Irish society is, to an extent, like a disorderly bus queue.* As little analysis as possible is done and even less is published, on social problems.

Metaphorically speaking, the bus service pretends the queue is not its concern and defines success by reference to the bus schedule, not the requirements of the public.

The extent of injury inflicted on hospital patients by clinical negligence is a case in point. We do not know what it is. When it happens the consequences are real. Somebody somewhere pays for the injury. Clearly, the victim suffers the injury and pays in that fashion. The family of the victim may pay in care deployed or care costs paid. Or, if the family consists of children of the victim, the children may suffer diminished life opportunities by being deprived of care they would have got from the victim.

Possibly it is a misnomer to label clinical negligence as a social problem; arguably, if it is not, public maladministration is a social problem.

In any event we must look elsewhere for estimates of the frequency and cost of such events.

In 1990 the Harvard Medical Practice Study estimated the incidence and causes of medical mishaps in New York hospitals.

Errors in management were found to be involved in the majority of mishaps. Drug complications were involved in 19%; wound infections in 14%; technical complications in 13%; surgery in 48% (of which only 17% were actual surgical errors); faulty diagnosis was involved in 75%; “errors of omission” were involved in 77%; events in the emergency room were involved in 70%.

The study covered a sample of 30,195 randomly selected hospital records. 1,133 patients (3.7 percent) were found to have suffered disabling injury caused by medical treatment.

In the UK, the NHS has produced a study entitled Handling Medical Negligence Claims in England.

While its approach is an administrative instrumental approach (a function frequently, inappropriately, assumed in Ireland by judges), it nevertheless makes a fair stab at measuring the problem.

One of the most interesting “macro” issues in the field is the issue of determining the true cost of the injury. In the case of catastrophic injuries (cerebral palsy and brain damage generally) the largest proportion of compensation is determined by the “special damage” – the cost of care.

There are serious and unresolved disputes on the calculation of these costs. Currently, only the legal profession is addressing that problem.

*(a disorderly queue is not a queue?)

The High Court has approved a €4 million settlement in the case of a 13 year old girl.

She suffers from cerebral palsy after the alleged mismanagement of her birth.

The proceedings were taken by Emma Duddy of Letterkenny, County Donegal, represented by McGarr Solicitors, against the North Western Health Board, the former owners of Letterkenny General Hospital and Mr. Davidson, the obstetrician. Her mother Adrienne acted as her “next friend”.

Her mother went into hospital in Letterkenny in 1995 for the birth of Emma. The court heard allegations that the labour and birth were mismanaged.

The defendant was sued for negligence and breach of duty, including statutory duty, which the Plaintiff said, through her parents Adrienne and John, led to her severe disability.

No admission of liability was made by the hospital or Mr. Davidson and the action against Mr. Davidson was struck out as part of the settlement.

Cerebral Palsy is not a disease; it is a condition.

It is relevant to lawyers when it is a consequence of negligence.

That negligence may have been an oversight in a maternity unit lasting, say, 30 minutes.

It is the new-born infant that is or will be injured by the oversight. Under the Statute of Limitations, time does not begin to run against the injured infant until the infant reaches its majority (18 years of age).

Thereafter, under current law, the infant has two years within which to issue proceedings in court. Thereafter, the delay in issuing proceedings is, in normal circumstances, a full defence to any claim.

In the event that such proceedings are issued and served, a defendant will typically apply to court to strike out the proceedings.

The defendant will not necessarily succeed.

Time only runs against a plaintiff who knows he/she has been injured (or could reasonably ascertain he/she has been injured) AND knows who or what has injured him/her (or could reasonably ascertain who or what has injured him/her).

A plaintiff whose hospital records show no evidence of error, effectively does not know who or what has injured him/her.

In Gough v Neary & Anor IESC [2003], Geoghegan J stated:

The plaintiff did not know that contrary to the false information given to her the hysterectomy was unnecessary until late 1998 or, indeed, some time after that when as a consequence of media coverage in relation to Dr. Neary and hysterectomies which he had carried out on a number of patients in connection with birth deliveries, she acquired the knowledge that the operation was unnecessary. That being so and in the absence of authorities, I would be of opinion that the plea of statute bar must fail.”

It is, therefore, critical that the hospital records be accurate and truthful. If they are not, and the plaintiff can show this, (the burden of proof will lie on the plaintiff), time will not begin to run until the plaintiff discovers the truth.