A Selection of Our Cases Completed During Legal Year 07/08

The Legal Year 2007/2008 was another extremely busy and notable year for the firm with a large number and variety of cases brought to successful conclusion. The most remarkable case brought to conclusion was the Fitzpatrick v National Maternity Hospital (see link) which was the longest ever Trial of a Cerebral Palsy medical negligence action lasting 59 days and ultimately resulting in a settlement award of 4.5 million Euros plus costs. The total amount of compensation recovered for various clients in the cases completed was in excess of €19 million. The firm also represented the interests of clients/families at a number of inquests into hospital deaths and at other inquires into hospital accidents. Set out below are summaries of many of the cases concluded successfully during this Legal Year.

BIRTH INJURY/CEREBRAL PALSY

Alleged failure to respond appropriately to foetal heart rate abnormalities in the second stage of labour, alleged delay in the midwives calling the obstetric registrar and alleged delay in carrying out an instrumental delivery resulting in severe brain damage and cerebral palsy (Fitzpatrick v National Maternity Hospital).

This quite remarkable case is believed to be the longest ever Trial of a medical negligence action in this country lasting approximately 59 days with the Plaintiff ultimately being successful. Herbert J delivered a detailed 109 page written Judgment (see link). The Defendants appealed the Judgment to the Supreme Court and ultimately settlement negotiations took place with the parties agreeing to set aside the Judgment of Herbert J on condition that the Defendants paid the Plaintiff 4.5 million Euros compensation plus all costs of the High Court action.

The infant Plaintiff was born at term at the National Maternity Hospital on 26 December 2001 to a first time mother at the end of a labour lasting approximately 10 hours. During the later part of the first stage of labour and during the second stage, significant foetal heart rate abnormalities occurred which allegedly mandated the midwife to call the obstetric registrar. It was common case that the obstetric registrar was not called initially with the midwife believing she could effect a natural spontaneous vaginal delivery without the intervention of an obstetrician. There was much dispute as to exactly when the Registrar was called and the precise sequence of events after the Registrar in fact arrived. The Defendents argued that the mother’s birth plan caused an unnecessary delay in effecting delivery and there was an initial allegation (withdrawn at Trial) that the mother was guilty of contributory negligence.

There were a multitude of issues before the Court and all of these issues are dealt with thoroughly in the 109 page Judgment (see link). The Plaintiff was born in a very poor condition and it was the Plaintiff’s case that had the Registrar been called some 20 minutes sooner than he was in fact called all of the Plaintiff’s injuries would have been avoided. The Plaintiff suffers from spastic quadriplegic cerebral palsy and is severely disabled and requires help with all of the activities of daily living. As a result of his injuries the Plaintiff’s life expectancy has been significantly reduced.

The settlement amount in the Plaintiff’s view represents perhaps 90% of the full value of the case. The Plaintiff agreed to accept the modest reduction from its full value to reflect the risk that it was possible that the Supreme Court Appeal by the Defendants could be successful to the extent that the Supreme Court might have ordered a re-trial with consequential delay in the case being finalised and compensation paid. Every aspect of the case was contentious and hard fought but ultimately the Plaintiff achieved a good and just settlement.

Vaginal birth after caesarean section (V.B.A.C), alleged failure to warn mother of the risks of uterine scar rupture; failure to adequately respond to evidence of foetal heart rate abnormalities and other adverse clinical signs in labour resulting in the infant Plaintiff being born in poor condition with hypoxic ischaemic injury resulting in severe spastic quadriplegic cerebral palsy (JF v Rotunda Hospital).

The Plaintiff was born in the Rotunda Hospital in 2003 at full term to a mother with one previous delivery of a healthy boy. The mother’s first delivery was by emergency caesarean section for failure to advance. It was alleged that the Plaintiff sustained hypoxic ischaemic injury as a result of uterine scar rupture which was a known risk in a second pregnancy/delivery following an earlier caesarean section via first pregnancy. The Defendants disputed that a uterine scar rupture had in fact occurred. In addition the Plaintiff alleged that regardless of whether or not there was a uterine scar rupture, there were other signs of foetal distress which were not acted upon and that in any event the Plaintiff should have been born sooner by caesarean section which would have avoided his injury. Liability was very much an issue. The Plaintiff was very severely injured with a low life expectancy. The case settled in February 2008 when the Plaintiff was 4.5 years of age for 3.3 million Euro and costs on a compromise basis and it was believed that this settlement reflected approximately 90% of the full potential value of the case.

