The Health Service Executive

THE HIGH COURT

[2012] IELCA 11

2011 817p

BETWEEN

KARL HENRY

PLAINTIFF

AND

THE HEALTH SERVICE EXECUTIVE

DEFENDANT

Ruling on Plaintiff’s costs – Brief Fee and Instructions Fee.

By Order dated 7 July 2011 the court approved a settlement reached between the parties and awarded the sum of €110,000.00 in favour of the Plaintiff including €10,000.00 in favour of his son Ciaran. The claim arose following on the death of Ann Moriarty deceased who died on 28 April 2008.

Briefly, the history of this very sad and tragic case is that in or about April 2005 the deceased was diagnosed with breast cancer and underwent a full mastectomy in May 2005 followed by chemotherapy and radiotherapy. She was kept under review at St. James’ Hospital over the following years and was considered to be doing well and in remission. However, on or about June 2007 the deceased again became unwell and received certain treatment at the Mid Western Regional Hospital, Ennis over a period of approximately three months. Ultimately having been required to attend at ER at Galway Clinic and admitted, it was diagnosed on 16 August 2007 that her cancer had recurred and that it was at an advanced stage. Subsequent further investigations which took place at St. James’ Hospital, Dublin, in August 2007 confirmed the position and the Plaintiff, the husband of the deceased, was informed that the deceased’s illness was terminal. A brain tumour had been identified and radiotherapy was recommended with a view to attempting to shrink this tumour. This treatment was undertaken between 27 August and 31 August 2007 and thereafter the deceased returned home. In mid September she was admitted to Milford Hospice and thence to Cahercalla Community Hospital where she died on 25 April 2008.

By Order dated 7 July 2011 the court ruled the settlement which had been reached in the matter and also approved of the settlement on behalf of the minor dependant of the deceased. An Order was made by consent that the Plaintiff should recover against the Defendant the sum of €110,000.00 together with costs of the action to include reserved costs and the costs of discovery and the costs of mediation when taxed and ascertained.

The deceased’s husband initially consulted a firm of solicitors practising in Ennis, Co. Clare and that firm undertook initial investigations bringing the matter to the stage at which they were in receipt of a medical report from Mr. R.P. Symonds, a Consultant in Clinical Oncology. The following documentation was provided to Mr. Symonds for the purpose of obtaining his report.

1) Copy Mid Western Regional Hospital, Ennis case records

2) Copy St. James’ Hospital, Dublin case records

3) Copy St. Lukes Hospital, Dublin case records

4) Copy account of Anne Moriarty’s terminal cancer and treatment received by Mr. Karl Moriarty.

Mr. Symonds was requested to review the management of Ms. Moriarty’s breast cancer, particularly the care offered at the Mid Western Regional Hospital, Ennis, between June and August 2007.

The report is dated 22 March 2008 and a copy of same was furnished to the Plaintiff on 27 May 2008 by his former solicitors. The said solicitors provided a commentary on the consultant’s report advising in essence that “… it is clear from the report that there was a failure to diagnose the breast cancer in June 2007. However, you will see from Mr. Symond’s report that the failure to diagnose did not alter the final outcome in Anne’s case since by that time Anne had incurable breast cancer. However, an opportunity was missed to give Anne systemic chemotherapy. Had the correct diagnosis been made in June 2007 there was a chance of a response with the appropriate medication between 43% and 68% and therefore on the balance of probability she would have had tumour shrinkage with relief of symptoms, prolongation of life and an improvement in the quality of her life.”

It was the consultant’s view that an earlier diagnosis may have benefited the deceased with an additional twelve to eighteen months of life after June 2007 with an improvement in the quality of her life after chemotherapy and the prospect of no symptoms for perhaps six to nine months.

The Plaintiff’s former solicitor advised against pursuing the matter further.

The general circumstances surrounding the sad death of Ms. Moriarty and in particular her treatment at the Mid Western Regional Hospital, Ennis had been the subject of internal HSE reviews and apparently the matter was also the subject of quite an amount of media attention.

