Saturday 24 February 2018

Woman falsely diagnosed with HIV awarded over €57,000

Michelle Kenny
Michelle Kenny

A WOMAN given a false HIV positive result when her blood test was mixed up with that of another person has been awarded over €57,000 by the High Court.

Clerical worker, Michelle Kenny, suffered a nervous shock-induced physical condition as a result of the misdiagnosis, Ms Justice Bronagh O'Hanlon said.

Ms Kenny from Crumlin in Dublin had sued St James's Hospital, Dublin, for nervous shock after she was given incorrectly given HIV positive test result but which subsequent tests proved otherwise and confirmed she is HIV negative.

The hospital admitted liability in the case, that it had mixed up two blood samples, but said no damages should be awarded.

Ms Justice O'Hanlon said the issue before the court was to determine whether or not the extent of Ms Kenny's suffering as a result of the misdiagnosis was suitable for an award of damages.

The determination the court needed to make in this case revolved around the net issue of whether it was a case of nervous shock, she said.

Ms Kenny, the judge said, was negligently given a false positive HIV diagnosis arising out of a mix up in the testing hospital.

In the period between the false positive and three subsequent re-tests, in which Ms Kenny was finally reassured of her HIV negative status by her GP in November 2010, there was a period of about a month where Ms Kenny " was in a state of flux about her health," the judge said.

Ms Justice O'Hanlon  rejected the hospital's contention that Ms Kenny received reassurance after the first retest which occurred 48 hours after the misdiagnosis.

"It is logical and understandable for someone who has very recently been given a life altering diagnosis to distrust the initial re-test results, especially when the re-test was undertaken by the negligent hospital," the judge said.

 The third test was carried out in the same hospital five days after the initial misdiagnosis. It seemed correct to determine there was a a period of at least five days to a month, where reassurances as to her HIV status, were made to Ms Kenny and not a period of 48 hours as had been pleaded by the hospital, the judge said.

"A clear window of time can be discerned between misdiagnosis and a date where Ms Kenny's negative status would have been made clear," she said

"From the medical evidence presented to the court, it is more likely she was finally assured of her HIV negative status on November 15, 2010," the judge said.

Donal McGuinness BL, for St James's, asked for a stay on the payout of the award pending an appeal.

The judge said she would grant a stay providing the hospital pays €35,000 to Ms Kenny along with the special damages of €1,690.

The judge had also awarded €1,000 for counselling sessions in the future.

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