Court case lost over son's treatment

Outside court, Mrs Duffy, clearly distressed, said they were "devastated" at the costs ruling which would add to the enormous pressure they were under in seeking to ensure their son received appropriate care. The situation now is that he does not get consecutive care and has ended up in hospital due to breaks in care, she said.

Mr Duffy said they would consider appealing the judge's dismissal of their action, and the costs ruling. They had no choice but to bring the case in order to see what went wrong resulting in their son's serious injuries, he added.

Last August, Mr Justice Ryan dismissed claims of negligence by the hospital in the treatment of Mark. He rejected arguments by experts for the parents that the hospital should have suspected Mark had meningitis and should have carried out a lumbar puncture - the test to confirm or exclude meningitis.

In a lengthy judgment analysing the evidence for both sides, the judge ruled the evidence did not establish any failure of care or negligence by the hospital in its treatment of Mark.

Mark was born prematurely at the NMH on July 18th, 2002, by Caesarean section after 30 weeks' gestation. The judge said his premature birth and very low birth weight made him vulnerable to infection and, in his second week of life, he contracted meningitis that caused severe brain damage and left him with permanent physical and mental disabilities.

The action centred around Mark’s treatment on July 30th and 31st, 2002, which experts on his behalf claimed was sub standard. It was claimed the hospital should have suspected meningitis and should have carried out a lumbar puncture test oer those days to confirm or exclude meningitis.

The NMH argued it was not standard practise to perform a lumbar puncture if it was suspected a young baby has an infection as the procedure can be highly invasive and destabilising.

The judge ruled the decision to take such a test is for the treating doctor and also noted medical opinion is divided on the question of testing very young babies for meningitis as a standard practice. There was no indication prior to Mark's later transfer to Temple Street Children's Hospital a lumbar puncture was necessary, he added.

When that procedure was performed, it yielded sterile fluid which, the hospital claimed, meant Mark either never had meningitis or that treatment already afforded had cleared the infection.

The judge concluded the evidence did not establish negligence or a failure of care because the doctors treating Mark at the NMH did not do a lumbar puncture. He accepted evidence, when Mark was presented to the doctors, there was nothing to suggest a likelihood of meningitis and said it was reasonable for the NMH to wait and see how the situation developed.