Julie Walsh v Mater Misericordiae University Hospital and Ashley Poynton

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 08 March 2022
• Neutral Citation: [2022] IEHC 126
• Docket Number: [Record No. 2013/3244P]
• Year: 2022
• Court: High Court

Between

Julie Walsh

Plaintiff

and

Mater Misericordiae University Hospital and Ashley Poynton

Defendants

[2022] IEHC 126

[Record No. 2013/3244P]

THE HIGH COURT

JUDGMENT of Mr. Justice Barr delivered electronically on the 8th day of March, 2022.

Introduction.

1 The plaintiff is a security guard. She is 63 years of age having been born on 17th April, 1958. The first named defendant is a public hospital in Dublin. The second named defendant is a consultant orthopaedic surgeon.

2 This is an application by the second defendant for an order dismissing the plaintiff's action against him on grounds of inordinate and inexcusable delay on the part of the plaintiff in pursuing her action against him.

3 The events the subject matter of the proceedings occurred in April and May 2011. It is the plaintiff's case that during that period, the defendants and each of them, failed to carry out all necessary investigations into her complaint of left leg pain. In particular, it is pleaded that they failed to carry out any vascular investigation as a possible cause for her pain, and as a result whereof, they failed to diagnose that she had a vascular disease, and as a result of that, it is pleaded that she suffered severe pain and injury to her leg, leading ultimately to the loss of her left leg below the knee.

4 The second defendant submits that as the proceedings against him issued on 28th March, 2013, but were only served on him on 27th January, 2015 and did not contain any concrete allegations of negligence, as the writ had been issued on a protective basis; and that as full particulars of negligence were only served on him on 12th April, 2021, meaning that the action will probably not come on for hearing until sometime in 2024 or 2025, the plaintiff has been guilty of inordinate and inexcusable delay, as a result whereof the second defendant has been prejudiced in his defence of the action and in such circumstances the court should strike out the proceedings against him.

5 On behalf of the plaintiff it was submitted that there were a number of matters which occurred during the intervening years which made the delay that had occurred, excusable. It was further submitted that even if the delay was held to be both inordinate and inexcusable, the balance of justice lay in favour of allowing the action to proceed, as there was no real prejudice to the defendant in defending the action, as liability would effectively turn on expert evidence given in relation to the steps that had been taken by the treating doctors, based on their medical notes and records, all of which remained available to the second defendant.

6 That is a very brief summary of the issues that arise for determination on this application.

The events giving rise to the proceedings.

7 In her personal injury summons, the plaintiff has pleaded that on 1st April, 2011 she attended with the second defendant at his private rooms. She states that at that consultation she made specific complaints about severe pain, numbness and loss of power in her left leg. An MRI scan of her lower back was arranged and was carried out on 26th April, 2011.

8 On 19th May, 2011, the plaintiff attended at the accident and emergency department of the first defendant's hospital. Although not specifically pleaded, it is presumed that this was in relation to a complaint of left leg pain. She states that she was discharged home later that day.

9 The plaintiff has pleaded that she was referred urgently by her GP back to the second defendant, whom she saw on 23rd May, 2011. She states that she once again explained to him that her left leg was in severe pain. She has pleaded that the second defendant examined her feet and arranged for an MRI scan to be carried out on the following day.

10 The plaintiff states that over the following days, her condition deteriorated. She became extremely sick. On 26th May, 2011, she was taken to the accident and emergency department of the first defendant hospital by ambulance. She states that investigations on that occasion revealed that there was a large plaque in the lower end of her aorta, which had caused thrombosis of her iliac system and ultimately, thrombosis of all the vessels in her left leg. Emergency surgery was carried out on 26th May, 2011, when a vascular surgeon managed to thrombectomise and angioplasty her aorta, as well as angioplasty of her iliac vessels. He carried out multiple embolectomies of the vessels in her lower limb.

11 The plaintiff states that while the surgery managed to restore circulation to below her knee, her foot was irreversibly ischaemic. On 1st June, 2011, a below knee left leg amputation was carried out.

