Category Archives: Compensation Claims

Woman ‘afraid to smile after dental treatment’ settles €60k claim for Undisclosed Amount

A Co Dublin housewife who has settled a €60,000 Dental Negligence Compensation Action, says she was afraid to smile following a treatment to one of her teeth.

Fifty-year-old Roisin Mimnagh, of Marina Village, Malahide, has claimed in the Circuit Civil Court that she was distraught to find an incisor had been filed away without her authorization and replaced with an amalgam or composite.

Counsel for Mrs Mimnagh, David McParland, told Judge Jacqueline Linnane that his client was happy with her appearance and had gone to Dr Anna O’Donovan, Griffith Avenue, Dublin, to have an incisor realigned.

McParland told the court: “To her horror she afterwards found that her tooth had been filed away and replaced with an amalgam or composite that was smaller and shorter and different from her original tooth”.

Legal representatives for Dr O’Donovan claimed she had entered a full defence to Ms Mimnagh’s claim but had conceded that written authorization for the specific remedy for her tooth had not been received prior to the dental treatment.

Judge Linnane said she had reviewed the pleadings and had found that the latest expert report was over three years old. There had been some remedial work completed in 2013 shortly after the initial treatment.

Mr McParland said Ms Mimnagh was still wearing an appliance on her tooth and one of the specialists who had reviewed her felt that she would need additional realignment work.

He said she had thought at first she was going to have some white filling applied to her tooth to make it look straighter. When she later discovered it had been filed away and an amalgam or composite put on it, she said that she was afraid to smile.

Ms Mimnagh, the Court was advised, had personally sourced an orthodontist who had given her an estimate for more than €5,000 to realign her tooth. The specialist agreed with Ms Corcoran that this estimate had applied to the provision of treatment to all of her teeth including an appointment with a dental hygienist.

When talks about possibly settling the dental negligence case was suggested by Judge Linnane, the court was advised  by Ms Corcoran that Dr O’Donovan had always had “a significant willingness” to tackle with the case. Shortly after this  Mr McParland told the judge that the case had been settled and could be struck out with an order for Ms Mimnagh’s legal expenses to be taxed in default of agreement. The amount of the settlement was not made public.

€2.5m in Cervical Cancer Misdiagnosis Compensation for Terminally-Ill Mother

Vicky Phelan, a terminally-ill mother of two, has settled her case against a US lab for €2.5m after being incorrectly advised that she did not have cancer in 2011.

Mrs Phelan from Annacotty, Co Limerick was told in January 2017 that she has less than 12 months to live. In 2011 she had been advised that there were no abnormalities present in the smear sample sent to Clinical Pathology Laboratories Inc. in Austin, Texas. Unfortunately,  following her next smear test in 2014 it was found that she now had cervical cancer. Unbeknownst to Mrs Phelan, the company that tested the sample in 2011 found , in a review that those result had been incorrect. She was not advised of this discovery until 2017.

Legal representative for Mrs Phelan argued, in her High Court compensation action which began last week, that if the cancerous cells had been correctly detected in 2011 she would have had a standard procedure that would have given her a 90% chance of survival.

Her (Mrs Phelan’s) legal action against the Health Service Executive was struck out as the cervical cancer misdiagnosis compensation settlement was awarded against the US laboratory Clinical Pathology Laboratories Inc, Austin, Texas only, with no admission of liability required.

Following  the announcement of the cancer misdiagnosis compensation Mrs Phelan spoke outside the court and called made a plea for an investigation into the CervicalCheck screening programme to be begun.

She said: “To know for almost three years a mistake had been made and I was misdiagnosed was bad enough but to keep that from me until I became terminally ill and to drag me through the courts to fight for my right to the truth is an appalling breach of trust and I truly hope some good will come of this case and there will be an investigation in the CervicalCheck programme as a result of this.”

In giving approval for the smear test compensation settlement, Mr Justice Kevin Cross said he was satisfied  the case had settled and referred to Ms Phelan as one of the most impressive witnesses he had seen in his court. Additionally he praised the legal teams for getting the compensation action, was only launched in February 2017, to court as quickly as they had.

