A UCD School of Medicine round-table discussion on medico-legal matters has heard that the level of hypoxic brain injuries at birth here has remained static, but court awards to these children have risen “astronomically”.

Speaking at ‘When scrubs and wigs collide: the medico-legal interface’ (8 December), Dr Nóirín Russell raised the question of an “ethical spend” in Irish society, given finite resources.

She asked whether, since Irish society wished to have supports for these brain-injured children, it was ethical to award €30 million to one, if that was at the expense of another.

Mr Justice Michael Peart, formerly of the High Court, said that the exponential rise in settlements and awards was largely caused by how the cost of future care was now calculated on an actuarial basis.

Cost of future care

He referred to the controversy about how the discount rate, or the rate of return on investments, is calculated.

This is factored in to calculations on the future cost of care, which has led to 'multi-multiplication' of awards, which were much lower in the past for brain-injured plaintiffs.

Calculations are also done on private-sector rates.

“You are getting into vast quantities of millions on a purely actuarial and mathematical basis,” he said.

'Big-ticket item'

“The cost of future care is always the big-ticket item,” the judge said.

Dr Russell said that there was a baseline rate of one hypoxic brain injury per thousand births, which was consistent.

“Why are we not exploring no-fault compensation, and having an equitable award for every baby with a hypoxic brain injury, as opposed to one getting this and another getting nothing?” she asked.

Mr Justice Peart asked if an equitable award would be much less than the hypothetical €30 million, but said that courts had to provide for a lifetime of future care, and not divide the cake more equally between all those who suffered the same injury at birth.

He added that the courts had wrestled for years with periodic-payment-type orders, to tackle situations where a child died earlier than expected, but pay-outs were not returned to the State.

“Periodic-payments orders might sort that out,” he said, adding that such orders were introduced but “ran aground”.

“It’s a difficult, difficult subject,” he said.

Astronomical cost

Barrister and webinar host Asim A Sheikh said that the cost to the Irish taxpayer, and to society in general, was astronomical.

“The alternative is that the State decides to provide the entirety of that care package to the child,” he suggested.

Early-resolution mechanisms had been used effectively in obstetric cases Britain, he added, and this country should look to models used elsewhere to resolve these matters.

The court’s duty was to dispense justice and equity for the child in each particular case, but the court could not pick one child over another, he said.

Carmel Doyle (Chief Executive of the Jack and Jill Foundation) said that her organisation provided care for such brain-injured children on a charitable basis, and that its model should be used more widely by the HSE.