A selection of our cases completed during the legal year 2008/2009. This year was another phenomenally busy and notable year for the firm with a large number of cases brought on for Trial with great success. Compensation in excess of 20 million Euro was obtained on behalf of various clients and a record award of 6.5 million Euros and costs in one case involving a catastrophically brain injured Plaintiff.
The group continued to expand into new areas of medical law and continued to strive to achieve excellence in all areas of medical law, in addition to servicing the needs of the clients and families at inquests and enquiries.
We set out below summaries of many of the cases successfully concluded during this legal year as follows:
Catastrophic Brain Injury caused as a result of misdiagnosis of a subacranoid haemorrhage/aneurysm
Myers –v- St James’ Hospital
This case came on for Trial in March 2009 and went on for hearing for a total of 8 days on the issue of damages before the case ultimately settled for a sum of €6.5 million and costs. Three weeks before the Trial the Defendants had finally admitted negligence and liability to compensate the Plaintiff. Unfortunately, even after liability had been admitted a major dispute continued on the issue of the cost of future care for the Plaintiff. The origin of the Plaintiff’s injuries was that she attended the A&E Department of the hospital complaining of severe blinding headache and weakness on one side of her face, difficulty speaking. Unfortunately, the Plaintiff was misdiagnosed as suffering from a migraine attack (she had never had a migraine attack in her life and she was now in her mid forties). The Plaintiff was in fact suffering from a sub acranoid haemorrhage caused by a middle cerebral artery aneurysm which was rupturing. She was wrongly discharged from hospital without the benefit of a CAT scan investigation and given strong pain relief. She went home and 24 hours later she was found collapsed in the shower and taken by ambulance to Beaumont Hospital where she underwent emergency surgery to evacuate the large haematoma which had formed as a result of uncontrolled bleeding. Unfortunately although the Plaintiff’s life was saved by the neurosurgery performed at Beaumont, she was left with permanent brain damage and cognitive deficits as a consequence of the uncontrolled bleeding which had occurred over the previous 24 hours following her discharge from A&E in St James’ Hospital.
It was the Plaintiff’s case that no reasonable A&E Officer would have diagnosed a migraine attack and/or would have discharged her from hospital without first of all performing a CT scan to rule out the possibility of brain haemorrhage or other space occupying lesion.
It was the Plaintiff’s case that but for the negligence of the A&E doctor the Plaintiff would have been retained in hospital and had the benefit of a CAT scan or lumbar puncture which would have identified that she had a bleed on the brain. This could have been treated by clipping or coiling the aneurysm and would have prevented the subsequent massive bleeding and brain damage.
The 8 day Trial was occupied largely on the issue of where the Plaintiff should be cared for in the future. At the time of the Trial she remained in a long stay hospital but it was her firm desire to return home and be cared for at home to live with her sister. This proposed future care regime was disputed by the Defendants who suggested that the huge expense involved was unreasonable. Ultimately however, after an 8 day Trial the Defendants, in effect, conceded the point and the award of €6.5 million and costs will enable the Plaintiff to move back home and be cared for at home in the midst of her family.
BIRTH INJURY / CEREBRAL PALSY
Leo Conroy (an infant) –v- Rotunda Hospital
On 20 March 2003 the Plaintiff’s mother, then aged 21 was admitted to the Defendant hospital. CTG trace was placed on the mother’s abdomen which indicated clear signs of foetal distress. Unfortunately there was an undue delay in recognising the signs of foetal distress and an undue delay in performing an emergency Caesarean Section. As a consequence of the delay on the part of the midwifery and medical staff the Plaintiff was born in very poor condition showing clear evidence of acute hypoxic injury with very low APGAR scores and poor Ph results. He went on to develop the classical signs of hypoxic ischemic encephalopathy and subsequently developed Cerebral Palsy. Proceedings were issued and a full Defence was delivered by the hospital. Ultimately, when the matter came on for Trial before the High Court on 23 April 2009, settlement negotiations commenced and an offer of €5,250,000.00 was secured which was approved by the High Court. Judgment was entered for this amount notwithstanding that the Defendants made the offer without admission of liability. This sum will be sufficient to cater for all of the Plaintiff’s myriad of needs for the remainder of his life.
