Man whose wife died during surgery fails in bid to be joined to case aimed at stopping inquiry

By Ann O'Loughlin

A man whose wife died during surgery for an ectopic pregnancy has lost his bid to be joined as a notice party to proceedings by the National Maternity Hospital (NMH) aimed at halting a further inquiry over the death.

Mr Justice Michael McGrath ruled Alan Thawley did not meet the legal test to be joined as a notice party.

He had not shown the proceedings would directly affect him or established “exceptional” circumstances required he be joined as a notice party against the wishes of the hospital, he held.

For those reasons, and “not without some hesitation”, he was refusing the application.

Malak and Alan Thawley.

The case arises from the death of Malak Thawley (34) at the NMH on May 8th 2016. A teacher and a US citizen, she died during surgery for an ectopic pregnancy.

Her husband sought to be joined as a notice party to 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 and an inquest and Mr Thawley also took civil proceedings which were settled last January.

In opposing the HIQA inquiry, the NMH argues a statutory inquiry will be extremely disruptive and have a "chilling effect" on the operation of maternity services.

It says 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. These are not grounds for a statutory inquiry, it maintains.

In seeking to be joined as notice party, Mr Thawley said he has a direct interest in the outcome of the NMH challenge as he wanted an independent inquiry to find out precisely what happened to his wife and why .

The NMH inquiry, he claimed, was internal, fundamentally flawed and lacking in impartiality.

He also advanced several other grounds.

In opposing the HIQA inquiry, the NMH says its investigation was robust, throrough and peer reviewed by an independent vascular surgeon and overseas gynaecologist.

It opposed Mr Thawley being a notice party for reasons including its claims that would elongate the proceedings, re-litigate matters, increase costs and cause him additional distress.

In his ruling on Wednesday , Mr Justice McGrath said this was a judicial review and not a private action for damages.

He said the NMH conceded Mr Thawley is the person most directly affected by his wife’s death but that in itself did not meet the legal test to be joined as a notice party.

Mr Thawley had argued he was directly affected because he had still not found out why his wife died but the expression of such “heartfelt and genuine” desires to know what happened did not meet the legal test to be joined as a notice party, he said.

Mr Thawley had not met that test in that he had shown he was directly affected by the proceedings and nor were his legal rights affected.

The judge also rejected arguments Mr Thawley should be joined due to concerns his reputation was affected because he was being “blamed” for the Minister having directed the HIQA inquiry.

If that amounted to a claim the Minister took into account irrelevant considerations arising from Mr Thawley and his advisers seeking an inquiry, they were doing no more than their democratic entitlement and it not could be said Mr Thawley’s reputation was impugned, the judge said.

Any such claim also amounted to a claim the Minister was wrongly influenced and not that Mr Thawley wrongly influenced the minister, he added.

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