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HSE ‘misled’ public on swine flu vaccine, claims teen with narcolepsy

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The actions of chief medical officer Tony Holohan and other senior health officials who dealt with the H1N1 swine flu pandemic in 2009 and 2010 were called into question in a personal injury claim by a teenage boy before the High Court last Friday, writes Mark Tighe.

Benjamin Blackwell, 15, claims the state was negligent and misrepresented the safety of the Pandemrix vaccine, which was issued to hundreds of thousands of people in 2009-10 as part of a programme to build herd immunity against the H1N1 virus. The state gave GSK, the manufacturer, an indemnity for any adverse reactions to the vaccine.

Blackwell is now suing the health minister, the HSE, the Health Products Regulatory Authority, and GSK. Among his claims is that Holohan gave incorrect assurances about Pandemrix’s safety record in media interviews, which prevented Blackwell’s parents from giving informed consent for him to receive the vaccine.

Blackwell also claims that Irish officials ignored reports from September 2009 showing there were more serious adverse reactions to Pandemrix than to other vaccines. The teenager has been diagnosed with narcolepsy and cataplexy disorder, which he claims were a result of receiving the vaccine in February 2010 when he was five. He said he is required to have up to three naps a day in school. The defendants deny liability and the allegations.

The first Pandemrix compensation case, taken by Aoife Bennett, a teacher, was settled on confidential terms last year after five weeks of trial. On Friday it emerged that the state, which is now facing more than 100 similar claims, has been served with a €6m legal bill by Bennett’s lawyers.

If those fees were replicated on the state’s and GSK’s side, it would mean legal costs in the Bennett case are close to €20m.

In the pre-trial hearing on Friday before the judge Michael McGrath, Blackwell’s side said it had proposed mediation but the state was insisting it would only enter talks on all 82 Pandemrix cases represented by his solicitor, Michael Boylan, who was also Bennett’s lawyer.

Dermot Gleeson, senior counsel for Blackwell, told the court the state’s “tactics” were “oppressive” and he had never come across them before. “I’ll call it the ‘all or nothing’ proposition,” he said.

The senior counsel claimed it was “bizarre” for the state to expect 82 children whose lives were “ruined” by the vaccine to agree to a process which could not proceed if any one of them vetoed a settlement. He claimed the state had refused to say if Simon Harris, the health minister, or the attorney-general were aware of the “shocking” tactic and questioned whether it would be used with victims of residential abuse or those suing over hepatitis C infections or cervical screening misdiagnosis.

Paul Gallagher, senior counsel for the state, said the mediation offer from the state for the 82 cases run by Boylan was “significant”. He said allegations had been made against “distinguished public servants who acted in the public interest and who are accused of bad faith”. He noted Blackwell was seeking exemplary and aggravated damages due to the alleged actions of public servants.

“It is very difficult for the state to adopt a position to settle in the light of those serious, unjustified allegations against public servants who do their best on behalf of the state to deal with emergencies,” he said.

Gallagher said the public servants were “entitled to have their reputations vindicated” and “not be the subject of unjustified allegations that cannot be substantiated by evidence”.

The state said that because of the current Covid-19 pandemic, Holohan and Kevin Kelleher, an assistant national director with the HSE, would be delayed in submitting their expert reports for the case.

Gallagher said the state was conscious of the “enormous bill of €6m” from the Bennett case. He said it was an “impossible position” for the state to have to deal with each case in isolation before having to deal with the next case and more costs.

Judge McGrath adjourned the case until June 17 to deal with pre-trial issues.

Mark Tighe June 2020

The Sunday Times