All Posts in Category: Medical Malpractice

Girl who Lost Mother to Breast Cancer after Birth Awarded €900,000 Compensation

In the High Court a nine-year-old girl has settled for a wrongful death of family member action for €900,000.

Eugene Gleeson SC , acting on behalf of Gracie Hamilton informed the Court that she Garcia was delivered at 28 weeks and five days gestation due to the fact that her mother Melissa was suffering from Stage 4 breast cancer. He informed the the young mother died of breast cancer after two missed opportunities to diagnose the disease.

In a previous compensation action in 2015, Gracie’s father, Séamus Hamilton and his two other daughters Jessica (now 15) and Darcey (now 11) settled their High Court actions for €1.35 million in relation to the same incident. Melissa was just 34 years old a the time of her death on September 8, 2011, just eight days after the birth of Gracie. Melissa has only been diagnosed with breast cancer two weeks previous to her death.

In the earlier legal action Letterkenny General Hospital issued an unreserved apology that Melissa Hamilton’s cancer was not diagnosed and dealt with at an earlier stage. The letter, which was read out in court expressed “deepest and sincere regrets” on the devastating loss of Melissa to Seamus and his daughters. It read: “I realise no words can make up for the loss that you and your children have experienced and our thoughts are with you all in these difficult times.”

The Health Service Executive (HSE) it was alleged had been responsible for failings in the the control, management and operation of the Breast Centre North West triple assessment clinic in Letterkenny General Hospital. In addition to this it had a duty to take all reasonable steps to safeguard Mrs Hamilton’s life and a duty to those close to her including Gracie.

It was further claimed there was a failure to diagnose Mrs Hamilton’s cancer at an earlier treatable stage and negligent delay in achieving a cancer diagnosis. Liability was accepted in the case.

Mr Gleeson SC informed presiding Judge Justice Kevin Cross that  Gracie suffers with congenital sensory neural deafness and has undergone a nine-hour surgical procedure in order to insert an implant in her ear to try and address this. Gracie, he informed the Judge, is doing very well at school but her options for a career in future will be severely restricted. Gracie Hamilton , Sallywood, Killygordon,Lifford, Co Donegal took the legal action against the HSE via her father Seamus Hamilton.

Mr Hamilton, speaking in court, said that Gracie is a “fighter” and that, while the settlement would not bring back his wife, he was satisfied with the outcome. He added: “We are overcoming the hurdles.”

Mr Justice Kevin Cross, in approving the cancer misdiagnosis settlement, said he was delighted to hear Gracie is doing so well.

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Central Criminal Court Hears Healthcare Volunteer Admit to Drugging and Sexually Abusing Teenage Boys

At the Central Criminal Court a Kildare man, who cannot be identified so as to safeguard the identify of the victims, has pleaded guilty to oral rape of one boy and abusing another during 2018

The man (29) in question was a member of a voluntary paramedic organisation who was accused of drugging the boys with a powerful pain relief substance. He also pleaded guilty to meeting the child with the aim of sexual exploitation and aiding and abetting in the production of child pornography.

He will be sentenced on Wednesday. Since the complainants first made accusations the defendant was suspended from his volunteer role and also from a nursing course he was completing at the time which included a placement at a national children’s hospital.

The court was informed that one of the sexual assaults took place after the man forced the boy (15) to use an oxygen mask to inhale the drug before abusing him. A subsequent sexual assault took place when the boy was, again, unconscious and a different individual filmed the event using the camera on his phone.

In relation to another incident, involving a different child, the man pleaded guilty to sexual assault and sexual exploitation. The incident took place on May 18th, 2018 at a place in south Dublin and in the Wicklow mountains.

There was as additional guilty plea in relation the theft of medicinal items, including a vial of Penthrox and a carbon dioxide chamber from Naas race course during 2018. Penthrox is an analgesic normally prescribed by medical practitioners, the Defence Forces, ambulance paramedics, sports clubs and surf lifesavers to counter the effects of pain. It is administered by placing a vial of the medicine on a pipe-like device called a green whistle, which is then used to inhale the drug. Penthrox includes an active ingredient known as Methoxyflurane.

