The High Court has approved a settlement of €12 million in the case of a teenage boy who claimed he suffered severe neurological damage when his mother was given a drug to control epilepsy while pregnant.
The case began yesterday and was expected to last several weeks, but today Mr. Justice Paul Coffey was told it had been settled without admission of liability.
At the opening of the case yesterday the court heard that Carlow teenager Alex Fahey has autism spectrum disorder and was also diagnosed with Fetal Valproate Syndrome which is associated with the use of the drug sodium valproate or Epilim in pregnant women.
It’s understood to be the first case of its kind here and is one of a large number of similar cases due to come before the courts.
Sixteen-year-old Alex has severe language and memory difficulties, requires round-the-clock care and will never be able to live independently, the court was told.
Through his mother Helen Maher Fahey, from Rathvilly, Co Carlow he married GP Patrick Feeney of Lower Kilmacud Road Stillorgan, Dublin and Consultant Neurologist Janice Redmond of Private clinic, St James’s Hospital, Dublin.
The claims were denied and a full defense had been filed. Today’s settlement was made without admission of liability.
Mr Justice Coffey approved the settlement saying he would be failing in his duty if he did not, given the plaintiff’s lawyers had effectively achieved a sum equal to their €12.8 million valuation of the claim.
Helen Fahey told the judge they were “happy it has turned out like this. We wish it never happened. It has been a very difficult thing to accept, but I know Alex will have the best life he can have and be looked after because we are not always going to be here, obviously”.
Ms Fahey said she hoped her family’s case showed other parents whose children have been affected like Alex they can take the same path “to get justice” to ensure their children are looked after.
Opening the case before the court yesterday, Senior Counsel Aongus O’Brolchain said Helen Maher Fahey had two children while on a lower dose of the drug Epilim.
However, after the birth of her first two children the dose was increased and she was also given another anti-convulsant Lamictal.
Mr O’Brolchain said that after discovering she was pregnant in April 2005 she called her consultant’s office amid concern about Lamictal, and while she cannot remember if she spoke directly to the consultant or to a secretary, she recalls being “relieved” it was safe and believed she was told she would be contacted if there were any concerns.
She had no concerns about Epilim because she had been told during previous pregnancies that the drug was safe and that taking folic acid would substantially offset any risks.
The court heard that by this time it was known to medical professionals that the drug Epilim posed a risk to the neurological development of the fetus if given to pregnant women in high doses. Ms Fahey’s dose had been increased since her previous pregnancies.
Ms Fahey had a miscarriage a few days later but went on to become pregnant again later that year. Because she had not heard anything to the contrary in the early stages of the previous pregnancy, she believed it was safe to continue on both medications.
It later emerged that after she had phoned the consultant in late April 2005, a letter was written on 10 May to her GP by Dr Redmond saying Ms Fahey needed to be told about the risk posed by the medication.
On 17 June a letter was written by the GP to and old address of Ms Fahey’s asking her to contact the surgery about a communication from consultant Janice Redmond. The court was told that Ms Fahey never received the letter as she had moved house four years previously and that she had visited the GP for a back complaint five weeks after the letter was sent and no mention was made of the letter.
The GP also had her mobile number on record, the court was told.
Her lawyers told the court that it is their case that her medication should have been kept under review because it was clear that she had been pregnant and intended to become pregnant again and was of child bearing age and that she should have been informed of the risks associated with the drug Epilim allowing her to choose whether or not to reduce her dose or choose not to have more children.
It was “not good enough” that the letter had been sent by the consultant to the GP as a consultant treating epilepsy would be the person to decide on any change to medication, the court was told.
Mr Justice Simons asked if Ms Fahey had contacted her consultant during her pregnancy with Alex and was told she had not. She continued to receive a prescription from her GP for both drugs, the court was told.
The judge was also told that the defense would say that following the April 2005 phone call, Ms Fahey had been invited to attend her consultant but declined.
Mr O’Brolchain said this would be denied and that it was not submitted as part of the defense until last week.
Speaking after today’s judgment, solicitor Ciara McPhillips of Michael Boylan Litigation said they hoped the outcome “brings security and peace of mind” for Alex Fahey and his family.
She said it was “regrettable that Alex sustained any injury, given now it is very clear that the neurology community in the early 2000s knew of the risks of sodium valproate. It appears to us, on behalf of the families we act, that this information was not passed onto mothers.”
Ms McPhillips added: “Ms Fahey today spoke about justice. In cases such as this where a vulnerable child has been injured, it is very regrettable that they and their families must pursue an adversarial court process.
“Today’s outcome ought to herald the establishment of a non-adversarial redress scheme for all those affected – up to 1,200 children, by the HSE’s own estimates.”