Appeal by New York hospital rejected by court

The Supreme Court has rejected an attempt by a New York hospital to prevent it being joined to an action by a Cork woman against a Cork hospital and doctor, arising from the death of her son, allegedly resulting from the failure to investigate his mother's blood type and antibody status.

The Irish defendants have claimed the US hospital - St Vincent's Hospital and Medical Center, New York - had earlier incorrectly listed Ms Orla McCarthy's blood group as A rhesus positive when it was actually A rhesus negative.

They claimed this had the "most serious implications" for the treatment of Ms McCarthy, whose son Dylan was delivered stillborn in 1992. They claim his death was due to severe haemolytic disease caused by the presence of antibodies in his mother's blood.

A solicitor for the defendants said the production of those antibodies could have been inhibited by administering anti-D immunoglobulin to the mother, which should be done immediately after the delivery of the baby to ensure no complication arose in any future pregnancy. The solicitor said it was unclear whether St Vincent's had done this or not.

Ms McCarthy had given birth in 1987 to a healthy boy. After Dylan's death in 1992, she gave birth to another boy who is deaf.

Ms McCarthy claims Dylan's death was due to Rh/D Iso-immunisation. In her proceedings against Dr Pallany Pillay and the City General Hospital, Cork, she alleges negligence in the treatment of herself and Dylan. She claims they failed to take any adequate history from her and to adequately examine her. In particular, she alleges they failed to investigate her blood type and antibody status.

The involvement of St Vincent's Hospital in the proceedings arises as a result of Ms McCarthy's attending there while pregnant in New York, where she was living in 1987. She subsequently gave birth to a healthy baby boy. While there, she was given an ante-natal appointment card on which her blood type was recorded as A rhesus positive. It is claimed that was incorrect and that her blood type is A rhesus negative.

In their defence to Ms McCarthy's action, Dr Pillay and the City General Hospital claim that when Ms McCarthy, again pregnant, attended them in 1992, she specifically asked not to have a blood test as she had a great fear of needles. They allege she also said her blood type was recorded in the ante-natal appointment card from St Vincent's which she produced and handed to them.

They plead that if Ms McCarthy did suffer any personal injuries, which they deny, those injuries and/or the death of Dyland and the deafness suffered by her third child, Piers, were wholly caused by, or, alternatively, contributed to by the negligence of some other third party.

They also allege contributory negligence against Ms McCarthy in providing them with the ante-natal card from St Vincent's, which they allege contained incorrect information, and in requesting not to have her blood tested.

In 1998, the defendants sought to have St Vincent's joined as a third party to the action. They claimed they relied on the information in the ante-natal card and it subsequently emerged that information was wrong. She claimed St Vincent's is a concurrent wrongdoer who caused or contributed to the death of Dylan and injury to his mother.

St Vincent's applied to the High Court to set aside service of the action on it as a third party. The High Court refused to do so and the hospital then appealed to the Supreme Court.

Dismissing the appeal yesterday, Mr Justice Hardiman, with whose judgment Ms Justice Denham and Mr Justice McCracken agreed, said he considered the hospital was properly joined in the proceedings. He also rejected arguments it would be more just and convenient for the proceedings to be heard in a New York court.