Man with spina bifida settles case over epilepsy drug for €5m

It was claimed there was an alleged failure to inform Mark Kavanagh’s mother that the drug she was taking for her epilepsy Sodium Valproate with the brand name Epilim carried an estimated 1% risk of spina bifida for a foetus. File picture

A 27-year old man with spina bifida, who sued claiming there was an alleged failure to inform his mother when she was pregnant of a risk associated with taking an epilepsy drug, has settled a High Court action for €5million.

In the proceedings, it was claimed there was an alleged failure to inform Mark Kavanagh’s mother that the drug she was taking for her epilepsy Sodium Valproate with the brand name Epilim carried an estimated 1% risk of spina bifida for a foetus.

Mark’s counsel, Oonah McCrann SC instructed by Marian Fogarty of Cantillons solicitors, told the High Court Mark’s mother, Colette Kavanagh was diagnosed with epilepsy in the early 1990s and before and during her pregnancy she was prescribed Epilim.

Counsel said it was their case that Mark was allegedly exposed to valproate in utero and he developed significant injuries as a consequence, including spina bifida.

Mark Kavanagh, who has to use a wheelchair, was diagnosed with spina bifida after birth and had to have surgery two days after his birth in 1998. He also suffers from seizures and requires lifelong care.

Counsel said Mark’s mother Colette Kavanagh was to be commended for the way she had looked after her son. “She has spent her whole life looking after him,’ counsel added.

Mark Kavanagh who is from Rathfarnham, Dublin, told the court he wanted to thank his mother for everything she had done for him. He told Mr Justice Tony O’Connor she was a brilliant mother.

The settlement against Tallaght University Hospital and the HSE is without an admission of liability and was reached after mediation. Mr Kavanagh had through his mother, Colette Kavanagh sued the HSE and Tallaght University Hospital.

Kavanagh family's claims

It was claimed that Ms Kavanagh, who has epilepsy, was advised during her pregnancy to take sodium valproate Epilim. The mother, it was claimed, was unaware of the alleged significantly increased risk of injury to the foetus.

Had she been aware of the alleged risk, it is claimed she would not have taken the medication while pregnant. Mark was born on September 3, 1998, and it is claimed that as a result of the ingestion of the Epilim he suffered injury.

In the proceedings, it was claimed there was an alleged failure to exercise any or reasonable care for the safety of the baby.

It was further claimed there was an alleged failure to discuss with the mother whether she had an intention to conceive in circumstances where she was being prescribed Epilim.

It was also contended there was an alleged failure to advise the mother about the availability of alternative anticonvulsant medication which could have been prescribed to treat her partial onset seizures.

There was, it was claimed, an alleged failure to advise the mother that sodium valproate, if taken while pregnant, carried a 1% risk of the foetus developing spinal bifida.

Liability was denied in the case and it was contended the management of the mother was entirely consistent with general neurological practice at the time.

Approving the settlement, Mr Justice Tony O’Connor said Mark Kavanagh had so movingly expressed how he appreciated the work his mother has done for him. He wished Mark and his mother well.