O Grady v The Southern Health Board and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice O'Neill
• Judgment Date: 02 February 2007
• Neutral Citation: [2007] IEHC 38
• Court: High Court
• Docket Number: [No. 1636P/2002]
• Date: 02 February 2007

O'GRADY v SOUTHERN HEALTH BOARD & TRALEE GENERAL HOSPITAL

BETWEEN

JOHN O'GRADY

PLAINTIFF

AND

THE SOUTHERN HEALTH BOARD AND TRALEE GENERAL HOSPITAL

DEFENDANTS

[2007] IEHC 38

[No. 1636P/2002]

THE HIGH COURT

Abstract:

Practice and procedure, Renewal of summons.-.Application to set aside - Criteria to be applied - Where onus of proof lies - Prejudice from delay - Medical negligence action - Delay in retaining medical expert - Whether defendant confined to adducing evidence of non-disclosure or prejudice such that if it were available on ex parte application court would have been persuaded to refuse renewal - Extent to which court should entertain complaints by defendant of prejudice due to alleged delay - Whether presumptive prejudice sufficient - Rules of the Superior Courts 1986, O 8, rr 1 and 2.

Facts: Order 8, rr 1 and 2 of the Rules of the Superior Courts provides, inter alia, that “No original summons shall be in force for more than twelve months from the…date thereof…but if any defendant…shall not have been served therewith, the plaintiff may apply…to extend time for leave to renew the summons. The Court…if satisfied that reasonable efforts have been made to serve such defendant, of for other good reason, may order that the…summons be renewed…2. In any case where a summons has been renewed on an ex parte application, any defendant shall be at liberty before entering an appearance to serve notice of motion to set aside such order.” A plenary summons was issued by the plaintiff’s solicitors on the 5th February, 2002 alleging medical negligence against the defendant. The plaintiff’s solicitors then attempted to obtain his medical records from the defendants for the purposes of obtaining a medical opinion as to whether he had a stateable case for a claim of negligence. Those investigations were completed on or about September, 2004. The High Court, on ex parte application to it by the plaintiff, made an order renewing the plenary summons on the 13th June, 2005 which was served on the defendant on the 11th July, 2005. The defendants, in applying to the High Court to set aside the renewal of the summons, contended, inter alia, that the onus in the application was on the plaintiff to show good reasons why the summons should be renewed and that they were not confined to adducing evidence as to non-disclosure on the ex parte application or prejudice. They also contended that, although no actual prejudice could be identified, such prejudice should be assumed due to the lapse of time.

Held by Mr Justice O’Neill in declining to set aside the renewal of the summons despite the inordinate and inexcusable delay on the part of the plaintiff that a defendant seeking to set aside the renewal of a summons had to adduce new evidence which, had it been before the court on the ex parte application would have persuaded the court to have refused the renewal.

That a court, on an application under O 8, r 2 should not refuse to renew, where the case would otherwise be statute barred, unless the defendant demonstrated the clearest possible case of actual prejudice such that his defence to the claim had been in actual terms substantially impaired and mere presumptive prejudice should not suffice to cause the refusal of the renewal of a summons. That acceding to the application in this case, would result in the time barring of the plaintiff’s claim by the non-renewal of the plenary summons, which in the absence of actual substantial prejudice to the defence, was a result which would be in the nature of a pure penalty imposed on the plaintiff and would not be warranted in the overall interest of achieving a just outcome to the dispute between the parties at that stage of the proceedings.

Reporter: P. C.

Mr. Justice O'Neill

1 This is an application pursuant to O. 8, r. 2 of the Rules of the Superior Court to set aside the order of McKechnie J. made the 13th day of June, 2005 whereby the plenary summons herein was renewed for a period of six months from the date of the order.

2 The facts relevant to the matter are as follows:

3 On the 18th April, 1999 the plaintiff suffered a rupture injury to his patellar tendon from a fall off a bike, as a result of which he had to undergo surgery on his knee in Tralee General Hospital. In this surgery a repair of the tendon was carried out by the insertion of wire sutures. After the surgery the plaintiff avers, in his affidavit, that he suffered excruciating pain, and he felt as if his kneecap had exploded. He says he requested that the plaster cast be taken off but that this was refused and he says that his wife requested that an x-ray be done at the time and that this was also refused. He says he was heavily sedated. He avers that notwithstanding his significant pain in the immediate post-operative period he was given physiotherapy in the form of quadriceps exercises. After 3 weeks the wound was examined, the clips taken out and the cast replaced. After about 12 weeks the cast was removed and further physiotherapy and exercises ordered, after which his knee became very swollen and painful. He says that an x-ray taken at this time confirmed that the wires had broken and that the tendon had re-ruptured. On the 29th July, 1999, a second operation was carried out to remove the broken wires.

