A [A Person With Disabilities] v Health Service Executive and Anor

1 An Árd Chúirt The High Court High Court (sitting in Cork City) record number: 2023/ 3755 P [2026] IEHC 145 A (A person with disabilities) Suing by his Mother and Next Friend AA Plaintiff and Health Service Executive and Cork University Maternity Hospital Defendants Judgment of Mr Justice Peter Charleton delivered ex tempore on Wednesday 4 March 2026 1. This is an application which is brought on behalf of the HSE and the relevant other defendants, who essentially come under the same umbrella, in relation to the case that is brought on behalf of A by his mother and next friend, AA. A was born in Erinville Hospital in Cork, which now comes under Cork University Maternity Hospital, on 12 January 2003, and he was, at that stage, a very premature baby in the sense that he was born after 24 weeks gestation. It is clear from the medical notes that prematurity led to an entire suite of problems, and the issue that is in the substantive case is whether or not the hospital, the consultants, the doctors, and the nurses, dealt properly with that. Background 2. First, it should be outlined that a suspicion has been raised in relation to the medical notes and whether these were correct or whether they were altered or duplicated later on. That obviously would be a matter for the trial judge but it is something that I can make no comment on, save to say that in circumstances of distress, which this is clearly, it can be the case that people come to the conclusion that there is something there when, perhaps, there is not. That is added to by the specialist who has been engaged on behalf of A through his mother, Dr Fogarasi, who, it seems, is just a little bit free in relation to the opinions he is giving on that particular matter which, may or may not, at the end of the day, turn out to be a completely unjustified suspicion. I have no idea, as I am not doing the case. What I am doing is this motion that is brought on behalf of the defendants which essentially asserts that the most recent personal injuries summons endorsement of claim issued on behalf of A, into which his mother clearly put an immense amount of work, does not conform with an earlier ruling of the High Court, made by Ms Justice Hyland on 29 November 2024 in A [A person with Disabilities] v Health Service Executive & Anor [2024] IEHC 747 whereby she said that there were multiple claims made but that only one should survive a motion to strike out. These various claims can be summarised as follows: firstly it is claimed that this little baby, when in hospital, had a line inserted into his leg because of various difficulties leading to the 2 need to, probably, give hydration and medicine to a premature child, and that the line was not taken out in time because the limb was going dark, eventually becoming black, leading to some of the limb, basically the foot, being removed at a later stage, and that that was unnecessary and resulted from improper care by the hospital. The claim is also made, secondly, that this young man developed a condition on the autism spectrum due to, possibly, deprivation of oxygen, possibly hospital infections as well, and that this should be included in the personal injuries summons. That particular claim is withdrawn, and in addition to that, the claim is made, thirdly, that because of bad care in the hospital and follow-up that the young man, A has developed a psychological condition relating to anxiety and relating to depression which results and flows from what happened in the hospital when they were treating him as a premature baby. Finally, the claim is made that he has had developmental delay in terms of his ordinary day to day affairs, schooling, living an independent life, finding a job and that this is in consequence of hypoxia, again, something that is alleged to have happened in the hospital. Expert evidence 3. The next thing to deal with is my position in relation to this case. My position is that I am a judge on the same level as Ms Justice Hyland who made her decision on 29 November 2024, whereby a motion was brought by the defendants claiming that part of the claim should be struck out, or the entirety of the claim, because it was not in conformity with the fundamental requirements that exists in relation to claims that are based on an arcane discipline, here medical science, which is that, there should be expert evidence backup, unless the case is so obvious, as in removing the wrong kidney or limb. The basic and fundamental authority that is used in that regard is Greene v Triangle Developments Ltd & Ors [2008] IEHC 52 where Mr Justice Clarke said at [4.3]: It is, of course, the case that no party should issue proceedings (or join a third party to existing proceedings) without having a credible basis for so doing. That situation applies with particular force in cases where it may be considered appropriate to maintain a claim for professional negligence. It would be most inappropriate for any party to issue proceedings alleging professional negligence or join a third party against whom professional negligence was to be alleged, without having a sufficient expert opinion available that would allow an assessment to be made to the effect that there was a stateable case for the professional negligence intended to be asserted. 