Saturday 17 August 2019

Boy (4) who suffered 'catastrophic' injuries during birth awarded €15m payout against maternity hospital

Eoin McCallig
Eoin McCallig

Aodhan O'Faolain

A young boy with cerebral palsy has secured a €15m payment and apology under a settlement of his legal action against a Dublin maternity hospital over negligence in the circumstances of his birth.

The president of the High Court, Mr Justice Peter Kelly, agreed with Eoin McCallig's father Anthony 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 today, 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 €13.4m offer was made last week but the judge agreed with the family's lawyers that 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.

Eoin McCallig
Eoin McCallig

Denis MCullough 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 by counsel 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, Anthony 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 €800m 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 €50m, never mind €15m. It was good to know Eoin will have financial security but the money "will never change his situation".

Through his mother Jean, Eoin, Priory Way, Terenure, 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 hospital and a consultant obstetrician but the case against the latter was struck out today 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 spontaneous miscarriage in 2010 ten weeks into a pregnancy, a diagnosis of Hodgkin's Lymphoma in 1994 for which she was successfully treated, and 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 alleged delay from about 9.30 to 11.20 am on November 24 in moving her to a delivery suite and alleged negligent leaving off of a CTG trace over a period of some 90 minutes to monitor the foetal heartbeat.

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 can’t 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 solicitor Michael Boylan, 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 a 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."

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