In December 1902, in a house above a bookshop in Eyre Square, Galway, a seven-year-old boy was playing with a magnetic toy that attracted a needle. The needle fell to the floor, and when Thomas McCullagh dropped to the carpet to look for it, the needle pierced his knee. His mother called for Dr Quirke, their family physician, who referred Thomas to Mr William Hare in Queen’s College.*
Mr Hare was not a medical man. Originally from Scotland, he had worked at Queen’s College as a teacher of sewing and weaving. By the time young Thomas came to see him, Hare had become a technician in the Department of Natural Philosophy, which owned an X-ray machine. This was still a novel device: at the time Thomas hurt his knee, only seven years had passed since the German professor Wilhelm Röntgen had used X-rays to make the first radiographic image of the human skeleton. The President of the College, Alexander Anderson, a physicist himself, allowed Hare to supplement his meagre income by assisting local doctors in his free time. In this way, Mr Hare became the only X-ray technician in Connacht.
On 15 December, Mrs McCullagh brought Thomas to the physics laboratory in the university quadrangle for an X-ray examination. She held her son in her arms while Hare aimed rays at the boy’s sore knee for twenty minutes. Thomas insisted that the needle was still inside his knee, and his mother agreed. But the picture was a blur, and showed nothing.
Seven days later, Thomas’s mother decided to contact Dr Quirke again. Dr Quirke was ill (he died soon afterwards), and a Dr Colohan – surely to his later regret – visited the McCullagh home instead. He sent Thomas back to Queen’s College for another X-ray, on St Stephen’s Day, but once again the radiography showed no needle.
The next day, Hare X-rayed Thomas a third time. The boy squirmed. To steady him, his mother told him to watch the piece of metal inside the globe of the machine, which, she later said, ‘became as red as burning coal’. According to Mrs McCullagh, when the bandages were opened a few days later, Thomas’s knee was ‘red and scorched’ in ‘exactly the same spot the Röntgen Ray was put’. Dr Colohan sent the child to a hospital in Galway, but the sore did not heal.
Months later, the boy was still in ‘intense agony’, according to his mother. Towards the end of April, Thomas’s father noticed what he thought was a bit of black thread in the middle of the sore. (Dr Colohan later concluded that this was just a hair from the boy’s stocking.) Thomas’s older sister Ida, a girl of thirteen or fourteen, accompanied her brother to yet another X-ray exam. Ida later recounted that the sore on her brother’s knee was ‘as large as a 5s piece in a yellow matter, deep seated and seemed stuck to the bone’. Her brother cried all the way home and was ‘roaring in the evening’.
The McCullaghs took Thomas to Dublin, where a prominent X-ray technician recognized the sore as a burn and refused to perform any more radiography. The McCullaghs returned to Galway, where the burn gradually healed. If the needle had ever entered Thomas’s knee, it stayed there.
It is not surprising that Thomas’s parents sued Mr Hare, Dr Colohan, and Queen’s College for damages. What is surprising is the size and prestige of the legal team the McCullaghs assembled to fight the case. Thomas’s father was a bookseller, and evidently a man of some means, but hardly wealthy. Yet, in addition to his solicitor, Thomas had three King’s Counsel and one junior counsel presenting his case in the High Court in Dublin. The defendants had ten barristers between them.
Six of the lawyers in the case would go on to be appointed judges; four were, or would become, Members of Parliament. On their side, the McCullaghs had Thomas O’Shaughnessy, who was later appointed a High Court judge, and Timothy Healy, who became the first Governor-General of the Irish Free State. One of the defendants’ barristers, John Gordon, later became Attorney General of Ireland and a High Court judge; another, Dennis Henry, would become the first Lord Chief Justice of Northern Ireland. A third member of the defence team, Seymour Bushe, would be mentioned nine times in Joyce’s Ulysses.
The barristers presented at least seven expert witnesses to the special jury, including two brought over from the Royal College of Surgeons in London, all to opine on Thomas’s injury. Counting the other witnesses, the judge and courtroom staff, it took at least forty people seven days to sort out whether the defendants were liable for causing the sore on Thomas’s knee.
Medical malpractice law then, as now, was not an exact science. Mr Hare and Dr Colohan would be held liable if the jury found that they owed Thomas a duty of care and acted ‘negligently’ by failing to take reasonable steps to avoid injuring him. Both Hare and Colohan argued that they had operated the X-ray machine according to the prevailing standards of the day, and suggested that Thomas’s family’s recollections of the procedures were exaggerated, at best. Mrs. McCullagh and Ida were presumably ‘suffering from keen excitement’, they argued, and could not be relied upon to make an accurate assessment of what happened in the physics laboratory.
