Thursday, March 02, 2023

High Court Reporters

A 13-year-old boy with autism who sued a neurologist alleging there was a failure to properly inform his mother about the risks of taking an epilepsy treatment drug during pregnancy has settled his High Court action for €15 million.

The boy’s younger brother has also settled his High Court action with a €2.65million interim payment for the next seven years.

The settlement of €15 million to Jack Clarke from Rathfarnham, Dublin is without an admission of liability.

The court heard that Jack and Tom’s older sister Hannah Clarke has also sued and has a case pending before the High Court.

The latest settlement occurred after Jack’s case which had opened before the High Court adjourned for mediation.

Counsel Aongus O’Brolchain, instructed by Michael Boylan solicitor, told the court Jack’s legal team were recommending the €15 million settlement in his case.

“We know the family do need help. The level of care these parents give to their three children with autism. It is amazing,” counsel said.

He said the family is content with the settlement offer.

In Jack’s proceedings it was claimed that if Jack Clarke’s mother, Elizabeth Elliot Clarke, had been warned about the known risks of autism from taking Epilim, she would have opted for alternative treatment.

As a result, it was claimed, Jack was diagnosed with autism spectrum disorder and has global development delay falling within the moderate range.

Through his mother, Jack, of Rathfarnham, Dublin, sued consultant neurologist Dr Raymond Murphy, of the Charlemont Clinic in Dublin.

The claims were denied.

Separate case

A second case was brought by Jack’s nine-year old brother, Tom, who was born in September 2013, and whose autism diagnosis is less severe. Liability, the court heard, was admitted in that case which has now settled with a €2.65 million payment for the next seven years. He case will come back before the court in 2030 when Tom’s needs will be further assessed.

Referring to their legal battle, Jack and Tom’s mother Elizabeth Elliot Clarke in a statement read to the court said they now exit what has been a gruelling process for her and her husband Kent.

“The settlements for Jack and Tom are very welcome and will of course assist in giving our children all of the help they need as we navigate the years ahead. For us, the admission of liability for Tom together with the settlement for Jack is quite simply vindication. The blame for the injuries suffered by my children does not lie at my door,” the statement said.

“Today’s settlement in both cases opens the door for others, we sincerely hope, who are searching for and deserve to be vindicated. I want the boy’s cases to help others,” it added.

“We as a family must live with the injuries suffered by our children every day, that is our normal, however the most difficult element that we must come to terms with, is that, it has now been clearly found that none of this had to happen. No admission of liability or settlement can change that.

“For children with autism, routine is so important and the legal process and all of the assessments has disrupted that routine so greatly. This has added even more stress to our lives,” it concluded.

Settlements approved

Mr Justice Paul Coffey approved the settlements and said they were fair and reasonable. He said he wished to acknowledge “the magnificent care” given by the Clarke family to their children.

At the opening of Jack’s case this week, Aongus O’Brolchain SC told the court Mrs Elliot Clarke developed epilepsy at the age of 12 and became a patient of Dr Murphy at the age of 20 in 1999.

During her 14-year period as his patient, she was prescribed Epilim together with other drugs on occasion.

In 2000, Counsel said, the doctor advised her that in the event of her becoming pregnant there was a risk of the foetus developing spina bifida within the first 28 days but that the risk was low and that taking folic acid would reduce that risk.

She had her first child, Hanna, in 2007 and during the pregnancy expressed concern to Dr Murphy about the risk. However, as this was after the 28 day period, and therefore a past risk, he continued to prescribe Epilim.

When she became pregnant with Jack in 2008, he continued to prescribe the drug during pregnancy.

It is claimed the defendant did not discuss the risks associated with continuing to take it. Other than the risk of spina bifida, Dr Murphy did not discuss the possibility of neurodevelopmental impairments as a result of ingesting Epilim, it is alleged.

Mr O’Brolchain said she was never told about any other physical or mental issues associated with the drug even though autism and Asperger’s Syndrome risks were known at the time and discussed in medical literature.

Jack was diagnosed with autism at the age of three and has various developmental delays and speech and language difficulties, counsel said. “He is extraordinarily difficult to take care of and there is no doubt he will require care for the rest of his life”, counsel said.

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