4 The plaintiff believes that the excruciating pain that he experienced immediately after the initial surgery was as a result of the broken wires. He says that had an x-ray been taken then, as his wife had requested the broken wires would have been diagnosed and the problem remedied immediately. As a result of all this the repair to his patellar tendon failed and as a consequence of the delay in diagnosis together with premature physiotherapy treatment, he suffered months of severe pain, swelling and immobility.

5 On the 12th January, 2001, the plaintiff attended Mr. F.G. Kenny, Consultant, General Orthopaedic Surgeon who gave his report on the 31st January, 2001 in which he recommended that the plaintiff see a knee expert and he recommended two experts in knee pathology, Mr. Brian J. Hurson, Consultant Orthopaedic Surgeon in the Blackrock Clinic, Dublin and Mr. Raymond Moran, Consultant Orthopaedic Surgeon, Beaumont Private Clinic, Dublin.

6 Early in 2001, the plaintiff's solicitor wrote to Mr. Hurson with a view to obtaining an examination and report, but by letter dated 21st March, 2001, Mr. Hurson declined that request. The plaintiff's solicitor then wrote to Mr. Moran, but he by letter dated the 1st May, 2001 likewise declined to act.

7 In the month of January, 2002, the plaintiff instructed his solicitor Holmes O'Malley and Sexton to institute these proceedings and the plenary summons, the subject matter of this application, was issued on the 5th February, 2002.

8 In the meantime, starting with a letter of the 1st December, 2000 the plaintiff's solicitor entered into correspondence with the defendants with a view to obtaining all of the plaintiff's relevant medical records, for the purposes of obtaining a medical opinion on the standard of care of his treatment in Tralee General Hospital. Under cover of a letter dated the 19th January, 2001, medical records were sent by the defendants, but the plaintiff avers that these records were not complete and the plaintiff's solicitor wrote a further letter dated the 11th April, 2001 requesting copies of x-rays. The defendants wrote back on the 19th April, 2001 seeking clarification as to what x-rays were sought and this was responded to on the 8th May, 2001 saying that the x-rays sought were in relation to his accident on the 18th April, 1999 when he was first admitted to the defendants” hospital. Copies of these x-rays were supplied on the 21st May, 2001. On the 1st February, 2002 the plaintiff's solicitor wrote a further letter to the defendants complaining of the incompleteness of the medical records previously supplied, stating that the nursing notes, admission entries and pathology reportsinter alia were missing from the file and requesting copies of these. This letter of the 1st February, 2002, received no reply and the plaintiff's solicitor wrote again on the 13th March, 2002. It would appear that this letter was responded to on the 20th March, 2002 enclosing requested medical records, but the plaintiff's solicitor was dissatisfied with the completeness of the records supplied and a further letter was written on the 4th June, 2002 complaining that the medical notes for the period of the plaintiff's hospitalisation in April, 1999 had been omitted. On the 6th June, 2002, the defendants wrote to the plaintiff's solicitor clarifying what would constitute medical notes and on the 24th June, 2002 the plaintiff's solicitors requested copies of these notes to complete the records. It would appear that no additional material was furnished by the defendants after the 20th March, 2002 by which time the defendants contend that the plaintiff was in possession of all of the relevant records.

9 On the 5th November, 2002 the plaintiff's solicitor wrote to the Physiotherapy Department of Tralee General Hospital requesting a medical report on the plaintiff's condition and physiotherapy treatment while in hospital. The Physiotherapy Department responded promptly saying that they did not supply medical reports.

10 The plaintiff avers that until he had obtained a complete set of medical records he was not in a position to seek a medical opinion on the adequacy or otherwise of the surgical or medical care given to him by the defendants.

11 The plaintiff avers that having completed the medical file, his solicitor then sought advice from Senior Counsel in March, 2003 regarding a specialist in the U.K. and these advices were received in October, 2003. As a result of this the plaintiff's solicitor contacted Mr. Neville Kay of...