Failure to have proper regard to mother’s complaints of reduced fetal movement, failure to respond to an abnormal CTG trace and failure to expedite delivery in the face of fetal distress 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. She issued proceedings through her mother and next friend. As solicitors for the Plaintiff, we alleged substandard care on the part of the hospital and the obstetric staff in failing to respond in particular to an abnormal CTG trace (which monitors the baby’s heart rate) and to signs that the unborn baby was in distress. We alleged that the hospital and staff were negligent in failing to expedite delivery of the baby where earlier delivery would have prevented the baby’s severe brain injury which resulted from profound hypoxia (oxygen deprivation) while the baby was in utero.
A full defence was filed in which liability was at issue, in particular there was a clear dispute as to causation. The defendant alleged that the pattern of brain injury indicated that the injury occurred at an earlier time than the Plaintiff claimed.
The case was specially fixed for trial on 21st April 2009. The trial of the matter began on that date and a preliminary issue was heard. The case settled on 22nd April without admission of liability for a damages amount of €2 million plus legal costs. This figure represented a compromised settlement due to the liability issues.
Misuse of Oxytocin and failure to properly monitor unborn baby and mother’s uterine contractions resulting in hyper stimulation of the mother’s uterus, uterine rupture, severe brain damage and subsequent death of baby boy
AD –V- CLIH
The Plaintiff in this case had required a caesarean section in a previous pregnancy and due to this and other factors she had a significantly increased risk of uterine rupture during labour. Despite this and despite the fact that her baby was large, the Defendant Hospital induced her labour and gave her increasing amounts of syntocinon (a synthetic equivalent of the body’s own hormone, oxytocin, which is used to induce or augment labour and which increases strength and frequency of contractions). This caused the Plaintiff to experience unduly frequent uterine contractions which are known to cause foetal distress and to put more stress on the uterus itself. Ultimately the Plaintiff’s uterus ruptured and her baby son was deprived of oxygen resulting in catastrophic brain injuries from which he died a day later.
As Solicitors for the Plaintiff we alleged that the Plaintiff’s labour had been negligently managed causing both physical and psychological injury to the Plaintiff and the tragic death of her baby son. As a result of these events the Plaintiff suffered significant long term adverse psychological injuries. Initially liability was denied with a full Defence filed. Weeks before the Trial, liability was admitted and an offer made to settle the case. Ultimately the damages offer was increased to €115,000 plus costs and the case settled for this amount the week before the Trial.
Misuse of Oxytocin and excessive force/traction during delivery of a large baby resulting in permanent brachial plexus injury
DK –V- CLIH and NG.
The Plaintiff in this case was a young boy suing through his mother. The Plaintiff was quite a large baby at the time of his birth and during the labour and delivery shoulder dystocia occurred. This occurs when after the delivery of the baby’s head, the baby’s shoulder becomes struck above the mother’s pubic bone. In these cases, the shoulder cannot pass down below the pubic bone without assistance or manipulation of the obstetric staff managing the labour and delivery.
As Solicitors for the minor Plaintiff in the case, we alleged negligence on the part of the Hospital and the obstetrician firstly in negligently using excessive amounts of oxytocin thereby driving the impacted shoulder further in to the pubic bone. Secondly we alleged that the obstetrician in charge of the labour used excessive force/traction when pulling on the baby’s head in an effort to release the trapped shoulder. As a result the baby suffered a permanent injury to his brachial plexus. (The brachial plexus is the network of nerves running from the spine, proceeding through the neck, through the armpit region and in to the arm). Damage to this network of nerves caused the Plaintiff to have a permanent disability and significantly limited his use of his left arm and hand for everyday tasks such as dressing, playing sports etc.. The case settled when the Plaintiff was trying to secure a hearing date and the settlement was without admission of liability for a damages amount of €190,000 plus legal costs.
Failure to have proper regard to the obstetric history of a mother at high risk of uterine rupture resulting in ruptured uterus and death of baby girl.
