Keane v Health Service Executive (HSE) and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Ryan,
• Judgment Date: 27 May 2011
• Neutral Citation: [2011] IEHC 213
• Court: High Court
• Date: 27 May 2011

[2011] IEHC 213

THE HIGH COURT

[No. 652 P/2009]

Keane v Health Service Executive (HSE) & Ors

BETWEEN

JADE KEANE (AN INFANT SUING BY HER MOTHER AND NEXT FRIEND GILLIAN KEANE)

PLAINTIFF

AND

THE HEALTH SERVICE EXECUTIVE, DERMOT STONES AND BY ORDER OF THIS COURT THE NATIONAL MATERNITY HOSPITAL

DEFENDANTS

CIVIL LIABILITY ACT 1961 S11

CIVIL LIABILITY ACT 1961 S21

CIVIL LIABILITY ACT 1961 S11(1)

CIVIL LIABILITY ACT 1961 S21(2)

CONOLE v REDBANK OYSTER CO LTD & STASSEN 1976 IR 191

CIVIL LIABILITY ACT 1961 S22(1)

O'SULLIVAN v DWYER 1971 IR 275

CIVIL LIABILITY ACT 1961 S34

CIVIL LIABILITY ACT 1961 S34(1)

CONNOLLY v DUNDALK URBAN DISTRICT COUNCIL & ANOR UNREP SUPREME 18.11.1992 1992/10/3226

HEALY (A MINOR) v HEALTH SERVICE EXECUTIVE (HSE) & FITZSIMONS UNREP QUIRKE 8.5.2009 2009/26/6333 2009 IEHC 221

CARROLL v CLARE CO COUNCIL 1975 IR 221

PATTERSON v MURPHY & TRADING SERVICES LTD 1978 ILRM 85

LARKIN & TRAVELOWEN LTD v JOOSUB & ORS 2007 1 IR 521 2006/33/7056 2006 IEHC 51

NEGLIGENCE

Causation

Measure of fault not causative contribution - Novus actus interveniens - Successive episodes of discrete negligence - Degrees of fault - Contribution between defendants - Plaintiff born with hydrocephalus - Delay in diagnosis - Delay in treatment - Severe brain damage - Head circumference measurements by defendants abnormal - Additional symptoms displayed - Negligence admitted but not liability - Whether condition as result of event in utero - Carroll v Clare County Council [1975] IR 221 applied; O'Sullivan v Dwyer [1971] 1 IR 275 and Patterson v. Murphy [1978] ILRM 85 followed ; Larkin v Joosub [2006] IEHC 51, [2007] 1 IR 521 considered; Conole v Redbank Oyster Co Ltd [1976] IR 191, Connolly v Dundalk UDC (Unrep, SC, 18/11/1992), Healy (a minor) v Health Service Executive and Anor [2009] IEHC 221 (Unrep, Quirke J, 8/5/2009) distinguished - Civil Liability Act 1961 (No 41), ss 11 and 21 - Equal apportionment of contribution (2009/652P - Ryan J - 27/5/2011) [2011] IEHC 213

Keane (an infant) v Health Service Executive and Ors

1 JUDGMENT of Mr. Justice Ryan, delivered the 27th May, 2011

Introduction.

2 Jade Keane was born on the 21 ^st March 2001 by ventouse delivery at the National Maternity Hospital. At birth she had an abnormally large head due to hydrocephalus. That is a condition that results from excessive accumulation of fluid and increased pressure in the ventricles of the brain. The problem was treatable if it was managed in time. Jade required surgery to by-pass the blocked canal that was causing the problem so as to permit fluid to flow out of the lateral ventricles and circulate in the brain and spine. Unfortunately, that did not happen in Jade's case until it was too late. The blockage remained while cerebrospinal fluid continued to be produced and pressure on the brain increased. For about six weeks during which she was neurologically normal, the extra fluid was accommodated by the baby's enlarging head and little if any brain damage occurred. But time ran out. When the condition was eventually diagnosed in early June 2001 and the necessary operation to insert a shunt in her brain was performed, it was too late to prevent severe brain damage and consequent devastating mental and physical disability. At that point the baby's head had increased because of hydrocephalus to a size that, according to Dr. Evans, a consultant paediatrician from Wales who gave expert evidence,

"…quite frankly, one never sees because if you had a head circumference of this abnormality, then in the developed world, you get some kind of intervention, well before you reach the last few measurements."

3 Jade needed urgent but not immediate treatment. The critical period in her case was about 8 or 9 weeks from her birth up to mid to late May 2001. If she had been treated appropriately in that window of time, she would have escaped all or nearly all of the terrible disabilities that now afflict her.

