The High Court has allowed a child’s medical negligence claim against the Health Service Executive to be amended, after a new expert report raised a different criticism of the care provided during labour. The order is stayed pending the final determination of all issues between the parties.
The ex tempore judgment was delivered by Ms Justice Reynolds on 20 March 2024. The application concerned proposed amendments to a personal injury summons in proceedings brought on behalf of a minor by his parents and next friends.
The claim, as originally pleaded, alleged that negligence in ante-natal and post-natal care caused severe injuries at birth, including hypoxic ischaemic encephalopathy, and contributed to developmental delay and autism spectrum disorder. The HSE’s amended defence had pleaded that a CTG tracing on 18 February 2013 was normal and reassuring, with no indication to expedite delivery.
The plaintiff sought permission to amend after receiving an opinion from consultant in Feto Maternal Medicine Gerald Mason. The judgment said Mr Mason initially gave an opinion that there had been no breach in failing to detect transposition of the greater arteries before birth. After being asked to provide a broader opinion on obstetric care, he concluded that the fetal heart rate had not been monitored during labour and that a maternal rate had instead been recorded. He considered that failure a breach of duty directly related to the plaintiff’s poor condition at birth.
That opinion differed materially from the plaintiff’s earlier experts, who had treated the CTG trace as a record of the fetal heart rate. The defendant’s solicitor opposed the application, raising its lateness, costs already incurred in meeting the pleaded case, and the prospect of further costs in responding to what was effectively a new claim.
Justice Reynolds said the amendment related to the core dispute about obstetric care. The court was not deciding the prospects of success of the proposed claim. It had to consider whether the amendment was needed to determine the real issues between the parties and whether any prejudice to the defendant could be addressed, including through costs.
The judgment recorded that the parties did not dispute that the plaintiff had suffered some degree of hypoxia during birth. They disputed its extent, whether it resulted from negligence by the HSE, and whether it caused the plaintiff’s neurodevelopmental issues and autism. The judge found the new expert opinion necessary to resolving those issues and considered the identified prejudice logistical, capable of being addressed through costs.
The court allowed the amendment in the terms of the amended summons exhibited in the grounding affidavit. It awarded the defendant the costs of the application, but stayed the order pending final determination of all issues. The judgment did not determine liability or the underlying negligence claim.