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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Kavanagh (A Minor) v. Murphy & Anor [2003] IEHC 105 (28 November 2003) URL: http://www.bailii.org/ie/cases/IEHC/2003/105.html Cite as: [2003] IEHC 105 |
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THE HIGH COURT
1998 No 33P
BETWEEN
GARY KAVANAGH (A MINOR, SUING BY HIS MOTHER AND NEXT FRIEND, PATRICIA KAVANAGH)
PLAINTIFF
AND
HARRY MURPHY AND THE SOUTH EASTERN HEALTH BOARD
DEFENDANTS
JUDGMENT of Mr. Justice Diarmuid B. O'Donovan delivered on the 28th day of November, 2003
The plaintiff in these proceedings, Gary Kavanagh, who was the second of twins born to his mother, the above named next friend, Patricia Kavanagh, at Wexford General Hospital on the 9th January, 1991 after thirty weeks and five days gestation, sought damages by way of compensation arising from the fact that, following his birth, he developed a condition of cerebral palsy as a result of which he will remain permanently mentally and physically handicapped for the duration of his life; the onset of the said condition being allegedly attributable to negligence and breach of duty on the part of the defendants, or one or other of them, in or about the care of the plaintiff in the aftermath of his birth.
The plaintiff's claim herein came on for hearing before me in the High Court on the 30th day of November, 1999, on which day each of the defendants served notices claiming indemnity or contribution from the other. On the 7th day of December, 1999, during the course of the said hearing before me, the first named defendant conceded liability to the plaintiff reserving his right to continue to seek indemnity or contribution from the second named defendants. On the 2nd March, 2000, my colleague, the Honourable Mr. Justice Richard P.F. Johnson approved of a settlement of the plaintiff's claim in the sum of IR£1.75m (€2,222,041.6) together with the plaintiff's costs to be taxed in default of agreement; such costs being subsequently agreed in the sum of IR£480,222.58 (€609,756.90). Accordingly the defendant's liability under the terms of the said settlement was in the sum of IR£2,230,222.58 (€2,831,798.53) which I am advised by counsel for the parties has been discharged by the first named defendant. I am further advised by counsel for the second named defendants that the said defendants do not take issue; either with the amount of the settlement of the plaintiff's claim or the amount of the costs which were paid to the plaintiff's legal advisors; both of which amounts were accepted by the said named defendants as being reasonable.
As I have already indicated, when offering to settle the plaintiff's claim as aforesaid, the first named defendant reserved his entitlement to continue to seek indemnity or contribution from the second named defendants pursuant to a notice in that behalf dated the 30th day of November, 1999 which had been served on the second named defendants on behalf of the first named defendant. The said claim for indemnity or contribution came on for hearing before me on the 28th day of February, 2003 and continued fitfully thereafter culminating with submissions by counsel for the respective parties on the 10th day of October, 2003. I say that the said hearing continued fitfully for the reason that, due to the unavailability of Professor Peter Fleming, a consultant paediatrician, it was not possible to hear the matter on successive days and, accordingly, in an effort by me (probably misguided) to convenience everyone, the matter proceeded before me on the 4th March, 2003, the 12th March, 2003 and the 14th, 15th and 16th May, 2003 on which days, in addition to Professor Peter Fleming, I heard evidence from a number of other witnesses.
At the outset, it is relevant to record that, while, on the face of it, in addition to his claim for contribution, the first named defendant claimed an indemnity from the second named defendants in respect of the damages and costs which he has paid to the plaintiff, when opening the case on behalf of the first named defendant, his counsel, Mr. John Gordon S.C., conceded that Dr. Murphy had been negligent in failing to transfer the plaintiff from Wexford General Hospital to an acknowledged centre of excellence for neonatals at Ardkeen, Co. Waterford, in the aftermath of his birth, as had happened to the plaintiff's twin brother, Ian. However, while accepting that Dr. Murphy had been guilty of negligence which contributed to the condition of cerebral palsy which the plaintiff subsequently developed, it was Dr. Murphy's case against the second named defendants that they contributed to the deterioration in the plaintiff's health; firstly, because the quality of nursing care and management which the plaintiff received while an in-patient at Wexford General Hospital in the immediate aftermath of his birth was inadequate and, secondly, because the second named defendants had not put in place a protocol whereby the circumstances under which a child born at Wexford General Hospital should be transferred to the centre of excellence at Waterford Regional Hospital Ardkeen, Co. Waterford were detailed.
