MEDICAL NEGLIGENCE Late Diagnosis
A case came before the High Court where a young Spanish national was admitted to hospital when he became unwell in Ireland. . He spent 42 days in St. James’s Hospital (SJH) without his condition being diagnosed, while within four days in a Spanish hospital, it was identified and treated.
The plaintiff submitted that he had two features that should have alerted the staff in SJH that treated him on admission: firstly, the epidemiological association between HIV, VL and Spain, combined with the fact that the plaintiff was HIV positive and was from Spain, and secondly, the plaintiff’s “massive splenomegaly” or enlarged spleen.
While in SJH, the plaintiff was diagnosed with hemophagocytic lympho-histiocytosis (HLH) triggered by herpes virus type 8 (HHV-8) in the context of HIV.
The plaintiff alleged that none of the consultants who managed, investigated, and cared for the plaintiff during his admission considered the possibility of visceral leishmaniasis (VL) during his ensuing 42-day admission to SJH, a condition which is fatal if left untreated in 95 per cent of cases.
After 42 days in SJH, he was transferred to a Spanish hospital, where he was correctly diagnosed with his condition in four days.
He sued SJH for damages for their failure to diagnose visceral leishmaniasis (VL).
The issue before the High Court was to decide whether SJH should have diagnosed VL within four days of the plaintiff’s admission to the hospital’s care, and if so
what would have followed in terms of treatment and recovery.
Ms Justice Egan of the High Court considered the authorities, namely, Dunne v. National Maternity Hospital [1989] IR 91 and Morrissey v. HSE [2020] IESC 6 requiring the court to assess ‘whether no reasonable professional of the type concerned could have carried out their task in the manner which occurred in the case in question. That overall test requires a court to determine what standard a reasonable professional would apply.”
The court then examined what proper professional standard should have been applied, and noted “No clinician can be expected to be in touch with every single piece of literature and every publication or Guideline. Rather, they would be expected to follow those most relevant to their own practice.”
The judge was satisfied that although clinicians treating HIV patients may know of potential associations with dozens of opportunistic infections, the standard approach requires the application of discrimination to the task of diagnosis and the keeping of diagnoses under review, “they are not compelled, at least at an early stage of management, to explore each and every potentially viable diagnosis that might conceivably apply.”
The judge was not satisfied that SJH had looked beyond a reasonable diagnosis of HLH to interpret the plaintiff’s enlarged spleen as strongly indicative of VL.
On the balance of the evidence before the court of the early treatment of the plaintiff while in SJH’s care, that in the period between 10 March 2014 to 14 March 2014, a considerable suspicion of VL ought to have arisen leading to the commencement of empirical AmBisome, which was not commenced until over three weeks later on 4 April 2014, and that negligence arose in this regard.
Therefore, the High Court found as to causation, that if the plaintiff had been commenced on AmBisome during the week of 10 March 2014, his improvement within a week and substantial recovery within two weeks could reasonably have been anticipated, sparing him from three weeks of hospital admission with painful and debilitating symptoms and “anxiety, distress and worry as to his health”.
Causation having been established and the expected standard of care being breached, the High Court awarded the plaintiff €26,000 in general damages. No claim had been made for future pain and suffering.
AMS v Birthistle [2025] IEHC 331.
Counsel for the plaintiff told the court that the plaintiff, who was 13 at the time, attended the vaccination centre in Citywest Hotel, Saggart, Co. Dublin in August 2021, for the COVID vaccination, and said the nurse administered the wrong vaccination and used a needle that had been used on three other people. In evidence, the child’s father stated to the court in written testimony that the second vaccination had been administered without discussion and consent of either himself or his daughter. He further said that that the nurse who administered the vaccination, had denied that the first syringe had been used previously. On further enquiry with the head nurse, it transpired that the syringe had in fact been used on another person. Following this incident, the child had to undergo blood tests and be vaccinated for Hepatitis B. it was pointed out to the court that at least one of the three persons who had been given the vaccination with the same syringe refused to undergo blood tests. As a result of this the plaintiff had to undergo a post-exposure antiretroviral therapy course over a month. The result of this brought on nausea and generally feeling unwell. She had to undergo a number of other tests as a result of the actions of the HSE in administering the vaccine in this fashion. The court was told that a year after the incident, the plaintiff developed an abscess that ruptured during her school sports day, which added to the stress she already suffered. This was treated with antibiotics. Counsel for the plaintiff informed the court that the defendant had initially offered €15,500 in settlement but this had been rejected earlier by another judge. This was then increased to €16,500, then €20,000 with expenses and legal costs, which was accepted. The barrister for the HSE read out an apology on behalf of the HSE. Ella Mulhern (Suing through her Father) v The HSE Circuit Civil Court (Ms. Justice Fiona O’Sullivan) 23 June 2025.