IH & DH –v- HSE & KH
The Plaintiffs in this case were a married couple. The wife had a complex obstetric and gynaecological history and had undergone a previous classical caesarean section some years prior to the pregnancy at issue in this case. A classical caesarean section involves a much longer vertical incision than the lower segment horizontal incision commonly used now and as a result there is obviously a greater risk of uterine rupture in subsequent pregnancies. Further, during this pregnancy it was discovered that the mother’s uterus was taken up by fibroids. Therefore it was agreed as between the Plaintiff and her Consultant that if she could continue the pregnancy to 37/38 weeks gestation an elective classical caesarean section would be carried out to deliver the baby.
During her 37th week of pregnancy, the Plaintiff contacted the Hospital complaining of pain and tenderness around the site of the previous classical caesarean section scar. She also felt that there was a foot or elbow sticking out through the old scar site, under the surface of her skin. It was alleged by the Plaintiff that she was reassured at this time. However the following morning, the Plaintiff experienced a sudden onset of severe abdominal pain and she was admitted to the labour ward of the Defendant Hospital. Ultimately the Plaintiff suffered a uterine rupture which caused the death of her baby daughter.
As Solicitors on behalf of the Plaintiff we alleged that the care afforded to the Plaintiff represented substandard care and issued proceedings for wrongful death and nervous shock on the part of both Plaintiffs. We alleged numerous failures on the part of the Obstetrician and Hospital staff including a failure to note the Plaintiff’s significant obstetric and gynaecological history and her high risk of a ruptured uterus. We alleged negligence on the part of the midwifery staff in failing to advise the Plaintiff to attend the Hospital when she phoned with her concerns during the 37th week of pregnancy. We also alleged a delay in expediting delivery of the baby once a decision had been made to deliver by emergency caesarean section.
As a result of the uterine rupture, the Plaintiff’s baby daughter died and as well as the mother’s physical injury, both Plaintiffs suffered long term psychological injuries. The case was fixed for hearing on 3rd March 2009 and ultimately the case settled on 19th February 2009 without admission of liability for a compromised damages amount of €80,000 plus legal costs.
Shoulder dystocia resulting in brachial plexus injury to an infant
SM (a minor) –v- RR
The Plaintiff’s mother, while pregnant with her child, was a patient of and under the care of the Defendant who provided antenatal, perinatal and neonatal care for the Plaintiff and the Plaintiff’s mother and was responsible for the antenatal care, delivery and neonatal care of the Plaintiff. The Defendant held himself out as experienced, skilled and competent in the provision of specialist obstetric and paediatric services including antenatal and postnatal care. The Plaintiff’s mother was admitted to Hospital under the Defendant’s care and the Plaintiff claimed that by reason of the negligence of the Defendant during labour and delivery, the Plaintiff was caused to suffer a brachial plexus injury as a result of shoulder dystocia resulting in a permanent and significant disability. The case ultimately settled shortly before the trial date for the sum of €800,000.
Third/fourth degree perineal tear
SK v RH
The Plaintiff attended the Defendant maternity hospital for her first pregnancy. She delivered her first child by way of ventouse (vacuum) delivery during the course of which an episiotomy was performed. In the days following delivery she noted that was incontinent of flatus per vagina and thereafter became incontinent of faeces per vagina. The Plaintiff attended a Consultant Colorectal Surgeon for investigations which revealed that she had developed a recto-vaginal fistula in addition to having a defect in her anal sphincter. Attempted repair was deferred as the Plaintiff became pregnant and she continued to suffer from bouts of incontinence which resulted in her having to leave her place of employment and also led to severe psychological and psychosexual difficulties.
The Plaintiff alleged that she had in fact suffered a third/fourth degree tear at the time of delivery which had gone undetected by the Obstetric Registrar who had failed to carry out a thorough inspection of her perineum before and after the repair of the episiotomy. It was further alleged that this failure to identify the extent of the perineal trauma suffered during delivery resulted in her debilitating symptoms of incontinence. Expert opinion was received outlining the extensive reconstructive surgery the Plaintiff would require in order to correct the defect in her anal sphincter muscle and to close the recto-vaginal fistula. It is established medical opinion that secondary repairs are far less satisfactory than primary repairs made immediately following delivery and carry a greater chance of failure.
