Adversarial cases make a mockery of the HSE’s open-disclosure policy

These seven high-profile cases from 2015 show that the HSE has a long way to go in translating policy into practice, writes Catherine Shanahan

OWNING up to mistakes is a message the Health Service Executive (HSE) has been spreading since the launch of its open-disclosure policy in November, 2013.

In addition to a national policy, it has provided guidelines, support booklets for patients and training for staff. Yet, two years on, the evidence from the High Court shows that admissions of liability remain notoriously hard to come by, while apologies are as rare as the air on Mercury.

The experience of Geraldine Barry, who watched her partner die from sepsis, because of mistakes made at the Mercy University Hospital, is a case in point and is examined in these pages by her solicitor, Karen Kearney, a partner at Ernest Cantillon Solicitors.

A trawl of other high-profile cases of the past year shows that the HSE has a long way to go in translating policy into practice. Families were repeatedly forced on long, expensive journeys through the courts to get to the truth of what happened to loved ones while in the care of the health service.

The cases make a mockery of the HSE’s advice in one of its own booklets: “Accepting that harm is not intentional should help us to deal with adverse events with honesty, openness and compassion for heartbroken people and those carrying the burden of responsibility.”

Gill Russell, aged 9, Aghada, Co Cork

Karen Russell, of Aghada, Co Cork, and her son, Gill Russell, who was born in Erinville Hospital in Cork in 2006. Her action for medical negligence against the HSE was settled.
Karen Russell, of Aghada, Co Cork, and her son, Gill Russell, who was born in Erinville Hospital in Cork in 2006. Her action for medical negligence against the HSE was settled.

Born: July, 2006.

Interim settlement: €1.4m, 2012.

Additional lump-sum payment of €13.5m, December 2014.

Admission of liability: In 2012, both the HSE and Cork University Maternity Hospital apologised as part of the settlement.

Background: It was claimed Gill was born after his mother had a symphiostomy and there was a “prolonged and totally chaotic” delivery. His head was born with an assisted vacuum and it took a documented 12 minutes to deliver the shoulder.

He was not allowed home from hospital for two months. Gill suffers from cerebral palsy and is confined to a wheelchair for life. He can communicate only with his eyes.

Through his mother, Karen Russell, Aghada, Co Cork, Gill sued the HSE, alleging negligence in the circumstances of his birth at Erinville Hospital, Cork, on July 12, 2006.

In the High Court, in October 2012, the HSE apologised. An interim settlement was made, followed in 2014 by a lump sum. Liability was admitted.

Skye Worthington, Castlegregory, Co Kerry

Three-year-old Skye Worthington, of Cloghane, Castlegregory, Co Kerry. The High Court approved a settlement of €2.52m for damages. Picture: Courtpix
Three-year-old Skye Worthington, of Cloghane, Castlegregory, Co Kerry. The High Court approved a settlement of €2.52m for damages. Picture: Courtpix

Born: April 2011.

Interim settlement: €2.52m.

Admission of liability: Yes. Apology in February 2015.

Background: Skye Worthington, through her mother, Colleen Worthington, Cloghane, Castlegregory, Co Kerry, sued the HSE as a result of injuries sustained during her delivery at Kerry General Hospital, Tralee, in April, 2011.

The High Court heard that if she had been delivered 15 minutes earlier, she would not have been injured.

The court heard Skye’s mother had been admitted to Kerry General Hospital on April 21, 2011. A drug to speed up labour was administered. Mrs Worthington’s contractions were very strong and there was a prolonged deceleration noted in the baby’s heartbeat. Counsel said “the cardinal error” was that the deceleration was ignored.

Skye has cerebral palsy, can only sit for a while, has to be fed through a tube and can only communicate with her eyes. In court, last February, an apology was read out from the general manager of Kerry General Hospital, TJ O’Connor.

Faith Lanphier, Thurles, Co Tipperary.

Linda Kelly and Anthony Lanphier, whose baby, Faith Lanphier, died five days after birth at Cork University Maternity Hospital, on May 24, 2012. A catheter inserted to feed Faith was placed at an incorrect, low level. The couple’s action was settled in July. Picture: Courtpix
Linda Kelly and Anthony Lanphier, whose baby, Faith Lanphier, died five days after birth at Cork University Maternity Hospital, on May 24, 2012. A catheter inserted to feed Faith was placed at an incorrect, low level. The couple’s action was settled in July. Picture: Courtpix

Born: May 19, 2012.

Died: May 24, 2012.

Settlement: The action for nervous shock by Faith’s parents was settled under undisclosed terms. A settlement of €35,000 had been agreed in relation to the death of Faith.

Admission of liability: In July 2015, as well as a written apology from the HSE.

Background: Baby Faith was born prematurely and in good condition, on May 19, 2012, the High Court heard, but died at Cork University Hospital (CUH) five days later. It was claimed a catheter inserted to give her nutrition was placed at an incorrect, low level — that the catheter tip was positioned within Faith’s liver and that this caused it to rupture and caused the collapse of the baby five days after her birth.

It was also claimed there was a failure to position the catheter correctly within a vein and that the baby had gone into hypovolaemic shock and died.

In an apology read to the High Court, last July, CUH CEO, Tony McNamara, acknowledged the hospital’s responsibility in the death of baby Faith and apologised.

