Brain-damaged girl's appeal dismissed

The Supreme Court yesterday upheld the High Court's dismissal of an action for damages brought by a profoundly brain-damaged and wheelchair-bound girl whose parents may now be facing a legal bill of €700,000.

After dismissing the appeal, the three-judge Supreme Court adjourned the issue of costs to a later date. The High Court had granted costs of 13 days of the 17-day action against Ms Kathleen Quinn, mother of Anne Marie Quinn, in favour of the Midwestern Health Board and a consultant obstetrician. It is estimated the defence legal costs amount to about €700,000.

Yesterday, concluding the Supreme Court decision, Mr Justice Kearns said this was "a truly tragic case" and the Supreme Court wished, as the trial judge had, to acknowledge the profound pain and suffering which Anne Marie's injuries had brought and will bring to herself and her parents. The court also wished to acknowledge the inspiring fortitude and love shown by her parents on every single day since her birth.

Kathleen Quinn (41), Fortanne, O'Callaghan's Mills, Co Clare, had brought the action on behalf of Anne Marie, now aged 14. It was claimed there was a failure to properly monitor and intervene in the "high-risk" pregnancy of Ms Quinn, a diabetic, and that this had led to Anne Marie sustaining severe and permanent brain damage and cerebral palsy. It was alleged there was a particular failure to have Ms Quinn scanned on a regular basis by ultrasound scan.

Anne Marie is wheelchair bound, will never walk, cannot speak, has spastic quadriplegia in all four limbs, is doubly incontinent and will be dependent on others for the rest of her life, the court heard.

The health board and second defendant, consultant obstetrician Dr Donal O'Sullivan, with a business address at Percy Square, Limerick, had denied the claims. Both denied negligence in either the management of the pregnancy and labour of Ms Quinn or in the delivery by Caesarean section of Anne Marie at the maternity unit of Limerick Regional Hospital on May 4th, 1990.

In his detailed reserved judgment in October 2003, Mr Justice O'Sullivan noted the "profound pain and suffering" which Anne Marie's injuries had brought, and would bring, to her and her parents. He had found she had a life expectancy of probably 35 years.

After analysing evidence given by experts called on both sides, the judge said he had been left with "two mutually inconsistent bodies of evidence neither of which wholly and satisfactorily resolved the issues in the case". It was not for him to set himself up as a determining authority on those specialist issues and nor would he attempt to do so.

He said the onus was on Anne Marie to prove her case beyond the balance of probabilities - that is, she had to prove that had Dr O'Sullivan brought about her delivery by Caesarean section by the 35th week of gestation, she would have been spared all or a substantial part of her injuries.

He was unable to conclude the evidence adduced on her behalf established that case. Given that finding, he must dismiss the claim. He also awarded 13 days costs to the defendants against the Quinns but would not award the additional four days' costs because the defendants' ap- proach to the issue of negligence had lengthened proceedings.

In the Supreme Court yesterday, Mr Justice Kearns, with whose judgment Mrs Justice Denham and Mr Justice Geoghegan agreed, said that, having regard to the "complete stand off" between the respective medical experts on both sides, both as to causation of Anne Marie's injury and the timing of that injury, he did not believe it was necessary for the trial judge ultimately to decide in favour of one proposition or the other.

It was open to the trial judge to decide the case by holding, as he had, that the plaintiff had not established, on the balance of probabilities, that the injury occurred in the manner and time which the plaintiff alleged.

While a trial judge must not abdicate their duty to try and resolve issues, even the most conscientious effort might still leave a judge in the position in which Mr Justice O'Sullivan found himself in this case, he added. If credible evidence existed which left him in such a quandary, he effectively had no option but to decide the case as he had.