The Defendant denied the allegations of negligence claiming that not only was it inconclusive that the Plaintiff had in fact suffered a third/fourth degree tear at the time of delivery but that even if she had it would have been incapable of being identified at the time. The Defendant also denied any causative link between the alleged negligence and the symptoms complained of by the Plaintiff. Both Plaintiff and Defendant obtained supportive reports from two Consultant Obstetricians & Gynaecologist in addition to eminent English and Irish Colorectal Surgeons. The matter was specially fixed for trial and ultimately settled for a damages sum of €270,000 plus legal costs. This figure represented a compromised sum in view of the issues relating both to negligence and causation and the extremely complicated medical evidence that would have to be determined by a Judge on the extent and cause of the Plaintiff’s injury.
Alleged hospital negligence in childbirth causing severe emotional damage to parents:
CT and KT v HSE
CT underwent a traumatic delivery of her child in late March 2004. AT was born in very poor condition and required resuscitation and intubation. He was taken to the Special Care Baby Unit. Both parents suffered severe emotional damage or nervous shock from the circumstances surrounding their child’s birth. The Plaintiffs’ case proved difficult to progress as the Defendant Hospital strongly challenged their claim for emotional damage. The Defendant argued the Plaintiffs suffered no psychiatric damage and if they did it was not due to their son’s birth but rather his ongoing care. As part of that challenge, the Defendant sought an early disclosure of the Plaintiffs’ General Practitioner records that dealt with emotional care issues subsequent to their son’s birth. This disclosure was refused before the High Court as it lacked relevance and necessity to the case. The Defendant further argued the Plaintiffs’ emotional problems only came to light for litigation. This argument was strongly rejected. The Plaintiffs held leading expert psychiatric evidence to show the severe mental trauma they suffered due to Defendant negligence in the delivery of their son. The Plaintiffs’ case concluded after their child’s cerebral palsy action in late 2008 for €100,000. The settlement was without an admission of obstetric fault causing psychiatric injuries to the Plaintiffs.
Hospital failure in care following childbirth
EC v HSE
The Plaintiff attended Hospital to give birth to her daughter in late 2004. The Defendant failed to ensure complete evacuation of retained products of conception. The Plaintiff was discharged from Hospital but was readmitted some weeks later and a diagnosis of retained products of conception was made. However, the Plaintiff was again discharged home without treatment. As a consequence, the Plaintiff suffered severe pain, heavy blood loss and fainting. She was readmitted for a second time almost 8 weeks after delivery of her child and a procedure to evacuate retained products of conception was carried out. The Plaintiff required a blood transfusion and lost sensation and pain in her left arm and developed cellulitis/inflammation from the transfusion site. The Plaintiff’s case was vigorously defended and focused on Plaintiff fault for not returning to the Defendant Hospital after her first discharge and for requesting her own discharge on readmission. The Plaintiff’s case was further complicated by the need to secure leading obstetric, midwifery and neurologist expert reports. The Defendant offered to settle the Plaintiff’s case shortly after disclosure of Plaintiff expert reports in late 2008 for €50,000. The settlement was made without an admission of fault.
Preterm baby death due to birth nutrition complications
SE v HSE
The Plaintiff delivered her preterm child twelve weeks early on the 20th March 2006. The baby suffered severe intrauterine growth restriction and required total parenteral nutrition post delivery. This was achieved by placing a catheter (a tube for placing fluids into/out of the body) into the area surrounding the infant’s heart. Unfortunately, the baby died on the 1st April 2006 from pericardial tamponade. This is a collection of fluid inside the heart wall that prevents the heart from working. Augustus Cullen Law secured leading UK Paediatric advices to assert on behalf of the Plaintiff that the placement of the percutaneous intravenous central catheter (a long line running from the arm to the heart) was not adequately monitored and was allowed to creep into and pierce the infant’s heart thereby causing pericardial tamponade. The infant would have survived had appropriate long line monitoring been undertaken. The Plaintiff’s case proved most difficult to progress. The Defendant admitted the cause of death but argued there was no negligent care in the monitoring of the catheter and that the death was due to a rare complication of treatment. The case proceeded toward trial and settled shortly before in June 2009 for €90,000 and without an admission of fault.
GENERAL SURGERY/DIAGNOSTIC MEDICINE/RADIOLOGY
Negligent perforation of the Plaintiff’s bowel during routine hip replacement procedure resulting in long term physical and emotional problems for the Plaintiff
MK –v- CNOH
This case involved the negligent perforation of the elderly Plaintiff’s bowel during a routine hip replacement procedure in April of 2005. The Plaintiff was in her mid 80’s at the time of surgery and attended the Defendant Hospital for a hip replacement procedure during which her bowel was perforated. She was not informed of this for several days and spent a number of days in severe pain unaware of what was wrong with her.