THE INSTRUCTIONS FEE.

The fee claimed is €35,000.00.

Mr. Paul Conlon, Legal Costs Accountant, outlined the nature and extent of the Plaintiff’s solicitor’s work in the matter and stated that instructions were initially received on 1 September 2008, some five months after date of death and one year after diagnosis. I understand the date to mean one year after the final diagnosis of the return of the patient’s cancer and its incurable nature. He emphasised that there had been a lot of media interest in the matter and confirmed that the Plaintiff’s former solicitor had received the report, already referred to, from Mr. Symonds, which report he stated, indicated that there was no case to answer by the HSE. He emphasised that this was not an average medical negligence case in that ultimately the central issue was in regard to how long the patient would have lived and the quality of her life, had she received, on a more timely basis, the treatment referred to by Mr. Symonds and later by Dr. Alison Louise Jones, a Consultant Medical Oncologist.

Mr. Conlon submitted that the Plaintiff’s solicitor was required to consider Mr. Symond’s report and thereafter to correspond with the HSE and the relevant hospitals. He stated that the Defendant’s internal reports were obtained and emphasised that a 100 page report had in fact issued from the HSE. He also confirmed that medical records had been obtained relating to the deceased and also the Plaintiff himself.

Mr. Conlon advised that the Plaintiff himself had a long history of psychiatric difficulty but had suffered post traumatic stress disorder as a result of his wife’s untimely death and had been hospitalised three times in this regard since the date of her death. He also advised that the Plaintiff’s solicitor had visited the Plaintiff three times in hospital but was unable to find any attendance notes on his file relating to these attendances nor was he in a position to provide any information concerning the nature of the discussions had by the Plaintiff’s solicitor with the client, during his tenure in hospital. However, it was emphasised that the client’s mental condition was a major factor in this case and I have no difficulty in accepting that this was indeed the case.

Mr. Conlon further stated that Dr. Jones, Oncologist, provided a report and that a report was also obtained from Dr. Abbie Lane, Consultant Psychiatrist, which outlines the full nature of the psychiatric illness affecting the Plaintiff, its relationship with the sad passing of his late wife and the description of his illness as post traumatic stress disorder. As a result of the receipt of this report a clear issue arose concerning the ability of the Plaintiff to continue to work (he is a civil servant employed by the Revenue Commissioners and the family had moved to Ennis as part of a decentralisation programme). Arising out of the likelihood of future losses by the Plaintiff a report was also obtained from Segrave Daly Lynch Actuaries.

In addition Mr. Conlon stated that an issue concerning the Statute of Limitations arose and that an agreement had been reached with the Defendant’s solicitors that this issue would not be pursued if the proceedings were issued within one year. The statute issue arose for consideration during the course of a mediation process which took place on 29 March 2010 at the offices of the Defendant’s solicitors. At that stage proceedings had not been instituted on behalf of the Plaintiff. It was emphasised that this mediation meeting was lengthy with the solicitors being involved for the entirety of that day with total time involvement of the order of 9½ to 10½ hours. By agreement between the parties Mr. Patrick Treacy, B.L. had been appointed as the mediator and ultimately, notwithstanding the best efforts of all parties, it proved impossible to reach an agreement. The final position being that the Plaintiff’s expectation of compensation included:

1) loss of dependency for himself and his son;

2) damages in respect of his post traumatic stress disorder suffered by him;

3) solatium,

in respect of which compensation was claimed at €400,000.00. The position of the HSE was that the deceased had been treated appropriately at all times and that even if there had been a delay in the diagnosis of her secondary cancer, such delay had no bearing whatever on the inevitability of the deceased’s death which was due to the onset of incurable cancer. Accordingly there was no causative link between any alleged negligence relating to delay and the ultimate outcome. On this basis, it was argued there was clearly no entitlement to claim solatium or dependency. It was intimated that a settlement at €70,000.00 would be considered.

