A judge has ruled the US-based parents of a woman who died during surgery for an ectopic pregnancy are to get €2,000 following a bitter row about how a €35,000 High Court payout for family grief over her death should be shared.
The bulk of the payment - €33,000 - is to go to Alan Thawley, husband of Malak Kuzbary Thawley (34) who died on May 8th 2016 during the surgery at the National Maternity Hospital (NMH) in Dublin, Mr Justice Anthony Barr directed.
Mr Thawley settled his action against the NMH over wrongful death last January. Subsequently, an issue arose over the share out of what is known as the “solatium” - damages for grief and suffering - among the deceased’s statutory dependants. The maximum amount under law recoverable for solatium is €35,000.
Malak Kuzbary Thawley, apart from her husband, had seven other dependants, all living in the US. They are her father Sam Kuzbary, her mother Fadia Jabri, her stepmother Jennifer Lynn Kuzbary, stepfather Abdalrazzak Al Olabi, her grandmother Rouwaida Hakim Kuzbary, her half-sister Miriam Kuzbary and a 14-year-old half brother.
Following initial confusion about whether all the dependants had waived their right to a share of the solatium, the matter was relisted for hearing in February when the court heard only the grandmother and half sister wanted their share to go to the husband.
Mr Kuzbary said, following consultation, he, Malak’s mother, step mother and step father agreed their shares should go to the deceased’s 14-year-old half brother.
In a series of emails to Mr Thawley’s solicitor, Caoimhe Haughey, presented at the reopened solatium hearing, Mr Kuzbary said his daughter was “killed and cremated thousands of miles away” from the family.
“Our expressions were turned down and objected to by her husband and we do not have any desire to hear from him again or see him anymore,” he said. Malak’s husband “did not raise her”, “immigrate her to the US”, “tend to her schooling” and “change her diapers, etc”, he said.
Saying the award should go to Malak’s brother, not her husband, Mr Kuzbary said: “After all, her husband is responsible for her pregnancy that went south, and required appropriate medical attention and not a late night emergency clinic visit to an understaffed so-called maternity hospital.”
He claimed Alan Thawley had sworn a false affidavit in relation to the share out of the solatium and described him as Malak’s “junior, irresponsible husband”.
In another email to Ms Haughey, Mr Kuzbary said: “Your country’s delinquent medical staff killed my kid. They did not have a tool to stop the bleeding they inflicted.
“They did not have blood to put in her system. They referenced her as a Syrian refugee and not a human being.”
A day did not go by when he did not cry for the loss of Malak, he added.
Ruling on the solatium shareout, Mr Justice Barr said, while there were initially cordial relations between Mr Thawley and other dependants, they seemed to have “deteriorated sharply” in relation to the question of attending her funeral. This may well explain the current “strained relationship” between the statutory dependents, he said.
He noted Malak’s mother separated from Mr Kuzbary when the deceased was five years of age and she did not appear to have any further input into her upbringing.
It also appeared, when Malak was aged nine, guardianship of her was transferred from her father to her grandmother who looked after her and reared her in late childhood and teenage years. It also appeared Malak had no sibling or familial relationship with her half brother, the judge said.
He accepted it was reasonable for a father to suffer grief and anguish over the death of a daughter “even where he may have somewhat strained relations with her over a number of years”. He was also prepared to accept similar emotions from the mother, notwithstanding she did not appear to have any meaningful engagement in her daughter’s upbringing after five years of age.
The judge said he was therefore awarding €1,000 each to the parents. As the other dependants had either said they wished the money to go to Mr Thawley or to the step brother, he was awarding the remaining €33,000 to Mr Thawley, he said.
