Updated 23.05pm
THE FAMILY OF a young boy who suffered catastrophic brain injuries during birth was awarded a settlement of €8.5 million in the High Court today.
Last year, the Health Service Executive (HSE) admitted liability in the case of Dylan Gaffney Hayes.
At the birth in 2007 at Waterford Regional Hospital his family requested that he be delivered by Caesarean Section, however the family was dissuaded from having one.
Labour
During labour, Ms Gaffney’s womb and bladder ruptured and Dylan sustained brain damage as a result.
He was later diagnosed with cerebral palsy and now requires 24-hour care.
Following the ruling, Dylan’s father, Thomas Hayes voiced his frustration of why cases like these take so long and questioned why the HSE could not apologise to them.
He added that throughout their ordeal, the HSE’s approach “is one of poker in which the State Claims Agency seek to take advantage of every slip up to use it as a bargaining tool to pay Dylan a lesser sum”.
Jean Gaffney and Thomas Hayes released this statement today:
We are delighted that our long fight is over. Our son Dylan was our second child, a brother for Shauna. Shauna’s labour and delivery were complicated and she was delivered by an emergency caesarean section. Therefore, we specifically requested a caesarean section for Dylan’s birth but that request was dismissed out of hand. We were told Jean would be looked after but she was not.
When Dylan’s labour stalled, instead of doing a caesarean section, the Doctors gave drugs which caused Jean’s womb to rupture and as a result, Dylan sustained brain damage. Dylan was much planned and longed for. We were distraught when we discovered he had a diagnosis of Cerebral Palsy and when we asked why or what was the cause of Dylan’s condition, we were told by the Obstetrician that “there would be no cover up” and “we will not be defending this”.
We felt in our hearts and in fact knew that the labour and delivery of Dylan at Waterford Regional Hospital on 22nd July 2007 was mismanaged. When we could not get any answers from the HSE we went to Ernest J. Cantillon Solicitors. To our horror (but not to our surprise) Cantillons, having commissioned independent medical reports, told us that Dylan’s condition was indeed caused by the mismanagement of the labour.
Dylan’s condition could have been avoided totally if the labour was managed appropriately. This is what we always suspected and what indeed the Obstetrician told us was the position.
We then asked Cantillons to write to the State Claims Agency (SCA) and the HSE setting out what they (Cantillons) had learnt from their investigations. This Cantillons did on the 9th June 2009 in some detail, setting out precisely what was wrong and why it was wrong.
We understand that this is not usually done, that proceedings are usually issued but, in this instance, Cantillons set out what happened to Jean and Dylan in some considerable detail. However, they received no response from the Agency known as the State Claims Agency, which the Government appointed to handle cases such as ours against the HSE.
Someone needs to answer why. Dylan could then have been compensated without all the stress that we have had to undergo. We were threatened with costs being awarded against us. Why? Particularly when they knew that they had grievously damaged our only son.
Legal proceedings then had to issue. To our surprise and horror the State Claims Agency put in a Defence which denied everything. We could not understand and still do not understand how this happened, having regard to the fact that the Obstetrician had admitted there was an error. Cantillons’ independent reports found that there was an error. We knew there was an error. We believe everybody knew there was an error, which caused Dylan’s condition. Why did this happen?
It is now some three years later, considerable legal expense has been incurred, and considerable distress has been caused to us. During the course of negotiations, we made it clear, through our legal representatives, that the case could be resolved for the sum of €8.5 million. Yet it has taken 11 days of hearing in the High Court and they have now offered this sum.
In fact, some days ago, the lawyers for the SCA came to us and indicated that if we asked them for €8.5m that they would recommend it to the SCA. We duly took the unusual course then of asking them for that sum and the following day they rejected our request. They then came back with an offer of €8m. Yesterday at lunchtime they offered €8.250m and that was rejected. Within 10 minutes they came back with €8.5m. Why were these games being played?
They have not had the decency to apologise to us.
We live in a very confined house which is totally unsuitable for Dylan, who has to mobilise with a wheelchair from time to time. There is no downstairs toilet. We sought a payment on account to enable us to buy a house in a suitable location.
A suitable house was identified and approved of by independent Engineers. The State Claims Agency were asked to make a modest payment on account to enable us purchase this suitable house for Dylan. The State Claims Agency refused to pay it. They dragged us out to the last. Why? Who was directing this approach? We have been dealt with in an appalling way firstly, by the HSE and latterly by the SCA.
However, as we say, we are delighted that this ordeal is over.
We should add that Judge Irvine dealt with us in a most courteous and respectful fashion and for that we are grateful. We do not wish anything we have said to be taken as a criticism of the legal or Court system.
Far from it, we regard the legal system as Dylan’s great equaliser. Our criticism is, on the contrary, directed at the HSE and State Claims Agency who at the 11th hour have at last agreed to pay Dylan what he deserves. We consider that the HSE and SCA have abused the legal system by failing to deal candidly and fairly with Dylan.
A couple of days ago when one of the doctors giving evidence for Dylan changed her view the HSE sought an order for costs against Dylan for that days hearing. Again we ask why and who is, in after all our name and Dylan’s name as Irish citizens, directing this type of approach? The approach is one of poker in which the SCA seek to take advantage of every slip up to use it as a bargaining tool to pay Dylan a lesser sum. Why?
It is great that we can now set about buying a suitable house for Dylan and avail of all the therapies he so desperately needs to improve the quality of his life.
We hope that no other family has to go through what we went through. Finally, we would like to express our gratitude for the great support that we got from our family and friends and to all at Cantillons, particularly Pat Daly, Suzanne Buckley and Dylan’s Counsel Liam Reidy, David Holland and Pearse Sreenan who all worked tirelessly to get Dylan what he deserves.
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