4 Each of the three defendants had professional obligations to the baby during this crucial phase. She was successively examined and her head circumference was measured first in the National Maternity Hospital where she was born, secondly by the public health nurses who monitored her early post-natal development and thirdly by the general practitioner who carried out a routine six week check-up and saw her subsequently. Each of the measurements was far outside the normal range but no action was taken until it was too late. The baby also displayed additional symptoms of abnormal cerebral development which were not understood by the nurses and the general practitioner. However, the cardinal indicator of the problem was the excessive head circumference and the hospital doctor, the public health nurses and the general practitioner in turn either missed this important and obvious symptom completely or responded extremely inadequately to it.

5 The plaintiff brought proceedings against the Health Service Executive, which is responsible for the public health nurses, the general practitioner Dr. Stones and the hospital. Each defendant admitted negligence in respect of failure at some point to take appropriate action in response to the baby's head circumference. However, they did not admit liability, so the plaintiff's claim was not an assessment of damages. The defendants contested liability on the ground of causation, their argument being that the baby's condition resulted from an event that occurred in utero and that their admitted failures did not cause the damage or, alternatively, the bulk of the damage. The action therefore began with liability and quantum in issue.

6 After seven days of the hearing, the National Maternity Hospital and the HSE settled the plaintiff's action for €4.75m. The settlement was approved by O'Neill J. It is accepted by Dr. Stones's representatives that the settlement was reasonable. The settlement disposed of the plaintiff's claim against all the defendants but the issue of contribution between them remained. The plaintiff ceased to have any involvement in the remaining dispute. The continuing parties agreed to treat the evidence that had been given on behalf of the plaintiff as if it was evidence in the contribution issue. The case then proceeded as a claim for contribution by the settling parties, the first and third defendants, against the second defendant, Dr. Stones. Further evidence was tendered on the contribution claim. The public health nurses who dealt with the plaintiff gave evidence, as did Dr. Stones. It was noteworthy that the National Maternity Hospital did not call any witness as to fact and specifically Dr. Christine Endig, who carried out the defective assessment of the baby. The Court also had the benefit of expert evidence adduced by the parties.

7 The Court's function in this matter is governed by sections 11 and 21 of the Civil Liability Act, 1961, which are as follows:

8 2 11(1) For the purpose of this Part, two or more persons are concurrent wrongdoers when both or all are wrongdoers and are responsible to a third person (in this Part called the injured person or the plaintiff) for the same damage, whether or not judgment has been recovered against some or all of them.

9 3 21(2): In any proceedings for contribution under this Part, the amount of the contribution recoverable from any contributor shall be such as may be found by the court to be just and equitable having regard to the degree of that contributor's fault, and the court shall have power to exempt any person from liability to make contribution or to direct that the contribution to be recovered from any contributor shall amount to a complete indemnity.

10 The question is what contributions it is just and equitable for the defendants to be ordered to make, having regard to their respective degrees of fault. The parties accept that the measure of contribution is fault and not the potency of their causative contributions.

Background Facts.

(1) The National Maternity Hospital

11 The story began on the 23 ^rd March 2001, when Jade was due to be discharged. She had been born two days previously and no abnormality had been noticed in the interim. In accordance with normal practice, Jade was assessed before she left hospital. Dr. Endig, a senior paediatric house officer, carried out the examination. She performed a number of tests and measurements and filled in the results on a standard form which specified the things to be assessed. Crucial in this case was the head circumference of the baby. Dr. Endig measured this at 39 cm, a result that showed the head size to be very large and off the scale of normality by a substantial margin. The doctor should have realised that this was grossly abnormal and that the baby needed to be referred to a specialist for examination and treatment. It would have been standard procedure to carry out an ultrasound examination. If that had been done, the doctor - it could have been Dr. Endig or someone to whom she referred the case - would have observed that the lateral ventricles in the baby's brain were enlarged. This is a typical feature of hydrocephalus. This head circumference measurement without more was an important symptom and the doctor should have realised its significance. Dr. Endig did nothing. She did not give evidence so the Court does not have any information as to how she came to make this grave error. The hospital admits negligence in respect of Dr. Endig's mismanagement of the assessment of the baby.

12 Although I have said that Dr. Endig measured and recorded the baby's head circumference as 39 cm, the position is not quite as simple as that. Another doctor in the hospital read the entry as 35 cm (which is in the normal range) and wrote that number as the head circumference in the discharge summary when he was...