entitlement for the plaintiff to obtain compensation for the psychiatric injury which she sustained notwithstanding that the autopsy had been performed without consent. This decision was appealed by the plaintiff to the Supreme Court and the appeal went ahead in May 2007. Judgement was reserved by the Supreme Court and is still pending. A decision of the Supreme Court is expected in the new legal term commencing October 2007 and hopefully will be to hand before the Christmas Vacation.
GENERAL SURGERY/ DIAGNOSTIC MEDICINE
Failure in management of immuno compromised patient who presented with symptoms of septicaemia, resulting in death of patient due to cardiac arrest (PF –v– MMH & CM)
The Plaintiff in this case was the minor child of the deceased who died following cardiac arrest. The Plaintiff alleged that there were a number of failures in the care given to the deceased by the Hospital staff in the accident & emergency department. There was a delay in assessing and treating the deceased, a failure to administer adequate fluids and failure to properly monitor her vital signs and the Plaintiff alleged that but for this failure, the deceased would have survived.
The issue of causation was a very complex one as the deceased’s immune system was compromised. She had a history of systemic lupus erythematosus (SLE) which had required her to have her spleen removed almost twenty years earlier, which the Defendants argued would have reduced the deceased’s chances of survival in any event.
Proceedings were issued on behalf of the deceased’s minor child for wrongful death and loss of dependency. Liability was denied and the matter was fixed for Trial. The case ultimately settled in the week before the Trial for a damages amount of €415,000 and without admission of liability.
11 September 2007