A newspaper that incorrectly published the name of the respondent in the ‘tax defaulters list’ appealed the decision of the High Court awarding the respondent damages. The respondent had no connection with the companies named and had been identified in the article by mistake. The respondent sued for defamation. The appellant, in its defence, relied on section 18 of the Defa mation Act 2009, claiming qualified privilege, in which it was acting in good faith by publishing the article as part of its duty to report on matters of public interest. The High Court found no basis for the defence of qualified privilege in circumstances where the communication of inaccurate information was outside its scope, as the publisher had no duty or interest in communicating and the public had no interest in receiving inaccurate information. The jury awarded the respondent €75,000 in damages, leading the High Court to award Circuit Court costs only to the respondent. The appellant appealed to the Court of Appeal on the findings made in respect of qualified privilege, with the respondent cross-appealing the award of costs. On appeal, the Court of Appeal dismissed the appellant’s appeal and allowed the respondent’s cross-appeal, finding inter alia that the defence of qualified privilege required a mutuality of duty or interest which, in practice, confined the defence to situations involving individuals (or groups of individuals) rather than to the public at large and that it would be extraordinary to allow the appellant to rely upon the defence where its article was not fair and accurate. Following this the appellant was granted leave to appeal to the Supreme Court on the issues of the nature and scope of qualified privilege and its relationship with section 18(3) and the defence of public interest reporting under section 26 of the 2009 Act. Leave to appeal was also granted in respect of the costs issue. The Supreme Court observed that the defence of qualified privilege did not generally apply to publication to the world at large because of the absence of the necessary reciprocity, the judge further considered that if the only safeguard for a defamed claimant is to discharge the “heavy onus” of establishing malice, and if a finding of malice is excluded by an honest belief in the truth of the defamatory statement, however unreasonable that belief may be and regardless of whether the belief was the product of the publisher’s own carelessness, “then in the context of media publication, malice is an illusory and inadequate ‘safety switch’”. The court also reasoned that privilege is intended to foster free communication in defined circumstances and/or for defined purposes by protecting the publisher from potential liability with the provision of a defence that does not require the publisher to take on the burden of establishing the truth of what has been said, but that the protection of false speech is “an incidental effect of that protection, not its principal objective or primary rationale”. Noting that the principal exception to the general rule that qualified privilege does not apply to publication to the world at large, being the fair and accurate reporting of certain proceedings and reports, has now been largely subsumed into s.18(3) of the 2009 Act, Mr Justice Collins opined: “None of these specific and relatively small-bore exceptions are capable of being stretched to accommodate a generally applicable media privilege.” The court disagreed with the proposition that the defence of qualified privilege at common law could extend to media publication/publication to the world at large on the basis of a recognition of a duty to publish public interest material in the interests of the public as a whole, and that the jurisprudence provided no support for that suggestion save as regards the fair and accurate reporting of particular proceedings and reports. Accordingly, the court found that no common law defence of qualified privilege was available to the appellant and moved to consider whether the appellant had a defence under section 18(2). The court considered the appellant’s argument that section 18(2) radically altered the law of qualified privilege by extending its protection to a broad category of media and non-media publication subject only to the absence of malice. The court considered that this would provide a defence for inaccurate reporting in circumstances where the Oireachtas has, in section 18(3), legislated to provide a defence strictly conditioned upon the fairness and accuracy of the reporting and requiring consideration of the public interest and benefit. The court found that such an interpretation of section 18(2) would “effectively swallow up section 26 entirely”, it would also “negate the judgment made by the Oireachtas in deciding on the parameters of the section 26 defence and frustrate its purpose in enacting that defence”. The Supreme Court found that the jury was entitled to take the view that the respondent had been defamed. The court dismissed the appeal of the newspaper appellant and the respondent’s appeal on costs. William Bird (respondent) v Iconic Newspapers Limited (appellant) [2025] IESC 30.