It took the jury about an hour to conclude that the sore on Thomas’s knee was, in fact, caused by the X-ray, but that Hare and Dr Colohan had not been negligent. We are left to imagine Thomas’s embittered parents packing up to make the long trip back to Galway empty-handed, Hare mopping his brow in relief, the newspapermen rushing out of the courtroom to make their deadline.
But the affair did not end with the courtroom drama. In Ireland, then as today, if a plaintiff in a medical malpractice action lost his case, he was ordinarily responsible not only for his own lawyers’ fees and costs, but also for the fees and costs of the other side. The court determined that the amount of the ‘taxed costs’ (in other words, the total costs Mr McCullagh owed to the defendants) was £603-7-5. Using average wages as a means of determining present-day value, this is the equivalent of roughly €250,000 today. It was, as the editors of the British Medical Journal noted, a figure ‘big enough to take even a wealthy man’s breath away’. Surprisingly, perhaps, the journal’s editors felt sorry for the plaintiffs. ‘The lawyers will get, or have got, their fees somewhere,’ they wrote. ‘They are usually more careful than the doctors, and they take care not to do anything for nothing.’
But if they won the sympathy of the British Medical Journal, the McCullaghs received no mercy from the court. The judgment left them in financial ruin, and they were not able to pay it in full. After the College pleaded with Dublin Castle, the government reluctantly agreed to reimburse the portion of the College’s fees that the McCullaghs owed but could not afford to pay. (The more than £1,000 in fees and costs the College had spent on its defence was almost 10 per cent of its operating budget for the year). A curt entry in the College minutes indicates that the McCullaghs’ shop, which had been appointed a ‘bookseller to the college’, was no longer to have its business.
In the end, as the British Medical Journal noted, it was always the lawyers who won; they were going to get their money no matter which side the jury picked and no matter who picked up the tab. The College’s firm of solicitors, Blake and Kenny, remains today in the same offices it occupied on Francis Street in 1904. The site of the McCullaghs’ bookshop is now occupied by a shoe shop.
In 2002, almost exactly one hundred years after Thomas McCullagh felt a prick in his knee, a boy was born ten weeks prematurely in the National Maternity Hospital in Dublin. Mark Duffy weighed less than three pounds. On the seventh day of his life, he became unwell, and he was thought to have an infection. He was treated with antibiotics, and his condition appeared to improve. But a few days later, a doctor noticed a problem with Mark’s right eye; the cornea was opaque, and the eye was bulging and omitting discharge.
Lethargic and pale, the baby was transferred to Temple Street children’s hospital, where the consultant did not find any infection. But soon after the transfer, doctors found Mark to be ‘moribund and flat’, and his body was racked with convulsions. His right eye, permanently damaged, was removed, and the doctors tried various antibiotics to attack what was now obviously a serious infection. Mark suffered profound and permanent physical and brain damage from what was finally determined to be meningitis. Today, Mark, who is confined to a special wheelchair and has a permanent feeding tube, has cerebral palsy. Suffering up to thirty seizures a day, he requires twenty-four-hour care. His parents, Anthony and Linda, decided to sue the National Maternity Hospital. Mark’s disabilities could have been avoided, the Duffys argued, if the hospital had performed a lumbar puncture on his spine to detect the infection earlier.
To perform a lumbar puncture, a doctor inserts a needle into the middle of the spinal column and draws out liquid for testing. Medical experts are divided over whether the procedure is advisable in a case like Mark’s, where the infant might be too ill to tolerate it. At the trial, which began in December 2011 and concluded in August of last year, the defendants’ experts said that, given the risks of the procedure, lumbar puncture is not always required when infection is suspected in an infant. Indeed, the hospital sees only one infant a year with meningitis, and many babies would be subject to unnecessary testing if doctors were required to do lumbar punctures more routinely.
The plaintiffs’ experts, who came from England and Canada, disagreed. (The Medical Injuries Alliance, a coalition of medical negligence lawyers, has complained that ‘it is almost impossible to get an Irish medic to scrutinise the work of a colleague’, requiring plaintiffs to bring in experts at great cost from overseas.) These experts testified that, because of the seriousness of meningitis, it is prudent for doctors to test for it as a matter of course when a premature infant like Mark shows signs of infection; if the infant is too ill for lumbar puncture, then doctors should administer anti-meningitis drugs anyway.
‘These reflections,’ the judge declared, ‘indicate how difficult it is to find a complete or satisfactory explanation for what happened to the plaintiff. No theory can accommodate all of the relevant known facts.’
Like the McCullaghs, the Duffys lost their case; the hospital, the judge concluded, had not been negligent. The Duffys would receive no compensation. They had a ‘no foal/no fee’ arrangement with their solicitor, who would be paid only in the event that the Duffys won compensation. But if you lose your case, the ‘no foal/no fee’ rule applies only to your own lawyer; you’re still responsible for the costs of the other side. The National Maternity Hospital racked up over €1 million in fees defending its case, and sought its full costs from the family.
