Gregory Heffernan v Mater Private

• Jurisdiction: Ireland
• Judge: Ms. Justice Egan
• Judgment Date: 15 December 2021
• Neutral Citation: [2021] IEHC 850
• Court: High Court
• Docket Number: [2021 5729 P]

Between:-

Gregory Heffernan

Plaintiff

and

Mater Private

Defendant

[2021] IEHC 850

[2021 5729 P]

THE HIGH COURT

Interlocutory relief – Termination of contract – Practising privileges – Plaintiff seeking interlocutory relief – Whether contractually agreed procedures applied

Facts: The plaintiff, Mr Heffernan, was a consultant orthopaedic surgeon practicing at, inter alia, the defendant, the Mater Private Hospital Cork (the Mater). On 7th July, 2021, the Mater issued a notice of termination, giving the plaintiff six months’ notice of the revocation/withdrawal of his practicing privileges at the Mater. The plaintiff commenced proceedings on 7th October, 2021 seeking an order restraining the Mater from giving effect to the notice of termination, associated declaratory relief and damages for breach of contract. The following day, he issued a motion seeking interlocutory relief, inter alia, “restraining the Defendant from terminating the contract... for the provision of clinic and theatre facilities by the Defendant to the Plaintiff at Mater Private Hospital Cork, entered into between the parties in 2013”. The plaintiff’s main argument was that there was no right to terminate his practising privileges on reasonable notice and that the termination notice was in breach of the contractually agreed procedures. It was not disputed that those procedures were not complied with. The question was whether they applied at all. To determine whether the plaintiff had established a strong case, three sub-issues arose: (1) whether the plaintiff established a strong case that his contractual relationship with the Mater was governed by “The Medical Society Constitution (MPCMS) for the Mater Private Cork” (the 2020 Constitution); (2) on the assumption that this was so, whether the plaintiff established a strong case that the 2020 Constitution, properly construed, did not entitle the Mater to terminate his practising privileges on reasonable notice; (3) if the 2020 Constitution entitled the Mater to terminate the plaintiff’s practising privileges on reasonable notice, whether the plaintiff nonetheless established a strong case that the termination was not a “no fault” termination on reasonable notice but rather a termination on grounds of conduct.

Held by Egan J that a strong case had been made out that the 2020 Constitution governed the plaintiff’s contractual relationship with the Mater; there must be a strong inference that the Constitution is for the benefit (and burden) of all consultants at the Mater who are members of the Mater Private Cork, Medical Society and the plaintiff, like all consultants at the hospital in Cork, was a member of the Society. Egan J held that there was a strong case to be made that clause 2(c), read together with the other clauses of the 2020 Constitution, evidences that the intention of the parties was that the Mater would not have a right to terminate privileges on reasonable notice, but instead that privileges would subsist for a three-year period and thereafter would be automatically renewed subject to the conditions set out in the 2020 Constitution; therefore, if the Mater is desirous of terminating a consultant’s privileges, other than for reasons of competence, capability or conduct, it has the opportunity of so doing on each third anniversary of the date of the granting of the privileges. Egan J noted that the Mater did not terminate the plaintiff’s practising privileges under clause 2(c); irrespective, therefore of how clause 2(c) might be interpreted or as to when it may become operative in respect of the plaintiff, clause 2(c) could not provide a valid basis for the purported termination of the plaintiff’s privileges. Egan J considered that the notice of termination was, in substance, a termination on grounds of conduct; the letter of termination and associated correspondence from the Mater and its solicitors contained statements which were consistent with a conduct based dismissal, rather than a dismissal on notice.

Egan J held that the overall risk of injustice would be minimised by granting rather than refusing interlocutory relief to the plaintiff.

Relief granted.

JUDGMENT of Ms. Justice Egan delivered on the 15th day of December, 2021

Introduction

1 The plaintiff is a consultant orthopaedic surgeon practicing at, inter alia, the Mater Private Hospital Cork (“the Mater”) previously Shanakiel Hospital (“Shanakiel”). On 7th July, 2021, the Mater issued a notice of termination, giving the plaintiff six months' notice of the revocation/withdrawal of his practicing privileges at the Mater. Notice expires on 7th January, 2021.