Solicitor Cian O’Carroll said the difficulty is that the apology came at the end of three years.

Katie Manton, aged 7, Cashel, Co Tipperary

Katie Manton, whose parents, Aoife and Raymond, of Dulla Road, Cashel, Co Tipperary, settled a High Court action on her behalf. Picture: Collins Courts
Katie Manton, whose parents, Aoife and Raymond, of Dulla Road, Cashel, Co Tipperary, settled a High Court action on her behalf. Picture: Collins Courts

Born: September 2008.

Settlement: €6.7m, October, 2015

Admission of liability: HSE admitted liability, without an admission of causation, in January, 2012. South Tipperary General Hospital apologised on the day the action was settled.

Background: In the case of Katie Manton, it was claimed there was an alleged failure to deliver (by caesarean section or otherwise) the baby in a timely manner and an alleged failure to diagnose the CTG readings, either properly or at all. The claims were denied.

Katie Manton had sued the HSE through her father, Raymond Manton, of George’s Land, Dualla Road, Cashel, Co Tipperary.

On the final day of action, South Tipperary General Hospital apologised to the family.

Michael MacGrath, SC, for Katie’s parents, said he had been instructed to tell the court the apology was “too little, too late, in the circumstances.”

Lee Gibson, aged 10, Carthage Place, Ringaskiddy, Co Cork

Lee Gibson, 10, from Ringaskiddy, Co Cork, with his mother Aileen, right, and his grandmother, Stephanie, left. The High Court awarded him an interim payment of €2m. Picture: Courts Collins
Lee Gibson, 10, from Ringaskiddy, Co Cork, with his mother Aileen, right, and his grandmother, Stephanie, left. The High Court awarded him an interim payment of €2m. Picture: Courts Collins

Born: July 2005.

Interim settlement: €2m, October 2015.

Admission of liability: None

Background: In Lee’s case, it was claimed he suffered brain damage at the time of his birth, at St Finbarr’s Hospital, on July 5, 2005, due to a lack of oxygen and the effect of an untreated infection suffered by his mother.

It was also claimed there was an alleged delay of between 91 and 106 minutes before delivery by emergency caesarean section, once the decision for an emergency caesarean had been made.

It was further claimed there was an alleged failure to treat the case as an emergency and an alleged failure to give a candid explanation for what had happened and why.

The court heard it was only when his mother, Aileen Gibson, Carthage Place, Ringaskiddy, Co Cork, brought her case to Cork solicitor, Susie Elliott, of Ernest Cantillon Solicitors, that “all the stops were pulled out” and the dogged approach of the solicitors brought the case to fruition.

Lee has cerebral palsy, cannot talk, and is confined to a wheelchair.

Eoin O’Mahony, aged 32, Blarney, Co Cork

Eoin O’Mahony, from Blarney, Co Cork , was awarded €10m in an action taken by his parents, Edmond and Karen O’Mahony. Picture: Courts Collins
Eoin O’Mahony, from Blarney, Co Cork , was awarded €10m in an action taken by his parents, Edmond and Karen O’Mahony. Picture: Courts Collins

Initial settlement: €2.9m, 2010. Further interim payment of €1.2m in 2012. Additional lump sum of €10m, November 2015.

Admission of liability: HSE conceded liability in 2010.

Background: Mr O’Mahony was a 17-year-old Leaving Certificate student in 2001 when he experienced headaches. He was admitted to Cork University Hospital, where brain surgery was carried out.

After the surgery, he lapsed into a coma-like state.

He now has devastating brain injuries and is quadriplegic. He suffers from locked-in syndrome, the court was told.

Five years ago, he settled his High Court action against the HSE, which conceded liability, on terms including an interim payment of €2.9m. He secured a further interim payment of €1.2m in 2012.

The final €10m was awarded in November and ends a 14-year legal battle for Eoin’s family.

Eoin’s parents, Edmund and Karen O’Mahony, Station Road, Blarney, said the approach taken by the State and HSE had put enormous stress and strain on the family, financially and emotionally.

Jeremiah Daly, 12, Clogher Drive, Lixnaw, Co Kerry

Edwina Daly, who took a case against the HSE on behalf of her 12-year-old son, Jeremiah. He was awarded €1.75m in damages last month. Picture: Courtpix
Edwina Daly, who took a case against the HSE on behalf of her 12-year-old son, Jeremiah. He was awarded €1.75m in damages last month. Picture: Courtpix

Born: March 2003.

Interim settlement: €1.75m, December 2015.

Admission of liability: None.

Background: Jeremiah had sued the Health Service Executive through his mother, Edwina Daly, over the management of his birth at Kerry General Hospital between March 22 and March 24, 2003. It was claimed the baby was subjected to severe and prolonged foetal distress, following his mother’s admission to the maternity unit on March 22, 2003. There was, it was claimed, an alleged, unacceptable delay in the delivery of Jeremiah, given the onset of foetal distress and abnormal CTG tracings. It was further claimed there was an alleged failure to stop administering oxytocin, on account of the foetal distress. The claims were denied.

An interim settlement of €1.75m was made without admission of liability. The High Court will decide, in six years’ time, on the costs of Jeremiah’s future care needs.


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