The National Maternity Hospital at Holles Street in Dublin told the Supreme Court yesterday it was claiming privilege for three statements written by medical personnel concerning a brain-damaged child.
The court yesterday reserved judgment on an application by counsel for Mrs Avril Gallagher, the child's mother, for production of the statements.
Mrs Gallagher, of Moneystown, Roundwood, Co Wicklow, is suing the hospital and Dr Joseph Stanley, an obstetrician, of Clyde Road, Dublin. The action arises out of the premature birth of her son, Blaise, by Caesarean section on April 27th, 1992.
Mrs Gallagher is claiming the hospital and doctor failed to respond in a timely and appropriate way to difficulties which arose at the time of the child's birth.
It is alleged, that although a Caesarean section was ultimately performed, Blaise had been denied oxygen for a considerable period during his delivery. He is brain-damaged and a quadriplegic, has sight problems and suffers from cerebral palsy.
The hospital and the doctor deny Mrs Gallagher's claims.
During the preparation of the action, lawyers for Mrs Gallagher asked the hospital for certain documents and records relating to the birth. The hospital has claimed privilege against the production of certain statements made by medical personnel.
The High Court has held that three particular documents should be produced and the hospital yesterday appealed that decision to the Supreme Court. The court reserved judgment.
In an affidavit, Mr Michael Lenihan, the hospital secretary-manager, claimed the statements sought were not ordinary medical or treatment records. He said the statements were made because it was immediately apparent that the child had undergone an extremely difficult birth and that there was a substantial risk he would suffer very serious injuries as a result.
Mr Lenihan said the statements were made on a confidential basis in order to provide the hospital's legal advisers with the necessary material in the event of a claim subsequently being made on behalf of the boy.
Mr Lenihan said the fact that the child had undergone a difficult birth and was, as a result, at substantial risk of serious injury did not in any way imply a concession that the hospital was negligent.
The hospital was acutely conscious that there was, in recent years, an increasing likelihood that where a patient suffered injury in the course of treatment such an event would lead to litigation, he said.
In an affidavit, the hospital matron, Ms Maeve Dwyer, said she asked three nurses to prepare statements concerning events on the night the child was born.
Mr Sean Ryan SC, for the hospital, said the "dominant purpose" of the statements was to submit them to lawyers for advice or use in anticipated litigation. The documents were therefore privileged.
Mr Ryan said the High Court had inferred that the primary purpose of getting the statements was the well-being of the infant and safety procedures. This was an error on the court's part in the light of the sworn statement of Mr Lenihan, counsel said.
It would be unfair to suggest that, if the hospital authorities had not been worried about the possibility of litigation, they would not have made any inquiries, he said.
Ms Eileen Lydon SC, for Mrs Gallagher, said hospital records would contain a certain amount of information. A lot of entries were made hours later and not within a short period of the procedures that had been carried out.
In her view, there had been a routine gathering of information on the part of the matron. To allow privilege would deprive a plaintiff of that information.