The High Court has held the Health Service Executive and consultant paediatrician Dr Robert Fitzsimons jointly and severally liable for catastrophic injuries suffered by a newborn whose malrotation and bowel obstruction were not investigated in time. The court also ordered Dr Fitzsimons to contribute 75% of the hospital’s liability to the child.
The judgment, delivered by Mr Justice John Quirke on 8 May 2009, followed a trial in which the defendants acknowledged that negligence by one or both of them had caused the injuries. The child’s claim for damages had been compromised on terms acceptable to him. The remaining issues were which defendants were responsible, whether the hospital’s negligence broke the chain of causation from Dr Fitzsimons’ negligence, and how liability should be apportioned between them.
The child was born at Tralee General Hospital in February 2000. The court accepted evidence that he had repeated yellow and green, bile-stained vomiting before discharge. It found that Dr Fitzsimons knew of at least two yellow vomits but continued observation instead of immediately referring the baby for surgical investigation. The court held that decision fell below the standard expected of a paediatrician.
The court also found that hospital staff failed to investigate the mother’s concerns with sufficient urgency and did not adequately record the vomiting or monitor the child. It ruled that the hospital should have maintained detailed records of feeding and vomiting, kept the baby under observation, and should not have discharged him on 17 February while the cause of the bile-stained vomiting remained unresolved. The advice given when the mother later telephoned the hospital was also found negligent; she should have been told to return immediately.
The child returned to hospital the following evening and was transferred to Our Lady’s Hospital in Crumlin, where surgery found malrotation and a small bowel volvulus. He developed necrotising enterocolitis and underwent repeated operations and bowel resections. The judgment records that less than one per cent of his small bowel remained and that he would require ongoing care.
Dr Fitzsimons argued that the hospital’s later failures were an intervening cause that severed his responsibility. The judge rejected that argument, finding that the defendants’ negligence overlapped and that the hospital’s failures did not break the chain of causation. Both were concurrent wrongdoers and jointly and severally liable to the child.
On contribution between the defendants, the judge said Dr Fitzsimons’ negligence caused the injury but was not its sole cause. Having regard to his seniority and qualifications, the court found the hospital entitled to recover from him 75% of its liability to the child. The judgment does not state a damages figure.