Mr. Conlon advised that the mediation process concluded but with some possible prospect of recommencement.

Ultimately the parties agreed that there should be a resumption of the mediation process (it having been agreed during the course of the initial mediation discussions that the statute issue would not be pursued or could be left in abeyance for a further year). He stated that initially the mediation was to be rescheduled quickly but however, the Defendants did require time in order to consider the Plaintiff’s psychiatric and G.P.’s records and all other relevant records. The process was delayed somewhat in this regard and there were also enquiries in relation to the deceased’s special damages, the date of her retirement, her pension entitlements and the like. The extent of the son’s dependency also required consideration. In addition the Plaintiff was readmitted to psychiatric hospital on 15 October 2010 and a subsequent report showed that he had been suicidal and some alcohol abuse was also apparent.

On 28 January 2011 the Plaintiff’s solicitor had issued a personal injury summons but same had not been served on the Defendant.

Eventually, the mediation process was reinitiated and a meeting took place on 17 June 2011 at which the compensation was agreed at €110,000.00.

Finally, Mr. Conlon introduced three comparators namely;

a) Mary Ellen Briody v HSE, North Eastern Area

b) Celine Flood v David Gibson & Others

c) Pat Hayes v SEHB & Anor.

It appears that the principal comparator being relied upon by Mr. Conlon is in relation to Briody v HSE and I will return to these later.

Mr. David Mack, Legal Costs Accountant, representing the Defendant also briefly outlined some background information stating that the media coverage referred to by Mr. Conlon related, in fact, to the activities of the hospital in Ennis and that the HIQA report which issued following their enquiry recommended a mediation process and this was the reason, unusually, why mediation was initiated at a very early stage in the matter.

He asserted that there were no undue delays in the entire process which ultimately led to the settlement of the action and which could be described as adding to the overall costs. He emphasised that the mediation meeting was concerned only with the consideration and assessment of appropriate compensation, if any. Further he emphasised that all stages the HSE had made it clear that it was amenable to resuming the mediation process. The medical records already referred to were requested in order to facilitate this process and this was entirely reasonable. He outlined the correspondence which had taken place in relation to obtaining medical records and in particular concerning the facilitation of a psychiatric examination of the Plaintiff by Dr. Ryan on behalf of the HSE and the necessity of Dr. Lane, the Plaintiff’s psychiatrist, sending the relevant psychiatric records to Dr. Ryan. This, he asserted, was the only reason for delay in the entire process.

Mr. Mack also emphasised that the personal injury summons which had been issued in January 2011 had not been served by the time the action had been actually settled. As to liability he asserted that there was “no big issue on liability” but accepted that causation was the primary factor for consideration. He asked the question “what work was carried out in relation to liability?” He referred to the fact that one report had been obtained from Mr. Symonds together with a further report from Dr. Jones (emphasising that Dr. Jones’ report related primarily to consideration of whether any fault could be laid a the door of St. James’ Hospital and she had answered in the negative). The Plaintiff’s former solicitor had in fact obtained Mr. Symonds’ report.

Mr. Mack further stressed that the action had been settled at an early stage and in all the circumstances of the case, whilst accepting that it was unusual, he felt that the fee claimed at €35,000.00 was excessive and that the maximum allowable is €17,500.00.

By way of brief reply Mr. Conlon asserted that in fact this action was ready for trial at the date of settlement and further emphasised how unusual it was to have mediation in matters such as this.

THE SOLICITOR’S WORK.

Given the divergence of views as to the correct instructions fee to be allowed in this case and as to the nature and extent of the work of the Plaintiff’s solicitor I requested access to the solicitor’s file and I confirm having now carefully considered same together with the accompanying documentation including medical and actuarial reports. Whilst I have not considered the HIQA reports in any great detail I accept that the Plaintiff’s solicitor would have considered same in the initial stages.