The Judge was informed that on two separate occasions the individual called to the house where his victims resided, driven by a different man, to pick them up. Following this he forced them to take the drug by placing the whistle device onto the victim’s mouth or the oxygen mask over their mouth. During both incidents the man’s victims awoke from unconsciousness to discover that they were being sexually assaulted.

Medical testimony was provided which informed the court that Penthrox should not be administered to those who are not yet 18 years of age. Additionally it was revealed that the man had modified the whistle device to remove a filter. Dr Aidan McGoldrick provided testimony which said that this modification  would result in the drug actually being four times stronger and lead to cases of memory loss. The Judge was informed that the defendant’s Internet search history included searches like “nitrous oxide side effects”, “Penthrox and knock out”, and “how much Methoxyflurane does it take to knock you out”.

The mother of one of the victim’s provided an impact statement which informed the court that her son has had difficulties in school and had to go to counselling since the attacks took place. He was, she said, too embarrassed to come to court to give his own statement. She informed the court that, due to the defendant abusing his position of responsibility to gain access to controlled drugs and carry out the sexual assault, her family will be haunted for the remainder of their lives.

Counsel for the defence, James Dwyer SC, made a  plea for mitigation on behalf of his client, saying that the individual regrets his actions and the damage he inflicted on the boys. Despite informing Gardai, after he was arrested, that one of the boys had initiated the sex and  been coherent at all times, the defendant said he accepted the victims’ record of events

Sentencing will take place on Wednesday.

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HSE apologises to Family over Father’s 2011 Death Due to Medical Misadventure

An apology was issued by the Health Service Executive (HSE) to the family of a man in relation to his death at St Luke’s Hospital in Kilkenny in 2011.

John Joseph Comerford was brought to the hospital in Kilkenny during March 2011 for hernia repair surgery. Unfortunately, the High Court was told, the 68-year-old passed away three days later in “very distressing circumstances”. An inquest into his death in 2014 returned a verdict of medical misadventure.

The family said that Mr Comerford was brought back to hospital two days following his hernia surgery with shortness of breath, abdominal pain and low blood pressure. A CT scan showed fluid in his abdominal wall and after the site of the operation was opened again, faecal smelling fluid was drained away from the area. When he was admitted to the intensive care unit, he suffered two cardiac arrests and passed away on 21 March 2011. As a result of his death, Mr Comerford’s family initiated a medical negligence case against the HSE. In the case liability was admitted by the HSE and the case was settled for an undisclosed sum.

An apology from the HSE on behalf of St Luke’s General Hospital was read out before the court. it said: “We apologise to Mrs Comerford and to her children and extended family for the events leading to the death of Mr John Joseph Comerford in the 21st of March 2011. We do not underestimate the distress and sadness caused to Mrs Comerford and her children by the loss of their husband and father. We offer our sincere condolences”.

Mr Comerford’s daughter Karen Brown, speaking outside the court, said she is happy the case has finished but is “disgusted” that it has taken this so long for this to be achieved. She said: “It feels very sad that it’s taken this long to happen. It’s sad my kids have missed out on their granddad. They adored him for the little time they knew him”.

Mr Comerford’s son, David, also made a statement following the case and described his father as an keen gardener who came to Ireland from the UK to retire in the late 1990s. He said his dad was very fond of the allotments and carried on working as a builder when he came here. He and his sister said their mother, who is now in her late 70s and was not in court on the day, had to move back to the UK since her husband’s death to be nearer to her children. he said: “You mourn your loved ones and it never goes away, but this just brings it to the surface time and time again. You think of him every day.”

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Medical Negligence Compensation Settlement in Malak Thawley Legal Action

An undisclosed compensation settlement has been agreed in relation to the medical negligence involved in the death of a woman, Malak Thawley, during surgery for an ectopic pregnancy in 2016.

Her husband, Alan Thawley settled his High Court action for medical negligence compensation.

Mrs Thawley, , a teacher and a US citizen, was pregnant with her  first when she died during a surgical  procedure at the Holles Street hospital on May 8, 2016. She was 34 years old.

Mr Thawley told the court last week that the death of his partner was due to a “cascade of negligence”. His legal representative, Liam Reidy SC, said that the doctor who was responsible for the surgical procedure that resulted in Malak’s death was an inexperienced junior surgeon.