In the light of the evidence which I heard, I was satisfied that the plaintiff's twin brother, Ian, was born at Wexford General Hospital on the 9th January, 1991 at 2.50 pm and that, at birth, he was in very poor condition; so much so that he required incubation shortly after birth and was taken to the special care unit, whereupon arrangements were made to transfer him to the centre of excellence aforesaid at Waterford Regional Hospital. In this regard, the plaintiff's mother, Patricia Kavanagh, gave evidence that it was her belief that it was the first named defendant, Dr. Murphy, who had sent for the flying squad at Waterford Regional Hospital to come to Wexford to collect Ian to bring him to Waterford. However, she was not sure whether it was Dr. Murphy, himself, who had told her this, or whether she had learnt it from someone else. In any event, she said that, because Dr. Murphy was in charge of her babies (he had delivered them), she took it for granted that he was the one who had instigated the transfer of Ian to Waterford Regional Hospital. Nevertheless, Mrs. Kavanagh also gave evidence that, shortly after her babies were born, she was visited in Wexford General Hospital by Dr. Paul McMahon, a consultant paediatrician then attached to the Waterford Regional Hospital, who she understood had seen her two babies before he came to see her and who told her that Ian was not well and that he was taking him to Waterford. This would suggest that it was Dr. McMahon, rather than Dr. Murphy, who had made the decision to transfer Ian to the Regional Hospital in Waterford and allowing, as Ms. Kavanagh believed, that Dr. McMahon had seen the plaintiff at the same time as he had made that decision, it is implicit that he also had decided that the plaintiff's condition was such that it was not necessary to transfer him to Waterford. Under cross-examination, it was suggested to Mrs. Kavanagh that, in fact, Dr. McMahon had not visited Wexford General Hospital on the 9th January and that she was mistaken in her belief that she had had the conversation with him of which she gave evidence. She rejected this assertion. However, when Dr. McMahon came to give evidence, while I cannot find a record that he was ever specifically questioned about that conversation which Mrs. Kavanagh said that she had had with him or, indeed, as to whether or not he had visited Wexford General Hospital on the 9th January, 1991, he did say that he had first seen Ian Kavanagh in Waterford Regional Hospital on the evening of that day and that evidence was not challenged. Furthermore, it was the evidence of Professor Peter Fleming, who was the principal witness for Dr. Murphy, that it was his (Professor Fleming's) belief that it was he (Dr. Murphy) who had that made the request to Waterford to transfer Ian. Accordingly, I am persuaded that Mrs. Kavanagh's memory is playing her false; probably due to the fact that, having given birth to twins which she did not expect (although he attended her throughout her pregnancy, Dr. Murphy failed to recognise that she was pregnant with twins) the events of the 9th January, 1991 are somewhat of a blur in her mind and that the reality is that Dr. McMahon did not visit Wexford General Hospital on the 9th January and did not have the conversation with her which Mrs. Kavanagh has ascribed to him. It follows, of course, that I am satisfied that Dr. McMahon had no hand, act or part in the decision to transfer Ian to Waterford Regional Hospital and, more particularly, that he had no input into the decision to keep Gary in Wexford. In this regard, the fact that Dr. Murphy did not give evidence in his own behalf was, to say the least of it, very unsatisfactory because it seems to me that his thoughts at the time with regard to the care of the twins would be very relevant to the issues which I have to decide and I have to say that, although counsel told me that Dr. Murphy's health did not permit him to give evidence, with all due respect to counsel, I had no evidence to that effect. However, in the absence of hearing from Dr. Murphy and in the light of the other evidence which I heard, I must conclude that it was Dr. Murphy and he alone who was responsible for the decision to transfer Ian to Waterford Regional Hospital and to keep Gary in Wexford.