4. Put into a concise statement, it means this: all of us go about our lives in the ordinary way doing the ordinary things that we do such as driving a car or working in a warehouse. If somebody, in a warehouse, drops a box from on top of a forklift truck onto somebody’s leg, one does not need an expert to say that this was a negligent act. Similarly, if one is driving a car, and somebody does not observe a road sign, and crashes into your car, you do not need an expert to say that is a breach of duty of care. These are everyday matters. When you make a claim, however, which requires understanding of professional expertise, then you cannot make that claim unless you have someone with that professional expertise who is prepared to come to court and to swear that what happened was below the standard to be expected of whatever the profession was, be that person a dentist, paediatrician, or an accountant. That being the case, all the way through this litigation, Ms AA on behalf of her son has relied upon the expert opinion of Dr Fogarasi which, by times, has been amended and there are four or five versions of his report, the second last of these being the one which was before Ms Justice Hyland when she made her decision in November 2024. What is put up to me today is that after that decision, a different report was delivered from Dr Fogarasi, which maybe came in answer to the decision made by Ms Justice Hyland, or perhaps in consequence of perhaps some further notes becoming available, and that because this is dated 30 3 August 2025, that this constitutes new evidence, in consequence of which, the case is made by Ms AA on behalf of her son, the decision made by Ms Justice Hyland needs to be reversed. New evidence coming to light 5. It is a principle of law that where a judge at the same level, such as Ms Justice Hyland, has made a decision based on the available facts, and then genuinely new information later emerges, particularly in a professional negligence claim and backed by expert evidence, showing that a new fact has been discovered, the earlier decision cannot be characterised as wrong. In such circumstances, the court ought to allow an amendment to the pleadings so that the real issue in controversy between the parties can be properly reflected. The issue that I ask myself is whether what is in Dr Fogarasi’s report constitutes new and essentially credible material being an opinion of a professional person against other professional persons which has an ‘air of reality’ about it that can go on and be considered by the court so that the decision made by Ms Justice Hyland on 29 November 2024 can be revised by me. The report before the High Court 6. I therefore need to turn to that decision of Ms Justice Hyland as she deals with issues as to infection, issues as to what might result from infection and developmental problems, autism and such psychological issues such as depression. At [40] of her judgment she says: [Dr Fogarasi] referred to infections with MRSA and methicillin‑resistant coagulase‑negative streptococcal of the eyes before January 21 and says this is a separate negligence and the combination of these and the failure to screen [A] on 18-21 to take adequate precautions is substandard care. He noted that there is also likely to be failure to properly insert lines, confirm correct positions by X-ray, failure to monitor lines to avoid contamination, alongside failure to recognise evolving sepsis infection with methylsin resistant coagulase negative streptococci. He noticed this led to very poor outcomes for [A]. He goes on to observe that intra-arterial lines might cause decreased or even stop blood which can compromise arterial circulation and result in limb threatening soft tissue necrosis. He notes, there are certain steps that ought to be taken to minimise complications and the contradictory documents suggest these might not have happened for [A]. 7. That is the leg injury and the removal of the foot. That claim, Ms Justice Hyland said, in the judgment, was a claim that should be allowed to continue. And of course, the defendants accept that that is the case, but they claim that the most recent version of the personal injury summons, the endorsement of claim on the personal injury summons, goes further than the foot matter. Ms Justice Hyland then goes on to deal with other things that are still maintained, notwithstanding what she has said, and by reason of the most recent medical report of Dr Fogarasi to be still in the case. At [41] Ms Justice Hyland said: [Dr Fogarasi] then referred to [A] having a streptococcus sepsis according to microbiological results, on 22 January, and that this sepsis could have a role in his leg injury of 20/21 January, 2003 due to inflammation and or injury due to malposition of the first line, long line on the 6pm, and delay in removing this line. He referred to the nurse's notes and said foot appears improved with mild warmth, toes remain black and that this line should have been removed immediately when noted by staff are 20:00 hours when it appeared to be purple and cool to avoid losing four of his toes, and heel. Dr Fogarasi did not indicate that he believed this was a malpractice. 