The mother of two mum, who has recently begun treatment with a new drug, is still hopeful of being taken on to the US programme offering radical innovative treatment and she has already raised €200,000 through a Go Fund Me page. Judge Cross wished Mrs Phelan the best in her this endeavor and said he believed that if anyone could beat this it is her.

 

 

€65,000 Birth Scarring Injury Compensation Awarded to Boy (8)

A birth scarring injury compensation award o f€65,000 has been approved for an eight-year-old boy in the High Court. It was alleged that the boy, Dara Brennan, suffered a facial scarring injury at the time of his birth on November 12, 2009 at the Coombe Hospital in Dublin.

The physicians treated him attempted a forceps delivery. During these Dara was inflicted with the injuries to his face. The scarring on his cheek and two indentations on the right side of his face that are still clearly visible when he smiles.

Lorraine Brennan, Dara’s mother, with an address at Brayton Park, Kilcock, Co Kildare, sued the Coombe Women and Infants University Hospital for her son based on the negligence at the time of his birth on November 12, 2009.

The legal representatives for the Brennan’s told the Court that alleged improper use of forceps inflicted the scars the right side to Dara Brennan’s face. They added that there was a failure to use proper care, competence, judgment and skill required at the time of his birth. It was also argued that a more competent doctor in obstetrics would have avoided inflicted Dara with the scarring injuries. The Coombe hospital’s legal representatives denied these accusations.

Mr Justice Kevin Cross said, in approving the birth scarring injury compensation award  that it was as close to appropriate compensation as possible.

20% in Overall amount paid out in Medical Negligence Claim During 2017

The State Claims Agency (SCA) has revealed medical negligence made up, by far, the largest percentage of compensation claims paid out against the State last year.

The main finding of the report was that, by far, that largest portion of compensation pay outs by the SCA in 2017 was taken up by the public medical sector.

In 2017 €248.88m was paid out by the State in relation to clinical negligence claims in 2017. This represents a rise 20.6% on the €206.4m figure paid out during 2016.

The figures were made available to Fianna Fail Finance Spokesman Michael McGrath in response to the question submitted to the Minister for Finance Fine Gael TD Paschal Donohoe. He had asked for financial details of the sums paid out by the State in compensation claims.

The official response from the Minister for Finance show that that the SCA has paid out €1.123bn since 2010 in relation to medical negligence claims. Between this figure for clinical claims, and a further €32.87m in general claims awarded against the general health sector, €1.235bn has been paid out since 2010.

Major rises experienced in compensation claims against the following area over the last seven years:

  • Personal injury claims awarded against the Defence Forces = €23.6m
  • Irish Prison Service personal injury claims = €19m
  • TUSLA, since it was established in 2013, has paid out €11
  • Other state authorities have paid out €111m since 2010.

Other significant point to note from compensation claims made against the state in 2017 were as follows:

  • The SCA, on behalf of Comprehensive and Community Schools, paid out €1.38m
  • Department of Health pay outs were €296,673
  • The Department of Justice paid out €261,569 in personal injury compensation
  • Children’s’ Detention Schools paid out €196,090

Boy (4) Deprived Oxygen at Birth Awarded €15m Compensation

A €15 million compensation settlement for a boy, now aged 4, who was injured during his birth at the Coombe Hospital in Dublin has been approved at The High Court.

The hospital issued an apology to Eoin McCallig and his family, from Dunkineely in Co Donegal, for his injuries and for the devastating consequences for the family.

Eoin’s father, Anthony, said the family could forgive the error. However, they could not reconcile themselves with the way HSE treated their family and others who suffered similarly.

Mr McCallig feels that there must be a “better way” of handling cases involving seriosuly injured children than through litigation actions lasting years to a “bitter end” and last-minute settlement attempts. He told the High Court President Mr Justice Peter Kelly that something has to change.

He said that the HSE has spent €800m over the last ten years fighting these compensation cases. Mr McCallig felt that this money could be put to better use.