The plaintiff, Gary Kavanagh, was born five minutes after his twin brother, Ian, and at birth appeared to be in good condition. Nevertheless, following delivery, he, also, was taken to the special care unit at Wexford General Hospital where he was placed in an incubator with 50% oxygen via a head box. Both Ian Kavanagh and Gary Kavanagh were in the special care unit at Wexford General Hospital in separate cribs beside one another from approximately 3.00 pm on the 9th January, 1991 until 5.30 pm on the same day when Ian was taken by a flying squad to the centre of excellence at Waterford Regional Hospital. In this regard, it is suggested on behalf of the first named defendant that it is of significance that the flying squad from the Waterford Regional Hospital arrived at Wexford General Hospital to collect Ian Kavanagh at approximately 4.20 pm on the 9th January, 1991 so that they would have been present in or about the special care unit at Wexford General Hospital for about an hour before taking Ian to Waterford Regional Hospital. Accordingly, it was submitted on behalf of the first named defendant that the members of the flying squad and, in particular, a Dr. Khan, who was Registrar to Dr. Paul McMahon, had the opportunity of seeing Gary Kavanagh, of assessing his condition and of making inquiries as to his well being. That as it may be, there was, however, no evidence that Dr. Khan, or any of the members of the flying squad, ever examined Gary, or made inquiries as to his condition. Indeed, insofar as Dr. Kahn is concerned, Dr. McMahon gave evidence that it would have been improper for him, as a junior doctor, to involve himself in the care of another consultant's patient and that, if, at the time, he had made inquiries about Gary's condition, it would only have been as a matter of courtesy because, in the absence of a request to do so, any expressed concern on his part about Gary's condition could be looked upon as improper interference in another doctor's patient. Professor Fleming expressed a very different view. He gave evidence that, if a Registrar, such as Dr. Khan, came to collect one of twins, he/she would normally look at the other twin as well; particularly, as was the situation with regard to Wexford General Hospital, if the other twin is in an institution with a limited ability to cope with an unwell baby. In that regard, Professor Fleming said "I am surprised that no note of any description was made about Gary's condition, either in Gary's notes or in Ian's notes by the flying squad team because, from the nursing observations at the time that the flying squad had arrived, both twins were ill! Ian was clearly the sicker because he had to have help with his breathing right from the beginning but, nevertheless, at that point in time both twins were ill". Moreover, Professor Fleming said that, even if the members of the flying squad had not looked at Gary, he would have expected them to inquire about him for the reason, firstly, that, if he had an infection, it is likely that his twin brother would have been similarly affected and, secondly, because the large discrepancy in the size of the two boys made it possible that there had been a twin to twin transfusion which potentially put both babies at risk. Indeed, Professor Fleming expressed astonishment that the flying squad had not attempted to take Gary with them because, as he said "normally, if two twins are born at that sort of gestation, the standard practise of a transport team would be to take both of them" he added that the failure to transfer Gary to Waterford Regional Hospital at that stage was a serious error; in fact, in his view, irresponsible. When it was suggested to Professor Fleming that, ethically speaking, it would have been quite improper for Dr. Khan to examine Gary, given that Dr. Murphy had decided that Gary was well enough to be kept in Wexford, the Professor's response was that a management system that tolerated such working practices was clearly failing in its duty of care to the patient. That view was challenged on the basis that it would be intolerable were Registrars going around taking over other people's patients, to which he responded that a system which allows someone (Dr. Murphy) without neonatal training to provide care for desperately sick children was "far outside normal practice in any hospital in this country, in the U.K., in Northern Europe or in North America" and that he was astonished that it should be so. He conceded that it is improper for a doctor to interfere in someone else's patient unless invited to do so but he was highly critical of the system which, apparently, was tolerated at Wexford General Hospital whereby a consultant, without the necessary skills, (Dr. Murphy had neither paediatric nor neonatal qualifications) was caring for a sick child while a doctor (Dr. Kan) with the necessary skills, knowing of the consultant's inadequacies in that regard, could not interfere with the treatment of that child. In a nutshell, he said that the system which apparently existed whereby the medical staff at Waterford Regional Hospital could not interfere in the treatment of a sick child being cared for in Wexford General Hospital was a bizarre one.
