The National Maternity Hospital in Holles Street, Dublin, was ordered by the Supreme Court yesterday to produce statements relating to the birth at the hospital of a child who is now brain-damaged. The hospital has been directed to hand to Mrs Avril Gallagher, the child's mother, three written statements by nurses who were on duty at the time the child was born.
Mrs Gallagher, of Moneystown, Roundwood, Co Wicklow, is suing the hospital and Dr Joseph Stanley, an obstetrician. The action arises out of the premature birth by caesarean section of her son, Blaise, on April 27th, 1992.
Mrs Gallagher claims the hospital and doctor failed to respond in a timely and appropriate way to difficulties which arose at the time of the birth. The boy is brain-damaged, suffering from cerebral palsy, a quadriplegic and has sight problems. The hospital and doctor deny Mrs Gallagher's claims.
Medical records, charts and other documents were produced by the hospital to Mrs Gallagher's lawyers. However, the hospital claimed privilege in relation to three nurses' statements on the basis that the statements were made on a confidential basis in contemplation of litigation and were not made in the ordinary course of treatment. The statements had been requested by the matron.
The High Court had ruled that the statements should be produced to Mrs Gallagher's advisers but that order was appealed to the Supreme Court, which yesterday upheld the order.
In his judgment, Mr Justice O'Flaherty said Irish society had become so litigious of late that he could understand that the matron could well have grounds for thinking that litigation would likely follow the birth of the infant. But he found it impossible to hold that the sole purpose which motivated the matron was in regard to possible litigation.
As a matter of professional standards and decorum as well as for the proper management and running of the hospital, it seemed to him that a matron would, in such circumstances as this, require such information.
He did not see that the principle of legal professional privilege suffered in any way.
Mr Justice Barron, who agreed with Mr Justice O'Flaherty's decision, said one had to sympathise with hospitals and their staffs. Too much of what they did had to be done for the purpose of protecting themselves against an everpresent threat of legal proceedings.
No one should be expected to do more than they were reasonably capable of having regard to their qualifications, the judge said. But it was unwise to be seen to be apparently seeking to suppress what was essentially innocuous in the context of the proceedings, even though it was likely that issues of fact would arise in relation to matters contained in such statements.