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The Lourdes Hospital Redress Scheme - A Flawed Scheme?

By Raymond Bradley, Managing Partner. This article was published in the Irish Medical News on Monday, 02 July, 2007. Undoubtedly, utter havoc was wreaked upon innocent victims at Our Lady of Lourdes Hospital in Drogheda, in circumstances where there was certainly a delay, and possibly an unwillingness, to own up to the horrific actions that occurred.

Persons who placed their trust in healthcare professionals found that their very bodily integrity had been infringed and the most basic right of humankind - to procreate - had been removed unnecessarily and without consent. This appalling litany of mistakes at Our Lady of Lourdes Hospital, Drogheda resulted in unlawful Caesarean hysterectomies and oopherectomies that culminated in a report delivered by Judge Maureen Harding Clark in January, 2006.

The Minister for Health and Children has finally acknowledged the wrong that occurred on behalf of the citizens of Ireland by establishing a Redress Board.

Although Ireland is generally perceived as a nation that wishes to see social justice achieved, it is a tragedy that there are many instances where an appropriate response has not occurred, as the Irish State has taken its decisions based primarily upon fiscal rectitude or financial probity rather than upon social conscience.

The establishment of the Residential Institutions Redress Board was supposedly motivated by compassion and concern for those who were sexually and physically abused while under the care of the State. Yet, its methodology for calculating amounts of appropriate compensation is now recognised by practicing lawyers to be fundamentally flawed. It delivers compensation through a points system, as opposed to one that is based on the principles for calculation of damages that are applied in the High Court on a daily basis. It delivers redress rather than fair and equitable compensation and this is patently wrong. For the State to take advantage of vulnerable citizens by offering less than fair and equitable compensation is to heap insult upon injury. To do so in circumstances where access to the courts by way of appeal from that Redress Board is not permitted, displays an unmeritorious intent, i.e., a take it or leave it approach.

The failure of the entire Redress Board Scheme is apparent from the fact that the few cases that have proceeded through the High Court, including a case in which I acted for the plaintiff, Noctor v Attorney General, have resulted in levels of compensation far in excess of what the Residential Institutions Redress Board delivers. In the Noctor case, the levels of damages were seven times the average award delivered by the Residential Institutions Redress Board at that time.

Yet again, the Sate is obliged to establish a compensation scheme for political reasons as it is the public's perception that a horrific wrong had befallen a group of patients who attended the Lourdes Hospital for healthcare. Yet, it is right that a person who suffers an injury whilst being treated in a public hospital should receive fair and equitable compensation in the most effective and expeditious manner, where blame can be imposed, arising out of negligent treatment. Each person would hope that if they were to suffer a similar catastrophe, the State would respond in an appropriate manner. There is no doubt that the State has been lacking in a proper response in relation to the Residential Institutions Redress Board as victims have not been fairly compensated and the same situation is now likely to occur again with the Lourdes Hospital Redress Scheme.

Whether the manner in which the Residential Institutions Redress Board scheme was established was motivated by the limited contribution delivered by religious orders is a matter of some conjecture. Yet there is no doubt that persons who suffered horrific abuse will continue to achieve less than what is fair and appropriate compensation in comparison to the levels of damages that are awarded by the courts through the Redress Scheme.

Care should be taken to ensure that the limited contribution from certain insurers of medical practitioners and the failure to deliver any contribution by the Medical Missionaries of Mary should not become the predominant factor in determining how the Lourdes Hospital Redress Scheme should operate, i.e., if the cake is small, the slices will inevitably be even smaller due to limited financial funds.

The Redress Scheme to be set up for victims of Dr Michael Neary, which is titled The Lourdes Hospital Redress Scheme, must include certain essential parts in order to achieve social justice for the victims of this medical malpractice scandal. Otherwise, this scheme will also be fundamentally flawed.

This scheme omits the following basic elements:

(i)An apology from the State that it failed to properly monitor the practices at Our Lady of Lourdes Hospital, an entity that should have been under its control as it operated within the Irish healthcare system.

(ii)The same entitlements as the High Court and Supreme Court deliver in relation to the calculation of damages should apply. The delivery of less is heaping a further injustice upon persons who have already been afflicted.

(iii)Any time period that disentitles a person to pursue a compensation claim arising out of the circumstances of an unlawful caesarean hysterectomy should be removed from the date of the introduction of the scheme. A 3 year limitation period should apply from that date. In the matter of Gough v Neary, a case involving a caesarean hysterectomy, the defendant, Dr Michael Neary, was able to successfully plead a technical defence that the case was time-barred because of failure to pursue that claim within the allotted 3 year period. A 60 day limitation period that may be extended in exceptional circumstances will apply in the Lourdes Hospital Redress Scheme. This is farcical and will result in inevitable logistical difficulties and the exclusion of persons entitled to seek the limited redress available.

(iv)A right of appeal to the High Court should exist in circumstances where the Board fails to deliver appropriate levels of compensation. Such a right is exercised in the Hepatitis C Compensation Tribunal as persons have a right of appeal to the High Court, in private, if the claimant feels that their award is inadequate. This ensures consistency in terms of delivery of compensation awards with the values delivered on a daily basis in the High Court. No person who wishes to avail of a compensation scheme in private should be deprived of an appropriate level of compensation because they do not wish to disclose their personal circumstances.

(v)All legal and medical costs associated with the advancement of such compensation claims before the Redress Board should be discharged by the State. In a situation where there is a default of agreement on such costs, this should be adjudicated upon by an independent arbitrator. This Redress Scheme doesn't deliver an appropriate mechanism to reimburse the Applicant for legal costs.