A customer of Supermac’s fast-food restaurant took a personal injury case against the company as a result of an incident. CCTV showed that having purchased a packet of crisps, she could be seen looking at her mobile phone and turning to leave. As she made her way to the exit, she tripped over a vacuum cleaner that was on the floor. The plaintiff admitted in evidence that she had gotten a message on her phone, got distracted and then tripped over the vacuum cleaner and fell. While assisted by her husband and the shop manager, the footage showed that she was able to stand up within 19 seconds unaided. The Maskey Report had found that 240 children received ‘risky’ care from South Kerry CAMHS between July 2016 and April 2021, with proof of significant harm to 46 of them. She blamed the vacuum cleaner for her accident and was seen placing her hand on her lower back. Later she attended the A & E, she was three months pregnant, but a scan showed all was well with the pregnancy. She also went to her GP following the accident. Under cross examination, the plaintiff conceded that the vacuum cleaner was there when she made her way to the till and she had no problem with it then. The judge commented that while the location of the vacuum cleaner was negligent, the question was, did it cause the plaintiff to fall. He said that not every negligent act results in liability. The court must ask, the judge said, whether the plaintiff was taking due care at the time when the accident occurred and he believed that she was not. On this basis, the judge found that the plaintiff was ‘wholly distracted’ by her phone when she tripped over the hoover and dismissed her claim. Darcy v Supermac’s Restaurants Galway Circuit Court (His Hon. Judge O’Callahan) 16 July 2025.
A hospital consultant claimed to have been penalized and sidelined following her making protected disclosures. As a result of these actions by the HSE, the consultant child psychiatrist resigned her post and left Ireland. The doctor’s whistleblowing was subsequently vindicated by the Maskey Report, a major external review published in 2022. The Maskey Report had found that 240 children received ‘risky’ care from South Kerry CAMHS between July 2016 and April 2021, with proof of significant harm to 46 of them. The scandal involved misdiagnosis and misprescribing medication to children. The Report showed sub-standard care, with unreliable diagnoses, inappropriate prescriptions, poor monitoring of treatment, and potential adverse effects. Much of the actions related to a junior doctor but significant failings in supervision and governance were also identified. The doctor made a protected disclosure and because of the manner in which she was subsequently treated, she claimed racial discrimination. She issued proceedings in August 2023 seeking damages for breach of statutory duty, breach of contract, breach of the Protected Disclosures Act, failure to provide a safe place of work and the infliction of emotional suffering. The HSE settled the case before the case went for trial and agreed to pay the plaintiff doctor €75,000 damages. Dr. Maya Sharma v HSE High Court July 2025
A widow and executor who was the sole beneficiary of her husband’s estate, served a notice of termination on the tenant of her late husband. She wanted the apartment back for her granddaughter. The rental property was part of her deceased husband’s estate and prior to his death, the rent was paid into an account in the
A stable employee working in a racehorse trainer’s premises injured his back while emptying a wheelbarrow of horse dung into a dung heap.
An interesting case came before the High Court where the plaintiff alleged that Boots Pharmacy was negligent in giving her medicine for a migraine complaint, where it was alleged that the pharmacist failed to advise the plaintiff that the migraine medication contraindicated with an antidepressant drug she was taking. As a result, the plaintiff suffered a brain bleed and stroke. In the proceedings, it was claimed that the medicine was allegedly inappropriately sold to the plaintiff and consequently there was an alleged failure by Boots Pharmacy to advise the plaintiff that the migraine medication is contraindicated with an antidepressant drug that the plaintiff was taking. This was due to a significant interaction between the two medications and can lead to blood pressure and strokes. Boots Pharmacy vehemently denied all the claims made by the plaintiff and explained their defence to the court. The witness for the pharmacy said they could not remember the plaintiff purchasing the medication but stated that their protocol required that anyone purchasing migraine medication is referred to a pharmacist in the store. The plaintiff said that she took the migraine medication when she woke up with a terrible headache. She felt dizzy after taking the tablets, collapsed and was taken to the hospital by ambulance. There a scan was taken showing a brain bleed. She was in hospital for a month and after discharge suffered severe left leg weakness, difficulties with her left arm and had to go for rehabilitation. The plaintiff claimed that at time of purchasing the migraine tablets, there was no consultation with the pharmacist. Boots disputed this. Boots claimed that there was a responsibility on the plaintiff to inform the pharmacist of her medical history, and without doing so, they could not have been aware of other medications she was taking. As a result of this information not being disclosed to the pharmacist, there was contributory negligence by the plaintiff. Boots said without the plaintiff disclosing her other medications she was taking, there was no way that they could have known that the migraine medication would conflict with her other medication and thus the plaintiff was the author of her own misfortune. The parties settled the case without admission of liability by Boots Pharmacy, so we don’t know how the case would have been decided. But it does appear clear that the plaintiff, not mentioning to Boots Pharmacy at the time of the purchase of her other medicines, did contribute to the suffering she later endured. O’Meara v Boots Pharmacy High Court (Miss Justice Denise Brett) 26 June 2025.
