On 21st November 2017, Augustus Cullen Law concluded the settlement of a medical negligence action brought on behalf of a young boy, Eoin McCallig, who suffered catastrophic injuries in the course of his birth. A settlement of €15m was approved by the President of the High Court in what was one of a largest ever settlements of a medical negligence case.
The case was reported on by the Irish Times as follows:-
A young boy with cerebral palsy has secured a €15 million settlement and apology from a Dublin maternity hospital that he sued, claiming negligence in the circumstances of his birth. The settlement is among the highest reached in such cases.
The President of the High Court, Mr Justice Peter Kelly, on Tuesday agreed with Eoin McCallig’s father Anthony that there must be a “better way” of dealing with cases involving catastrophically injured children than via litigation extending over years to a “bitter end” and last-minute settlement offers. The settlement for Eoin McCallig was approved on Tuesday, just three days before the child’s fifth birthday. The judge said it was a “fair and just” settlement and praised the child’s parents, Jean and Anthony, for their dedication to, and love for, him. A €13.5 million offer was made last week by the Coombe hospital but the judge agreed with the family’s lawyers that it was not adequate to meet the child’s lifetime care needs and declined to approve it. The case seemed to involve “error upon error”, including failure to act on instructions to move Eoin’s mother to a delivery room earlier and to ensure continuous monitoring of the foetal heartbeat, the judge said. While it appeared negligence was admitted, the dispute, had the case gone to hearing, would have been whether the negligence caused the child’s injuries and the plaintiff had a strong case in that regard, he added. Denis McCullough SC, for Eoin, said they were confident they would have succeeded in showing the injuries were suffered in the 20 minutes before Eoin’s delivery and, had he been delivered earlier, those would not have been suffered.
In an apology read to the court, the Master of the Coombe, Dr Sharon Sheehan, said they wished to apologise “sincerely and unreservedly” to Eoin and his parents over the “catastrophic” injuries suffered by him and the “devastating consequences” of those for Eoin and his family. The judge said the apology, issued last Friday, came late in the day but he was sure it would be “some comfort” to the parents. Asked if they wished to say anything, Mr McCallig said while a mistake may be forgiven, they could not understand why the case could not have settled earlier because, for children like Eoin, “early intervention is crucial”. It is “crazy” some €800 million in legal fees is spent fighting such cases and he would appeal to hospitals and others not to “compound the mistake”, he said. The way families are treated “needs to change”. Mr McCallig added he did not think anyone in the court room would put themselves in Eoin’s position for €50 million, never mind €15 million. It was good to know Eoin will have financial security but the money “will never change his situation”.
Through his mother Jean, Eoin, with an address in Co Donegal and formerly of Priory Way, Terenure, in Dublin, brought proceedings alleging negligence in the circumstances of his birth at the Coombe Women and Infants University Hospital on November 24th, 2012. The case was initiated against the Coombe hospital and a consultant obstetrician but the case against the doctor was struck out on Tuesday and the settlement is against the hospital only. Ms McCallig was aged 35 at the time of her son’s birth and it was alleged hers was a high-risk pregnancy in circumstances, including her past history of abnormal cervical smears, a 2010 spontaneous miscarriage 10 weeks into a pregnancy, a diagnosis of Hodgkin’s Lymphoma in 1994 for which she was successfully treated, and her having undergone surgery for breast cancer. Ms McCallig attended the hospital at 8pm on November 23rd, 2012, for a planned and agreed induction of labour as recommended by her obstetrician after he noted a reduction in amniotic fluid.
Her core claims concerned an alleged delay from 9.30am until 11.20am on November 24th in moving her to a delivery suite and allegation of the negligent leaving-off of a cardiotocography trace (used to monitor a foetal heartbeat) over a period of some 90 minutes. It was claimed, as a result of the alleged negligence, the injury to Eoin occurred between 11.05 and 11.23am when he was born, by spontaneous vaginal delivery, in a “shocked and asphyxiated” state. His mother was transferred to the delivery suite at 11.20am, it was claimed. As a result of the alleged negligence, it is claimed Eoin has been left permanently disabled with intellectual and physical disabilities and permanent and irreversible cerebral palsy for which he will require ongoing treatment and assistance for the rest of his life. In outlining the case, Mr McCullough said Eoin appeared to have suffered a significant hypoxic injury in the last 20 minutes of labour, causing irreversible brain damage. Eoin is a very bright boy who understands most of what is said to him but cannot speak or communicate except by pointing and via expressions, he said. The defence did not accept failures to monitor the foetal heart caused the injuries and contended it was placental inefficiency that caused the injury but his side’s experts disagreed. Approving the settlement, the judge said he had long advocated mediation in such cases. While there had been a mediation here which had failed, he believed it was “no coincidence” a settlement offer came just afterwards. Eoin, to be made a ward of court, has an agreed life expectancy of 48 and it was anticipated the settlement would meet his lifetime care needs, he noted.
In a statement issued through their Augustus Cullen Law solicitor, the parents said the settlement marked the end of a five-year ordeal but the family “would hand this €15 million settlement back in a heartbeat if Eoin could get back what was robbed from him in those two precious hours before his birth”. “Let no one think that this is some form of lotto win for Eoin. This money will be badly needed so Eoin can live as normal life as possible over the long life he will live and this will ensure that he gets all the excellent care, treatments and therapy he needs over the coming decades.” The apology was “most welcome” but they regretted the late admission of liability. “If you don’t accept that you have made a mistake or an error you cannot even begin to learn,” said Mr Boylan’s statement. Speaking on RTÉ, the McCalligs criticised what they described as a “culture” in the HSE of contesting negligence claims. “It is just regrettable that they fight these cases tooth and nail for years rather than trying to make the thing right there and then,” Eoin’s father Anthony said. He said they were comparatively lucky; many children are much older by the time they reach a settlement and that early intervention was crucial for their wellbeing. He also criticised the HSE for spending millions on legal cases where as “that money could be so much better spent improving the effectiveness and efficiency of the hospitals, providing much needed respite for other families that maybe never get an award or are in worse positions than we are”. Eoin’s mother Jean said they had been told “countless times” nothing could have been done in their son’s case and that there were no errors. They had, she said, been renting their home for years, too afraid to buy a house given the potential legal costs they faced. “But we had to take the case; we had to make sure Eoin was going to be looked after,” she said. “The strain we have been under, you can’t even describe it really.” The family say the money will help them build a house suitable to Eoin’s needs and to access care and services. “It just opens up his life really,” said Ms McCallig.
The media coverage of this case can be accessed via the following links:
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Joice Carthy, Managing Partner
17 January 2018