Parents of brain-damaged child left with €500k legal bill after court action fails

Einhard

http://www.rte.ie/news/2012/1011/parents-face-500-000-legal-bill-over-court-action.html

Linda Duffy, from Cabinteely in Dublin, wiped away tears as Mr Justice Sean
Ryan said he had no choice under law but to award half of the costs of the case
against her to the hospital.


The hospital had sought all its costs.


The court heard that the family home is the only asset of Mrs Duffy, a
primary school teacher, and her husband Anthony, who works in property
maintenance.


The couple has three children, the eldest of whom is Mark, who is profoundly
disabled and requires 24-hour care after suffering severe brain injuries and
loss of an eye after contracting meningitis after his premature birth.


While the normal rule requires costs to go to the winning side, the judge
said he was reducing the costs order to 50%.

A couple whose son was born prematurely and contracted meningitis leading to debilitating brain-damage lost their case against the hospital, and are left with their own costs and half of those of the hospital. I think it's a very sad case, and it'd be great if some way was found to alleviate the financial burden that they are now facing, but I think the decision was a correct one. If the state had to shoulder the costs of the action, then it woud only encourage other speculative actions by patients and their parents. Furthermore, had the costs been awarded against the hospital, then they would have come put of the HSE's current budget, and adversely affected people who are currently sick and awaiting treatment. So, while it's a very sad case, I think the correct decision ws made by the judge. Some might say that full costs should have been awarded against the couple, but that would have been too punitive IMO.

What do you lot think?

TwoShedsJackson

They'll probably never be able to pay it back either way so it won't matter too much, but even if they do, taking a court case carries a risk of losing and paying the other sides costs, it's not a guaranteed pay-out despite what some might think.

My name is URL

Sad alright but such are the risks involved with taking a court action. Surely they were advised of the potential costs should they be unsuccessful with their claim of negligence? Not sure how it can be made any easier for the family... perhaps friends and relatives could organise some fundraising events to help them pay the legal costs.

SuperInfinity

My name is URL wrote: »

Not sure how it can be made any easier for the family... perhaps friends and relatives could organise some fundraising events to help them pay the legal costs.

Fundraising for half a million euro? Just declare bankruptcy, hopefully the courts will go lenient on them as regards housing/possessions etc.

hidinginthebush

Einhard wrote: »

I think it's a very sad case, and it'd be great if some way was found to alleviate the financial burden that they are now facing, but I think the decision was a correct one. If the state had to shoulder the costs of the action, then it woud only encourage other speculative actions by patients and their parents. Furthermore, had the costs been awarded against the hospital, then they would have come put of the HSE's current budget, and adversely affected people who are currently sick and awaiting treatment. So, while it's a very sad case, I think the correct decision ws made by the judge. Some might say that full costs should have been awarded against the couple, but that would have been too punitive IMO.

What do you lot think?

I think its sad that the family lost, but I don't think the question of how a win would affect the state or the hse budget should ever be considered. At the end of the day it was a question of negligence, and the hospital was found to be innocent of it. I think its a very sad case, and feel sorry for the family; their difficult situation has been made a lot harder.

But we shouldn't be breathing a silent sigh of relief that the government got off with having to pay out a few quid. Hell, I'm sure we'd all gladly see the abolition of some of the crazy perks given to the public sector if it meant more care for families with disabled children, like those in this case.

Edit: I don't doubt your sympathy for the family, its more that if the government was found to have to cough up a few quid, I wouldn't be too annoyed.

Big Nasty

SuperInfinity wrote: »

Fundraising for half a million euro? Just declare bankruptcy, hopefully the courts will go lenient on them as regards housing/possessions etc.

Tragic circumstances for sure but in your example above who foots the bill then?

You & I I'm afraid.

Edit: If it costs all taxpayers a fiver each I think we can cope with that.

My name is URL

SuperInfinity wrote: »

Fundraising for half a million euro? Just declare bankruptcy, hopefully the courts will go lenient on them as regards housing/possessions etc.

It wouldn't be an impossible feat. With a bit of publicity I'm sure they could tug on enough peoples heartstrings to put a fair dent in what they owe.