He went on to say that the negligent actions of the medics included taking the decision was taken to cool Mrs Thawley’s brain with ice and then finding that there was no ice in the hospital. Following this two doctors were sent to a close by pub to get ice.

Presiding judge, Mr Justice Anthony Barr was advised that he could strike out the case as it had been settled for compensatory damages only and aggravated or exemplary damages were not included. There were no further details of the medical negligence settlement were provided.

Alan Thawley, speaking to the press outside the Court, said that he was glad to have come to a settlement after a long and difficult process. He remarked: “There is no compensation that could replace the profound loss of my wife’s untimely and needless death”.

Mr Thawley added: “The proceedings were brought forth to expose the cascade of negligence demonstrated by the hospital”.

He will also assisting with the Department of Health’s Ministerial Inquiry to help to prevent other people suffering, as he has, going forward.

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Personal Injury Compensation Payout Details Must Be Made Public: PIC

The Personal Injuries Commission (PIC) has called for injury data held by insurance companies to be collated and published.

In its first report from the PIC recommended that data relating to the incidence of ‘whiplash’ and other soft tissue injuries should be made available to the public.

Mr Justice Nicholas Kearns chairs the Commission which was set up to address the rising cost of motor insurance premiums. Justice Kearns said that such data should be made available from insurers so that it can form part of the National Claims Information Database which is being developed by the Central Bank of Ireland at present.

The report finds that the figures being awarded for whiplash claims should correlate to the severity of the injury, with a standardised grading scheme set up to achieve this. It states there needs to be more transparency in relation to payouts for whiplash injuries as levels of general damages are not included in legislation. Award levels are determined ultimately by judicial decisions.


Separately lawyers that deal with in personal injury compensation cases have hit out at  Personal Injuries Commission’s first recommendations to the Government.

Associate solicitor at Cantillons Solicitors Jody Cantillon, stated: “Firstly, the basis for the Personal Injuries Commission seems to us to be flawed in that the rise in insurance premiums has nothing at all to do with personal injuries litigation.

In relation to the report itself, Mr Cantillon remarked: “We are surprised at the Commission’s ‘recommendation’ that the sums awarded in whiplash claims should be linked to the severity of the condition. This is already the case, so there is nothing new there.

He added “We would have grave concerns about a standardised approach to the diagnosis, treatment and reporting of soft tissue injuries. No one person or injury is the same. The impact that a back injury might have on a new mother is different to the impact such an injury might have on a young man. A standardised approach would not take sufficient consideration of the individuals circumstances.

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Over 1,000 Unnecessary Deaths due to Medical Error in Ireland Annually

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

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

As a solicitor who has been involved in many medical negligence 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 called 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 learning opportunity had been missed.

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

He added that he feels that not all those injured in medical incidents report it. The HSE is notified of 34,170 “clinical incidents” annually and, o,f these 575 resulted in compensation claims against the HSE, a rate of less than 1.7 per cent.

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Claim for the Death of a Child due to Medical Misadventure Heard in Court

The €70,000 settlement of a compensation claim for the death of a child due to medical misadventure has been approved at the High Court.

On 20th November 2012, Fiona Watters attended the Cavan General Hospital in the later stages of her first pregnancy. Fiona was admitted to the hospital and, at 10:30am on the morning of 22nd November, her waters broke. Under the care of consultant obstetrician Dr Salah Aziz, Fiona was administered Prostiglandin to accelerate her labour.

The dosage of Prostiglandin was increased throughout the day and, at 9:30pm that evening, a natural birth was attempted. Despite pushing for an hour the baby´s head was still not visible and the duty midwife called Dr Aziz to advise him the indications were that the infant was suffering foetal distress.

Dr Aziz attempted to organize a C-section delivery, but discovered that the only out-of-hours theatre at the hospital was occupied. A forceps delivery and a vacuum delivery were both attempted unsuccessfully, and Fiona had to wait until the out-of-hours theatre became available in order to deliver her son.

When Jamie was born, he was in a very poor condition. He was resuscitated and transferred to the special care baby unit at the Rotunda Hospital. Tragically Jamie died in his mother´s arms two days later.

An investigation was launched into the cause of baby Jamie´s death, but the report subsequent to the investigation was quashed by the High Court in August 2013 following Dr Aziz´s assertions that investigators from the Health Service Executive had not conducted the investigation according to the correct procedures.