Failure to respond to meconium and failure to respond to an abnormal CTG trace resulting in severe hypoxia and ultimately severe brain damage and Cerebral Palsy (JS-v- MWHB)

The Plaintiff in this case was a minor suffering from severe spastic quadriplegic Cerebral Palsy. He issued proceedings through his mother and next friend. As Solicitors for the Plaintiff we alleged substandard care on the part of the Hospital and obstetric staff in failing to respond to the fact that the mother passed meconium (an ominous sign in the circumstances) and a failure to respond to an abnormal CTG trace recording the baby’s heart rate and the mother’s uterine contractions. We alleged that these failures caused the baby to suffer profound hypoxia while in the uterus and later to inhale meconium (meconium aspiration syndrome) resulting in severe brain damage and spastic quadriplegic Cerebral Palsy. A full Defence was filed in which liability was at issue. This case was fixed for Trial commencing on 16th October 2007 and the hearing commenced on 18th October. The case was opened to the Court and settlement negotiations were ongoing during the hearing. Ultimately the case settled without an admission of liability on a compromised basis for a damages amount of €3 million plus legal costs. The settlement reflects the poor life expectancy arising from the Plaintiff’s very severe injuries.

OTHER OBSTETRIC/GYNAECOLOGICAL NEGLIGENCE

Erbs Palsy/Brachial Plexus Injury As A Consequence Of Shoulder Dystocia (O.F. –v– HSE)

The Plaintiff was born in April 2000 at a regional maternity hospital at 41 weeks gestation. Antenatal ultrasounds had suggested that the Plaintiff was a “big baby”. During the second stage of labour there was evidence of prolonged decelerations in the CTG trace and the midwives called the obstetric Registrar to review the CTG trace. Upon examination by the Registrar it was noted that there was reduced variability in the CTG trace but mother was fully dilated with a strong urge to push and the head was at the ishcial spine. Active pushing was commenced and the foetal head was delivered relatively quickly but there was difficulty with delivery of the shoulders. The hospital notes as to what occurred next are sparse but the mother’s and father’s recollections were quite clear that three different midwives attempted to deliver the shoulders and applied excessive traction to the foetal head. The Registrar was present but did not intervene. Eventually after the efforts of the midwives failed to achieve delivery of the foetal shoulders, the Registrar then intervened and affected rotation manoeuvres to the shoulder which brought about delivery easily. It was in essence the Plaintiff’s case that once shoulder dystocia had occurred it was an acute obstetric emergency which demanded that the obstetric Registrar being the person with the greatest expertise at vaginal operative delivery effect the delivery with the minimum possible amount of traction being applied in order to avoid the risk of brachial plexus injury.

Unfortunately the Plaintiff sustained a fourth degree bracial plexus injury which is the severest form of injury and is left with very little use of his right arm. Fortunately the Plaintiff is doing well at school and is a very bright young boy with prospects of third level education. Liability was disputed vehemently by the Defendants and a full Defence was filed. The case was listed for Trial in June 2008 and two days before Trial settlement negotiations were entered into which resulted in a settlement and an agreement to pay €800,000 damages plus all legal costs. The payment was expressed to be without admission of liability. The settlement in fact represented one of the highest ever awards for an Erbs Palsy/Brachial Plexus injury and in effect reflects the full potential value of the claim.

Bowel perforation during an elective caesarean procedure (GR –v– VD & MCH).

The Plaintiff in this case suffered a bowel perforation during the course of an elective caesarean section procedure. This was a complex case where there existed more than one potential mechanism causing the Plaintiffs bowel perforation. As Solicitors for the Plaintiff we alleged that the Plaintiffs bowel had been negligently perforated and/or that there had been negligence in failing to discover and properly repair the bowel perforation at the time of the caesarean section procedure. The bowel perforation caused the Plaintiff to develop faecal peritonitis, an extremely dangerous and life threatening condition. The Plaintiff spent many weeks in Hospital recovering from her injuries and as Solicitors for the Plaintiff we alleged that the failures in care caused very significant physical and long term adverse psychological consequences for the Plaintiff. Liability was denied with a full Defence filed. The day before Trial, settlement negotiations commenced and the case ultimately settled without an admission of liability for €155,000.00 plus costs.