2 The plaintiff commenced proceedings on 7th October, 2021 seeking an order restraining the Mater from giving effect to the notice of termination, associated declaratory relief and damages for breach of contract. The following day, he issued a motion seeking interlocutory relief, inter alia, “restraining the Defendant from terminating the contract… for the provision of clinic and theatre facilities by the Defendant to the Plaintiff at Mater Private Hospital Cork, entered into between the parties in 2013”.

Factual background

3 Although he does not state when he commenced practice at Shanakiel, the plaintiff has practiced as an orthopaedic surgeon in Cork “over the past 12 years”. Clearly, the plaintiff was in practice at Shanakiel for some years prior to its acquisition by the Mater in January 2013, because, in January 2011, the plaintiff, together with other consultants, signed an agreement with Shanakiel entitled “ Practising Privileges for Clinicians – Shanakiel Hospital” (“the Shanakiel Agreement”). The practising privileges enjoyed by the plaintiff at Shanakiel included conducting clinics at the hospital and access to hospital theatre facilities.

4 It appears that the plaintiff, together with other consultants practicing at Shanakiel on the date of acquisition, transferred automatically to the Mater. No formal written contract was entered into at this time between the plaintiff (or other consultants) and the Mater. The plaintiff avers that, initially therefore, the Shanakiel Agreement continued to apply.

5 However, in 2014, the Mater issued “ The Medical Society Constitution” (“the 2014 Constitution”). The 2014 Constitution was not exhibited by either party. I understand, however, that it included reasonably detailed terms and conditions governing the granting and maintaining of practising privileges. The 2014 Constitution was updated in October 2020 by a document entitled “ The Medical Society Constitution (MPCMS) for the Mater Private Cork” (“the 2020 Constitution”). It has not been suggested that there were any particularly significant differences between the 2014 and 2020 Constitutions. The 2020 Constitution is examined in some detail below. For the moment, suffice to say that the 2020 Constitution envisages that consultants' practising privileges at the Mater are “ valid” for a period of three years and thereafter are “ automatically renewed” on each third anniversary provided that certain conditions are fulfilled. The 2020 Constitution also sets out detailed procedures for dealing with concerns or complaints relating to the competence, capability or conduct of consultants.

6 After the Mater acquired Shanakiel, the plaintiff continued to exercise his practicing privileges and run his practice at the hospital as he had done previously. This entailed holding a weekly clinic for the performance of “ side room procedures” and performing surgeries in the operating theatre twice monthly. In consideration of the provision of such facilities, the Mater received certain payments from patients' insurance companies for these clinic procedures and for surgeries. The plaintiff avers that in March of 2017, it was agreed that a nurse would be made available to him by the Mater to assist him at his weekly clinics.

7 The sequence of events giving rise to these proceedings commenced following the plaintiff's return to his weekly clinic on 1st July, 2020 after the hiatus occasioned by the COVID-19 emergency. The plaintiff alleges that, in breach of the March 2017 agreement and without any appropriate notice, the Mater unilaterally withdrew nursing support from his clinic. As a result, his ability to treat patients attending his clinics was impeded. The plaintiff appears to accept that he is capable of performing clinic procedures either on his own, or with the assistance of a healthcare attendant (which the Mater agreed to provide), but maintains that he cannot do so efficiently without the assistance of a nurse. The plaintiff states that he was encouraged by the March 2017 agreement to take on a larger number of patients than he could efficiently treat on his own and that, in withdrawing nursing support, the Mater acted illegally and in a manner inimical to the interests of patients, the reputation of the Mater and the reputation of the plaintiff himself.

8 When the re-instatement of nursing support was not dealt with to the plaintiff's satisfaction, he wrote to his patients on 24th June, 2021 stating that his clinic had been cancelled; that the Mater's management had unilaterally withdrawn the nurse from his clinic; and that if they wished to complain to management about the withdrawal of nursing support, they could write to identified members of the senior management team (including the managing director of the hospital, Mr Martin Clancy) and request the restoration of nursing support.

9 The Mater viewed the plaintiff's reaction as wholly unwarranted because it must often reconfigure services and reallocate staff to respond to changing priorities. Difficulties in recruiting and retraining frontline staff, particularly during the COVID-19 pandemic, had impacted staffing levels. As result, it was necessary to reallocate the nurse who had supported the plaintiff's clinics to an area of higher clinical...