As Solicitors for the Plaintiff we alleged negligence on the part of the Hospital and issued proceedings on the Plaintiff’s behalf. Notwithstanding the Plaintiff’s advanced age, there were numerous delays on the part of the defendant hospital. It was necessary to obtain Expert Reports on the Plaintiff’s psychological injuries as well as her physical sequelae from Experts of various medical specialisations.
Ultimately when the Defence was finally delivered by the Defendants in this case negligence was admitted in that Defence. A couple of weeks before the Trial date of the 18th of November 2008 a settlement meeting was requested by the Defendants but the matter did not settle on that date. Ultimately the case settled on the Trial date of the 18th of November for damages of €80,000 plus costs with the case having been already opened to the Court. This was a compromised settlement amount as the elderly Plaintiff did not wish to give evidence in the case.
Failure to diagnose impending renal failure resulting in end stage renal failure, cerebral haemorrhage and long term physical and psychological injury.
SM-v- HSE and MM
The Plaintiff in this case was a young man in his late teens when the alleged negligence occurred. He attended hospital in late 2000 at which time, due to the failure of the hospital to carry out appropriate tests, his impending renal failure was not diagnosed. A few months later, the Plaintiff attended his GP at which time blood tests were carried out. Despite the fact that his blood results were abnormal and indicated a renal problem, these results were not acted upon. As a result, the Plaintiff later collapsed with end-stage renal failure, lost consciousness and suffered from seizures. He suffered a number of cerebral haemorrhages which caused permanent cognitive deficits. He suffered from psychological problems also. He required dialysis 3 times a week and had to undergo a renal transplant many years earlier than he otherwise would have done.
As solicitors for the Plaintiff, we issued legal proceedings against the Hospital and the GP alleging negligence in failing to diagnose and act upon the Plaintiff’s condition. We claimed damages for both the Plaintiff’s avoidable physical problems, and also for his cognitive problems and depression. The case was a very complex one and required evidence from experts in areas such as Nephrology, Neurology, Diagnostic/Physician, General Practice, Neuropsychology and Psychiatry. It was difficult to quantify as it was necessary to prove which of the Plaintiff’s difficulties arose from the alleged negligence and which arose from his underlying illness.
The case was specially fixed for trial commencing on 13th October 2009. A settlement meeting took place on 9th October and ultimately, the case settled on that date without admission of liability for a damages amount of €350,000 pus legal costs.
Severe injuries to bile duct during laparoscopic cholecystectomy (removal of gall bladder)
JS-v-SM & JD
The Plaintiff in this case was a 29 year old female who suffered a major injury to her bile duct during a laparoscopic cholecystectomy. The plaintiff became unwell in the immediate post-operative period and her condition continued to deteriorate. Investigations carried out after a number of days revealed the severity of her injuries and emergency biliary reconstructive surgery was undertaken. Following a prolonged stay in hospital, two major surgeries, and invasive investigative procedures, the plaintiff was released from hospital with extensive scarring. 3 years later she developed an incisional hernia at the site of the original wound which also required surgical repair.
As Solicitors for the Plaintiff, we alleged that the Defendants were negligent in the performance of the cholecystectomy, in allowing a Doctor without the appropriate experience to carry out said procedure, and in failing to diagnose the symptoms of her post-operative injuries at an earlier stage. Proceedings were issued for the severe personal injuries suffered, both physical and psychological, and the case was fixed for trial in October 2009. Liability was formally admitted on the 10th June 2009 and settlement negotiations took place. The Case was settled for damages in the sum of €200,000 plus costs.