Would bankruptcy even be an option for them since it's not a creditor per se that is owed? Even if they could declare bankruptcy, it's easier said than done here, and would most like cause big problems for them later on considering they have a kid that needs 24/7 care.

Boombastic

Who is currently and previously paying for the child's care?

mahamageehad

Win some, lose some.

The court needed to make an accurate decision based on the facts presented, and they deducted that there was no negligence on the part of the hospital. It's not X-factor, you cant choose theside with the most heart wrenching story, it doesn't come down to the public vote.

It was a nice gesture for the court to rule they only had to pay half the expenses. It broke my heart to hear the mother on the radio though today. Will they have to sell the family house to pay the expenses?! That would be a little too far for me. Are they paying for that child healthcare now or is it a medical card situation?

delad

How can they be allowed to bring such a case in the first place if they don't have the means to pay for the legal costs if they lose?

The lawyers have made a mint from this, all at the expense of us the taxpayers as we will have to bail out the family. Its such a farce that this sort of thing is still allowed in this day and age.

Ilyana

I wouldn't find any solace in the knowledge that the HSE has fewer legal costs to pay than if they were found to be negligent, even though the decision was fair. The whole idea of the public being able to sue for medical negligence is so that healthcare professionals are accountable if they fail to provide a certain standard of care.

If the courts found in favour of the HSE, it is very unfortunate for the family involved and some kind of fundraising venture could really help them. But I'm sure it's no comfort to them that their taxes will still be contributing to the other 50% of the legal costs.

Einhard

I think the system really needs reform. The threat of bankruptcy must deter many people with legitimate cases from pursuing them. How on earth can justice be impartial when only the wealthy can pursue cases without the spectre of financial ruin hanging over them?

Gbear

As tragic as it is for the family I think the case is an example that we're too quick to pass on blame and certainly too quick to pursue legal action.

Sometimes accidents happen. Sometimes you just get **** luck. Maybe the family really thought they had a case but it doesn't look like they really did based on the rte link.

flutterflye

I think I must be thick!
What exactly is the money for?
Is it to pay the salaries of the lawyers and judge etc?

Ilyana

Gbear wrote: »

As tragic as it is for the family I think the case is an example that we're too quick to pass on blame and certainly too quick to pursue legal action.

Sometimes accidents happen. Sometimes you just get **** luck. Maybe the family really thought they had a case but it doesn't look like they really did based on the rte link.

If the case was unlikely to succeed, the solicitor shouldn't have taken it in the first place.

delad

Ilyana wrote: »

If the case was unlikely to succeed, the solicitor shouldn't have taken in in the first place.

but its in the interest of solicitors to advise them to proceed, whether the couple wins or loses the case makes no difference to them, they still make their money

MagicMarker

flutterflye wrote: »

I think I must be thick!
What exactly is the money for?
Is it to pay the salaries of the lawyers and judge etc?

Not the judge's pay, just their own legal costs and half of the hospitals legal costs, as in solicitors fees etc.

AskMyChocolate

Einhard wrote: »

I think the system really needs reform. The threat of bankruptcy must deter many people with legitimate cases from pursuing them. How on earth can justice be impartial when only the wealthy can pursue cases without the spectre of financial ruin hanging over them?

I found myself in this position. Was the victim of gross negligence, abuse and threats. Couldn't risk taking a legal action. Reported it to all relevant bodies (the internal Hospital complaints section, the mental health authority,the Medical council, the forensic mental health service, the HSE, the Minister for Health etc.), but they just led me up the garden path with stonewalling and lies. Went on for seven years. They just wore me out.

They know they can do anything they like to the mentally ill, as the very nature of the illness means that they can plant doubt about the quality of the plaintiff's evidence. It's disgusting really, but then again, what can you expect from a religious order given the power to incarcerate people by the state. You'd have thought, given our experience with the Magdalane laundries and the industrial schools that we would have learned that these people aren't fit to be left in charge of a kennel, nevermind centres for the most vulnerable in our society; but, no, they're still coining it hand over fist from the state and abusing their charges.

"Plus ca change, plus c'est la meme chose."

My name is URL

Ilyana wrote: »

If the case was unlikely to succeed, the solicitor shouldn't have taken in in the first place.

Would that apply to every single case of litigation? No point in having courts so; if it's for solicitors to judge whether or not a case succeeds.