Mr McCallig stated that the birth injury settlement of €15m would never change what happened to Eoin, but it would provide some peace of mind for the family as they knew that Eoin would now be taken care after if anything happened to them.

The court was told that staff at the Coombe Hospital, stopped monitoring Eoin’s heart rate at 9.30am on the morning of his birth. Eoin’s parents believe that if he had been monitored after this, it would have seen he was in distress before he was deliver at around 11.30am. The court heard Eoin wasbeen deprived of oxygen in the 20 minutes leading up to his delivery.

It was argued that if Eoin had been monitored and delivered earlier, he would not have suffered such catastrophic injuries. The court was told Eoin was a very smart boy, but he is unable to walk or talk and can communicate with other people using only with his eyes and facial expressions.

In a media statement released through their solicitor, Michael Boylan, Eoin McCallig’s parents said the Coombe Hospital settlement was welcome but the family “would hand this €15 million settlement back in a heartbeat if Eoin could get back what was robbed from him in those two precious hours before his birth”.

Medical Errors Resulting in 1,000 Deaths in Ireland Every Year: Expert

Roger Murray, a legal professional speaking at a medical negligence conference attended by solicitors, medical workers and patients in early September, estimates that 1,000 unnecessary deaths happen annually every year due to medical negligence.

Mr Murray, joint Managing partner at Callan Tansey solicitors, remarked that the most commonly seen incidents relate to surgery (36 per cent) medicine (24 per cent), maternity (23 per cent) and gynaecology (7.5 per cent).

As a medical negligence specialist solicitor who has been involved in many compensation cases, Mr Murray said that though injured patients and families do have empathy for medical professionals who make mistakes “they cannot abide is systemic and repeated errors”.

He issued a plea for thorough investigations when mistakes do happen and referred to many inquest situations where families learned that desktop reviews had been completed following a death, and the results were not disseminated to appropriate staff. A vital improvement opportunity had been missed.

Mr Murray said 160,000 people attending hospitals in Ireland experience injuries due to human mistakes. Mr Murray was speaking at the Pathways to Progress conference on medical negligence and stated that he believes that there is “no compo culture” when it comes to medical negligence compensation actions in this country, saying that what we are seeing in the legal system is just “the top of a very murky iceberg”.

He went on to say that all those injured in medical incidents report it to the HSE. There are notifications of 34,170 “clinical incidents” annually and, of these, 575 resulted in compensation claims against the HSE, a rate lower than 1.7 per cent.

Six-year-old girl receives compensation in creche abuse case

A Circuit Civil Court judge has approved compensation offered by a creche to a six-year-old girl who had suffered psychological abuse at the facility.

In 2012, the girl was enrolled in the Giraffe Childcare and Early Learning Centre in Stepaside, County Dublin. As she was old enough, she began to attend her creche´s “Toddler´s Room”. After the transfer, her parents noticed that she started showing signs of anxiety as they prepared her to attend each morning. They claimed that she would cry “No creche! No creche!” as she was being dropped off. When her parents picked her up in the evening, was often withdrawn and lethargic. She also began to experience difficulty sleeping at night.

The girl´s parents were extremely concerned by their daughter’s sudden change in behaviour. They made an appointment to express their concerns with her primary carer at the creche. They discussed the signs of anxiety and disturbed sleep, but were told by the carer that she was receiving an appropriate level of supervision offered by the creche. In spite of the reassurances, they were still concerned about their daughter’s behaviour.

Shortly after visiting the creche, the RTE documentary “A Breach of Trust”, was released. After they witnessed their daughter´s carer being abusive to children in the same facility, the parents removed the child from the creche. They immediately sought legal counsel.

On behalf of their daughter, a creche abuse claim was subsequently made against the Giraffe Childcare and Early Learning Centre on the grounds that the girl had suffered emotional injuries due to the abuse. The creche denied liability, but still made an offer of compensation amounting to €15,000 in spite of no admission of liability. As the creche abuse claim had been made on behalf of a child, it first had to be approved by a judge to ensure it was fair and in the child´s best interest.