A case came before the Workplace Relations Commission concerning a transition student being punished by the school for the wearing of an earring in one ear. The school had a rule that students could wear a pair of earrings but not a single earring. At the start of term last year, the student arrived at the school wearing a round silver stud earring in one ear. The student differed with the school on the rule concerning the wearing of earrings. The student’s mother and grandmother became involved with the school about the issue and attended a meeting with the school’s principal which they believed was a hostile meeting. In evidence before the WRC, the school principal denied this. Following the meeting, the student was punished for breach of the rule. The punishment consisted of not being allowed to leave school with other students for lunch and finish school later. The solicitor for the student said that an amicable solution had been sought, but as opinions differed, it became necessary to bring the matter to the WRC. He said that the student felt that his reputation had been attacked as the pressure escalated between the parties over what the student thought was an absurd rule about the wearing of earrings. The student felt the rule didn’t make any sense and was an interference with a student’s right to express themselves. It was submitted that the punishment was disproportionate and unwarranted, and breached his right to wear one earring when other students could wear one in each ear. The school submitted that it followed its disciplinary code at all times in dealing with the student and sought to de-escalate the issue. The WRC found that the school had discriminated against the student on the grounds of gender and ordered the rule to be changed to permit students to wear one or two earrings and awarded the student €9,000 in compensation. The money was to be paid to his mother until the student reached the age of 18 and used for his education until then. The WRC decided not to publish the names of the parties. Student (Minor) v Secondary School Ref No. ADJ-00054056, 5 June 2025
There can be occasions where a person or persons wish to challenge the Will of a loved one. The grounds can vary, but common grounds are that they may have felt that the deceased (testator) was not of sound mind when making their Will, or that another person exercised undue influence on the person making the Will, or that a beneficiary may feel that they were unfairly treated by the Will or that the Will was invalid. A child of the deceased may claim that they were treated less fairly that other siblings and thus would be entitled to challenge the Will. In this case, a court will investigate any disbursements during the testator’s lifetime that might have been the reason why the challenger was left less of the testator's assets than his/her siblings. The court seeks to read the intention of the testator and interpret it accordingly. A person who was a financial dependent of the testator would have a similar claim. This group could be children, spouse, adopted/fostered children, civil partners, grandchildren or step-grandchildren. Outside of this group i.e. nephews or nieces, a claim can be made, but it will be for the court to decide whether they have a legitimate claim or not. Testator was Not of Sound Mind A Will can be challenged if it is claimed that the testator lacked the ‘necessary capacity’ at the time of signing of the Will. This means, the person making the Will was not of sound mind and did not understand what they were doing or signing. For such a claim to be successful, medical evidence would have to be produced to show that the testator lacked the mental capacity to understand what they were doing or signing. Invalid Wills For a Will to be valid, it must fulfil certain conditions: The Will must be in writing. It must be signed by the person who made the Will in front of two independent witnesses. The witnesses must not be beneficiaries. The person who made the Will must be over 18 and of sound mind. The witnesses themselves must be over 18. Undue Influence Put simply, this amounts to putting pressure on a person to do something they might not do or want to do themselves. In Wills, it might be persuading the testator to leave an asset to somebody. A court will look at a Will that is being contested to ascertain if the testator put some provision in the Will that was out of character for the testator. Or if one beneficiary has done very well from the Will, which looked out of place. Another ground here could be that a gift in the Will was in contrast with the previously expressed intentions of the deceased. Contesting a Will is a complex issue, so engaging the services of a solicitor is critical. The claim against a Will is to overturn all or part of the Will, and that requires establishing to the court the evidence necessary to invalidate the will and this is where your solicitor will guide you on what is regarded as one of the most difficult tasks in any court proceedings.