Gbear

MagicMarker wrote: »

Not the judge's pay, just their own legal costs and half of the hospitals legal costs, as in solicitors fees etc.

Presumably it also covers the cost of availing of the court system. That's not free is it?

MagicMarker

delad wrote: »

but its in the interest of solicitors to advise them to proceed, whether the couple wins or loses the case makes no difference to them, they still make their money

If the family can't afford to pay their own solicitor then how exactly does it make no difference to him? Who's going to give him money if the family can't?

flutterflye

MagicMarker wrote: »

Not the judge's pay, just their own legal costs and half of the hospitals legal costs, as in solicitors fees etc.

Thanks for clarifying that.

I agree then with the person who said the parent's solicitor shouldn't have taken the case.

I guess, I must also agree with the op, as much as my heart goes out to them - they did know the risks when they got into it.

I feel dreadful for them though - sounds like they have it quite tough

cujimmy

Would'nt cost the HSE a penny oneway or the other, they have insurance cover

Stheno

MagicMarker wrote: »

If the family can't afford to pay their own solicitor then how exactly does it make no difference to him? Who's going to give him money if the family can't?

You can actually take out insurance in the event that you have to pay costs for personal injury cases it is limited to a certain amount but would potentially have saved this family this sort of outcome.

MagicMarker

Gbear wrote: »

Presumably it also covers the cost of availing of the court system. That's not free is it?

I was always under the impression that it was, never heard of a court charging you for their time. It's a public service, like the guards, imagine if the guards charged you to report a crime!

shopaholic01

Ilyana wrote: »

If the case was unlikely to succeed, the solicitor shouldn't have taken in in the first place.

They may have been made aware that they were likely to lose the case and proceeded regardless. I think this highlights the need to regulate the fees solicitors and barristers can charge.

Giselle

cujimmy wrote: »

Would'nt cost the HSE a penny oneway or the other, they have insurance cover

Premiums cost money. The more claims paid out on the policies, the more they cost.

Malpractice insurance costs the HSE plenty.

WhatNowForUs?

delad wrote: »

How can they be allowed to bring such a case in the first place if they don't have the means to pay for the legal costs if they lose?

The lawyers have made a mint from this, all at the expense of us the taxpayers as we will have to bail out the family. Its such a farce that this sort of thing is still allowed in this day and age.

Does that then mean only the rich should be able to bring a court case.

jonsnow

Ilyana wrote: »

If the case was unlikely to succeed, the solicitor shouldn't have taken in in the first place.

Solicitors follow their clients instructions.You don,t know what advice's the solicitor gave but I can assure you that they were the best he could give in the circumstances to the best of his ability.Medical negligence cases are mind-numbingly complex and no-one takes them on lightly.He would have got advices from a senior counsel who specialises in med neg and is probably a doctor and a junior counsel.Plus god knows how many reports from doctors practicising all over the world who are preeminent in their field.The case could have broken new ground in a new area and no one could have known what the outcome would be until the case was actually run(which also goes for every court case ever).In ireland realistically cases like these are the only way to hold consultants to account and as your tackling such powerful interests the consequences if you lose can be terrible.

Very sorry for the family its certainly a contrast to the way in which the Haughey family legal costs in a failed case are dealt with by the state yesterday.

Scanlas The 2nd

Everyone on boards should give them 10 euro each. I'd happily give it.

General General

WhatNowForUs? wrote: »

Does that then mean only the rich should be able to bring a court case.

No. It means that only the rich should be able to bring some court cases.. ones that they can afford to pay for if & when they lose.

Anyone can become completely convinced that their side of the story is correct, anyone can decide to pursue their claims, regardless of cost to themselves, however, call stop when the person begins going way beyond their means should they lose.

libra02

I do feel sorry of the family I cannot imagine the stress, worry and cost of having a child who requires 24/7 care. However putting aside emotion and being realistic they cannot be expecting the taxpayer or general to bail them out now that they have lost the case.

However given the number of successful lawsuits against the HSE for negliance at birth and the huge amounts give to the families I think this couple though they would win hands down & receive damages. However looking at the case facts it seems this would not be the case. They took a risk and it has not paid off.

