A woman who has gone to the High Court three times to secure a settlement for her son who suffered brain injury due to medical negligence urged the Government to introduce legislation on periodic compensation payments to spare other families similar ordeals.
Karen O’Mahony and her husband, Eddie, have spent the past 14 years fighting on behalf of their son, Eoin (32), to secure a settlement in their medical negligence action that will ensure he can receive the necessary care and support for the rest of his life.
Eoin was 17-years-old when he was admitted to Cork University Hospital in November 2001 for the treatment of a brain tumour.
He underwent major surgery, but the hospital failed to provide proper postoperative care and he lapsed into a coma.
He suffered devastating brain injuries and is now quadriplegic and essentially suffers from locked-in syndrome, requiring 24-hour care from a dedicated team at the family home on Station Road, in Blarney, Co Cork.
Violent headaches
Recalling his surgery at CUH, Ms O’Mahony says: “The morning after the operation Eoin was up and he was speaking to us and everything seemed to be going okay, but around lunch time he developed violent headaches and started vomiting.
“But it was a Saturday and it took hours before they took him back to theatre.
“By the time he was taken back to theatre, he was unconscious - he was waiting hours to be brought back to theatre and huge damage was done - his brain had swelled and crushed his brain stem and he ended up spending six weeks in intensive care, and no inquiry was ever held into the delay.”
Last week, in the High Court, Mr Justice Michael Moriarty approved a full and final settlement of €10 million to bring to €14.1 million the total money to be paid to Eoin, after the HSE admitted liability, thus bringing to an end the couple's marathon legal battle on their son's behalf.
Speaking to The Irish Times, Ms O’Mahony told how the family had to go to the High Court three times - in 2010, 2012 and again in 2014 - to secure the settlement to allow them to care for Eoin at home.
Interim order
“We spent years getting the case to court, and then two weeks before the case was listed for hearing in the High Court in 2010, the HSE finally conceded liability and when we went to court we secured an interim order for €2.9 million to be paid to the wards of court office for Eoin,” she said.
The interim payment was to provide for Eoin’s care up to 2012, Ms O’Mahony said, when it was believed the Government would have enacted legislation on periodic payment orders that would allow the family to obtain funds to provide for Eoin on a yearly basis.
“In October 2011, a High Court working group on medical negligence and periodic payments recommended that legislation should be enacted to empower the courts to make periodic payment orders, but the Government has failed to enact that legislation.”
The family had to go back to the High Court in 2012 to secure a second interim payment of €1.2 million to provide care for Eoin up to 2014, by which time it was again anticipated the legislation for periodic payment orders would be enacted.
But the Government again failed to enact the legislation, so in December 2014, the O’Mahonys went back to the High Court for a third time, with the case being finalised in the past week when they opted for a full and final lump-sum payment of €10 million rather than wait on the legislation to be enacted.
“A periodic payment order is a yearly award for damages for the person who was injured: it’s what we wanted originally for Eoin, but we realise we are older now and we don’t have the energy we had back then, plus we didn’t want to burden Eoin’s siblings with having to continuously deal with this.
“With the periodic payments, the person gets a yearly award for their life, so there is no worry for their carers who are looking after them.
“With a lump-sum, one has to decide on life expectancy and make a prediction and that is never going to be right: it’s either going to be too little or too much.”
Liability
According to Ms O'Mahony, "nobody wants to make money out of cases like these", but the State Claims Agency, which handles medical negligence cases on behalf of the HSE, continues to contest every aspect of the case, even when liability has been accepted, as happened in their case.
“The State Claims Agency fought us all the way: at times we felt like the defendants. They fight tooth and nail about care and needs and contest almost everything.
“Of course, their job is to protect the money and the State, but in cases where negligence is admitted they should be more empathetic.”
Aside from the issue of periodic payments being enacted in law, Ms O’Mahony would like to see the current Medical Council guidelines on duty of candour for the medical profession, where they operate an open approach of communicating to patients, strengthened by legislation, as has happened in other states.
“There should be a duty of candour on medical professionals to put up their hands and admit this happened and say, ‘How can we go forward from here?’
“I don’t feel any anger towards them: what happened to Eoin should not have happened but it did, and we need to move on and provide the best possible care for him.”
Ms O’Mahony said the whole process was hugely draining and returning to the High Court each time resurrected the terrible trauma of Eoin becoming ill, so when the case was finalised, she felt a certain relief.
Relief
“My feeling this week is one of relief that that part of it is over. People speak about ‘closure’: I hate the word because for us, it continues in terms of care, which is the primary thing really, but at least the legal side of it is finished and the money goes to the ward of courts office to draw down for Eoin.
Eoin is doing well now thanks to the great care he receives from his support team, but caring for him is enormously expensive and Ms O’Mahony is conscious many other families are still caught up in the legal quagmire that took them some 14 years to work through.
“The Government should enact the periodic payments order legislation immediately and there should be a fast-track system introduced when negligence is admitted so that families can secure proper and prompt settlements for their loved ones. Like us, that’s all that families want.”
A Department of Justice spokesman said a schedule of the Civil Liability Amendment Bill 2015 relating to periodic payment orders was published in May, and the Bill is currently being drafted by the Office of Parliamentary Counsel.
It is intended to publish the Bill early in the new year, he said.