As I have already indicated, when, following his birth, Gary Kavanagh was transferred to the Special Care Unit at Wexford General Hospital, he was placed in a head box receiving 50% oxygen. This was increased to 60% at 4pm on the 9th January and to 65% at 5pm on that same day indicating that the condition of the infant plaintiff had deteriorated significantly during that period. Moreover, as I interpret the nursing notes and the evidence of Nurse Claire Barry, who, apparently, was mainly responsible for Gary's care during the late evening of the 9th of January, 1991 and early the following day, his condition did not improve significantly. As Nurse Barry put it "the baby was ill but reasonably stable. His condition didn't change that much." It is also clear from the nursing notes that Dr. Murphy was kept informed of Gary's progress, in that, the record indicates that at 11.50 p.m. one or other of the nurses (it is not clear who) had a telephone conversation with Dr. Murphy at which he was "informed of the infant's condition". It follows from this, I think, that Dr. Murphy considered that the plaintiff was not sufficiently unwell to justify his transfer to Waterford Regional Hospital. In this regard, it was suggested to Nurse Barry that she herself might have contacted the Centre of Excellence in Waterford for advice, to which she responded that she certainly would not; that, when necessary, she would have telephoned the consultant, who, was looking after the baby and no one else. I accept that that was so.
While the nursing notes seem to me to be somewhat ambivalent as to whether or not the plaintiff's condition deteriorated during the early part of the 10th January, 1991 and Nurse Barry, who, apparently, was responsible for his care during most of that period gave evidence that it had not changed that much, the plaintiff's mother, Patricia Kavanagh, told me that, early on the following morning; that is some time after she had woken up about at 8.30 a.m., she had been told by one of the nursing staff that Gary's condition had deteriorated. Following that, Mrs. Kavanagh said that she had had a visit from Dr. Murphy, who told her that he had seen Gary and, apparently, tried to reassure her as to his condition. That as it may be, it seems to me that Dr. Murphy's concession in these proceedings, that his failure to arrange for the transfer of the plaintiff to the centre of excellence at Waterford Regional Hospital long before that transfer was actually affected amounted to a want of reasonable care for the plaintiff's welfare belies any assurances that he may have given to Mrs. Kavanagh on the morning of the 10th January, 1991 and, indeed, the fact that Dr. Murphy saw fit to give Mrs. Kavanagh such an assurance at that time, as I am satisfied that he did, only serves to emphasize his intransigence with regard to what he thought was best for the child; an intransigence which persuaded him that, notwithstanding his lack of neonatal qualifications, it was preferable that he should continue to look after the child rather than send him to Waterford and an intransigence which is further exemplified by the evidence of Dr. Paul Cregan, a doctor with neonatal qualifications who, at the time, was a Senior House Officer in obstetrics and gynaecology, which was not challenged, that later that morning, he, (Dr.Cregan) was berated by Dr. Murphy for interfering with Gary's treatment. In that regard, Dr. Cregan gave evidence that he would have seen the plaintiff at Wexford General Hospital at around midday on the 10th of January, 1991 and in his view his condition then was, as Dr. Cregan put it "an emergency situation", so much so, that he thought it essential that the child be intubated, which he immediately set about doing. Dr. Cregan said that Dr. Murphy was then sent for although he could not recall whether it was he, himself, or someone else, who sent for him but, in any event, Dr. Murphy arrived and, when he did, as Dr. Cregan said "I can remember Dr. Murphy coming in and being extremely irate and enraged with me for what I had done. The impression that he left me with was that this was something that I shouldn't have done; in the sense of examining the baby from the very word go. I can't remember the exact words he used but the intimation was that, because I had examined the baby, the baby had gone off and required resuscitation". Dr. Cregan also recalled that Dr. Murphy had shouted at him "it's your baby now". As I have indicated, Dr. Cregan's evidence in that regard was not challenged and I had no difficulty in accepting the veracity of everything that he told me. In that regard, Professor Fleming said that it was only when the plaintiff was seen by Dr. Cregan on that morning that it was that someone began to take appropriate steps to treat him having regard to his condition and, again, Professor Fleming's views in that regard were not challenged which persuades me that Dr. Murphy's attitude with regard to the treatment of the plaintiff was totally unreasonable. I am further influenced in this view by the evidence of Dr. McMahon, who