A consultant's failure to make arrangements for the transfer of a sick child to another hospital was "motivated by an arrogant misguided belief in his own capacity to care for the child", a High Court judge said yesterday.
Mr Justice O'Donovan found that Dr Harry Murphy, a consultant obstetrician and gynaecologist attached to Wexford General Hospital, was 75 per cent liable for the brain damage suffered by a 12-year-old twin boy who was born at the Wexford hospital. He held the South Eastern Health Board was 25 per cent liable.
Gary Kavanagh, whose mother, Ms Patricia Kavanagh, of Curracloe, near Wexford town, is suing on his behalf, had already secured €2,831,798, including costs, over three years ago in settlement of his action against Dr Murphy and the SEHB alleging negligence in the circumstances of his birth.
The case decided yesterday involved a claim by Dr Murphy that the health board should carry some of the costs.
Gary was born on January 9th, 1991, at Wexford General Hospital which then had no neo-natal unit or consultant paediatrician. His twin brother, Ian, was "fairly poor" after birth and was transferred to Waterford Regional Hospital which had such facilities. Ian made a good recovery.
The earlier court hearing was told that Gary was kept in the Wexford hospital, where he developed difficulties. On the day after his birth, he was transferred to Waterford. His lawyers claimed this was too late. He was diagnosed as suffering from cerebral palsy.
In a reserved judgment yesterday, Mr Justice O'Donovan said the case had been at hearing before him in December 1999, when Dr Murphy had conceded liability but reserved his right to continue to seek indemnity or a contribution from the board.
It had been conceded, said the judge, that Dr Murphy had been negligent in failing to transfer Gary from the Wexford hospital to an acknowledged centre of excellence for neo-natals at Arkeen, Co Waterford.
Dr Murphy's case against the health board was that it contributed to the deterioration in Gary's health because the quality of nursing care and management was inadequate, and there was no protocol in place where a child born in Wexford should be transferred to Waterford.
Mr Justice O'Donovan said Ms Kavanagh had told the court that, on the morning after Gary's birth, she had been told by one of the nursing staff that Gary's condition had deteriorated, and Dr Murphy tried to reassure her.
That Dr Murphy saw fit to give Ms Kavanagh such an assurance on January 10th only served to emphasise "his intransigence with regard to what he thought was best for the child; an intransigence which persuaded him that, notwithstanding his lack of neo natal qualifications, it was preferable that he should continue to look after the child rather than send him to Waterford".
This intransigence was further exemplified by evidence of a Dr Paul Cregan, a doctor with neo-natal qualifications who, at the time, was a senior house officer in obstetrics and gynaecology. Dr Cregan had said that, later that same morning, he was berated by Dr Murphy for interfering with Gary's treatment.
Dr Murphy was in overall charge of Gary's care, the judge said. It appeared that, having delivered the child, apart from telephone contact with a nurse, he did not see Gary again for nearly 20 hours. That did not seem to be the type of care one might reasonably expect such a sick child to receive.