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13-year-old boy settles claim for €15m over use of epilepsy drug in mother's pregnancy

A 13-YEAR-old boy with autism who sued a neurologist over the alleged failure to properly inform his mother of the risks of taking an epilepsy drug while pregnant has settled his case for €15 million.

Jack Clarke, of Rathfarnham, Dublin, claimed that he was diagnosed with autism spectrum disorder and has moderate global development delay as a result of his mother, Elizabeth Elliot Clarke, taking sodium valproate (under the brand name Epilim).

He claimed that had his mother been warned about the known risks of autism from taking Epilim, she would have sought alternative treatment.

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

The claims were denied and no liability has been admitted in the case.

At the High Court today, Aongus O’Brolchain SC, instructed by Ciara McPhillips, partner in Michael Boylan Litigation, told Mr Justice Paul Coffey that the legal team was recommending a settlement of €15 million.

O’Brolchain told the court that the offer of €15 million was made after the case adjourned for a period of mediation yesterday. He said the family was content with the settlement offer.

“We know the family do need help. The history of the care that these parents have to give to three children suffering from autism… it is amazing,” he said.

Brother’s case
A separate case was brought by Jack’s nine-year-old brother, Tom. Born in September 2013, he was also diagnosed with autism, although his diagnosis is less severe. The court heard that liability was admitted in this case.

A settlement of €2.65 million will be paid for the next seven years. The case will then come back before the court in March 2030, when Tom’s needs will be further assessed.

O’Brolchain stressed that this was because Tom was only approaching his 10th birthday and still has to go through puberty.

He cited that Jack had “deteriorated quite significantly during puberty” and that a further assessment for Tom will be done “to assess his position for the future”.

Mr Justice Coffey approved both settlements and said they were fair and reasonable. He said he wished to acknowledge the “magnificent care” given to Jack and Tom by their parents and offered his best wishes to the family.

Another case for the couple’s daughter, Hannah, who is the older sister to Jack and Tom, is also pending before the High Court.

Previous hearing
At a hearing earlier this week, the court was told that Elizabeth Elliot Clarke was diagnosed with epilepsy at the age of 12 and became a patient of Murphy in 1999, at the age of 20.

Murphy prescribed her Epilim along with other drugs over the 14-year period that she was his patient, the court heard.

The court heard that in 2000, Murphy informed Elizabeth Elliot Clarke that were she to become pregnant, there was a risk of a foetus developing spina bifida within the first 28 days, but that the risk was low. He prescribed her folic acid as a risk reducer.

The court heard that she gave birth to her first child, Hannah, in 2007 and had expressed concern about the risk, but as it was past the 28-day risk period, Epilim was still prescribed.

Read our piece on the sodium valproate scandal.

It was also prescribed during her second pregnancy, with Jack, in 2008.

At that hearing, it was alleged that at no stage did Murphy ever discuss any other risks with taking Epilim, other than spina bifida.

It was alleged that Elizabeth Elliot Clarke was never told about developmental delay or any of the other physical or mental issues associated with the drug, even though the risk associated with autism and Asperger’s Syndrome were known at the time.

The court heard that when Jack was aged 3, he was diagnosed with autism. He has various developmental delays and speech and language difficulties, counsel told the court.

“He is extraordinarily difficult to take care of. There is no doubt that he will require care for the rest of his life,” the court was told.

Mother’s words
In a statement read to the court today, Elizabeth Elliot Clarke said the family can now exit what has been “a gruelling process for myself and my 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,” the statement read.

“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.

“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 boys’ cases to help others,” the statement continued.

“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.”

The couple said that routine for children with autism is “so important” but that the “legal process and all of the assessments has disrupted that routine so greatly”.

“This has added even more stress to our lives.”

The couple thanked their legal team for their support and said they were grateful to them for “all you have done for our family”.

The Journal.ie

March 2023