gave it as his opinion that, when, at 11.50 p.m. on the 9th January, 1991, one of the nursing staff had had a telephone conversation with Dr. Murphy, in the course of which Dr. Murphy had been advised of the plaintiff's then condition, Dr. Murphy reaction should have been to telephone Waterford for advice and, had he done so, that advice would have been to transfer the child. In fact, Dr. McMahon said that while Dr. Murphy could have reasonably deferred a decision to transfer the plaintiff in the first hour after his birth, the child's condition after that made it ever increasingly clear that he ought to be transferred. Dr. McMahon was also very critical of Dr. Murphy's reaction when he (Dr. Murphy) discovered that Dr. Cregan had intubated the plaintiff on the morning of the 10th January. In that regard, Dr. McMahon agreed that what Dr. Cregan had done on that occasion was totally appropriate; as he said "absolutely optimum", the alternative being to let the child die or, at best, suffer massive intracranial damage. In this regard, while acknowledging that Dr. Murphy had no neonatal or paediatric qualifications, Dr. McMahon said that he was a man with very considerable experience in the field of obstetrics and, as such, knew full well when small premature babies needed to be transferred to a centre of excellence or, at least, when it was appropriate to telephone a centre of excellence for help. However, insofar as the plaintiff was concerned, Dr. Murphy apparently took it upon himself to care for the child because, as Dr. McMahon said, he (Dr. Murphy) seemed to regard himself as having a level of skills for looking after premature babies which, perhaps, he may not have had. The fact that Dr. Murphy was so confident of his ability to look after premature babies was, as Dr. McMahon, agreed, borne out by the fact that, over the years, statistics showed that there was a consistently abnormally low rate of referral of preterm births from Wexford General Hospital to the Waterford Regional Hospital, notwithstanding; as Dr. McMahon asserted, that Dr. Murphy had the skills to know when it was appropriate to transfer a baby to the centre of excellence. He may not, as Dr. McMahon said, have had the skills to implement intensive care with regard to a very sick neonate, but he did know enough to know when he should telephone the centre of excellence. However, notwithstanding that the plaintiff's twin brother was very ill when he arrived at Waterford Regional Hospital and was under Dr. McMahon's care, it would have been very improper for him (Dr. McMahon) to telephone Wexford and to interfere with the plaintiff's treatment. In this regard, while Dr. McMahon conceded that he now knew that Dr. Murphy suffered from over confidence insofar as his ability to deal with sick babies was concerned, he did not then know that; that was something that only emerged in recent years while, at the time, Dr. Murphy appeared to him to be very confident and very experienced, well beyond the average obstetrician, at looking after premature babies. In this regard, Dr. McMahon confirmed that there was no written protocol with regard to the circumstances under which a child should be transferred from Wexford to Waterford and, in the absence of such a protocol, the understanding and the practice was that a child should only be transferred at the request of the staff in Wexford or, in the event that a paediatrician from Waterford Regional Hospital was visiting the Wexford General Hospital and saw a baby there, who he/she considered to be in need of specialist neonatal care, then that paediatrician could take it upon himself/herself to have the child transferred to Waterford but, otherwise, such a transfer would only arise if there was a request in that behalf from the staff in Wexford and this was the understanding of the medical staff in both hospitals and, indeed, of the health board. I am satisfied by the evidence of Dr. McMahon that that was the understanding and the practice which obtained at the material time and, in the light of the evidence of Professor Fleming; in respect of which no challenging expert evidence was called on behalf of the second named defendants, I am equally satisfied that, as Professor Fleming said, it was a bizarre understanding and practice for the simple reason that it seems to me to make no sense that the views of a medical and a nursing staff with no neonatal expertise as to the appropriate care for a sick neonate should be preferred to those of a medical and nursing staff who had such expertise. Moreover, I agree with Professor Fleming that it is very surprising that, in Wexford General Hospital, there does not appear to have been any clear definition of responsibility for the care of a very sick neonate immediately following birth. Clearly, as Professor Fleming said and I accept, this anomaly could and would have been avoided had an appropriate written protocol been put in place, whereby the circumstances under which an unwell child born at Wexford General Hospital should be transferred to the Centre of Excellence in Waterford.