Misuse of Oxytocin and failure to properly monitor unborn baby’s heart rate resulting in hyper stimulation of the mother’s uterus and severe brain damage and subsequent death of baby (Sara Swaine & Robert Swaine –v– National Maternity Hospital)

The First Named Plaintiff in this case was a lady who at the time was pregnant with her first child. The pregnancy was ten days past due date and the Defendant Hospital decided that the Plaintiff should be admitted to have labour induced. As Solicitors for the Plaintiff we alleged inappropriate use of Oxytocin resulting in hyper stimulation of the uterus. We further alleged failure to properly manage the foetal heart rate and failure to react to abnormalities in the foetal heart rate. Due to these failures we alleged that the foetus, a baby boy ultimately delivered by caesarean section, was deprived of oxygen resulting in severe brain damage and Cerebral Palsy, having suffered Hypoxic Ischaemic Encephalopathy (HIE) while in the uterus. The baby subsequently died at three months of age and proceedings for both wrongful death and nervous shock were issued. The case settled when the Plaintiff was trying to secure a hearing date and it settled without an admission of liability for a damages amount of €120,000.00 plus legal costs. See Newspaper reports under our Latest News section.

Failure to properly monitor a high risk mother and failure to react properly to abnormal cardiotocograph trace resulting in the still birth of baby (Lavinia Doyle & Luca Chiussi v The Health Service Executive)

The First Named Plaintiff in this case had a history of pre-eclampsia and had lost her baby in an earlier pregnancy due to this condition. When symptoms of pre-eclampsia began to manifest themselves she was referred by her GP to the Defendant Hospital. She remained an inpatient in the Defendant Hospital for several days. Ultimately the First Named Plaintiff suffered a placental abruption which is a known complication of pre-eclampsia. As Solicitors for the Plaintiff we alleged that substandard care in many of the features of placental abruption were present and should have been acted upon. We further alleged that there was a failure to properly react to an abnormal CTG trace monitoring the baby’s heart and the uterine contractions and a failure to carry out adequate CTG recordings.

As a result of the placental abruption, the Plaintiffs’ baby boy was stillborn. The Plaintiffs alleged that this represented substandard care and proceedings for wrongful death and nervous shock on the part of both Plaintiffs were issued. The case was fixed for hearing on 7th November 2007. On the hearing date the matter was settled for a damages amount of €100,000.00 plus legal costs. There was a full admission of liability in this case which received a lot of media publicity in November 2007. See Newspaper reports under our Latest News section.

Failure to react to abnormal foetal heart rate and failure to carry out proper monitoring of mother and foetus resulting in still birth of baby boy (MDO –v– HSE)

The Plaintiff was admitted to the Defendant Hospital in labour to give birth to her unborn son. She had undergone a previous caesarean section procedure. She attended the Defendant Hospital at over 41 weeks gestation with contractions. The foetal heart rate was monitored and as Solicitors for the Plaintiff we alleged a failure to respond to an abnormal foetal heart rate which was very slow (bradycardia), in a timely manner. We alleged that as a result of this failure the Plaintiffs’ baby boy suffered profound asphyxia resulting in a stillbirth. Proceedings for wrongful death and nervous shock were issued. The matter was specially fixed for Trial, but settled in advance of the hearing for a damages amount of €50,000.00 plus legal costs.

NEUROSURGERY

Misdiagnosis of radiological scan resulting in inappropriate/unnecessary spinal surgery being carried out leading ultimately to the patient becoming a paraplegic (JD –v– PH, MWHB, AS & JM)

This was a very complex case involving expert evidence in the areas of Oncology, Radiology, Neurosurgery, Neuroradiology and Psychiatry. The Plaintiff in this case was diagnosed as having a spinal tumour. However, in error, it was believed that this tumour was a non malignant neurofibroma rather than a malignant lymphoma. This difference was extremely important as according to the Plaintiff’s experts, the correct course of action in treating a malignant lymphoma would be radiotherapy to shrink the tumour. Because such radiotherapy is ineffective on a neurofibroma, the Plaintiff instead underwent spinal surgery. During this surgery his spinal cord was damaged leaving him effectively a paraplegic and confined to a wheelchair. As Solicitors for the Plaintiff we alleged negligence on the part of the Hospital, Radiologist and Neurosurgeon. Liability was at issue and a full Defence was filed. It was the Plaintiff’s case that but for the diagnosis, he would not have undergone spinal surgery at all and therefore the damage to his spinal cord would have been completely avoided.

