Boy (8) brain damaged at birth awarded €2.8m in HSE legal suit

This article was published in the Irish Independent on the 20/03/2015 

The HSE has apologised to the family of an eight-year old boy who was brain damaged at birth.

It came as the boy settled his legal action against the HSE with an interim payment of €2.8m.

The boy, needs 24 hour care, cannot speak and is confined to a wheelchair, the High Court heard.

His mother told the court  the family had been treated very badly for the last nine years and liability had not been admitted in the case until last month.

She said a consultant involved in the case had after the birth showed his remorse and cried in a private meeting with herself and her husband, but the HSE then fought the case for the next nine years.

"It was very hurtful that the HSE defended the case against us.

"We were trying to deal with the grief of what had happened and for them not to admit liability added insult to injury," she told Mr Justice Kevin Cross.

"We were trying to fight it emotionally and financially," she said.

The boy, through his mother, had sued the HSE over the circumstances of his birth at Kerry General Hospital on May 25, 2006.

Senior Counsel told the High Court there was a two hour delay in delivering the baby in which he suffered brain damage.

It was claimed there was a failure to deliver the baby on a timely basis and a failure to treat it as an emergency case.

It was further claimed the mother had to travel an unacceptable distance to the operating theatre and there was a failure to ensure the consutlant obstetrician was aware of the worrisome heart rate pattern which had documented by the midwife.

The boy was delivered by caesarean section and was later diagnosed with mixed  dyskinetic spastic cerebral palsy.

An apology on behalf of the HSE to the family was read to the court.

"We would like to apologise unreservedly to both of you and to your son the injuries he sustained at his birth in 2006.

"Sadly, we are unable to change what happened to the boy, but we would like to inform you that we have since introduced specific guidelines and protocols to assist us in preventing  adverse outcomes in the future."

Mr O'Connor said "we understand how life-changing and difficult this has been for you" and recongised "the past eight years have been extremely difficult for you and your family.

"We are glad that the settlement today enables your family to meet boy's needs.

The Costellos' counsel had told the court that in November 2006, a consultant obstetrician, in a private meeting, had acknowledged wrong had been done.

But, counsel said, the benefit fo that meeting had been soured  as the family had nine years looking after their son without any supports  and fighting a legal battle.

He said liability had been admitted in the last four weeks and only after a threat in relation to claiming aggravated damages had been made.

The mother  told the judge the second part of the apology was incomplete  and unsatisfactory and did not take in to account the nine years of a legal battle.

"When you go in to hospital you put yourself in to their hands and when something bad happens they disappear. They are faceless people.

"It is a bit too late on February 24, 2015, to say they are sorry," she said.

Son's laughter kept them going the years, she said.

"He puts everything in to perspective. We don't want his injury to define him or us," she said.

Outside court the father, in a statement, said the settlement marked the end of their struggle to get justice for their son.

"It is also the day on which we dare to hope that life will become a little easier for our son, for us his parents, and for our other three wonderful children," he said.

She added: "The settlement will allow us to provide the 24 hour specialist care which has been denied for all his life to date.

"It is our dearest wish that no other family would have to endure this period of intense suffering caused by the inexcusable delay in accepting responsibility for an injury to an innocent child.