4 8. In summary, this paragraph says that the insertion of the line, which was removed the following day, could amount to medical malpractice. Again, the decision of Ms Justice Hyland is that same amputation injury should be in the case for that reason. But, the report goes on to deal with the problem of sepsis, and when someone is badly infected with a bacterial agent that is referred to by doctors as sepsis, which means that the blood is also infected. At paragraph [44] Ms Justice Hyland continues Moreover, there remain serious issues with causation, because [Dr Fogarasi] observed the sepsis could have eroded the leg injury, but does not commit to that. He also referred to the fact that there were duplications on the nurse's notes, and duplications didn't contain the same information, and he said one might think that one of these copies was circulated later in order to change the original information on patient’s care, which is in itself, a breach of duty. No causation is identified, nor is it alleged that the issues with the notes had led to an injury. In relation to the MRSA infection he said that the reason there were multiple infections was his prematurity. However, he concluded that neonatal infections or sepsis do not cause long-term problems after recovery, except central nervous infections such as meningitis or encephalitis. This seems to contradict his earlier observation that the sepsis could have a role in his leg injury, and it is difficult to know what precisely is being said in relation to this. 9. At [47] Ms Justice Hyland says: I must consider whether this medical report can be treated as a report which meets the criteria identified in Green, one that allows an assessment to be made that there is a stateable case for the professional negligence intended to be asserted. I think the position is extremely borderline. I have explained the reservations I have about this report above, and it suffers from a distinct lack of clarity. However, it does appear to assert that the insertion of the line in [A’s] left leg ought to have been removed earlier than it was, and had it been removed, the damage to [A’s] left foot could have been avoided, that the delay was causative of the damage. That appears to me to just about meet the threshold requirement. In these circumstances, I refuse the application to dismiss the claim as disclosing no cause of action or as being bound to fail. 10. Therefore, the net result of that judgment was that everything, except the foot injury, the loss of the four toes, the loss of the heel, was ruled out. The most recent medical report 11. The next thing to be considered is the further medical report of Dr Fogarasi, and whether or not that constitutes a basis under s 10(3) of the Civil Liability and Courts Act 2004, and whether in accordance with the decision in Green for saying that something new has now emerged which has an air of reality, and which this court should, in effect, enable and amendment, to be made. 12. Turning to Dr Fogarasi’s report, it seems to me that, first of all, there is no new information, in terms of fact on what it is based. It seems to me that the best that can be said about this report is that it is a reassessment in the light of Ms Justice Hyland judgment as to what is there already. At page five of that report of 30 of August 2025, he says: [A] displayed signs of neurological dysfunction and should have received further testing. Hypoxia, sepsis and hyponatremia can all affect the developing brain and are linked to neurological development difficulties. A normal MRI does not always guarantee a normal 5 neurodevelopmental outcome. The presence or absence of injury as an MRI depends on the severity of the injury and can be a useful tool for guiding treatment and predicting outcomes, and in [A’s] case, his limitation could and should have been addressed, had he been further addressed after the normal MRI. Failure to do so leads to the long delay in ASD diagnosis and treatment and multiple incorrect diagnosis. Not considering [A’s] hypoxia, limb loss and hyponatremia when forming a diagnosis is in breach of duty and negligent. 