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

libra02 · 11-10-2012 08:25PM

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 · 11-10-2012 08:25PM

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 · 11-10-2012 08:31PM

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 · 11-10-2012 08:32PM

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 · 11-10-2012 08:35PM

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 · 11-10-2012 08:36PM

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 · 11-10-2012 08:48PM

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 · 11-10-2012 09:02PM

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 · 11-10-2012 09:03PM

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 · 11-10-2012 10:42PM

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 · 11-10-2012 10:46PM

Pay them a euro a week.

tayto lover · 11-10-2012 10:52PM

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 · 11-10-2012 11:11PM

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 · 12-10-2012 10:07AM

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 · 12-10-2012 10:33AM

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 · 12-10-2012 10:34AM

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 · 12-10-2012 10:46AM

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 · 12-10-2012 10:57AM

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 · 12-10-2012 12:11PM

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 · 12-10-2012 12:16PM

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.

Robbo · 12-10-2012 12:20PM

Capt'n Midnight wrote: »

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

It is worth bearing in mind that the standard for medical negligence is much higher than the standard for ordinary negligence.

drkpower · 12-10-2012 05:50PM

delad wrote: »

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.

The lawyers for the family have likely lost a huge amount from this. Many/most cases of this nature are taken on a 'no foal, no fee' basis, ie. if they dont win, the lawyers get nothing. So months and years of work, all for nothing. And it is also likely that the family's lawyers would have paid - out of their own pocket - for medical and financial reports, and witness expenses (multiple experts attending court from Ireland and the UK). These costs, in a case of this nature, would extend to tens of thousands of euro.

Hardly 'making a mint', is it?

SuperInfinity · 12-10-2012 05:55PM

drkpower wrote: »

The lawyers for the family have likely lost a huge amount from this. Many/most cases of this nature are taken on a 'no foal, no fee' basis, ie. if they dont win, the lawyers get nothing. So months and years of work, all for nothing. And it is also likely that the family's lawyers would have paid - out of their own pocket - for medical and financial reports, and witness expenses (multiple experts attending court from Ireland and the UK). These costs, in a case of this nature, would extend to tens of thousands of euro.

Hardly 'making a mint', is it?

If the lawyers didn't rack up the €500,000 bill who did? We were all wondering where the cost came from even with the lawyers, saying that the lawyers were all working on that basis is a ludicrous assumption.

You can take your "many/most", I don't think you have any clue what you're talking about.

drkpower · 12-10-2012 05:55PM

Gbear wrote: »

Maybe the family really thought they had a case but it doesn't look like they really did based on the rte link.

To even take a case like this, the family would have to have had supportive opinion from experts in the relevant field.

The complexity of these cases is such that there will often be a genuine difference of opinion amongst experts as to whether there was negligence.

So it is not that the family would not have 'had a case'; they are very likely to have had quite a good case, but even a decent enough case loses sometimes.

drkpower · 12-10-2012 06:00PM

SuperInfinity wrote: »

If the lawyers didn't rack up the €500,000 bill who did? We were all wondering where the cost came from even with the lawyers, saying that the lawyers were all working on that basis is a ludicrous assumption.

First, it is the standard way in which these cases are taken.
Second, if the family were paying their lawyers, and their expert fees, on an interim basis, it is likely that they would have paid over €500,000 by the time the case was finished. The family dont appear to have that kind of ready cash available.
Third, the family's lawyers have stated that they have 'waived' their fee.

All of the facts point to one conclusion.

alphabeat · 12-10-2012 06:03PM

dear U2 , Denis o Brien , etc

pay this bill, think of it as a karma tax.

poeticseraphim · 12-10-2012 06:10PM

The balance of disincentivizing disingenouis cases and disincentivizing genuine ones is tipped in the wrong way in this situation.

The costs should be awarded on a case by case basis if the judge feels discretion is needed.

The current situation is there to prevent predatory litigation. Which this was not. It is not there to bankrupt vulnerable people who were trying to see if they needed the courts to protect them.

And as someone mentioned the solicitor and barrister should never have taken it is there was no legitimate case. They should be discaplined if thy hav mislead someone.

I also think it goes beyond costs in this case...it is punitive to these people....

It is not justice of only the wealthy can afford to take the risk to seek justice.

Just because a court does not rule in your favour does not mean you should give punative damag as it is not really certain you have behaved improperly simply because you brought a case forward that did not win.

I think it needs reform.

hatrickpatrick · 12-10-2012 06:13PM

I think the entire ridiculous cost surrounding the legal system is deterring people from taking cases even when they have a perfectly valid reason to, and that's very sad indeed.

poeticseraphim · 12-10-2012 06:18PM

Milk & Honey wrote: »

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.

See lots of lawyers are kind people.

Andy-Pandy · 12-10-2012 06:25PM

I'd happily throw in €10, i think its a great idea. I live in Cabinteely, and the thought that they may have to forfeit their house is sickening. The pressure that they must be under doesnt even bare thinking about.

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

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