In July 2015, the case was heard by to Judge James O´Donohue at the Circuit Civil Court. The judge heard the circumstances behind the creche abuse claim, and the affect it had on the young girl. Judge O´Donohue ruled that the proposed settlement of the crèche abuse claim was insufficient for the level of injury it was claimed the girl had suffered. He refused to approve the settlement made by the creche.

Following a period of renegotiation, a further offer of settlement was made to the girl. This time, the approval hearing was heard by Mr Justice Raymond Groarke. The circumstances of the girl´s alleged emotional injuries were once again related to the court. Judge Groarke enquired whether the girl had suffered lasting psychological damage and, after assurance that she had not, he approved the larger unknown settlement of the claim.

Judge Approves €15 Million Settlement for Birth Negligence Compensation

A judge has approved a settlement of compensation in a birth negligence claim amounting to a total of €15 million.

At Kerry General Hospital in May 2006, a baby boy was born by emergency Caesarean Section. Due to negligence of the staff in charge of his birth, a series of tragic and preventable errors occurred. These included no action was taken on a CTG trace indicating foetal distress, and when a heartbeat that indicated issues in the womb, no consultant obstetrician was informed of the potential dangers. Furthermore, the consultant obstetrician was not made aware of the possibility of foetal hypoxia, and the baby’s birth was avoidably delayed by approximately two hours.

Due to the avoidable delay, the boy endured a lack of oxygen in the womb, resulting in devastating brain damage. He was diagnosed with mixed dyskinetic spastic cerebral palsy. Now ten years of age, he requires 24-hour care by his family. He cannot verbally communicate, and he is confined to a wheelchair. Despite the clear negligence of their staff, the HSE failed to admit liability for nearly a decade. During this time, the boy´s family had to care for him on their own without the support they should have received from the state.

The HSE only admitted liability in 2016 after a nine-year legal battle with the family. They were prompted to admit their fault after being threatened with aggravated damages by the boy’s parents. An interim settlement of €2.7 million compensation for brain damage at birth was rushed through the courts. After further negotiations between the two legal teams, the family returned to court earlier this month for the approval of a final lump sum settlement of compensation for brain damage at birth. The final lump sum was agreed upon as €15 million . As the boy is a minor, the amount had to be approved by a judge to deem it sufficient to the boy’s long-term needs.

Judge Kelly stated that he felt the settlement was “commercial common and legal sense”. He further paid tribute to the boy´s parents for their dedicated care of their son. He further added while no money would compensate the boy and his family, it was the only form of redress the law could provide. He hoped it would give peace of mind that there is a fund to care for the boy´s needs into the future. As the boy is a ward of court, the settlement of compensation for brain damage at birth will be paid into court funds and managed by court authorities.

Court Award Settlement for Failure to Refer

The High Court has approved the final settlement in a drawn – out compensation claim made after a doctor failed to refer his patient to a specialist despite worrying blood tests.

In October 2004, Catherine Sheehan had a blood test before the birth of her daughter. The test returned a concerning result, showing that Catherine’s blood antibody levels had undergone an “alarming increase”. However, Dr David Corr – her obstetrician – did not refer her to a specialist. One month later, on the 24th November, her daughter Isabelle was born at the Bon Secours Maternity Hospital in Cork with sever spastic quadriparetic cerebral palsy.

Isabelle is now eleven years old, and attends a Gaelscoil near Mallow, Co. Cork, where she lives. However, though described as “bright and intelligent”, Isabelle still struggles communicating with others. A machine was specially made to help her to walk, though she will be reliant on round-the-clock care for the rest of her life.

Dr Corr admitted liability for Isabelle’s condition after her mother made a claim against him for his failure to refer her to a specialist. Whilst speaking at a hearing to award an interim settlement of compensation in 2011, he told the court that he “very much regrets the outcome in relation to Isabelle´s birth”.

When the second interim settlement of compensation was awarded in October 2013, Catherine requested that they ceased to receive the interim settlements and instead received a lump sum. An assessment had to be carried out for several weeks prior to each settlement, and Catherine told the court that these disputed her daughters life.

