David O’Malley, Partner in our Medical Negligence department has represented Amanda Murphy and her family for a number of years. Amanda, a former school principal was placed on a ventilator in 2020, following a brain injury sustained in 2016. Sadly she died on 21st May 2022. Her dependants’ action against the HSE was settled this week, with the HSE admitting full liability. However, an anomaly in the law has added to this family’s tragedy.

Amanda sued the HSE over her treatment at Mayo University Hospital in Castlebar, and Sligo University Hospital. She claimed there was a failure to diagnose and treat her brain injury. However, before she died an anomaly in the law forced the abandonment of her personal injuries action to enable her children to take a separate action to provide for their future care after she died. This resulted in a loss to Amanda and also the uncertainty of not knowing if her children would be provided for when her family took a fatal injury action after she died.

A personal injury action may be brought by an injured person, or a wrongful death action may be brought, under section 48 of the Civil Liability Act 1961, by his or her dependents after his or her death, but it is not possible for both of these actions to be brought arising from the same wrongful act.

In the Morrissey v HSE case, the Supreme Court held that the dependents of a plaintiff who has brought an action for personal injury cannot, while the plaintiff is still alive, claim for the future loss of services which the plaintiff might have been expected to provide for his or her family. The Court stated that if the law in this area is to be changed, it would have to be done by way of legislation, rather than by an evolution in the case law.

When Amanda’s personal injury action came before the Court, in 2021 the Court heard that if that action was concluded before she died it would be for a limited amount and her children would not be able to bring a separate action to seek damages to provide for their future care.

In a statement released this morning, following the settlement of the action, Amanda’s family said, “ The HSE admitted full liability in this case. It was a catastrophic and ultimately fatal injury. Shockingly, however, in taking a case against the HSE, poor Amanda was left in the realm of Sophie’s choice – Herself or her children, as the law states that only one action for damages may be brought against the same person in respect of the death.

Her legal team pleaded with the State in November 2021 to use their power to do the right thing. Inexplicably over a year after Amanda’s death, nothing has changed. The law remains the same.

How many more terminally ill woman need to be treated the same way before our legislature intervene? For Amanda’s memory, we once again ask the Government to do the right thing. Too many women have died already not knowing how their loved ones would get on. A Simple bill would rectify the anomaly.”

David O’Malley is Joint Managing Partner at Callan Tansey Solicitors LLP, and specialies in Medical Negligence


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