The High Court has given approval for a €10m compensation settlement for an 11-year-old girl who has suffered with cerebral palsy since, and due to, her delivery on September 26, 2006 at Mayo General Hospital.
Legal representative for Rachel Hynes, Denis McCullough, said in court that her parents were extremely eager to finish the process with a final lump sum compensation payment. He commented that this is because Rachel and her family found the legal process, involving medical examinations and assessments before each court appearance, very trying.
Approving the cerebral palsy compensationaward against the HSE, President of the High Court Mr Justice Peter Kelly pointed to the fact that this would have been Rachel’s third time in court. She had to go through “a battery of tests and assessments” before each subsequent appearance.
Ms Hynes was brought to Mayo General on September 27 and the next day they began to induce the birth and syntocinon was started after midday.
Rachel was born in poor physical condition. It was claimed in court that there was a failure to adequately manage the labour, delivery and birth of Rachel. The court heard liability was accepted in the case. Rachel requires one-to-one care because she is in danger of falling, Senior Counsel Denis McCullough told the court.
Rachel is currently in fifth class at school and it is envisaged that she will go on to attend both secondary school and receive third level education. When Justice Peter Kelly announced the approval, Rachel thanked him publicly.
Mr Justice Kelly remarked that is a rare occasion when judges are thanked and he was very grateful to Rachel for this. He said that it was a good compensation settlement, which will allow Rachel to receive the care she will needs for the foreseeable future.
Dublin’s High Court have upheld a multi-million settlement of compensation for cerebral palsy due to birth injuries after an appeal was made concerning its high value, though the case may still proceed to the Supreme Court for resolution.
Gill Russell, from Aghada in County Cork, was born on the 12th July 2006 in the Erinville Hospital. However, he was born with dyskinetic cerebral palsy after what has been described as a “prolonged and totally chaotic” delivery. Karen, Gill’s mother, made a claim for birth injuries due to medical negligence compensation against the hospital and the Health Service Executive. Liability was admitted by the HSE, and an interim settlement was awarded by the High Court in Dublin.
It was not until December 2014 that a final award of €13.5 million was approved by the Mr Judge Kevin Cross in the High Court, which was the largest award ever made by the court for a cerebral palsy claim. The settlement was appealed by the HSE, who argued that Judge Cross had used too low a rate of interest to calculate the return investment of the lump sum.
The case was heard earlier this month at the Court of Appeals, where a panel consisting of three judges, upheld the settlement of compensation. The judges argued that using a higher rate of interest – which the HSE argues is normal for the court – would result in a severely disabled person taking “unjust and unacceptable risks” by investing their lump sum to safeguard their financial security.
Ms Justice Mary Irvine – one of the three judges on the panel – commented that it was not the purpose of the courts to decide how a claimant was going to invest their award when determining its value. The judge also commented that, had the government succeeded in passing legislation that would allow structured, periodic payments, the HSE would not be in this situation.
However, despite the Appeals Court’s ruling, the case is unlikely to be resolved, The State Claims Agency have warned that the case could set a precedent that could cost the insurance industry up to €10 billion over the next ten years, The HSE have also indicated that they will likely take the case to the Supreme Court.