Barry v McCann, Mater Private Hospital, Mater Private Healthcare and Mater Misericordiae University Hospital Ltd
| Jurisdiction | Ireland |
| Judge | Mr. Justice Noonan |
| Judgment Date | 09 October 2019 |
| Neutral Citation | [2019] IEHC 690 |
| Docket Number | [2015 No. 10394 P.] |
| Court | High Court |
| Date | 09 October 2019 |
[2019] IEHC 690
THE HIGH COURT
Noonan
[2015 No. 10394 P.]
Medical negligence proceedings – Personal injuries summons – Order for renewal – Defendants seeking to set aside the renewal of the personal injuries summons – Whether the balance of hardship lay in favour of the plaintiff
Facts: The first and fourth defendants, Mr McCann and Mater Misericordiae University Hospital Ltd, in medical negligence proceedings, separately brought applications, which were heard together, to set aside the renewal of the personal injuries summons by order of the High Court (Meenan J) on the 15th April, 2018. That order for renewal was made on the usual ex parte basis.
Held by the High Court (Noonan J) that whilst it accepted that there must be some element of prejudice arising by virtue of the delays of the plaintiff, Ms Barry, in this case, it did not think it could conclude that this prejudice outweighed the prejudice that would be suffered by the plaintiff if the renewal was set aside. Noonan J was therefore of the view that the balance of hardship lay in favour of the plaintiff and that the interests of justice accordingly required refusing these applications.
Noonan J held that the application would be refused.
Applications refused.
In these medical negligence proceedings, the first and fourth named defendants have separately brought applications, which were heard together, to set aside the renewal of the personal injuries summons herein by order of this court (Meenan J.) on the 15th April, 2018. That order for renewal was made on the usual ex parte basis.
The plaintiff in these proceedings is a 44 year old medical practitioner who currently practises as an obstetrician gynaecologist n Australia. Prior to the events giving rise to these proceedings, she was also a keen athlete having participated in triathlon competitions in various countries.
3rd December, 2013 - The plaintiff attended the first defendant, who is a consultant cardiologist, with a complaint of palpitations occurring at rest. Following assessment, the first defendant advised the plaintiff to undergo an electrophysiology (EP) study of her heart. The summons alleges that this procedure involved the insertion of a catheter through the femoral vein which is used to stimulate the heart.
12th December, 2013 - The pre-arranged EP study of the plaintiff's heart took place at the second defendant hospital (“the Mater Private”). After the procedure, the plaintiff was advised by the first defendant that it had revealed no problem. The plaintiff alleges that following the procedure, she experienced a weak spell when she got out of bed and returned to the Mater Private where she was assessed by a doctor and advised she was fine. The plaintiff claims she began to develop symptoms after the procedure including a feeling of rectal fullness and backache.
4th January, 2014 - The plaintiff was walking in a street in Dublin when she experienced very significant pain in her back passage which caused her to collapse and lose consciousness. She woke up lying on the street with Injuries including a broken tooth, a split lip and skull fractures. The plaintiff was unable to stand and claims that nobody would come to her aid. She eventually succeeded in calling an ambulance with her mobile phone. The plaintiff was brought by ambulance to the fourth defendant hospital (“the Mater Public”) where she was admitted. An MRI scan was carried out of her pelvis.
8th January, 2014 - She was discharged from the Mater Public and advised that the MRI scan was normal. The plaintiff subsequently asked a consultant radiologist colleague to review the scan and he advised that it showed a large mass in her pelvis.
10th January, 2014 - The plaintiff was readmitted to the Mater Public where she underwent further scans which confirmed the presence of a pelvic mass and incidentally, a DVT in the left iliac vein. In her summons, the plaintiff pleads that she was advised that this mass was potentially a bleeding tumour. She underwent a CT guided biopsy of the mass with the result described in the records as a “grossly haematoma”. The histology report suggested that the mass was likely a benign tumour. The plaintiff alleges that she was subsequently informed that there was a 10 to 15% chance that the tumour would convert to a sarcoma which would require resection and there would be a 60% chance of local recurrence. There is no evidence of this conversation in the hospital notes.
16th January, 2014 - The plaintiff was discharged from the Mater Public.
19th February, 2014 - The plaintiff emigrated to Australia, an event planned prior to her illness. Although prior to her departure, the plaintiff was advised that her DVT had resolved, she continued to suffer significant pain and swelling in her left leg.