Substandard post operative care following testicular surgery
MMCD v. MH
The Plaintiff attended the Defendant hospital where he was diagnosed with a tense large hydrocele (a swelling of the scrotum caused by excessive fluid caused by inflammation or trauma). He underwent surgery some months later for drainage and plication of the hydrocele and was discharge two days later. Shortly after the Plaintiff was discharged he complained of scrotal swelling, pain and a discharge from the surgical wound. He attended with his General Practitioner who referred him to the Defendant hospital A&E Department. Here he was reviewed by the Urological Registrar who reassured him that there was no infection and he could return in 11 days for outpatient review. Some days later, and due to continuing discharge from the surgical wound and agonising pain, the Plaintiff returned to the Defendant hospital where he was again reviewed by a member of the Urological Team. He was advised that he appeared to be at the end of an infection and told to obtain antibiotics and return for his our patient review as previously arranged. The Plaintiff was finally reviewed by his Consultant Urologist at his outpatient appointment who examined him and noted there to be a major infection in his scrotum requiring admission for further investigation and intravenous antibiotics. An ultrasound was performed confirming that the underlying right testis was no longer viable and would require emergency surgery and scrotal orchidectomy (removal of the dead testis). The Plaintiff later underwent the insertion of a testicular prosthesis.
The allegations of negligence made on behalf of the Plaintiff were; that there was a failure to provide adequate antibiotic cover in the immediate postoperative period when only 1-2 days of cover were provided following an operation that routinely requires 7-10 days of antibiotic cover; there was a failure to diagnose the post operative infection when the Plaintiff was referred back to the surgical team by his General Practitioner when he first complained of swelling, pain and a discharge; a failure to diagnose the extent of the infection when the Plaintiff attended for the second time at the Defendant Hospital and a failure to prescribed adequate antibiotic treatment as was required at that stage. It was also unfortunately the case that the Plaintiff’s testis could have been saved had the extent of the infection been appreciated on either of his earlier attendances at the Defendant hospital.
Proceedings were issued on behalf of the Plaintiff and served on the Defendant hospital’s Solicitors. An admission of liability was made by the Defendant within a period of four months of the service of proceedings and the matter ultimately settled for a damages sum of €125,000 plus legal costs which represented the full value of the claim.
Failure to diagnose ruptured spinal disc
MK v. BH & MR
The Plaintiff sustained a back injury which required the attendance of his General Practitioner at the family home. He was referred to a large Dublin hospital Accident & Emergency Department for investigation and was taken there by ambulance. He was assessed by Accident & Emergency staff and discharged that day with instructions to rest although he was only able to walk with the aid of crutches. The following day as the pain had not subsided but had in fact worsened; the Plaintiff attended the Accident & Emergency Department of the defendant Private Hospital where was referred for an MRI in the Radiology Department of that Hospital under the care of the second named Defendant Consultant Radiologist. An MRI was performed that day and the Plaintiff advised that there were no findings of note on the radiology report and he should commence a course of intensive physiotherapy. The Plaintiff commenced physiotherapy together with hydrotherapy and acupuncture in an effort to alleviate his symptoms with little success and remained off work for a prolonged period. He was finally referred to a Consultant Neurosurgeon at a different Dublin hospital who examined him and the scan performed three months earlier at the Defendant Hospital. The Consultant Neurosurgeon quickly confirmed that he had in fact ruptured a disc in his back and the radiological findings attached to the MRI scan clearly bore no relationship to his scan. This was communicated to the Defendant Radiologist who confirmed upon re-reading the MRI scan that the radiology report had been issued in error. The Plaintiff soon underwent a micro-discectomy and decompression under the care of the Consultant Neurosurgeon which should have been performed some three months earlier had a correct interpretation of the MRI scan been attached.
Proceedings were issued on behalf of the Plaintiff against both the hospital and the Consultant Radiologist. It was alleged that either there was a failure to correctly interpret the MRI scan or the radiology report had been incorrectly issued with the Plaintiff’s scan. A full Defence was delivered on behalf of the hospital however the legal team acting on behalf of the Consultant Radiologist then took over proceedings and admitted liability on behalf of both Defendants. The matter ultimately settled for a damages sum of €43,500 plus legal costs representing the full value of the claim.
