THE PARENTS of a severely brain-damaged child are facing a legal bill of more than €500,000 after losing their High Court action over alleged negligence in their son’s treatment after birth at the National Maternity Hospital.
Linda Duffy, of Glen Drive, The Park, Cabinteely, Dublin, wiped away tears as Mr Justice Seán 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 Ms Duffy, a primary school teacher, and her 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 required 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 National Maternity Hospital raised an issue during the case which delayed it for up to five months and was ultimately not pursued.
While he was not according any blame to the hospital 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.
The judge stressed that 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.
Earlier yesterday, seeking all the hospital costs, Patrick Hanratty SC said the normal rule of costs should apply, and the fact the hospital had had to investigate an issue which 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.
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 that case provided no grounds for not adhering to the normal order that costs go to the winning side.
Outside court Ms Duffy said they were “devastated” at the ruling on costs, which would add to the pressure they were under in seeking to ensure their son got appropriate care. The situation now was that he dd not get consecutive care, and had ended up in hospital due to breaks in care.
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.
Last August Mr Justice Ryan 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 for meningitis.
Mark was born prematurely at the National Maternity Hospital 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, which caused severe brain damage and left him with permanent physical and mental disabilities.
The action centred on Mark’s treatment on July 30th and 31st, 2002, which his experts claimed was sub-standard.
It was claimed the hospital should have suspected meningitis and carried out a lumbar puncture test over those days.
The hospital argued it was not standard practice to perform a lumbar puncture if it was suspected a young baby had an infection as the procedure could be highly invasive and destabilising.
The judge ruled the decision to take such a test was for the treating doctor and also noted medical opinion was divided on the question of testing very young babies for meningitis as a standard practice. There was no indication before Mark’s transfer to Temple Street children’s hospital that a lumbar puncture was necessary.
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 that the evidence did not establish negligence or failure of care. He accepted evidence that, when Mark was presented to the doctors, there was nothing to suggest a likelihood of meningitis, and said it was reasonable to wait and see how the situation developed.