Pursuant to his claim for contribution against the Health Board, it was alleged on behalf of Dr. Murphy that, while the infant plaintiff was an in-patient at Wexford General Hospital and independent of any default on his part, the Health Board, through their servants or agents, negligently failed to observe, monitor or treat the infant plaintiff's neonatal condition properly and, in particular, failed to carry out blood gas evaluations, administer frozen plasma or record blood pressure. Indeed, it was alleged on behalf of Dr. Murphy that the Health Board were negligent, in that, independent of his wishes, other members of the medical and nursing stall at Wexford General Hospital did not arrange for the transfer of the infant plaintiff to the centre of excellence at Waterford General Hospital. In this regard, given that no member of the medical staff in Wexford General Hospital had specialist qualifications in paediatrics, or neonatology, it is alleged that the Health Board were additionally negligent for failing to put in place a written protocol whereby the circumstances under which a sick neonate born at Wexford General Hospital should be transferred to the centre of excellence in Waterford. Moreover, it is further alleged that the Health Board were negligent, in that no assessment of the staff at Wexford General Hospital with regard to their capacity to care for unwell neonates was ever carried out and neither were the staff at the hospital afforded any training in that regard, no one in Wexford General Hospital was identified as being responsible for looking after the infant plaintiff in the special care unit at Wexford General Hospital during the hours immediately following his birth and, it was suggested that the Health Board were also at fault because of the failure of the flying squad, who took Ian Kavanagh to Waterford General Hospital shortly after his birth, to recognise the problems which the infant plaintiff was likely to experience and to transfer him, also, to Waterford.
In the light of the evidence of Professor Fleming and, indeed, that of Dr. McMahon and having regard to the available records relating to the infant plaintiff's care and treatment while he was an in-patient at Wexford General Hospital, I think that there is considerable substance to the allegation that he was very badly cared for during that period. In particular, Professor Fleming expressed the view that the quality of care which the infant plaintiff received during the first twenty hours of his life was substandard and unacceptable and, as it seems to me that that view was not seriously challenged, I have no reason to doubt it. Moreover, I have no doubt at all but that the plaintiff should have been transferred to Waterford General Hospital long before that transfer actually took place. In that regard, I have some sympathy for the argument that the Health Board can be faulted in so far as the plaintiff's care at Wexford General Hospital is concerned and with regard to the delay in transferring him to Waterford, however, it seems to me that the primary responsibility for the inadequate care which the infant plaintiff received while he was an in-patient at Wexford General Hospital and the primary responsibility for the failure to have him transferred to Waterford General Hospital much sooner than when that transfer actually took place must be that of Dr. Murphy and not that of any other member of the staff at Wexford General Hospital or, indeed, the members of the flying squad. In this regard, there can be no doubt but that Dr. Murphy was in overall charge of the infant plaintiff's care following his birth and, to the fair to Dr. Murphy, it was never suggested otherwise on his behalf. That being so, however it seems to me that it was Dr. Murphy's responsibility to ensure that, while the plaintiff was in Wexford General Hospital, he received treatment which was appropriate for his condition and that his progress was properly monitored and I do not think it reasonable that either Dr. Murphy, himself, or anyone else, for that matter, should have expected that more junior members of the medical staff at Wexford General Hospital, or members of the nursing staff, should assume those responsibilities. Indeed, given Dr. Murphy's reaction when, on the 10th January, 1991, Dr. Cregan had taken it upon himself to interfere in the infant plaintiff's treatment, I