There has been enough threads here giving out about the state having to payout millions in damages in cases where there should not have been and now where a court finds correctly there are still complaints about it.

As some other poster said lawyers fees should be regulated and there should way to advise people if a cases looks to be lost.

Even though under law the judge had to award the costs against them I can see some sort of agreement of 10% being paid by the couple and rest being absored by HSE. The public outcry and tugging on heart strings in even paper and chat show will see to this.

MagicMarker

delad wrote: »

taxpayers pick up the tab if the couple declare bankruptcy

How so?

If I declare bankruptcy then my assets will be transferred to an Official Assignee, sold and the money will be distributed out to creditors, giving preference to some creditors over others. Since when does the government pay private debts to creditors using public funds if your own assets don't cover the costs?

woodoo

Einhard wrote: »

A couple whose son was born prematurely and contracted meningitis leading to debilitating brain-damage lost their case against the hospital, and are left with their own costs and half of those of the hospital. I think it's a very sad case, and it'd be great if some way was found to alleviate the financial burden that they are now facing, but I think the decision was a correct one. If the state had to shoulder the costs of the action, then it woud only encourage other speculative actions by patients and their parents. Furthermore, had the costs been awarded against the hospital, then they would have come put of the HSE's current budget, and adversely affected people who are currently sick and awaiting treatment. So, while it's a very sad case, I think the correct decision ws made by the judge. Some might say that full costs should have been awarded against the couple, but that would have been too punitive IMO.

What do you lot think?

Yet this waste of space who has 46 convictions all of which cost money to bring to court doesn't owe anything.
http://www.breakingnews.ie/ireland/stolen-iphones-tracking-software-leads-gardai-to-thieves-569935.html

JimiTime

Scanlas The 2nd wrote: »

Everyone on boards should give them 10 euro each. I'd happily give it.

Seriously, count me in if you're getting something going. Whether the judgement was right or not, they should not be left with the burden. 'tis a rich mans system.

MagicMarker

delad wrote: »

we will be paying indirectly, in terms of paying for social housing for the family and other benefits they will be entitled to as a result of bankruptcy, so all in its basically a transfer of wealth from taxpayers to the solicitors

If the family's solicitor doesn't get paid, then how is it a transfer of wealth from the tax payer to the solicitor?

SEPT 23 1989

Scanlas The 2nd wrote: »

Everyone on boards should give them 10 euro each. I'd happily give it.

It would be a great thing to do for the parents

and good exposure for the site

MagicMarker

delad wrote: »

they would get paid after the assets are sold off, maybe they wouldn't get paid fully but they will still get paid

They might get paid, the Official Assignee may or may not decide to pay partial or all legal costs to the family's solicitor if the funds are available once the assets are sold, but this would be the family's assets covering the cost, not the tax payer.

Sorry, can you clarify at what point you think the tax payer picks up the tab if someone declares bankruptcy? And preferably post a link to a source confirming this?

AudreyHepburn

A tragic case for all involved but the reality is sometimes things happen that no-one has any control over and we really cannot expect the state to pay out for every single thing that goes wrong.

An awful thing to happen to the child but if there's no negligence there's...well....no negligence and this seems to be the case here.

As for the lawyers, it may well be the case that parents were warned about the costs and decided to pursue the case anyway. Lets not automatically assume they were taken advantage off.

Ilyana

delad wrote: »

but its in the interest of solicitors to advise them to proceed, whether the couple wins or loses the case makes no difference to them, they still make their money

Well it depends on the facts really. It is in the solicitor's interests to take it regardless, but if they never stood a chance it'd be fairly unscrupulous of the solicitor to choose to represent them without warning them. But of course we don't know what happened.

My name is URL wrote: »

Would that apply to every single case of litigation? No point in having courts so; if it's for solicitors to judge whether or not a case succeeds.

That's not true. If one solicitor advises you that may not succeed, you can try find another one who will take your case.

shopaholic01 wrote: »

They may have been made aware that they were likely to lose the case and proceeded regardless. I think this highlights the need to regulate the fees solicitors and barristers can charge.