Failure to provide emergency surgery
Patrick Walsh v. The Health Service Executive, The Minister for Health & Children, Ireland & the Attorney General
The Plaintiff brought a claim for wrongful death and personal injuries arising out of the death of his father Patrick Joseph Walsh at Monaghan General Hospital on the 14th October 2005. The Plaintiff Patrick Walsh brought proceedings against the HSE, The Minister for Health & Children, Ireland and the Attorney General alleging negligence in the management of his father’s treatment and also alleging breaches of certain provisions of the European Convention on Human Rights and Fundamental Freedoms by the State in its duty to one of its citizens. In particular it was claimed that the Defendants had breached their obligations under Articles 2, 3 and 8 of the Convention namely the Rights to Life, to Protection from Inhuman or Degrading Treatment and to Private and Family Life.The State has clear binding obligations to the terms of the Convention under the European Convention on Human Rights Act, 2003 which brought the Convention into force. This was the first time that breaches of the State’s international obligations were alleged in a medical negligence action.
Liability was admitted by the Defendants in relation to the allegations of negligence although any liability to the Plaintiff in damages under the terms of the Convention was denied and remained in issue in the case.
Following a trial being fixed by the Court the Defendants formally offered a substantial sum of damages to the Plaintiff in addition to legal costs which was accepted by him on his own behalf and on the behalf of the statutory dependents of his late father.
Alleged negligent hernia repair surgery
DH v. JD
The Plaintiff underwent a minor laparoscopic hernia repair procedure in 2006 and suffered a lacerated artery whilst under the private care of the Defendant surgeon. Leading Consultant Surgeon advices for the Plaintiff alleged the Defendant failed to warn the Plaintiff of the risks and complications associated with the surgery. The Plaintiff also alleged the Defendant was negligent in inserting the trocar (an instrument used to draw off fluids from a body cavity) into the Plaintiff’s abdomen thereby causing the laceration. The Plaintiff required an emergency laparotomy and artery repair surgery. The Defendant argued fault could not be established due to the difficulty in monitoring the insertion of the trocar. The case settled three weeks before trial in late 2008 for €90,000 and without an admission of fault.
Alleged negligent GP care in failing to diagnose testicular torsion in teenage boy
JH v GP
The Plaintiff rang his local GP out of hours service in late 2005 complaining of severe left testicular pain. The GP on duty advised he had an infection, to take paracetemol and that the pain and swelling would go away. The Plaintiff followed this advice but attended his local hospital two days later due to ongoing pain and was required to undergo emergency surgery to remove a necrotic left testicle. The Plaintiff secured expert GP and consultant urologist advices alleging the Defendant out of hours service and GP on duty provided negligent advice and failed to examine or refer the Plaintiff to hospital. The Plaintiff’s testicle would have been saved had he received appropriate treatment within 12 hours of first contact with the Defendants. The Plaintiff’s case proved difficult to progress due to ongoing delays by the Defendants. This required intervention by the High Court on a number of occasions. The case settled one month before trial in early 2009 for €110,000 representing full value and without an admission of fault.
Alleged negligent elective varicose vein surgery
VB v DM
The Plaintiff underwent varicose vein surgery in 2006. The Defendant surgeon made a serious surgical error whereby a section of the superficial femoral rather than the smaller saphenous vein was removed and the remaining cut ends tied. This error was not recognised at surgery and caused obstruction to the main venous outflow of the Plaintiff’s lower left leg. The Plaintiff suffered extensive thrombosis (blood clotting) and required corrective venous reconstruction surgery and a period of stay in Intensive Care. The case settled at an early stage in 2009 for €140,000 representing full value and without an admission of fault.
Hospital failure to diagnose tetanus
NOM v HSE
The Plaintiff fell from a garden ladder in late 2006 and suffered a broken right ankle with open contaminated wounds. The Defendant Hospital A. & E. failed to administer anti-tetanus treatment. The Plaintiff underwent orthopaedic surgery and skin grafting but subsequently became extremely weak and was diagnosed with tetanus. The Plaintiff was comatosed to control para-spinal spasms and required a prolonged period of Intensive Care. The Defendant Hospital did not dispute its failure to administer anti-tetanus treatment but argued the majority of the Plaintiff’s injuries were due to the underlying ankle break. Consequently, the Plaintiff’s case was most complicated to prove and required numerous medical experts to distinguish between the injuries attributable to the tetanus and the ankle break. The case settled in mid 2009 shortly before trial for €250,000 and was an excellent result in view of the aforementioned difficulties the Plaintiff would have encountered at trial.