have little doubt but that he would have been similarly aggrieved, if during the previous night, some other member of the medical staff, or any one of the nurses, had purported to dictate how the infant plaintiff should be cared for without reference to him. I am quite sure that any other member of the staff at Wexford General Hospital, who was minded to interfere in the infant plaintiff's treatment without reference to Dr. Murphy would have thought long and hard before doing so and, eventually, would have rejected the idea for fear of unpleasant repercussions. Given that, as I interpreted the evidence, it is accepted in medical circles that it is improper for medical personnel to interfere with the treatment of someone else's patient unless invited to do so, I think that it would not be reasonable to expect that anyone at Wexford General Hospital, other than Dr. Murphy, should have made decisions with regard to the infant plaintiff's care and treatment while he was an in-patient in the hospital and the idea that someone might go behind Dr. Murphy's back and arrange to have the child transferred to Waterford, without reference to Dr. Murphy, is, in my view, ridiculous.
In this regard, I think that it is clear that the failure to administer proper care for the plaintiff during the hours immediately following his birth and, in particular, the failure to transfer him to the centre of excellence at Waterford General Hospital long before that transfer was actually effected largely contributed to the onset of the condition of cerebral palsy which he ultimately developed. Moreover, as I have already indicated, I am satisfied that responsibility for that tragic fact is largely that of Dr. Murphy. In that regard, given that the infant plaintiff was a twin, who's sibling was in very poor condition at birth; a fact, which, as I interpret the medical evidence, suggested that the plaintiff's own condition was likely to worsen and, in any event, given that the plaintiff, himself, required 50% oxygen shortly after his birth and had a very high colour, indicating that he was very unwell, it seems to me that the amount of personal attention that Dr. Murphy paid to the child was in inverse proportion to what would have been appropriate. In that regard, it would appear that, having delivered the child, he did not next see him for nearly twenty hours, and, in the interim, was in telephonic contact with a member of the nursing staff with regard to his progress on only one occasion. Like Professor Fleming, that does not seem to me to be consistent with the type of care that one might reasonably expect such a sick child to receive. Furthermore, in the absence of an explanation from the man himself, it seems to me that Dr. Murphy's decision not to transfer Gary to Waterford Regional Hospital can only be interpreted as his having a belief that he had the requisite skill to look after the child properly and that Wexford General Hospital was properly equipped to enable him to do so; a belief which, in my view, was totally unjustified. As Professor Fleming said "by keeping Gary in Wexford, Murphy was implicitly saying I am qualified to care for him and the unit in which I am going to give that care is properly equipped to provide it". I agree with Professor Fleming that that is the only reasonable conclusion that can be drawn from Dr. Murphy's failure to transfer the infant plaintiff to Waterford General Hospital much earlier than he was transferred and I am satisfied that Dr. Murphy was not entitled to that belief because he was not professionally qualified to care for neonates; much less a neonate that is unwell, as was the plaintiff and neither was Wexford General Hospital sufficiently equipped to provide proper care for such a child, as Dr. Murphy well knew, because, for many years previously, he had been campaigning for the appointment of a paediatrician to the hospital and, generally speaking, had complained about the inadequacy of the neonatal paediatric services which were available there. Indeed, as Dr. Murphy well knew, at the material time, the medical and nursing staff at Wexford General Hospital, who were expected to care for unwell neonates, were given no information and no training in that regard and, instead, a system which permitted misplaced confidence in the capacity of inadequately qualified personnel to care for unwell neonates was tolerated.