(vi)The scheme should be a statutory compensation scheme. Under no circumstances should it be an ex gratia scheme, which is where compensation is delivered without admission of liability or responsibility. Such a situation adds further insult to those persons who have already suffered the most personal and grievous injury.

(vii)The establishment of a compensation scheme based upon a points system fails to recognise the seriousness of the assault, the trespass to the person, and the infringement of basic bodily integrity occasioned to the Neary victims. The most basic fundamental right to make choices in relation to one's own body was removed with the consequent effect that many couples were deprived of the fundamental entitlement to bear further children. Tragically, this deprivation has resulted in psychological injury, marital breakdown, and significant psychiatric events that may also have resulted in a loss of earnings. To attempt to redress such injuries by utilising a points system that excludes certain potential headings of loss is fundamentally wrong. Persons will be inadequately compensated under such a scheme, and, as a result, will be forced to exercise their constitutional right of access to the High Court in order to achieve appropriate levels of compensation through the usual litigation process. The whole purpose of a compensation scheme is to ensure that persons avail of that particular mechanism, rather than the usual courts system, for the purposes of obtaining fair compensation in a confidential and expeditious manner, without any detrimental effects in relation to reduction of compensation monies, i.e., a Claimant is encouraged to utilise a particular scheme.

(viii)Also, the State should have recognised the wrong that occurred to these women by formally including the provision of additional healthcare entitlements, including psychological support and counselling services. In the circumstances of other healthcare tragedies, legislation was enacted for the purpose of providing particular healthcare entitlements. A similar type of provision may be required to ensure that persons affected by the practices of Dr Neary can obtain the supports that they require on a priority-access basis. It is a well documented psychological concept that persons who are the victims of manmade health catastrophes are more vulnerable than persons who suffered identical consequences as the result of a natural event, i.e., there is a necessity for ongoing support services to be available to victims, if so required. In 2004, a High Court settlement was reached between Katherine Quilty, a victim of the practices of unlawful hysterectomy. The circumstances of Ms Quilty were tragic and the psychological effect that befell her was clearly identified. The injury was so significant that the Ms Quilty was left emotionally bereft to the extent that she became financially destitute. As a result, she found herself living on the streets of Cork, and her child, a cerebral palsy sufferer, was placed in care. As a consequence, persons who are affected by the unlawful caesarean hysterectomy should not be placed in such a vulnerable position and the necessary support mechanisms should be automatically available to assist in addressing psychological sequelae.

(ix)The spouse or partner of a person who has suffered an unlawful caesarean hysterectomy should be entitled to pursue a damage claim under the terms of a redress scheme. Undoubtedly, there has been an impact upon the spouse or partner's relationship resulting from the psychological trauma associated with the injuries sustained. In addition, the spouse or partner may also have been deprived of his most basic fundamental entitlement in life - to have children with his spouse or partner. Consequently, this person has suffered a loss that should also be capable of recognition by the State as part of the Redress Scheme.

I would also urge that the State take over the defence of any unlawful Caesarean hysterectomy cases at Our Lady of Lourdes Hospital in Drogheda in the High Court so that a truly genuine concern is displayed by the State to ensure that fair and adequate compensation is delivered. Such a scenario should allow these actions to proceed by way of an assessment of damages in circumstances where liability and technical legal points relating to the statute of limitations would not be raised. This will ensure that persons who do not wish to avail of the Redress Scheme, and who would rather litigate through the High Court, i.e., get their day in court, will not be at risk of losing their case on the basis of a technical defence. In addition as many unlawful caesarean hysterectomy civil cases are unable to proceed in the High Court due to the non-availability of the victim's medical records, an admission of liability would remove these practical difficulties. Such a basic admission of responsibility, by allowing these cases to proceed as assessments in the High Court, will provide an alternative route to those who are dissatisfied with the structure of the available Redress Scheme.

In the circumstances of a public health catastrophe, for which the Irish State should accept some responsibility, it is incumbent upon the State, as representatives and guardians of the interests of the citizens of Ireland, to ensure that the following responses occur:

• There should be a recognition that victims have been wronged
• There should be a public apology made to the victims
• A Statutory Compensation Scheme that permits non-adversarial evidence to be adduced by the applicant relating to the impact or loss sustained should be established
• A Statutory Compensation Scheme mechanism should ensure appropriate levels of compensation that accord with the values of compensation obtained in the court system
• A Report and/or recommendations should be issued and implemented in order to ensure that the mistakes of the past cannot be repeated
• Necessary healthcare treatments should be provided to the persons affected
• Legislation should be enacted to prevent a repetition of such a healthcare catastrophe

It is contended that the Redress Scheme is less than a scheme that encompasses the abovementioned fundamental compensation-related entitlements and is a further travesty of justice. The Redress Scheme does not contain these entitlements and therefore may have been motivated by fiscal rectitude.

My experience has been that the Minister with responsibility for the introduction of the relevant scheme is a fundamental part of the design process associated with that scheme. If a Minister wishes to ensure that fiscal rectitude is the predominant factor, the design of such a scheme can achieve such an objective to the detriment of the persons affected.

Raymond Bradley is the Managing Partner of Malcomson Law. He has acted in many medical catastrophe type actions. In addition, he negotiated the compensation scheme for those infected with Hepatitis C and/or HIV as the result of the State contaminated blood products in Ireland. At international level, he has acted as a consultant in the advancement of compensation schemes in New Zealand and Canada. He has also appeared at various inquiries as a representative for victims of health catastrophes, including the Finlay Tribunal of Inquiry and the Lindsay Tribunal of Inquiry.

Seeking Health Law Advice

For further information and advice regarding your legal rights and entitlements, please contact Malcomson Law by calling 01 8744422 or complete an Online Enquiry Form. Your enquiry will be forwarded to a solicitor who specialises in Medical Negligence.

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