The court granted the request, and the case went to the High Court for Mr Justice Peter Kelly to approve the €9 million settlement. Judge Kelly, who is also President of the High Court, said that it was a fair and reasonable settlement, and it was understandable why Catherine made the request. He also paid tribute to Isabelle’s parents, saying that Isabelle’s progress was so good because of her parents’ “truly remarkable” love, care and dedication.

Soar in Compensation Awarded by High Court

A thirty-four percent rise in the number of compensation settlements awarded by the High Court has been observed in 2014, with some claiming that this is because of over-generous judges.

Emer Lang, an analyst at Davy Stockbrokers, first noticed this increase in compensation awarded by the High Court when she collected information from the Courts Service Annual Report. The data showed that, in total, €155 million in compensation was given out, spread over five hundred and nine personal injury claims, in 2014.

This worked out to be an average of €304,000 per claim, and when compared with the average value of €227,000 in 2013, it showed that there was a 34% increase between the two years. The average value for assessments that were conducted by the Injuries Board did not increase over the same period, remaining at roughly €22,600.

Consultants from the motor insurance industry have reported their shock at the new figures. Conor Faughnan, at AA Ireland, commented that the judges dealing with these claims needed to be trained to help them gain an understanding that the compensation that they award is ultimately paid for the country’s two million drivers.

However, others blamed recent changes to the Courts and Civil Law Act in 2013, which meant that any case that was expected to settle for over €60,000 had to be heard in the High Court. Before this, the limit was €38,092. The Motor Insurance Advisory Board’s Founding Chairperson, Dorothea Dowling, claims that the plaintiffs are preferably using the High Court System, over the Injuries Board, in the hope of receiving more money.

“The Department of Justice was forewarned well in advance,” Ms Dowling told the Independent Newspaper. “This is what happens when you increase the limits of the lower courts – it sends out the message that €38,000 is small money.”

However, Mr Justice Bernard Barton does not agree – last July, he criticised the government for not updating injury compensation values in the Book of Quantum (upon which the Injuries Board bases its assessments) since 2004.

Judge Barton commented in McGarry vs McGarry that “it is unquestionably in the interests of the proper administration of justice that the Book be reviewed and be kept updated to properly reflect [High Court compensation awards]”.

New Scheme Launched for Symphysiotomy Claims

A new government-run scheme to help women claim symphysiotomy compensation for operations performed on them without adequate consent between 1940 and 1980 has been launched.

The scheme follows after the government changed its mind on extending the Statute of Limitations such that women who had unknowingly undergone the procedure during labour could claim compensation. There are an estimated three hundred and fifty women alive today who survived the procedure.

The symphysiotomy compensation scheme works on a three-tier basis, based upon how badly injured the victims were. Those who did not sustain any long-term damage are entitled to claim €50,000. Women who sustained a recorded disability because of the procedure can claim €100,000 while those who had previously had a Caesarean Section, and then had a symphysiotomy performed upon them can receive €150,000.

A former judge in the High Court, Maureen Harding-Clark, has been appointed by the government to oversee each claim, which must be submitted by the 5th December of this year. However, this deadline can be extended by a further twenty days should Judge Harding-Clark deem the case exceptional.

Once the claim has been processed and a compensation value determined, the claimants have up to twenty days to accept the offer. However, to do this, any action against the state must first be withdrawn by the claimant.

There are presently over one-hundred-and-fifty High Court actions for symphysiotomy claims on progress, and dates for two of the hearings have been confirmed. Marie O’Connor, head of Survivors of Symphysiotomy, has expressed her dissatisfaction with the new scheme as the time limit makes it “impossible for women to seek independent advice and to make a considered decision”.

The Director of the Irish Council for Civil Liberties, Mark Kelly, has also expressed his disapproval of the scheme, claiming that it contradicts the state’s obligations to human rights by not addressing compensation needs for each individual. Additionally, the compensation is being paid out without any admission by the state of their liability.