A.F. [A Minor] v Feeney

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 01 December 2022
• Neutral Citation: [2022] IEHC 659
• Court: High Court
• Docket Number: 2020 No. 874 P

Between

A.F. (A Minor Suing by His Mother and Next Friend)

Plaintiff

and

Patrick Feeney

Janice Redmond

Defendants

[2022] IEHC 659

2020 No. 874 P

THE HIGH COURT

Medical negligence – Personal injuries – Amendment of pleadings – Defendants seeking leave to amend pleadings – Whether the proposed amendments were necessary

Facts: The plaintiff, a minor, allegedly suffered personal injuries as a result of the negligent provision of medical services to his mother while she was pregnant with him. Each of the two defendants, Dr Feeney and Dr Redmond, applied to the High Court for leave to amend their respective defence. The first defendant, a general practitioner, submitted that the purpose of the proposed amendments was to comply with the more recent jurisprudence wherein a defendant is expected to set out its stall, rather than the older style of pleading wherein a bare denial of negligence and breach of duty was considered to be sufficient. The principal explanation put forward by the second defendant, a consultant neurologist, for the need to amend was that there was a potential conflict of interest on the part of the consultant neurologist from whom the solicitors previously on record had obtained an expert report. There was a subsequent change in legal representation, which followed upon a change in the manner in which professional negligence claims are indemnified following the introduction of the Clinical Indemnity Scheme. It was said that, since 18 July 2022, the new firm of solicitors had attempted to obtain a further expert report. It was averred that the solicitors approached eight neurologists: six of these were described as having been unable to assist or as unresponsive. A report was obtained from Prof. Leach, and then a further report from Prof. Koepp. The first report was regarded as lacking the degree of detail and specificity required to adequately assist the court to adjudicate on the issues arising. The second report was dated 21 November 2022. There was a separate and distinct set of amendments sought which related to a factual matter. Part of the claim focused on communications between the mother and the consultant neurologist in April/May 2005. The proposed amendments addressed that issue as follows: “ix. The Plaintiff’s next friend contacted the second named Defendant by telephone in or about the 4th May 2005. x. The second named Defendant asked the Plaintiff’s next friend to come to her clinic soon to be reviewed and to have another discussion about anticonvulsant use in pregnancy. xi. The Plaintiff’s next friend declined the second named Defendant’s invitation and said that she would attend her General Practitioner. xii. The advice and actions of the second named Defendant on foot of the Plaintiff’s next friend’s telephone call to her were appropriate. xiii. The second named Defendant dictated a letter to the Plaintiff’s next friend’s General Practitioner on 4th May 2005. This letter was printed and sent on 10th May 2005. xiv. The second named Defendant wrote to the first named Defendant with appropriate advice. xv. The second named Defendant advised the first named Defendant, inter alia, that the Plaintiff’s next friend needed to know about the risk of teratogenesis.”

Held by Simons J that the proposed amendments were necessary for the purpose of determining the real questions in controversy between the parties. He held that the proposed amendments brought a level of precision to the pleadings which had been lacking. He was satisfied that there was no prejudice caused to the plaintiff by the making of the amendments. He held that the amendments were properly characterised as an evolution of the existing defences, rather than the introduction of a new or unanticipated line of defence. He held that the amendments mirrored, in part, an evolution in the plaintiff’s own case.

Simons J held that the defendants would each be granted leave, pursuant to Order 28, rule 1 of the Rules of the Superior Courts, to amend their respective defence as per the drafts exhibited in the affidavits grounding their motions. His provisional view was that it might be appropriate to mark the court’s disapproval of the lateness of the applications by awarding costs against the defendants.

Applications granted.