Alleged negligent breast augmentation surgery
OL v Cosmetic Surgeon
The Plaintiff underwent breast augmentation surgery in mid 2004. The Defendant Surgeon failed to inform the Plaintiff of the risks associated with this surgery and performed negligent surgery whereby inadequate muscle was dissected and irregular sized pockets were created. This caused Plaintiff breast asymmetry and deformed breasts. Thereafter, the Defendant performed substandard revision surgery. The Plaintiff secured supportive cosmetic surgeon reports to establish these allegations of negligent breast augmentation surgery. Her case settled in early 2009 shortly before trial for €70,000 and without an admission of fault.
Hospital failure to monitor post operative bleed causing wrongful death
June Byrne and Denise Warren v Beaumont Hospital
The Plaintiffs’ father, William Warren, underwent an angioplasty procedure on the 4th August 2005. The purpose of such cardiac surgery is to repair obstructed blood vessels. During that procedure, an artery in Mr. Warren’s abdomen ruptured and caused him to bleed internally. Mr. Warren was admitted to the Coronary Care Unit. Unfortunately, Mr. Warren died on the 5th August 2005. The Plaintiffs alleged their father was not properly monitored post angioplasty in the Coronary Care Unit and bled to death. Mr. Warren would have survived with appropriate monitoring. These allegations were supported by numerous medical experts. Mr. Justice Vivian Lavan was told before the High Court in late April 2009 that the Hospital admitted fault and consented to judgment for €40,000. Judge Lavan approved the award and extended his sympathy to Mr. Warren’s family. The Plaintiffs had sued Beaumont Hospital with the intention of ensuring this would not happen again.
Hospital failure to diagnose heart disease causing wrongful death
Hazel Cummins v HSE
The Plaintiff’s husband, Alan Cummins, attended Loughlinstown Hospital in June 2004 with a referral note from his GP, complaining of chest pain and a family history of cardiac disease. He was 39 years of age. Mr. Cummins was wrongly diagnosed as suffering with atypical chest pain and discharged back to the care of his GP.
Mr. Cummins died at work in late December 2004 from ischaemic (inadequate flow of blood) heart disease associated with systemic atheroma (plaque on artery walls). Augustus Cullen Law secured leading UK medical expert advices in A & E care and cardiology to support the Plaintiff’s allegations that had her husband been admitted and the correct diagnosis of ischaemic heart disease made he would have survived. Defendant fault was admitted shortly before trial in early 2009 and the case settled at trial for €302,500.
Alleged negligent post operative bandaging causing foot drop
MD v HSE
The Plaintiff underwent surgery in 2004 to remove cancerous lymph node glands from the groin. The Plaintiff alleged post operative compression bandaging was applied far too tightly causing nerve compression and resulting in foot drop. Augustus Cullen Law secured leading UK medical expert advices in surgery, neurology and nursing care to support the Plaintiff’s case. The Defendant argued the Plaintiff’s nerve damage was temporary. A further argument expected and evident from the Defendant experts involved in the case was that the majority of the Plaintiff’s injuries were due to the underlying surgery and need for ongoing wound management. The Plaintiff’s case proceeded toward trial and the list of experts due to give evidence was disclosed to the Defendant. A settlement meeting was requested shortly after this by the Defendant. The case settled before trial in mid 2009 for €515,000 and without an admission of fault.
LS v PMcK – Negligent orthodontic and restorative dental treatment
The Plaintiff attended with the Defendant for advice and treatment in relation to the appearance of her teeth and the Defendant provided or purported to provide advice, care and treatment to the Plaintiff in relation to orthodontic treatment and restorative dental surgery including the placement of dental veneers for various considerations. The Defendant represented that the dental treatment proposed would properly, adequately and sufficiently address the Plaintiff’s concerns regarding the appearance of her teeth and that the Plaintiff would receive an “inspiring smile” and “the most excellent results possible” following her treatment with the Defendant. The Plaintiff received dental treatment from the Defendant which treatment included the Plaintiff undergoing a course of orthodontic treatment and thereafter restorative dental surgery in the form of the placement of dental veneers. It was alleged that as a result of the Defendant’s negligence the Plaintiff was caused to suffer a significant cosmetic disability. The case ultimately settled shortly before it was due to commence at trial for the sum of €90,000.
30 November 2009