On the 22nd June, 2011, the team compromised a claim for a lady who had a stillbirth at 34 weeks gestation as a result of negligence. The client at 29 weeks gestation was diagnosed with Polyhydramnios (excessive amniotic fluid). At 32 weeks gestation, the client was admitted to the Maternity Ward of South Tipperary General, where she remained an inpatient for 14 days and had fetal surveillance in the form of twice daily CTG tracings. A detailed ultrasound scan was performed in the Rotunda Hospital to establish if there was a cause for the Polyhydramnios and the baby was found to have the condition of "double bubble", atresia of the small intestine, but that the rest of the fetal anatomy looked normal. The client was discharged 14 days later and the fetal surveillance was discontinued. Two days later the client re-attended South Tipperary General Hospital as she felt no movement. No fetal heartbeat could be detected and she was informed that the baby had died. What should have been a joyful, memorable occasion instead turned out to be a slow motion horror story. Having found out that the baby was dead, the client had to go home to see if she would go into spontaneous labour and it was not until 5 days later that a caesarean section was performed to deliver her stillbirth son. This caused the client to suffer physical and psychological injuries.
The obstetric experts instructed in the case were of the opinion that the CTG recordings performed during the client`s admission at South Tipperary General Hospital were pathological and that a caesarean section should have been performed to deliver the baby prior to discharge from South Tipperary General Hospital. A Paediatric Surgeon was of the opinion the duodenal atresia could have been treated surgically.
On the first day of the trial which was fixed for hearing (which we scheduled to last for three weeks), the HSE offered a substantial sum to compensate the client, which sum she accepted.
During the course of the Defence of these proceedings the HSE sought to argue that an unborn baby who died in womb did not have rights under the Civil Liability Act. It was suggested that the unborn does not have the benefit of these rights. This is a rather strange approach to be adopted by a State Agency, particularly having regard to the constitutional guarantees provided for the unborn in Article 40.3.3 of the Constitution. This gave rise to subsidiary issues of constitutionality in respect of the Civil Liability Act and indeed issues under the European Convention of Human Rights (ECHR) and the compatibility of the Civil Liability Act with the Convention. As the case was settled these issues did not have to be determined.
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