Having received an advanced copy of the report, Fiona and her partner – Francis Flynn – sought legal advice and made a compensation claim for the death of a child due to medical misadventure. The Health Service Executive failed to accept liability for Jamie´s death until July 2014, and subsequently commissioned a second investigation into his death.

In December 2014, an inquest into Jamie´s death confirmed that he had died due to medical misadventure. The coroner attributed the increase in the administration of Prostiglandin, Dr Aziz´s failure to inform the hospital registrar that the drug had been administered, and the lack of a second out-of-hours theatre at the hospital being causative events.

Following the coroner´s verdict, the solicitor representing Fiona and Francis negotiated a settlement of the compensation claim for the death of a child due to medical misadventure with the State Claims Agency. Due to the traumatic circumstances of Jamie´s birth and the protracted nature of the investigations into Jamie´s death, the settlement amounted to €70,000.

As the settlement of the claim for the death of a child due to medical misadventure had to be approved by a judge before the case could be closed, the circumstances of Jamie´s birth and the subsequent delays experienced by the family were related to Mr Justice Richard Humphreys at the High Court. Judge Humphreys approved the settlement, stipulating that €5,000 should be paid into court funds for the benefit of Fiona and Francis´ daughter when she becomes a legal adult.

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Unsuccessful Challenge to High Court Award of Cerebral Palsy Compensation by HSE

An unsuccessful challenge to a High Court award of cerebral palsy compensation is likely to be taken to the Supreme Court by the Health Service Executive.

Gill Russell from Aghada in County Cork was born at the Erinville Hospital on 12th July 2006, suffering from dyskinetic cerebral palsy after a “prolonged and totally chaotic” delivery. Gill´s mother – Karen – made a compensation claim against the Health Service Executive (HSE) for medical negligence, and received an interim High Court award of cerebral palsy compensation in 2012.

In December 2014, Gill´s compensation claim against the HSE was settled with a lump sum High Court award of cerebral palsy compensation amounting to €13.5 million. The HSE appealed the value of the High Court award of cerebral palsy compensation – arguing that Mr Justice Kevin Cross had used a lower rate of interest than was traditionally used in Irish courts to calculate the future value of the settlement.

At the Appeals Court this week, a three-judge panel upheld Judge Cross´ settlement. The judges said that using the “traditional” formula would mean that a catastrophically injured person would have to take “unjust and unacceptable” risks with investing the lump sum to ensure their financial security. They added that a seriously injured child should not be compared with a prudent investor.

Announcing the Appeals Court verdict, Ms Justice Mary Irvine said it was not the courts´ function to inquire what a claimant was likely to do with their award for the purposes of determining its value. She added that the Russell family and the HSE would not be in court had the government not gone back on promises to introduce legislation that would allow for a periodic payment system of compensation.

Unfortunately, the decision of the Appeals Court is unlikely to end the dispute about the High Court award of cerebral palsy compensation. Warning that the revised formula sets a dangerous precedent that could cost the State Claims Agency and the insurance industry up to €100 million annually, the HSE has indicated that it will take the High Court award of cerebral palsy compensation to the Supreme Court.

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Care Home Negligence: Investigations Launched after RTE Documentary “Inside Bungalow Three”

A series of investigations has been launched after an RTÉ documentary revealed care home negligence at a centre for the intellectually disabled in County Mayo.

The RTÉ documentary – “Inside Bungalow Three” – showed scenes of physical and psychological abuse by care workers at the Áras Attracta care home in Swinford, County Mayo filmed by an undercover reporter. RTÉ had been advised of the care home negligence by a former employee of the centre, whose concerns to upper management had been disregarded.

The undercover reporter had posed as a work experience student to gain access to Bungalow Three – a home to three intellectually disabled women – where she experienced shocking treatment being administered to the residents including slapping, kicking and force-feeding. In one example a resident is denied use of the bathroom, while in another a 75-year-old resident is kept seated in the same position for six hours.

The care home negligence broadcast in the documentary attracted universal condemnation. Taoiseach Enda Kenny described the abuse shown in the documentary as “sickening”, while Tony O´Brien – the Director General of the HSE – commented that the level of care was totally unacceptable and fell well below “the standards that we expect in the health services”.

