Court case lost over son's treatment

The parents of a severely brain-damaged child are facing a legal costs bill of up to €500,000 after losing their High Court action over alleged negligence in their son's treatment after birth at the National Maternity Hospital (NMH).

Linda Duffy, of Glen Drive, The Park, Cabinteely, Dublin, wiped away tears as Mr Justice Sean Ryan said he had no choice under law but to award half of the costs of the long-running case over the treatment of her 10-year-old son Mark, who has cerebral palsy, against her to the hospital, which had sought all its costs.

The only assets of Mrs Duffy, a primary school teacher, and husband Anthony, who works in property maintenance, are their family home, the court heard. The couple have three children, the eldest of whom is Mark, who is profoundly disabled and requires 24-hour care after suffering severe brain injuries and loss of an eye after contracting meningitis after his premature birth.

The judge said, while the normal rule requires costs to go to the winning side, he was reducing the costs order to 50 per cent arising from an "extremely rare and unusual development" which was that the NMH raised an issue during the case that delayed it for up to five months and was ultimately not pursued.

While he was not according any blame to the NMH for raising the issue which required DNA analysis, it had added to the stress and worry experienced by the parents as the case (which began in November 2011 with judgment last August), was delayed, he said.

The judge stressed he was very sympathetic to the parents, very much admired them and their son and was very troubled by all the matters raised on their behalf in opposing costs. If there was any way he could legitimately avoid awarding costs against them, he would do so but, under the law, felt he had no choice, adding the Supreme Court has emphasised that a party who wins an action is entitled to their costs.

Earlier, seeking all the NMH costs, Patrick Hanratty SC said the normal costs rule should apply and the fact the NMH had had to investigate an issue that delayed the case for a period should not affect that.

Resisting the costs application, Bruce Antoniotti SC, for the parents, asked the judge to make no order for costs, meaning each side pay their own. This was not an unmeritorious case and his clients had relied on the views of world-renowned experts when deciding to bring it, he said.

The parents had an obligation to pursue any means of providing for their severely injured child's security into the future, he said. Mr Antoniotti also referred to another judge's decision in a commercial case where just some of the costs were awarded, but Mr Hanratty argued that provided no grounds for not adhering to the normal order that costs go to the winning side.

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.