13. Looking at that, there is nothing new there except to say on an unspecified date by an unspecified person at an unspecified time, it might, and I underline might, have been better to do a further test on the sepsis issue. He says at page six that in 2022 A received a diagnosis of ASD, and that a recent retrospective study raised the association between neonatal sepsis and that. He refers to a more recent study in Denmark where there was a statistically significant association between neonatal sepsis in the first week of life and a higher likelihood of autism diagnosis. One authority is cited in pursuit of that particular proposition. However, again, this is nothing new. It is simply a reassessment of what is there already. The report does not say that something was done negligently. 14. Then there is a question of people letting people down, and the psychological issues which is addressed on page seven. There is a diagnosis of persistent depressive disorder, and he says “this long-standing diagnosis has affected mood and self-esteem”, which, of course, it does. He added to his medical report: “[A’s] many years of assessment and appointments, multiple incorrect diagnosis, improper care, lack of knowledge of his autism, his limb loss with serious impact, physically and mentally, have all contributed to [A’s] depressive anxiety disorder and low self- esteem.” All that arises in relation to that is this: there is a principle in personal injury law which is that it is not just the fact that, for instance, one has injured their back, but rather, if in consequence of that, you are unable to attend to your daily duties. Let us say you run an orchard and you lose your orchard, and you become depressed. That forms part of the sequelae, and it is not necessary, therefore, to plead anything other than to say that in the event that, because of the foot injury, the result has been depression due to loss of the amenities of life, or what might be ordinarily expected in relation to that injury, that that is part of the claim. But that does not mean that the claim extends from what happened in the hospital to everything that the HSE might have done, which is unspecified, in the intervening 20 or so years. That claim is simply that due to the injury, there is liability for the ordinary sequelae, if that be the case, of the original medical malfunction. 15. At page eight, there is something that seems, on the face of it, to be new and that is in relation ventilation. When an infant is premature, obviously the infant has to be ventilated and weaned slowly off ventilation. What Dr Fogarasi says is that it is normal and best practice to slowly wean very low birth weight infants off ventilation: While early weaning from ventilation is often desired, it is crucial to ensure the baby is stable enough to breathe independently. This involves gradually reducing ventilator support as the infant's respiratory functions improve. This process is guided by both objective measures like blood gas values and clinical assessment of the infant's stability. Intubation, the removal of the breathing tube should only be considered where the infant can maintain adequate oxygenation and ventilation with minimal ventilator support. Being taken off of ventilator too soon, as is the case here, can lead to respiratory failure, potentially requiring reintubation and further ventilation. 16. Reading the entirety of that report and going into page nine, there is nothing in terms of times, dates, when, how, or who did something wrong: what was wrong. Instead, there is no comment 6 in relation to the medical notes, which clearly show that this was a trial in the manner that he describes, where the infant is taken off ventilation, is tested, and is put back on ventilation if matters do not improve. That is not a new element in the case at all. Dr Fogarasi also makes some new comments, which are underlined in red on pages 10 and 11. Some of those relates to the foot and there is no difficulty in relation to that claim continuing. 17. However, some of it relates to developmental delay, to psychological issues and to deprivation of oxygen. Now, it is said today that, in addition, it has more recently been found out that there is a heart issue, but that heart issue was never in the case. It is not commented on by Dr Fogarasi as resulting from the negligent treatment of this premature baby and therefore that is not in this case. 18. The last matter is that it is said that there was a hospital infection, that there was a known risk, that the baby suffered from this, that this led to neonatal sepsis, and that the consequence of that has been the issues mentioned as being out-ruled by Ms Justice Hyland, but which should be, it is claimed on behalf of A, restored here. These are, namely, psychological issues and developmental delay. All that is said in the medical report is that if doctors wash their hands and if they do not use the same instruments twice, for instance, on two different patients, which strikes the Court, as being a truly bizarre allegation to make without any evidence at all in the twenty-first century, that MRSA and other infections can spread. But that is nothing more than a statement of fact. It does not add to anything. On page 21, Dr Fogarasi refers to further