The widower of a woman who died during surgery for an ectopic pregnancy says he should be joined as a notice party in a case being brought by the National Maternity Hospital (NMH) to try to prevent a further inquiry over the death.
Alan Thawley, whose wife Malak Thawley (34) died at the hospital on May 8th 2016, has disputed claims he has no legal interest in the outcome of the NMH's action against the Minister for Health and Children seeking to prevent a statutory inquiry by the Health Information and Quality Authority (Hiqa) arising out of her death.
The NMH says there has already been its own inquiry, a review of that inquiry, an inquest, and civil proceedings brought by Mr Thawley himself which were settled last January.
His involvement in the challenge to the Minister will elongate the case, re-litigate proceedings, increase legal costs and cause him additional distress, the NMH says.
In its proceedings seeking a judicial review of the Minister’s decision, the NMH says a statutory inquiry will be extremely disruptive and have a “chilling effect” on the operation of maternity services.
The Minister ordered the inquiry on grounds including the practice of surgery outside of core hours, the seniority of staff on site out of hours, and the readiness to respond to major emergencies. The NMH says these are not grounds for a statutory inquiry.
Mr Thawley says he has a direct interest in the outcome of the challenge. He says the NMH inquiry was internal, fundamentally flawed and lacking in impartiality.
Critical feature
It also did not have as a member of the inquiry a vascular surgeon whose expertise was a critical feature of inquiring into what happened to his wife, he says.
His counsel Richard Kean, opening his case to be joined in the NMH/Minister for Health proceedings, said his client wanted a “fully independent all-embracing” inquiry because he has never found out why it happened or precisely what happened.
If he was joined in this case, he would be afforded the opportunity to refute the NMH’s “simply incorrect” claim that he and his legal advisors had wrongly influenced the Minister in his decision to direct an inquiry.
Earlier, counsel said the NMH argued there were three investigations. However, apart from the first, the NMH’s own inquiry, the second was a review of that investigation carried out by the HSE, not another independent inquiry.
The third was the inquest in which the coroner found medical misadventure but Mr Thawley did not equate that with an independent review, he said.
Mr Thawley found "galling" an "excuse" put forward by the master of the NMH, Dr Rhona Mahony, that the hospital wanted to avoid any cost or further distress to him by not wanting him involved in the proceedings.
He disputed the NMH claim the inquiry would create a “chilling effect” on maternity services. He says there had been a chilling effect on him as a result of what happened to his wife.
Complex background
Imogen McGrath BL, for the NMH, said, despite the complex background to this case, the issue for the court to decide, in accordance with court rules and case law, was whether the outcome of the proceedings will directly affect Mr Thawley.
The NMH view was he did not have a vital interest in the outcome and thus did not meet the test for joining someone as a notice party. He also did not have a legal right and his rights were not affected by the outcome, counsel said.
Counsel said the NMH investigation was robust, thorough and peer reviewed by an independent vascular surgeon and an overseas gynaecologist.
The HSE reviewed that inquiry and found it thoroughly examined the case from an clinical perspective. It not only complied with the requirement of national guidelines for such reviews but in a number of respects exceeded those requirement.
Hiqa had also reviewed the NMH report and initially said it was comprehensive and carried out in accordance with best practice although it later supported the Minister’s decision for another inquiry, counsel said.
Hiqa, a notice party to the case, and the Minister, are neutral in relation to Mr Thawley’s application, the court heard.
Mr Justice Michael McGrath reserved his decision.
