Medical Negligence - Doing Right By Those We Harm

By Cian O'Carroll, Saturday, 21st March 2015 | 0 comments
Filed under: Medical Negligence, Personal Injuries.

The very tragic case of Tadgh Costello last week threw into perspective several problems that face this country in the way we deal with medical negligence and the legal actions that of necessity arise from it.


Tadgh Costello, now almost 9 years old, was born in Tralee General Hospital some two hours later than his vital signs told his doctors he should have been. That failure to respond appropriately to his distress caused a brain injury that has altered the course and quality of his life, that of his family forever. The delay  was both negligent and utterly unnecessary. The resulting brain injury is profound; Tadgh cannot speak or move his limbs and can only communicate by facial expression. He is dependent upon 24 hour care for all his needs, care which the State and its agents in the HSE shirked the responsibility for these past 9 years and as usual admitting liability only at the 11th hour as the case his parents brought on his behalf approached the steps of court.


It is a distressing but familiar story to anyone involved in such cases but what marked this case apart was the dignity and articulation of his parents Mary & Gerard Costello in their statement following the settlement of the case in recent days. What they wrote is worth reflecting on:


“Today is a day we as a family have waited for almost 9 years.

It marks the end of our struggle to get justice for our very brave little boy, Tadgh. It is also the day on which we dare to hope that life will become a little easier for Tadgh, for us his parents and for our other three wonderful children, Kate, Pat and Grace.
We are a happy and united family and look forward to the future with joy and optimism…
Today's settlement will allow us to provide the 24 hour specialist care which has been denied for all his life to date. It is unacceptable however, that the HSE have denied liability for the last 9 years.
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….
If there is one piece of advice we could give to any other family who find themselves in a similar circumstances, it would be to emphasise the absolute importance of engaging a firm of Solicitors who specialise in medical negligence. We have experience of the alternatives.”

In response to this, the HSE issued its own statement, stating they wished to make clear that the State Claims Agency and not the HSE make decisions in relation to the legal approach taken in such cases. It added the HSE does not know why this case took so long to reach settlement and it has a policy of open disclosure at the earliest opportunity where it will admit liability in cases of wrongdoing. 


In approving the settlement terms in the case, Mr Justive Kevin Crosse noted that while the consultant obstetrician involved in the delayed delivery of Tadgh had apologized to the family within weeks of the birth, the HSE had still defended the case up to the final weeks and he described this approach as “wrong”.


Three issues occur to me in reading these disparate statements.


The first is that it is simply untrue for the HSE to state that they have a policy of “Open Disclosure” in cases of medical negligence. This is utter tripe that is trotted out quite regularly now to make them appear less immoral in their approach to such cases. I have never seen a single case of “Open Disclosure” and I am one of the leading medical negligence practitioners in the country. We have hundreds of medical negligence cases progressing at any one time and to date have won every single case yet never once have I seen the HSE approach a client with “Open Disclosure” of their failure of care.


The second issue is just how awful the HSE position is in this and so many other cases. If it were just to deny liability, one could almost excuse the hateful immorality of the lack of truth and honesty that is inherent in the approach but the reality is that to deny liability is so often to also deny care and opportunity to the person they have harmed. Every day we work with patients and families harmed by the trust they placed in the health service and in so many of these cases, the harm caused is compounded by the abandonment of moral responsibility to address the consequences of that harm. It is wrong, wrong, wrong.


The third issue is the experience of the Costello family in accessing expert legal representation. They note a false start on a very important journey for justice and how they then sought the expertise of a specialist medical negligence firm and how that made a critical difference in the direction and outcome of their case. They were represented by Earnest J Cantillon who is a superb advocate for victims of medical accidents and I am a great admirer of his work. There are not very many firms currently offering these specialist services but we all share a belief in the added value of specialisation. It is reaffirming to see an affected family acknowledging how the specialised approach to legal practice can make such a difference.


Ultimately the lesson to be learned from a case like that of Tadgh Costello is that by engaging a firm with expertise in medical negligence, no matter how much the forces of the State delay, obstruct or fight, our legal system allows the least to take on and win against the mightiest. If you are unhappy with your legal representation, seek an alternative, because no person should feel unable to access the law, and more importantly, achieve justice.

Cian O’Carroll Solicitors, A Medical Negligence & Personal Injury Law Firm. FREEPHONE 1-800 60 70 80 | WWW.TIPPLAW.COM


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