When it first emerged that women had been infected with Hepatitis C as a result of contaminated anti-D, Malcomson Law was at the forefront of seeking justice through the courts back in 1994. In June 1997, the first case came to hearing and Malcomson Law represented Mary Quinlan, who succeeded in a high profile claim against the Irish state. The case which was settled on terms that included a public apology delivered in court from the Blood Transfusion Service Board (BTSB), the manufacturer of the contaminated anti-D. The Quinlan case came the year after the Brigid McCole action, when Mrs McCole received an apology shortly before her death, and the two cases spurred on the Irish government to set up a statutory Compensation Tribunal for people infected with Hepatitis C through blood and blood products. There is a unique aspect to the compensation scheme, partly as a result of the Quinlan case which related solely to aggravated damages as the Irish State eventually accepted liability for compensation damages. Aggravated damages, are damages designed to punish a defendant for taking a risk with the safety of an individual. This is the entitlement to aggravated damages for Hepatitis C sufferers. Later, when Malcomson Law sought and negotiated to place the Compensation Tribunal on a statutory footing, the team sought that the entitlement to aggravated damages be obtained in a form of a reparation fund. This means that in addition to an award being made to a claimant, 20% of the original award in lieu of aggravated damages was capable of being obtained.
On a consistent basis since the Compensation Tribunal was established, Malcomson Law has secured amongst the highest awards for Hepatitis C sufferers and continues to do so. In 1991, many people with haemophilia in Ireland had been infected with HIV and/or developed AIDS as a result of receiving contaminated blood products to treat their haemophilia. Many of those persons infected were dying, and many others were experiencing dire health and financial consequences as a result of these infections. The Irish Haemophilia Society, which represented the vast majority of those persons involved, entered a type of class claim settlement with then Taoiseach Charles J. Haughey and the Irish Government. This political settlement was intended to compensate for injuries sustained as a result of receiving contaminated blood products. In 1995, Malcomson Law took over legal representation for the Irish Haemophilia Society. Raymond Bradley, Managing Partner, examined that settlement as part of the preparation for the Finlay Tribunal of Inquiry, and realized it was inadequate in terms of the wrong that had been foisted upon the haemophilia community and the amount of compensation delivered by the Government at the time. By now, there was a Compensation Tribunal established for those infected with Hepatitis C from contaminated blood and blood products, but the haemophilia community were not included. The Finlay Inquiry did not address haemophilia related issues and a further Inquiry was established. Raymond Bradley made a submission to the Government, and as a result of that submission, the Government decided that the 1991 scheme was neither fair nor equitable. After considerable negotiations with the Government’s representatives, Malcomson Law succeeded in achieving an amendment to the Compensation Tribunal, to include the haemophiliac community. This was the first time in the history of the State that the Government had accepted that a class-type settlement for a group of litigants was neither fair nor equitable.
In preparation for the Lindsay Tribunal of Inquiry, it was conclusively realised that the original Haemophilia settlement of HIV related claims had occurred without full disclosure having been made by the State. The new scheme is enacted by the Hepatitis C Compensation Tribunal (Amendment) Act 2002. It contains certain unique and novel aspects, which include the following:-
General Damages on behalf of deceased persons. Usually, when a person dies as a result of an injury arising from negligence, his/her dependents are entitled to pursue a fatal claim. It has been legal practice for over 150 years that fatal claims do not contain an entitlement to general damages, i.e. compensation for the pain and suffering endured by the deceased prior to death. The 2002 Act gives the dependents of the deceased an entitlement to pursue a claim for pain and suffering endured by the deceased prior to death. It ensures that the State did not benefit from failing to deliver fair and equitable compensation in the form of general damages in 1991.
Loss of Consortium recognises that the close relatives i.e. spouses/partners of those infected with HIV and Hepatitis C suffer to a significant effect as a result of the viral infections, from contaminated blood products. Living with a person who has a serious debilitating illness which is life-threatening is a heavy burden. It leads to a loss in the quality of family life, in companionship, in care and in affectionate relations.
