A High Court judge today approved a €4.5 million settlement for a man who is severely brain damaged and "a child in a man's body" after suffering viral encephalitis as a result of a viral infection, herpes simplex.
The settlement includes payments for Martin O'Brien's family and was made without admission of liability.
Mr O'Brien (45), his wife Anna Marie and their children Rachael and Benjamin, Laurel Park, Newcastle, Galway had sued the HSE and a number of doctors over his treatment between late January 1996 and late March 1996.
The settlement is against one of the doctors - Dr Brendan S Duffy, who was attached to Merlin Park Regional Hospital, Galway, in 1996 when he allegedly treated Mr O'Brien there some weeks after Mr O'Brien developed and was treated by others for an itchy rash and sores. The proceedings against all other defendants were struck out.
All defendants had denied liability and, in seeking approval for the settlement offer today, Eoin McGonigal SC, for the family, said it was a "very unusual" case and "not certain" his side would win on liability in a full hearing.
It was clear the itchy rash which Mr O'Brien experienced in late January 1996 had "nothing to do with herpes simplex" and it was not clear how he contracted herpes simplex "which is in all of us", counsel said.
The defendants argued the treatment given to Mr O'Brien was reasonable while his side argued Mr O'Brien should have been given particular treatment on March 31st 1996 rather than April 4th 1996, counsel said. This issue was "not black and white" and there was a dispute, even had Mr O'Brien received that treatment on March 31st, if he would have avoided all the injuries he later suffered.
His side were not contending diagnosis should have been made immediately but was contending Dr Duffy should have been alert to the possibility Mr O'Brien had herpes simplex, counsel said.
As a result of his injuries, Mr O'Brien is "like a child in a man's body" and needs 24 hour care, counsel said. His wife and children provided that care although they had been urged by the health services to put Mr O'Brien into a home.
Mr Justice John Quirke said he was approving the settlement pending clarification of an issue. After hearing from Mrs O'Brien, the judge paid warm tribute to her for the care devoted to Mr O'Brien and described her as "a wonderful lady".
Mrs O'Brien told the judge she loved her husband, as did their children. He had been "a very good husband", "roses and everything", but was now very brain-damaged, could not work, and needed everything to be done for him.
"I always wanted justice for him," she said, and was very sorry it had taken 15 years to get to this point. She and her children felt they were left on their own for a long time by the health services, she said.
Her children had also suffered and she believed the law should be changed to reflect that. The judge said he didn't disagree with her.
It was alleged Mr O'Brien developed an itchy rash with round red sores around January 22nd 1996. He was initially believed to have scabies and prescribed benzyl benzoate but referred by a doctor to University College Hospital, Galway, the same day as an emergency case.
At UCH, Mr O'Brien was advised his body rash was eczema and he might also have had scabies and was prescribed various treatments. When reviewed on February 9th, it was claimed Mr O'Brien still complained of a generalised very itchy eczemaous rash and was advised to continue using the prescriptions advised on January 22nd.
Mr O'Brien did not fully recover and about the end of March 1996 complained of aches, pains, fevers, sweating, memory loss, agitation and was smoking heavily, it was claimed. He was advised to rest in bed and to take paracetamol.
It was claimed Mr O'Brien collapsed while leaving Merlin Park hospital on March 31st 1996 and was admitted to that hospital under its care and the care of Dr Duffy. It was alleged he complained of having had a blackout, loss of memory, headache, neck stiffness, diminished power in lower limbs and abnormal rolling of his eyes.
By that evening, he was unable to recognise his wife and examinations and tests suggested encephalitis and possibly herpes simplex, it was claimed. He was started on Zovirax treatment on April 4th, on Acyclovir on April 5th and remained in hospital until August 1996 when he was removed to the National Rehabilitation Centre and later to hospital in England.
