A High Court judge has directed a mediation of actions brought against the HSE by the family of a brain-dead pregnant woman kept on life support for almost four weeks due to concerns about the Eighth Amendment.
The family of the 26-year-old woman, known as Ms P, have alleged a failure to diagnose a brain cyst which ruptured, leaving Ms P brain-dead and in “limbo” for weeks due to uncertainty about the legal position of her 15 week old unborn child. They have also brought nervous shock claims.
In applying on Friday for mediation, Adrienne Egan SC, for the HSE, said it has been trying to settle this “highly sensitive tragic case” since last February.
She said Ms P died tragically in late 2014 and her death was preceded by an application — brought by the family — to the High Court to turn off life support in circumstances where she had been kept alive because she was pregnant and it was hoped the foetus might be viable.
The High Court on December 26th, 2014 directed that the life support could be turned off.
Counsel said the HSE has admitted liability for Ms P’s death but the various family members must prove they meet the criteria for nervous shock. The nervous shock claims have been made by the woman’s two children, her widowed father, brother, three aunts and a cousin and include claims for Ms P being kept on life support against their wishes.
Exposure
Ms Egan said nervous shock can vary from one plaintiff to another dependent on their exposure and some of the claims here were “more remote”. Her side had been seeking mediation since February but there was a “blanket refusal” by lawyers for the other side unless liability was admitted for all the claims and the cases proceeded as an assessment of damages only.
Jonathan Kilfeather SC, for the family, instructed by solicitor Gillian O’Connor, of Michael Boylan Litigation, said they were prepared to mediate the fatal dependency aspects of the claim where the HSE has admitted liability but believed mediation should proceed on the basis of the HSE also accepting liability for nervous shock.
His side’s primary concern was to keep a hearing date fixed for November 20th for various nervous shock claims. He said Ms P was admitted to a regional hospital on November 27th, 2014 and declared brain dead on December 3rd but was then kept on life support until the High Court ordered that life support could be turned off.
‘Hotly contested’
He said the family then underwent an inquest where negligence in Ms P’s treatment was “hotly contested”. The judge said he accepted the circumstances of Ms P’s death are “unique” but he could also accept why the HSE would want to litigate its liability in relation to “less connected” members of the family.
He said a mediation should occur on a date to be selected around mid-November but which should not affect the trial date.
The defendant wants a mediation in each case and that “has certain practical implications at least”, he said. While mediation is a “buzz word”, there can also be settlements between parties and there are “particular sensitivities” in this case which he was sure the sides would not like to ventilate in public.
When Ms Egan asked for costs of the mediation application, saying she was doing so because her side had been seeking mediation since early this year, the judge said he would make no order for costs because “that is a bad way to start”. The sides should try and settle the entire cases, he added.