12 It is against that background, that the present medical negligence proceedings were instituted. The essence of the plaintiff's claim against the defendants is that they treated her leg pain on the basis that it was referable to an injury, or problem in her back, which, given her presenting symptoms and relatively benign MRI scans, it is pleaded that the defendants and each of them should have considered the possibility that she was suffering from a vascular disease and should have directed that vascular investigations be carried out, and had they done so, the vascular disease would have been discovered and she would not have suffered the injuries that she ultimately did.

13 At present, the court is unaware as to the stance on liability that will be taken by each of the defendants, as appearances have only been entered by the defendants to the personal injury summons issued by the plaintiff.

Chronology of the proceedings to date.

14 The chronology of the proceedings to date can be set out in the following way:

22/3/2013	A pre-litigation letter is sent to the second defendant.
28/3/2013	A personal injury summons is issued on behalf of the plaintiff on a protective basis.
29/4/2013	Messrs Hayes Solicitors write to the plaintiff's solicitors advising that they have authority to accept service of the proceedings on behalf of the second defendant. The letter also seeks copies of the plaintiff's relevant medical records.
2/5/2013	The plaintiff's solicitor sends a holding letter in response, advising that they are not in a position to release the plaintiff's medical records.
7/5/2013	The plaintiff's solicitor sends a letter to a medical consultant, Mr. Getty, based in Sheffield asking if he could act in the case.
5/6/2013	Mr. Getty is advised by email of the identity of the defendants.
13/6/2013	Mr. Getty agrees to act in the case and outlines his fees.
27/3/2014	Personal injury summons expires.
28/7/2014	Ex parte application is made to renew summons under O.8, r.1 of RSC.
27/1/2015	The plaintiff serves the renewed summons on the second defendant personally. This was on the last day before it expired.
2/2/2015	The second defendant's solicitor writes to the plaintiff asking for copies of the papers which grounded the application to renew the summons.
3/3/2015	The plaintiff's solicitor sends Mr. Getty the plaintiff's medical records and requests an expert opinion from him.
5/3/2015	Mr. Getty advises the plaintiff's solicitor by letter that he is unable to act in the matter, as he is a friend and colleague of the second defendant.
November 2015	Mr. Pearse in the UK is engaged to provide an expert medical opinion.
5/2/2016	A report is received from Mr. Pearse.
14/2/2020	The plaintiff's solicitor serves a notice of intention to proceed.
17/2/2020	The plaintiff's solicitor writes to Mr. Stephen Brearley, Consultant Vascular Surgeon, requesting him to prepare an expert report.
21/2/2020	The plaintiff's solicitor writes to St. James's Hospital requesting the plaintiff's medical records and in particular, the plaintiff's blood analysis results from 2011.
16/3/2020	Professor O'Donoghue is contacted by the plaintiff's solicitor for the purpose of preparing a medical report. The report is provided by him on 10th May, 2020.
27/5/2020	The plaintiff's solicitor sends medical records to Dr. Mary Kennedy of Minerva Medical Legal to prepare a typed transcript of the plaintiff's medical records and/or provide a summary of treatment received by her from November 2004 until March 2020.
15/7/2020	The plaintiff's solicitor instructs Mr. Brearley to complete a medical report on behalf of the plaintiff.
5/8/2020	The plaintiff's solicitor arranges for a notice of updated particulars of negligence to be drafted.
18/11/2020	An appearance is entered on behalf of the second defendant.
7/1/2021	The present motion is issued by the second defendant.
12/4/2021	Further particulars of negligence are served on the defendants.
8/7/2021	A motion is issued by the plaintiff seeking judgment in default of appearance against the first defendant.
22/11/2021	Order of the High Court extending time for entry of an appearance by the first defendant, and an appearance was subsequently entered on behalf of the first defendant

Submissions on behalf of the second defendant.

15 It was not contested by the plaintiff that the delay in the prosecution of her action herein was other than inordinate. Mr. O'Flaherty BL, on behalf of the second defendant, submitted that the delay was also inexcusable. It was submitted that the plaintiff's solicitor had delayed at almost every stage of the proceedings since their inception.

16 Counsel pointed out that while the plaintiff's personal injury summons had issued on 28th March, 2013, it had expired, necessitating an application to renew the summons, which was made on 28th July, 2014. The summons was only served personally on the second defendant on the last day of the renewal period on 27th January, 2015. However, the content of the summons was very general in nature, as it was made clear in the summons that...