Proceedings were issued for severe personal injuries, both physical and psychological and the case was fixed for Trial commencing on 9th October 2007. The hearing of evidence commenced and subsequently settlement negotiations took place. The case settled on 10th October 2007 without an admission of liability for a damages amount of €1 million plus costs.

Negligent failure to diagnose subdural brain haematoma causing permanent neurological injury:

In AB v. HSE the Plaintiff attended a provincial General Hospital in April 2001 complaining of severe headache. A doctor diagnosed pain secondary to cervical spondylosis and sent him home. The Plaintiff re-attended within two days complaining of severe headache and confusion. An intracranial space-occupying lesion was diagnosed. A CT scan was performed the following morning revealing a large left-sided frontal subdural haematoma. The Plaintiff was transferred to the Neurosurgical Unit at Beaumont Hospital, Dublin. The haematoma was evacuated but the Plaintiff is left with severe neurological deficit. The case proved complex to prosecute. Leading A. & E. and neurological experts were required to prove the delay in correct diagnosis deprived the Plaintiff of the opportunity to seek immediate surgery thereby minimising the deterioration in his health. Further grounds were advanced that it was defective hospital practice not to provide out of hours CT scanning services. This further added to the delay in the correct diagnosis and treatment. The Defendant filed a full defence and shortly before trial admitted breach of duty. The Plaintiff’s case was adjourned for an assessment of damages. The Plaintiff’s case settled on the adjourned date for a €700,000 without an admission of liability.

OPHTHALMOLOGY

Loss of vision following eye surgery (trabeculectomy):

In GM v ABS the Plaintiff underwent a trabeculectomy in 2000 under the care of the Defendant to reduce eye pressure. A trabeculectomy is filtration surgery to treat glaucoma, which is raised eye pressure. A valve-like opening is created on the eyeball to allow drainage of fluid from inside the eye into a space on the surface of the eye (known as a “bleb”) in a controlled fashion. If too much fluid leaves the eye, the pressure can go too low (hypotony). Several leading UK ophthalmologists with a specialisation in glaucoma were required to support the Plaintiff complaints of failure to suture the surgical wound and to monitor his left eye pressure post surgery. The Plaintiff alleged these failures caused excessive filtration and unmonitored low eye pressure resulting in secondary damage to his left macula (hypotony maculopathy). The macular part of the retina is responsible for central vision, including distance acuity and reading vision. The defence argued it was the Plaintiff’s underlying glaucoma and its progression not the surgery which caused his loss of vision. The Plaintiff secured shortly before the trial date in late April 2008 further reports from his experts to counter the defendant expert evidence. This development allowed the case to settle for close to full value without an admission of liability.

Hospital Acquired Infection: First MRSA case settled against a Dublin hospital (May 2008):

A six figure sum in compensation was secured for the Plaintiff as against a Dublin hospital. This was believed to be the first such successful settlement of a healthcare MRSA infection case in Ireland. The Plaintiff, a young male professional, attended the Dublin hospital in 2004 for a routine appendectomy. He acquired MRSA wound infection, suffering consequential prolonged hospitalisation and two further operations under general anaesthetic involving wound debridement and skin grafting. Augustus Cullen Law secured leading UK microbiologist advices stating the MRSA infection was more than likely acquired immediately post appendectomy through the hands of a healthcare worker not wearing gloves. The Plaintiff’s case was complex and took time to prosecute through the High Court. Disclosure of important hygiene protocol documentation was sought from the Defendant hospital. Augustus Cullen Law successfully concluded this aspect of the case before the High Court. The Plaintiff’s case was due for trial at the end of May 2008. The settlement was an acknowledgment of the Plaintiff’s legal right to be financially compensated for the pain and suffering caused by negligent healthcare MRSA infection.

Breast Cancer Case – Oncology Delay In Diagnosis (A v Hospital B)

The Plaintiff was in her early 20’s and attended her GP in April 2005 with a lump in her breast. She was referred on to the Defendant hospital breast clinic. She attended the Defendant hospital in the middle of July 2005 which was three weeks later. At that stage, she had an 8mm mobile lump in her breast and was referred for an ultrasound three weeks later. In early August 2005 the Plaintiff attended the Defendant hospital and an ultrasound was carried out. Microcysts were diagnosed and the Plaintiff was referred home. The lump in her breast continued to grow and by February 2006, the Plaintiff returned to her GP. Seven days later, having been referred again by her GP the Plaintiff attended the Defendant’s breast clinic during the third week in February. At that stage she was found to have a large lump in her breast. She was again referred for further breast imaging which was delayed for a further six weeks. A diagnosis of breast cancer therefore was not made until the first week of April 2006 (a delay of 8 months). By that stage, the tumour in her breast was inoperable.