Kathleen Lynch – Minister of State at the Department of Health – refused to believe that Áras Attracta is the only place where this is happening”, and Lorraine Dempsey from the Special Needs Parents Association added “Absolute responsibility in any setting goes right up to the top level of management, and in this case we are talking about the HSE”.

The HSE has launched two investigations into the care home negligence at Áras Attracta – one focusing on the specific mistreatment of residents portrayed in the documentary and the second on the care home for the intellectually disabled in general. The Gardaí and the Health Information and Quality Authority (Hiqa) have also launched their own investigations.

Tony O´Brien apologised to the residents and their families on behalf of the HSE for the care home negligence. He said that the HSE did not wish to “pre-empt the findings of an independent investigation” but that the HSE has taken immediate actions to “guarantee that a safe and caring environment exists for the residents of Bungalow Three”. Nine staff have been suspended while the investigations into the care home negligence are conducted.

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Woman Awarded Compensation for Cardiac Arrest due to Medical Negligence

A woman who was injected with the wrong medicine during nasal surgery has been awarded $5.1 million compensation for a cardiac arrest due to medical negligence by a jury in Philadelphia.

The jury at Montgomery County Court heard how Jacqueline DiTore had attended the Abington Surgical Centre in Pennsylvania on 7th June 2010 for an outpatients procedure on her nose.

Prior to starting the procedure, Dr Warren Zager had asked a nurse to prepare an injection of 1 percent lidocaine with epinephrine for a local anaesthesia, and to soak cotton wall balls in Afrin (a brand of decongestant nasal spray) to control the bleeding during surgery.

According to the testimony presented at court, the nurse poured the Afrin into an unmarked cup in order to soak the cotton wool balls; but this was mistaken by a second nurse to be lidocaine, which she drew up into a syringe and handed to the doctor. Dr Zager injected the Afrin into Jacqueline´s nose and then attended to other pre-surgery procedures.

Jacqueline´s heart rate dropped to 36 soon after, and an anaesthetist – not realising that Jacqueline had been injected with Afrin – administered glycopyrrolate (an anticholinergic) which had the result of bringing Jacqueline´s heart rate back up to 80.

When Dr Zager returned to his patient, he asked for more 1 percent lidocaine but was told that only 2 percent lidocaine was available. The doctor then asked what had been put into the syringe that he use to inject Jacqueline and the error was discovered.

According to a medical expert who gave evidence at the hearing, the injection of 6-7cc of Afrin caused a 100-fold increase in vasoconstrictive activity (the narrowing of the blood vessels) but, unaware of this, Dr Zager decided to continue with the surgery and used the 2 percent lidocaine to anaesthetise Jacqueline´s nose.

Following the second injection, Jacqueline´s heart rate jumped to 140 with a blood pressure of 260/150. At that point labetalol was administered (a drug used to lower high blood pressure), but Jacqueline´s blood pressure then bottomed out and she went into cardiac arrest. Jacqueline was rushed to Abington Memorial Hospital where she was resuscitated.

As a result of going into cardiac arrest due to medical negligence, Jacqueline suffered brain damage, and now has impaired cognitive abilities, and problems with her speech, vision and memory – issues her doctors say are going to deteriorate as she gets older.

After seeking legal advice, Jacqueline claimed compensation for a cardiac arrest due to medical negligence against the Abington Surgical Centre and Dr Zager – claiming that the doctor should not have proceeded with the surgery once the original error had been identified, and that the Surgical Centre was liable because it was aware that Dr Zager and those in his practice were not following safe medical procedures.

Both defendant´s denied their liability for Jacqueline´s injury – contesting that Dr Zager was correct to continue with the surgery, as the lidocaine that was administered in the second injection did not compound the effect that the Afrin had on Jacqueline, and therefore did not contribute to her reaction. It was also alleged that Jacqueline´s injuries were not as severe as had been presented and that she was “high-functioning” – restricted only by limitations she had imposed upon herself.

However, after several days of testimony and deliberations, the jury at Montgomery County Court found in favour of Jacqueline and awarded her $5.1 million compensation for a cardiac arrest due to medical negligence – allocating 38.5 percent negligence to Dr Zager and 61.5 percent negligence to the Abington Surgical Centre.

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