In October of last year, the judge cut the costs the Duffys owed in half, citing an ‘extremely rare and unusual development’, namely a delay in the trial caused by the hospital. The judge told the Duffys that he admired them, and said that if he had any choice under the law he would not award any costs against them. But the judge’s hands were tied. The Rules of the Superior Courts require losing parties to pay their opponents’ costs except where the Court finds a ‘special cause’, and the Supreme Court has defined these exceptions narrowly. The Duffys — a primary school teacher and a maintenance worker — left the courtroom with a debt of more than €500,000.
Irish legal fees are among the highest in the developed world. The government alone spends hundreds of millions of euros a year litigating claims against it, and bloated and dilatory tribunals investigating some of the seedier aspects of public life have managed to pile up hundreds of millions of euros in costs over the past decade and a half. Neither the recession nor the EU/IMF’s concerns over high legal fees has had any apparent effect: in 2012, legal costs were 12 per cent higher than they were in 2006, at the height of the boom.
Last September, the Irish Times reported how one barrister charged €60,000 for work on a brief received five days before trial. Solicitors in the case of a child hit by a car in Galway claimed costs of €406,069, including €18,800 alone for reading school reports. If you’re very rich, these high legal costs might not deter you from pursuing a claim. And, in theory, the poor can access Legal Aid, though the waiting list for assistance is now up to 10 months and funding has been cut. Because Legal Aid only helps those who have ‘annual disposable income’ of less than €18,000 euro a year, it is not of use to people who are neither rich nor poor, like the McCullaghs or the Duffys.
Requiring a losing party to pay the winner’s costs has intuitive appeal. If your case is meritless and you lose, then it is only fair that you pay the other side for its trouble. The ‘loser pays’ principle discourages frivolous lawsuits and saves everyone time and money.
But the rule becomes problematic in cases that are not black and white, cases where each side might have good reason to believe the facts are on their side. Determining whether a doctor has been ‘negligent’ is often a matter of choosing between reasonable but conflicting expert opinions. It’s more like trying to decide the winner of an ice-skating competition than refereeing a chess match. The judge in the Duffy case observed that ‘It was not for a court with the benefit of hindsight to prefer one reasonable view and condemn another as negligent’ – hence he decided in favour of the hospital despite finding the Duffys’ arguments ‘reasonable’.
Thomas McCullagh’s case, though trivial compared to the Duffy case, was not easy either. There was no precedent for claims involving X-rays because the technology was only as old as little Thomas himself. Thomas’s parents had no good way of predicting their likelihood of prevailing at trial. And the jury agreed with them that it was the X-ray, not the needle, that caused Thomas’s injury. Nevertheless, the jury also found that Hare and Colohan were not legally responsible for the injury. The jury could easily have favoured the plaintiffs’ experts; had they done so, Thomas’s parents would have walked away with money in hand. It was, in other words, a close case. Close cases, where there are reasonable arguments on both sides, are exactly the kinds of cases that ought go to trial. But adjudicating such disputes is often financially impossible for ordinary Irish people.
The Duffy case had the effect of establishing that a failure to perform a lumbar puncture on an infant showing symptoms like Mark Duffy’s did not amount to negligence ipso facto. Thomas McCullagh’s trial, which was probably the world’s first instance of litigation on injuries caused by ionizing radiation, brought together the world’s premier experts on X-ray litigation and became a sort of seminar in X-ray technique. These cases were not frivolous, and they had social utility, and yet in both cases the family responsible for bringing the case was broken financially.
Is there any other way? In general, the ‘loser pays’ rule does not apply in the United States, where each side bears its own costs no matter how the case comes out. As in ‘no foal/no fee’ cases, plaintiffs’ lawyers in America customarily bear the risk, at least for their own costs, of defeat. To encourage claims, the lawyer ordinarily does not bill the plaintiff on an hourly basis, but takes a percentage payout from the plaintiff’s damages, if damages are won. If a suit is truly frivolous or brought in bad faith, courts can impose sanctions, but such rulings are rare.
A lawyer working on a contingent-fee basis has no incentive to pad her bills; the more efficient the lawyer is, the better her effective hourly rate if she wins. Not being responsible for fees also encourages litigants to bring difficult claims. This is one reason why a conservative political faction is pushing for a switch to the ‘loser pays’ rule in some states; the perception, at least, is that the threat of paying the other party’s costs would keep the ordinary citizen from suing big businesses.
The question of who pays also affects how much we pay. Some economists and legal scholars have suggested that trials under the ‘loser pays’ rule are more expensive. Lawyers in Ireland bill their clients by the hour, and have huge incentives to drag out cases in hopes for a win or a settlement that includes legal fees. As Oxford professor Adrian Zuckerman has explained, once a case is going to trial, the ‘loser pays’ rule ‘tends to erode resistance to cost’. Parties can persist with litigation ‘not so much for the sake of a favourable judgment on the merits’ but in hope of recovering money already spent on the dispute, ‘which may well outstrip the value of the subject matter in issue’.