Appearances

Aongus O'Brolchain SC, Declan Doyle SC and Aoife Nolan for the plaintiff instructed by Michael Boylan Litigation Law Firm

Declan Buckley SC and Paul Twomey for the first defendant instructed by Comyn Kelleher Tobin Solicitors

Patrick Hanratty SC, Sarah Corcoran and Medb Mc Donagh for the second named defendant instructed by Hayes Solicitors

JUDGMENT of Mr. Justice Garrett Simons delivered on 1 December 2022

INTRODUCTION

1 This judgment is delivered in respect of two related applications for leave to amend pleadings. Each of the two defendants has brought an application for leave to amend their respective defence. In each instance, the motion seeking leave to amend was issued out of the Central Office of the High Court less than seven days prior to the specially fixed date for the hearing of the action. The motion on behalf of the first defendant was issued this week on 28 November 2022, and the motion on behalf of the second defendant was issued last Friday, 25 November 2022. Both motions were heard on the opening day of the action, 30 November 2022.

2 The position adopted on behalf of the plaintiff is that he is not consenting to either motion. In each instance, a replying affidavit has been filed in response to the motion setting out various reasons as to why it is said that leave to amend should not be granted. Counsel on behalf of the plaintiff did not press these objections strenuously at the hearing before me yesterday (30 November 2022). For completeness, however, I will address the reasons put forward on affidavit.

3 The proceedings take the form of a medical negligence action. It is alleged that the plaintiff, who is a minor, has suffered personal injuries as a result of the negligent provision of medical services to his mother while she was pregnant with him. For ease of exposition, the plaintiff will be referred to simply as “ the injured child” and the plaintiff's mother will be referred to as “ the mother”. It should be noted that the injured child is the sole plaintiff named in the proceedings, and that his mother, acting as his “ next friend” or “ litigation friend”, is providing instructions on his behalf to his legal team.

4 The mother has a long-standing diagnosis of epilepsy. The first defendant is a medical general practitioner and the mother had been a patient of his during the relevant period. The second defendant is a consultant neurologist. The mother had attended the consultant neurologist on five or six occasions up to the year 2000.

5 In brief, it is alleged that the medication which was prescribed for the purposes of managing the mother's epilepsy was inappropriate in circumstances where, or so it is alleged, both defendants were aware that the mother intended to have another child. It is also alleged that the mother was not properly advised as to the risks associated with a pregnancy were she to continue on the medication then prescribed.

6 One focus of the proceedings will be on events which occurred in the fifteen months prior to the injured child's birth. It is pleaded that the mother had sought medical advice from the consultant neurologist towards the end of April 2005. As of that date, the mother had been pregnant with another child. Sadly, this particular pregnancy resulted in a miscarriage. A number of months thereafter, the mother conceived again and ultimately gave birth to a baby boy, the plaintiff, on 1 August 2006. As explained presently, one of the amendments sought to be made relates to the nature and extent of the communications between the mother, the consultant neurologist and the general practitioner during the period from April/May 2005 to the birth of the injured child.

7 The only other introductory matter which need be referred to is the attitude of the plaintiff's side to a possible adjournment of the proceedings. As appears from the discussion of the case law below, one of the principal factors to be considered by the court on an application to amend is whether any potential prejudice to the other side might be avoided by the granting of an adjournment of the proceedings. At the conclusion of the hearing of the two motions to amend in the present case, I asked counsel on behalf of the plaintiff whether, in the event that the amendments were to be allowed, his side would be seeking an adjournment. I emphasised that in the event that a short adjournment were to be sought, I would retain seisin of the proceedings. It would not be necessary, therefore, for the case to go back into a queue for hearing dates, with the risk that a hearing date might not be available for many months. I specifically canvassed the possibility of a short adjournment, with the case resuming this term or at the start of the new term in January.

8 Counsel on behalf of the plaintiff, having been afforded an opportunity to take instructions, confirmed to the court that his client's instructions were that the hearing of the proceedings should continue this week, even if the proposed amendments are to be allowed.

HISTORY OF THE PROCEEDINGS

9 These proceedings were instituted on 4 February 2020. The personal injuries summons was then amended on 21 July 2021. Relevantly, the events of April/May 2005 are pleaded as follows:

“On or about April 2005 the Plaintiff's mother, who was pregnant, contacted the Second Defendant seeking advice in respect of medication during gestation. On or about 10 May 2005 the Second Defendant wrote to the First Defendant stating that she had not advised the Plaintiff's mother in respect of her medication during pregnancy in her previous pregnancies, requesting that the First...