How Does The Hep C & HIV Compensation Tribunal Work?
The Compensation Tribunal was established pursuant to legislation in 1997 for the purpose of ensuring that persons who became infected with Hepatitis C had the ability to achieve fair and equitable compensation in a non-adversarial forum with no opposing legal team. The Compensation Tribunal sits in private. The anonymity and confidentiality of the status of persons infected or exposed to a virus remains confidential. Unlike taking a court case, the predominant focus is upon the preparation of documentation for hearing rather than the delivery of evidence. An experienced legal team is required to prepare the necessary documentation for submission to the Tribunal so that the entitlement of a claimant can be adequately assessed. Hearings are generally for one day. A similar case heard in court case would last for many weeks.
The ability to establish an entitlement to compensation is determined upon the requirement that the claimant must establish that he/she was exposed to contaminated blood or blood products and that that exposure occurred within the Irish jurisdiction. Claimants will have been exposed to contaminated blood transfusions or blood products, such as anti-D immunoglobulin, cryoprecipitate, factor concentrates, plasma and red cell concentrates. In many cases, it is necessary to be able to trace the source of the infection through a particular unit number of blood or alternatively, a batch number of a blood product such as factor concentrate. In addition, the Tribunal operates a practice direction that if a person is exposed to more than 20 units then that scenario is likely to be the causative factor for that person’s viral infection. In order to establish the necessary link between a blood transfusion or blood product and a viral infection diagnosed 20 years later, forensic analysis is required. A forensic analysis standard has been established for the purpose of ensuring that people infected with contaminated blood products achieve the compensation they are due.
Our Approach to Representing Your Interests at the Compensation Tribunal
From our experience of representing many clients before the Tribunal we can appreciate that a diagnosis with either Hepatitis C or HIV is a life changing event. The diagnosis results in a situation where your life is irretrievably altered to the extent that medical care and medical assistance often becomes the predominant and sole focus of your life. We also understand your concerns about ensuring adequate provision of financial resources for your family. In many cases, we see where people have been exposed to a viral infection and their life is radically altered to such an extent that their career path is decimated and irretrievably damaged. Under these circumstances financial compensation is of little benefit to the person infected but it does alleviate the worry associated providing adequately for your family.
Why Engage Malcomson Law?
Since 1994, we have been advancing viral infection claims on behalf of people both in the High Court and before the Compensation Tribunal. We have consistently achieved the largest awards in both jurisdictions. The majority of the precedents established in this area of litigation have been undertaken by Malcomson Law. We have negotiated the legislation upon which the Compensation Tribunal operates to such an extent that we have drafted many of the sections of the legislation. We have established many of the precedents that have interpreted the legislation. Consequently this has meant clients are extremely satisfied with the manner in which we have progressed their claims and the level of the awards we achieved on their behalf.
Our work has not stopped with progressing claims. Over the years, we have worked with our clients to achieve access to medical facilities for their medical difficulties. We have initiated judicial review proceedings to advance our clients claims relating to health care requirements. This has ensured clients have received appropriate protection and recompense. Most importantly we have ensured that our clients’ future is adequately protected through provisional awards, giving an entitlement to return to the Tribunal. In addition there are a number of other entitlements that people infected are entitled to but are not being made aware of. We have advised clients of their entitlements in relation to include travel insurance, mortgage protection insurance and life assurance, all of which are available under the Hepatitis C Compensation Tribunal (Amendment) Act, 2006. We assist clients with ongoing requirements that may arise in association with the Finance Act provisions that apply to compensation awards derived from the Compensation Tribunal.
We believe that our sole remit is not just confined to achieving a financial award for our clients. It extends to assisting with the much wider issues associated with being infected with contaminated blood products.
If you believe you have been exposed to contaminated blood products please phone us at 01 8744 422 and a client care executive will be available to help you. Our client care executive’s are non-lawyers with a considerable track record of assisting people. They will organise an appointment with an experienced solicitor.