As I have already indicated, I am not persuaded that the South Eastern Health Board are free of all blame for their failure to provide adequate care for the plaintiff at Wexford General Hospital in the hours immediately following his birth, or their failure to "go over Dr. Murphy's head" and arrange for the transfer of the infant plaintiff to Waterford General Hospital, or for the failure of the flying squad to play a more proactive role with regard to the care and treatment of the infant plaintiff, while they were at Wexford General Hospital for the purpose of collecting the plaintiff's twin brother, Ian and I have no doubt at all that the South Eastern Health Board negligently contributed to the problems which the infant plaintiff ultimately developed by their failure to set in place a protocol or policy or some guide lines whereby high risk neonates born at Wexford General Hospital would be transferred to the centre of excellence at Waterford General Hospital. This was the view of Professor Fleming which was not really challenged and, while he did not say so in so many words, it was, in my view, the implication of the evidence of Dr. McMahon who said "This baby needed help over and above that what would be provided in Wexford at that time and needed other things being done to it at this juncture which may not have been done" and, indeed, I am persuaded that, in the absence of Medical and Nursing Staff at Wexford General Hospital with specialist qualifications in neonatology and/or paediatrics, reason dictated that such a protocol, or policy, ought to have been put in place, if for no other reason than that it was established that over the years, there had been an exceptionally low rate of referrals from Wexford General Hospital to the centre of excellence in Waterford and, accordingly, given that it was well known that the medical and nursing staff in Wexford lacked expertise in the matter of providing neonatal paediatric services, the Health Board should have recognised that it was very likely that the paucity of such referrals indicated that sick children were being inappropriately cared for in Wexford. It follows, in my view, that the absence of such a protocol, or policy, in Wexford General Hospital in January of 1991 contributed to the problems which ultimately beset this plaintiff because it permitted Dr. Murphy to make decisions with regard to his care which were inappropriate and which, had such a protocol or policy being in existence, he might not have made.
Having regard to the foregoing, I am satisfied that Dr. Murphy's claim for contribution against the South Eastern Health Board is well founded. I do not accept, however, that, as between Dr. Murphy and the Health Board, the Health Board are more to blame than Dr. Murphy, or should even share responsibility with him. In this regard, it seems to me that, while the absence of a written protocol, or policy, whereby the circumstances under which a sick neonate born at Wexford General Hospital would be transferred to the centre of excellence in Waterford was probably a sine qua non to the problems which beset this plaintiff, the precipitating cause, or causa causans to his problems was Dr. Murphy's decision to care for him in Wexford; a decision which, given Dr. Murphy's lack of expertise with regard to the care of neonates and the inadequacy of the facilities which were available in Wexford for the care of such a child, I am satisfied was both misguided and without justification In my view Dr. Murphy ought to have realised he was undertaking a task which was beyond his competence and ought to have arranged for the transfer of Gary to Waterford; perhaps, as Dr. McMahon said, not in the immediate aftermath of his birth but, certainly, when, at 11.50pm on the evening of the 9th of January, 1991, as a result of a conversation which he had with one of the nurses who was looking after Gary, he learnt what the child's condition then was. Having regard to Dr. Murphy's reaction on the following day when he found out that Dr. Cregan had interfered in the treatment of the child, I must conclude that Dr. Murphy's failure to make arrangements for the transfer of the child to Waterford during the evening of the 9th of January, 1991, or early on the following day, was motivated by an arrogant misguided belief in his own capacity to care for the child and while, as I say, I do not think that the Health Board can be acquitted of all responsibility of what ultimately happened to the plaintiff, I think that, when compared with that of Dr. Murphy, they are much less to blame. In my judgment, blame worthiness should be apportioned as to 75% against Dr. Murphy and 25% against the Health Board.