BIRTH INJURIES AND MEDICAL NEGLIGENCE IN THE CONTEXT OF CHILDBIRTH

The most disturbing cases of Medical Negligence are those where an injury is caused to a foetus or baby on delivery or to the mother. Regrettably, the newspaper reports around such incidences are far too frequent.

In the last eight weeks alone the following headlines have blared out at us from the pages of National Newspapers:-

“Disabled man injured at birth receives €1.45m”

“Inquest calls on HSE to learn from baby’s death”

“Family settles action over baby’s death at Midland Regional Hospital”

“Brain Damaged Teenager secures €2.5m settlement”

“Why did they have to fight us all the way”

The stories behind the headlines make very sobering reading and are an insight into the medical malpractice and substandard care that can arise around the area of childbirth when foetus, baby, and mother are at their most vulnerable and dependent on Medical Professions and Carers to adhere to acceptable standards.

The story behind the €1.45m award mentioned in one of the foregoing headlines related to a young man who, at birth, suffered injuries leaving him permanently disabled and without speech. The case settled and a scheme was put in place for periodic payments to the injured party which saw a €1.45m payment approved this year. There had been previous payments out of €1.6m and €475,000. It is hoped that Schemes for periodic payments rather than once-off awards will shortly be put on a legislative basis.

The newspapers recently reported on an Inquest into the death of a baby at Portlaoise Hospital. The Inquest Jury made 11 individual recommendations. In this incident, an expectant mother was sent home even though a cardiotocography carried out in hospital showed significant deceleration in foetal heart rate. The baby was stillborn.

In the case of the claim against the Midland Hospital in another case, a Settlement was Court Approved in respect of the loss of a baby due to the negligence of the Hospital. Indeed, a Report into the Hospital found the systems there to be unsafe and noted the death of four babies between 2006 and 2012.

In a different case, a teenager’s case against a GP for brain damage suffered by him on the basis of an alleged misdiagnosis by the mothers GP was settled for €2.5m without admission of liability.

The case of James McCarthy (aged 12) brought in respect of his Cerebral Palsy suffered at birth settled this year. The Scheme of Settlement provided for a payment out of €2.7m for the next 3 years. Subsequent payments will reflect his ongoing needs. James’ parents were particularly upset by a pattern which holds true in many Medical Negligence Cases; that is, the situation where liability is not admitted at an early date and the Claimant is left prove the case causing considerable unnecessary distress.

Where such claims arise against a Doctor, the question is whether the Medical Professional acted in accordance with a practice accepted as proper by a reasonable body of medical persons skilled in that particular discipline.

The seminal case that sets the standard of care in Ireland is the Dunne Case (Dunne –v- National Maternity Hospital 1989). The specifics of the case related to the alleged negligent mismanagement of the last six hours of the mother’s twin pregnancy and labour by failing to monitor two foetal heart beats instead of one. It was claimed that foetal distress was not identified. Ultimately the case settled. The test was stated to be whether the individual was “guilty of such failure as no medical practitioner of equal speciality or general status and skill would be guilty of if acting with ordinary care”. The case also states that honest differences of medical opinion must be distinguished from negligence.

Claims in this area tend to be for catastrophic injuries with lifelong implications. The Claims are complex and the causes of such injuries are varied. The particular requirements of each Claimant will vary considerably and need to be addressed in any settlement or Court Award.

An interesting yet tragic case was that of Eoin Dunne which looked at a situation where a catastrophic birth disability arose out of a failure to act in a timely fashion in resuscitating Eoin following his birth in a “flat” condition. It was found by the Court that, in a hospital where over 8,000 babies where delivered annually, a single registrar on duty was inadequate. There were also issues surrounding the adequacy of the training provided to midwifery staff. This case was vigorously defended. Indeed, the presiding Judge was critical of some of the positions adopted in defending the case.

In contentious business a Solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.

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