issues which indicate poor hygiene standards and protocols, inadequate surveillance, which could or would explain repeated exposures to infection and the development of sepsis. He goes on to say that in the case of A, the infection with CONS, on or before 22 of January went unrecognised when there was a day in reintubation with hypoxia and hyponatremia, as well as the misuse or overuse of the limb caused by an inflammatory response leading to the loss of the limb, and later, it is said, and it is not in the case, emergency heart surgery. Again, there is nothing new in that. 19. There is nothing in terms of an air of reality, in fact, in any of the report, which would lead me to believe that something new now emerged, and in consequence of that, I am relieved of my duty to follow the judgment of Ms Justice Hyland. I am clearly not relieved of the duty to follow the judgment of Ms Justice Hyland. Her judgment was that all that remains within the case is the issue in relation to the loss of the limb, and that that is the only part of the case which can be allowed to continue. Endorsement of claim 20. Now, given that that is my decision, I want to finally turn to the draft endorsement of claim. I am asked to make a decision in relation to which, of a number of competing versions of the endorsement of claim, is to be allowed. The answer is that the competing version that is to be allowed is the version which emerges in very unusual circumstances. Ms AA, who is representing her son, is not represented by a solicitor. In consequence of that, the drafts which she put in, which is the draft mentioned in the motion, has, very helpfully by her, got additions in red ink in it. The HSE then has parts of the endorsement of claim that they say ought not be included, arguing that they are not directly related to the foot injury or the loss of the limb, which have been struck out in green ink. 21. Taking the endorsement of claim, which is supposed to put things in a nutshell before particulars are given, where these are necessary which is hardly the case with a full medical analysis through an expert report, that will read, “the plaintiff's claim is for the reliefs recited herein, damages, interest and costs for severe personal injury, loss and other damages sustained by the plaintiff by reason of negligence, breach of duty and or breach of statutory duty of the defendants 7 acting by itself or through its servants or agents in these circumstances here and after.” For physical and psychological injuries, including “the loss of the forefoot, heel and toes of the left leg.” There, it has to stop. The green amendments made by the HSE in ease of the fact that the plaintiff is represented simply by his mother and is a lay litigant, are accepted by the Court as being in conformity with Ms Justice Hyland's judgment, except at two places, which is at 10(h). It seems to me that in the context that we are dealing with the foot, that the paragraph which says “failing to provide or advise any or any adequate or appropriate management plan to the plaintiff after his birth for his injuries remains in the case” that that relates, in other words, to what happened in the hospital and is not a generalised claim as to everything that has happened in the intervening 23 years. 22. Similarly, paragraph (i) “failing to operate such treatment plan, if any, as may have been in place”, again, relates to the leg injury, to the sequelae, and does not bring in a whole range of allegations as to what may have happened later on. Result 23. I am not sitting as an appeal court. I am bound by the judgment of Ms Justice Hyland of 29 November 2024. In the event that something genuinely new and with an air of reality about it had emerged, I would be entitled to allow an amendment despite the judgment of Ms Justice Hyland. There is nothing in Dr Fogarasi’s report which indicates to me that there is a sufficiently particularised claim of medical negligence based on something new, which supersedes Ms Justice, Hyland’s judgment, which would enable me to allow anything other than the leg issue and what happened to this young man in the hospital, as opposed to what is claimed: hypoxia, development delay, autism, psychological issues, and everything that happened vis-à-vis his interactions with the HSE all the way through from his discharge from hospital to now, to be admitted into the case. I just simply cannot do that. Courts are human, as well as everybody else. However, I am bound by the law. I am also subject to appeal. I am not encouraging that, because I think my decision is right. But if there is a desire to appeal this decision, of course that is possible, and that is the way to go about it, as opposed to bringing another motion or another medical report, unless that medical report, of course, contains something genuinely new and something which genuinely has an air of reality about it. Otherwise, it is futile. As this is a pre-trial, motion costs will be costs in the cause.