The Plaintiff was commenced on extensive chemotherapy. Unfortunately, whilst the tumour reduced in size the Plaintiff underwent a mastectomy 8 months later in December 2006. Prior to that because of changes found on PET scanning, secondaries were thought to have emerged in other areas of her body including her spleen. Her spleen was also removed. Unfortunately, it would seem that there was no cancer in her spleen or indeed in any other areas suspected and the general view by both the hospital and the experts involved in the case was that it was either due to a vaccine or the Plaintiff having contracted an old virus some time previously. The Plaintiff pleaded that the Defendants were negligent in failing to carry out a biopsy when she attended for the ultrasound in August 2005, failure to refer her to a consultant when the ultrasound hadn’t been carried out and failure to diagnose the cancer in her breast resulting in a delay of 8 months. This rendered the Plaintiff to a life threatening situation reducing her life expectancy. The Defendants delivered a Defence admitting that they failed or neglected to review the Plaintiff and the results of the ultrasound examination which took place in August 2005 and failed to take the appropriate steps to ensure that the Plaintiff attended for treatment. However, the Defendants also pleaded that whilst they admitted that her condition worsened over the period of delay of 8 months, their Defence was that they “caught it in time” according to their Counsel. Proceedings were initiated on behalf of the Plaintiff in October 2006 and a Trial date was obtained for April 2008. The case settled 2 months before Trial for the sum of €400,000.00 plus costs.

GENERAL PRACTITIONER NEGLIGENCE

Cardiac Arrest – Alleged Negligence By A General Practitioner Specializing In Alternative Medicine (AH v PC).

The Plaintiff’s husband, the deceased, suffered from a cardiac condition and attended the Defendant as his General Practitioner from May 1997. The Defendant advised the deceased to undergo a treatment which would include but was not limited to Chelation Therapy for his heart condition. The Defendant prescribed and administered these treatments. In mid June 2000, the Plaintiffs husband was complaining of central chest pain and as a result he attended the Defendant’s clinic, a number of days later. The Defendant diagnosed acute myocardial infarction. The Deceased attended the clinic for a number of days receiving treatment however the Deceased suffered a cardiac arrest and was pronounced dead at the scene by the Defendant.

The Plaintiff alleged that given the deceased clinical signs and symptoms he ought to have been referred on to hospital for specialist investigation, care and treatment and that there was a negligent delay in do so. The Defendant denied all allegations of negligence. The Plaintiff, the deceased’s widow, sued under Part 4 of the Civil Liability Act for loss of dependency, nervous shock and distress. This case settled without admission of liability in July 2008 for the sum of €350,000 plus costs.

03 September 2008

    Gillian and all at Augustus Cullen Law, A million thanks for a great job done. Justice for our son at last!!

    Catherine, Liam & William

    Dear Michael, A great result was achieved because of your efforts and we were truly blessed to have you on our side.

    Kathleen, Medical Negligence Client

    Dear Joice…you are and have been very professional, sympathetic and dignified in all of your dealings with us and I put that down to one simple fact. You listened.

    James, Medical Negligence Client

    Geraldine, Thank you most sincerely for all your hard work and commitment to these children.

    Freda McKittrick, Head of Barnardos Beacon Guardian Ad Litem service

    Neil is an absolute gentleman to deal with – kind, tactful and very efficient. We could not praise him highly enough. He brought us through a horrible time.

    Sean, Medical Negligence Client

    Many thanks again for a job well done. We really appreciate all your hard work and practical advice.

    Corporate client in a commercial litigation matter

    Dear Jamie, You and your team in ACL were so professional, diligent and prompt. I have recommended you and the firm, and will continue to do so

    Lorraine McCarthy

    Gus Cullen and the firm’s approach to addressing the key issues was professional, yet personal, efficient yet attentive.

    BB

    The process is a difficult one and when you deal with people who are so professional and yet genuine/real people, it makes it so much easier... so thanks a million.

    Julie

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