Subsequent to her arrival in Australia, the plaintiff was seen at the Royal Prince Albert Hospital, Sydney. She pleads that she was diagnosed with a possible low grade sarcoma requiring surgery which she might not survive. She was also advised that as a consequence of the surgery, there would be damage to her bladder nerves, her rectum and her sciatic nerves which would leave her with a significant disability and she would require stomas for both urine and stools. A report obtained from a consultant psychiatrist, Dr. Catherine Anne Llewellyn dated the 12th November, 2018 discloses that the plaintiff was informed by Professor Michael Solomon at the hospital in Sydney that she would be unlikely to survive the operation, but that in any event she had most likely a terminal diagnosis. The plaintiff informed Dr. Llewellyn that she was shocked by this diagnosis.
July 2014 - It would appear that around this time, the plaintiff was advised that the mass in her pelvis, which was then reducing, was not a tumour but rather a hematoma that most likely was the result of a bleed caused during the EP procedure in December 2013 and which was also responsible for the DVT. The plaintiff suggests that this is her “date of knowledge” for the purposes of the Statute of Limitations (Amendment) Act, 1991. The plaintiff however continued to suffer with pain and swelling of her left leg.
22nd December, 2014 - The plaintiff had a stent placed in her leg. She underwent therapy thereafter which was difficult to tolerate.
February 2015 - Scans revealed that the stent was compressed and she commencedanti-coagulant therapy.
August 2015 - The plaintiff's mother contacted B.V. Hoey & Co.mpany, solicitors in Drogheda, County Louth with regard to a possible claim against the defendants herein.
September 2015 - The plaintiff gave formal instructions to the solicitors.
October 2015 - B.V. Hoey & Co. sought the plaintiff's medical records from the first defendant and the Mater Public and engaged in correspondence with the State Claims Agency in the context of the correct title of the hospital.
November 2015 - B.V. Hoey & Co. received the hospital records and instructed counsel to draft a personal injuries summons.
11th December, 2015 - The personal injuries summons was issued and it indicates that it was issued for the purposes of the statutory limitation period in the absence of an expert report. If the limitation period were to be regarded as commencing on the date of the EP on the 12th December, 2013, the summons was issued on the final day of the limitation period.
April 2016 - The plaintiff saw a vascular surgeon, Dr. Andrew Cartmill following an episode of severe leg pain. The plaintiff was concerned that she had a DVT and was preoccupied by the concern that she may die from it.
10th December, 2016 - The personal injuries summons expired without having been served.
30th November, 2017 - The plaintiff attended Dr. Llewellyn for the first time.
7th December, 2017 - The plaintiff first attended her present solicitors, Michael Boylan Litigation Law Firm where she saw Mr. Boylan.
12th December, 2017 - Mr. Boylan sought the plaintiff's file from B.V. Hoey & Co.
1st February, 2018 - Mr. Boylan received the file.
21st February, 2018 - The plaintiff attended Dr. Christine Hyde, a clinical psychologist, for therapy having been referred by Dr. Llewellyn.
8th March, 2018 - Dr. Cartmill provided a report to Mr. Boylan and separately to the plaintiff noting that over the past twelve months (i.e. since March 2017) the plaintiff's leg symptoms had progressively worsened and were causing both lifestyle and work limitations. It should be noted that it was the plaintiff's ambition to practice as a surgeon but it is felt that she is now no longer able to do so by virtue of her continuing symptoms. She now practices as an obstetrician gynaecologist.
5th April, 2018 - Mr. Boylan swore an affidavit grounding the ex parte application to renew the summons. In this affidavit, Mr. Boylan avers (at para. 13):
“Unfortunately, the plaintiff has recently learned that the injuries she suffered are far more debilitating than she first thought and in such circumstances she has instructed this firm to pursue her claim for damages.”
At para. 16, he says:
“I say and believe that the summons herein expired on the 10th December, 2016 and was not renewed. However, I believe that the recent revelation in respect of the extent of the plaintiff's injuries and of the physical, social and occupational limitations to which she is now subject constitute ‘other good reason’, justifying the renewal of the summons, within the meaning of 0. 8 r.1 of the Rules of the Superior Courts.”
16th April, 2018 - The order renewing the summons was made.17th April, 2018 - The renewed summons was served on the defendants.
2nd August, 2018 - The fourth defendant issued the...
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