This is true; they did have a right to litigate if they really wanted to, even if it was against the odds that they'd be successful. And there probably does need to be some sort of limit on legal fees, to ensure equality of access to the courts.

jonsnow wrote: »

Solicitors follow their clients instructions.You don,t know what advice's the solicitor gave but I can assure you that they were the best he could give in the circumstances to the best of his ability.Medical negligence cases are mind-numbingly complex and no-one takes them on lightly.He would have got advices from a senior counsel who specialises in med neg and is probably a doctor and a junior counsel.Plus god knows how many reports from doctors practicising all over the world who are preeminent in their field.The case could have broken new ground in a new area and no one could have known what the outcome would be until the case was actually run(which also goes for every court case ever).In ireland realistically cases like these are the only way to hold consultants to account and as your tackling such powerful interests the consequences if you lose can be terrible.

Medical negligence is definitely a legal minefield - a a controversial case could make legal history, or cripple the complainant, or both. I'm sure it was very highly researched and whatnot, but my point is that a compassionate solicitor, understanding what's at stake, would hopefully have advised the clients that they were likely to lose, if that appeared to be the case. If they were adamant to take the case anyway, that's up to them. Then again, perhaps they all legitimately believed it would succeed. Who knows?

Unique User Name

From rte.ie - http://www.rte.ie/news/2012/1011/parents-face-500-000-legal-bill-over-court-action.html

Linda Duffy, from Cabinteely in Dublin, wiped away tears as Mr Justice Sean Ryan said he had no choice under law but to award half of the costs of the case against her to the hospital.
The hospital had sought all its costs.
The court heard that the family home is the only asset of Mrs Duffy, a primary school teacher, and her husband Anthony, who works in property maintenance.
The couple has three children, the eldest of whom is Mark, who is profoundly disabled and requires 24-hour care after suffering severe brain injuries and loss of an eye after contracting meningitis after his premature birth.
While the normal rule requires costs to go to the winning side, the judge said he was reducing the costs order to 50%.
This arises from an "extremely rare and unusual development" where the NMH raised an issue during the case which delayed it for up to five months and was ultimately not pursued.
While he was not according any blame to the NMH for raising the issue, it had added to the stress and worry experienced by the parents as the case, which began in November 2011 with judgment last August, was delayed.
The judge stressed he was very sympathetic to the parents, very much admired them and their son, and was very troubled by all the matters raised on their behalf in opposing costs.
He said if there was any way he could legitimately avoid awarding costs against them, he would do so, but under the law felt he had no choice.
He added that the Supreme Court has emphasised that a party who wins an action is entitled to their costs.
Earlier, seeking all the NMH costs, Patrick Hanratty SC said the normal costs rule should apply and the fact the NMH had to investigate an issue which delayed the case for a period should not affect that.
Resisting the costs application, Bruce Antoniotti SC for the parents asked the judge to make no order for costs, meaning each side pay their own.
This was not an unmeritorious case and his clients had relied on the views of world-renowned experts when deciding to bring it, he said.
He said the parents had an obligation to pursue any means of providing for their severely injured child's security into the future.
Mr Antoniotti also referred to another judge's decision in a commercial case where just some of the costs were awarded, but Mr Hanratty argued that provided no grounds for not adhering to the normal order that costs go to the winning side.
Outside court, Mrs Duffy said they were "devastated" at the costs ruling, which would add to the enormous pressure they were under in seeking to ensure their son received appropriate care.
She said the situation now is that he does not get consecutive care and has ended up in hospital due to breaks in care.
Mr Duffy said they woud consider appealing the judge's dismissal of their action, and the costs ruling.
They had no choice but to bring the case in order to see what went wrong resulting in their son's serious injuries, he added.
Last August, Mr Justice Ryan dismissed claims of negligence by the hospital in the treatment of Mark.
He rejected arguments by experts for the parents that the hospital should have suspected Mark had meningitis and should have carried out a lumbar puncture - the test to confirm or exclude meningitis.
In a lengthy judgment analysing the evidence for both sides, the judge ruled the evidence did not establish any failure of care or negligence by the hospital in its treatment of Mark.
Mark was born prematurely at the NMH on 18 July 2002 by caesarean section after 30 weeks gestation.
The judge said his premature birth and very low birth weight made him vulnerable to infection and, in his second week of life, he contracted meningitis which caused severe brain damage and left him with permanent physical and mental disabilities.
The action centred around Mark's treatment on 30-31 July 2002, which experts on his behalf claimed was sub-standard.
The judge concluded the evidence did not establish negligence or a failure of care because the doctors treating Mark at the NMH did not do a lumbar puncture.
He accepted evidence, when Mark was presented to the doctors, there was nothing to suggest a likelihood of meningitis and said it was reasonable for the NMH to wait and see how the situation developed.

