O'Sullivan (A Minor) v. Kiernan & Anor

It is common case that in the course of the plaintiff's delivery on 20 th January, 1996, she suffered a fractured clavicle and a stretching type injury to her brachial plexus which resulted in what is known as an Erbs Palsy.

The plaintiff is the first child of her parents, the next friend herein her father and her mother Ann O'Mahoney who were married to each other in 1995. The plaintiff's mother is a solicitor by profession.

At or about 9.30 the plaintiff's mother had her first encounter with the first named defendant. The plaintiff had not been a patient of the first named defendant during her anti-natal care. She was the patient of a colleague of the first named defendant, a Dr.Corr. Because she came into hospital on a Saturday Dr. Corr was not on duty and the system that was operated in the hospital was that each consultant would be on duty for one weekend out of three or four. The first named defendant was on duty on this particular weekend.

There was controversy as to what happened at this first encounter. It was Ms. O'Mahoney's evidence that the first named defendant did not introduce himself in the ordinary way but stood in the doorway of the room and in an admonishing fashion while waving his finger said that he would commence to induce her if there was not significant progress in her labour.

At this point it is to be noted that nothing in the care of the plaintiff or Ms. O'Mahoney up to this point gives rise to any complaint relative to the injury suffered by the plaintiff or the issue of negligence. As mentioned earlier Ms. O'Mahoney did complain about the manner of her initial encounter with the first named defendant but whilst that might be a matter which would give rise to a sense of grievance it does not appear to me to be directly relevant to the issues which must be resolved in this case.