The United States is widely viewed as overly litigious; but in the US, it’s generally taken for granted that courts can be forces for good. Lawyers have greater personal incentives to ferret out harm and injustice than salaried civil servants. Major advances in rights and protections, from school desegregation to the rights of illegal immigrants, have been worked out through the courts. Legislatures tend to look after majority interests; the problems of minorities and the disenfranchised are generally overlooked. Courts are, by design, better insulated from political pressures, and can make tough decisions the legislature won’t.
The American system of legal costs helps the courts to do this. The Irish system does not. Larry Donnelly of the Public Interest Law Alliance has said that an order for a losing party to pay the winners’ costs ‘has an undeniable chilling effect on litigating in the public interest’.
Irish organizations that promote public-interest law, such as the Public Interest Law Alliance, have called for judges to make more ‘protective costs orders’, whereby the judge decides who will bear the costs early in the litigation. This can help litigants decide whether they want to proceed with the case or give it up before accruing substantial expenses. But even under proposals advocated by nonprofit organizations in Ireland, these costs orders would be available only in a narrow range of cases.
Can Ireland trim its legal costs? The Legal Services Regulation Bill offers some potential for serious reform of the profession. A new regulatory body, the Legal Services Regulatory Authority, would have the power to regulate the profession, with the express purpose of promoting competition. Lawyers would, for example, be required to set out advance estimates of costs and notify clients if the costs appear to be exceeding the estimate. The Bar Council has asserted that the legislation could threaten the independence of the bar. Some lawyers have said that the proposed regulation is comparable to rules in place in China and Iran. The Irish Times reported, unsurprisingly, that 70 per cent of solicitors say they believe the bill won’t lower costs at all. Minister for Justice Alan Shatter has called these claims ‘fallacious’.
In any case, there is perhaps too much focus in Ireland on regulating lawyers, and too little on adjusting the system that keeps prices up. Changing the ‘loser pays’ rule is just one avenue for reform. Judges often keep lawyers waiting for hours before their cases are called, the billing clock ticking away as they wander around the halls of the courthouse with wigs and coffee cups in hand. Poor court management can leave parties waiting months to go to trial. The state, in particular, has a propensity for not settling cases until they reach the courtroom steps – after the parties have already racked up substantial costs. Relatively few parties go to arbitration or mediation, which are swifter and normally cheaper ways to resolve disputes.
Of course, a heartfelt apology is a nice, cheap way to defuse a dispute. Injured patients often only want an explanation and an apology from their doctors. But the present legal system does not allow this without incriminating statements being admitted into evidence against them in court. The Duffys told the press that there was ‘never any kind of an apology’ from the hospital, and that they would not have sued in the first place if the state had helped more with Mark’s care.
Thomas McCullagh’s case, too, might never have come to court if the college had offered some amends – or even a simple response to his complaint. ‘The College,’ Mr McCullagh later wrote, ‘was bound to compensate for the terrible wrong done my poor boy but on applying for compensation, the College Authorities never even condescended a reply. I was therefore forced to take the action I did which I deemed right as any father would.’
After schooling in Galway and Maynooth, Thomas McCullagh was ordained a Catholic priest, and served in rural Galway for over fifty years, eventually becoming a Canon. In black and white photographs, he wears thick Woody Allen glasses. He died in 1976, aged eighty. Alexander Anderson, the Queen’s College president, went on to publish the first known paper hypothesizing the existence of black holes. Dr Colohan continued to practise medicine, and his son, also a doctor, went on to write the song ‘Galway Bay’. Hare, the X-ray operator, managed to do well for himself, too. He continued to operate the X-ray equipment, which was moved to the County Infirmary after the McCullagh case, at 5 shillings per image until the hospital closed in 1924. According to the census records for 1911, Hare’s only son was studying to become a doctor.
Court cases bookended Thomas McCullagh’s life. In 1974, just two years before his death, a farmer sued the priest for preventing him from driving his cattle through a church-owned field in Oughterard. The farmer claimed that he had a right of way, as he and his family had long used the land. Canon McCullagh said the ground was consecrated and unfit for cattle. (One person was buried in the field.) Once again he travelled to court, and this time he took to the witness stand in support of his own position. But, once again, the law was against him. The judge awarded the farmer full damages, with costs.
*For my account of the case of Thomas McCullagh, I have relied on contemporary newspaper reports, the most useful of which was ‘The Great Galway X-Rays Case’, Galway Express, 11 February 1904. Thomas O’Connor’s book From Queen’s College to National University: Essays on the Academic History of QCG/UCG/NUI Galway (Four Courts Press, 1999) has also been particularly useful.
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