Not going to be easy for them having to pay those legal costs

phasers

Pay them a euro a week.

tayto lover

God love that family who were just trying to make things right for their sick son.
It just got me thinking about the 5 million we the taxpayers have to fork out to cover the cost of the Tribunal into the dealings of one crook, Charlie Haughey. Puts everything in perspective.

steddyeddy

Einhard wrote: »

http://www.rte.ie/news/2012/1011/parents-face-500-000-legal-bill-over-court-action.html





A couple whose son was born prematurely and contracted meningitis leading to debilitating brain-damage lost their case against the hospital, and are left with their own costs and half of those of the hospital. I think it's a very sad case, and it'd be great if some way was found to alleviate the financial burden that they are now facing, but I think the decision was a correct one. If the state had to shoulder the costs of the action, then it woud only encourage other speculative actions by patients and their parents. Furthermore, had the costs been awarded against the hospital, then they would have come put of the HSE's current budget, and adversely affected people who are currently sick and awaiting treatment. So, while it's a very sad case, I think the correct decision ws made by the judge. Some might say that full costs should have been awarded against the couple, but that would have been too punitive IMO.

What do you lot think?

Well your right about it unfortunatly. There has to be way to prevent people from taking action unless there is a clear cut case of neglect or whatever. Myabe the legal profession should shoulder more of the costs and it would make them think twice about taking on certain cases. Although that too could lead to some unfortunate circumstances.

blackwhite

MagicMarker wrote: »

If the family's solicitor doesn't get paid, then how is it a transfer of wealth from the tax payer to the solicitor?

The HSE's solicitors still have to be paid. The family has been ordered by the courts to pay half of this. If they go bankrupt then the HSE (i.e. the taxpayers) will be footing the full solicitors bill.......

kraggy

Scanlas The 2nd wrote: »

Everyone on boards should give them 10 euro each. I'd happily give it.

Given that there are nearly 200,000 active accounts everyone would only have to give a little over 2 euro.

I'm up for it. Seriously.

Edit: just checked and there are actually 420,000 accounts now. That's double the figure since I last checked.

Wow. In that case, if everyone gave just 1 euro, it would almost cover the costs.

If we could actually pull it off, it would be one amazing, massive, human gesture of kindness.

Milk & Honey

delad wrote: »

but its in the interest of solicitors to advise them to proceed, whether the couple wins or loses the case makes no difference to them, they still make their money

Their solicitor is waiving his fee. He has been working for nothing and paying his office and employee expenses to keep the case running. He has lost heavily on the case.

MagicMarker

blackwhite wrote: »

The HSE's solicitors still have to be paid. The family has been ordered by the courts to pay half of this. If they go bankrupt then the HSE (i.e. the taxpayers) will be footing the full solicitors bill.......

Naturally, the tax payer would be footing the bill either way as the HSE is a public body. But I'm not talking about the HSE, someone made the claim that it's in the family's solicitor's interest to pursue the case as they would be paid by the tax payer even if the family is declared bankrupt. I'm disputing this.

blackwhite

MagicMarker wrote: »

Naturally, the tax payer would be footing the bill either way as the HSE is a public body. But I'm not talking about the HSE, someone made the claim that it's in the family's solicitor's interest to pursue the case as they would be paid by the tax payer even if the family is declared bankrupt. I'm disputing this.

Sorry - didn't pick that up.
Agreed, can't see how the state would be responsible for a private contract between the family and their own solicitors.

Capt'n Midnight

considering the number of cases families take against the state for maintenance it was a matter of time before one was lost

if this had been a car accident the insurance would have paid out wouldn't it ?

the main thing is that it highlights that funding for special needs has a lot of gaps

homerjay2005

how on earth can one legal bill be 500k? sums up what is wrong with this country to be honest.

there should be a law brought in capping costs, however this place is so corrupt and the government dont have the balls to end it, it will just continue.