A case came before the High Court for a Norwich Pharmacal Order. This order is defined as: ‘A Norwich Pharmacal Order (NPO) in Ireland is a legal order granted by the court to compel a third party to disclose information that can help identify a wrongdoer. It's an exception to the general rule that discovery (obtaining information) is only allowed after proceedings are closed. Essentially, it's a way to uncover information from someone who might be unknowingly involved in wrongful actions by others’. The case before the court was to do with Internet fraud, where the applicant was seeking an order for a bank to disclose the photo ID of a person who may have information in regard to the alleged fraud. The applicant was a French citizen residing in France and who responded to an ad in social media in 2021 for an investment opportunity. Following engagement with a ‘Mr Becker’ who purported to be a representative of Skandia Bank in Berlin, the applicant invested €280,000 in what he believed were investment vehicles to acquire care home facilities in Spain. The applicant proceeded to make money transfers to various bank accounts in Spain. In total the applicant invested €1.5 million. Later that year, the plaintiff was contacted by a ‘Mr Lemercier’, purportedly a representative of Santander Bank in Paris, who advised that the investment opportunity availed of by the plaintiff was fraudulent and that he should withdraw the investments. The applicant realised that he was a victim of fraud and tried to contact the ‘Mr. Lemercier’ at the bank, but he was informed that no person of that name worked for the bank. Despite lodging criminal complaints with criminal authorities in a number of EU countries, the identities of both Mr Becker and Mr Lemercier were unknown. The applicant sought orders requiring the defendant company to provide information to assist him in identifying unknown individuals, including inter alia the names, addresses, dates of birth, email addresses and telephone numbers of the persons who opened the Irish bank accounts and any beneficiaries of those accounts, details of all transactions and payments made into or out of those accounts, and copies of the documentation used to open the accounts including identity verification documentation. The defendant company consented to all reliefs except for the provision of ID documentation. So, the issue before the court concerned compelling the defendant to release the photo ID of the person or persons who opened the bank accounts whereupon the applicant hoped he could trace the money stolen. The judge considered the case law and the principles relating to Norwich Pharmacal orders (NPOs) and Bankers Trust orders. He was satisfied the case fell under the NPO equitable relief and in Ireland Megaleasing UK Ltd. v Barrett [1993] ILRM 497 approved the original case establishing the UK case of NPO of Norwich Pharmacal Co. v Commissioners of Customs and Excise [1974] AC 133. Under such a case an NPO compels a defendant to provide specified information that would assist to identify a third party who has committed an actionable wrong against a plaintiff and places a plaintiff in a position to identify and seek redress against a previously unknown wrongdoer. Considering the issues in this case, the judge observed ‘ Cybercrime is a growing threat to the worldwide economy, but particularly, the economies of the western world. There is little doubt that the plaintiff has been the victim of a concerted cybercrime involving multiple subterfuges.” And ‘In this case, a picture or photo of the individual who opened the account, will be of far greater assistance in leading to the location or preservation of the plaintiff’s money than simply, a name, address or e-mail with contact details.” The defendant submitted that it was not necessary to bring a claim for the ID documentation but the judge disagreed stating: “While I appreciate there is no Irish authority to support the proposition, it seems to me to be an extension of the equitable jurisdiction and to coin a phrase often used in equitable cases, it seems to be ‘just and convenient’. Decision The judge found that the refusal of the application would significantly disfavour the applicant and that the applicant’s interests in obtaining the order were far greater than any detriment arising to the defendant in relation to confidentiality and the European Convention on Human Rights . The court considered that it was difficult to see what detriment would arise in circumstances where the applicant is obliged to give appropriate undertakings. The judge commented that the delay in bringing the application was not fatal and deemed the provision of photographic-type documentation appropriate in the circumstances, and thus granted the orders sought. Jean Pierre Boulbet v Sumup Limited [2025] IEHC 285 .
