The High Court recently refused a father’s claim for damages in the context of a failed sterilisation procedure. Baby Samuel Hurley Ahern was conceived despite his mother having undergone laparoscopic surgery to clip her fallopian tubes by way of sterilisation. He died aged six months as a result of severe physical defects which saw him hospitalised all his short life.

Judge Ryan awarded the mother €100,000 damages to compensate for her frustration, worry, pain, hospitalisation, distress, bereavement, expenses and unspecified loss of earnings. In assessing damages, he took account of the events of the six month post-natal period.

Judge Ryan found that the father undoubtedly suffered similar distress and anguish as the mother but he ruled that he was not entitled to compensation because “the law sets a barrier to the right to compensation for such painful experiences. It requires proof that the claimant suffered a defined psychiatric injury”. Severe distress and emotional anguish was not sufficient and Judge Ryan held that it would have been necessary to invent a new head of claim to compensate the father.

DSM revision

There could potentially be a very different outcome in a similar case following the recent publication of the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (“DSM”). The DSM is a reference work consulted by healthcare professionals, which has undergone major revisions since its first release in 1952. DSM is the “psychiatric bible” used to diagnose and classify mental disorders.

The fifth edition has been criticised[1] for reasons including:

  • The revision of the definition of mental disorder.
  • The lowering of diagnostic thresholds.
  • The introduction of new disorders without a clear scientific basis.

There is concern that the normal strains of everyday life have been pathologised by the introduction of categories such as “generalised anxiety disorder” and “caffeine intoxication disorder” and that more people will be diagnosed with disorders. This raises the question of whether the courts in time will take a less restrictive approach to the issue of psychiatric and psychological injuries in circumstances where lower clinical thresholds may be more easily met by plaintiffs. For example, a bereavement reaction which lasts longer than two weeks would qualify as a depressive disorder, which may have changed the outcome for Mr Hurley.