Kearney v McQuillan & North Eastern Health Board (No 1)

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne
• Judgment Date: 31 May 2006
• Neutral Citation: [2006] IEHC 186
• Docket Number: [No 6652 P/2004]
• Court: High Court
• Date: 31 May 2006

[2006] IEHC 186

The high court

[No 6652 P/2004]

KEARNEY v MCQUILLAN & NORTH EASTERN HEALTH BOARD

between

olivia kearney

plaintiff

and

ethna McQUILLAN AND NORTH EASTERN HEALTH BOARD

defendants

DUNNE v NATIONAL MATERNITY HOSPITAL 1989 IR 91

TOAL v DUIGNAN 1991 ILRM 135

TOAL v DUIGNAN (NO 2) 1991 ILRM 140

MANNING v BENSON & HEDGES LTD 2004 3 IR 556

PRIMOR PLC v STOKES KENNEDY CROWLEY 1996 2 IR 459

KELLY v O'LEARY 2001 2 IR 526

PRACTICE AND PROCEDURE

Dismissal of action

Medical negligence - Inordinate and inexcusable delay - Delay explained - Fair trial - Death of witnesses - Prejudice to defendant - Whether possible for defendant to have fair trial - Toal v Duignan (No 1) [1991] ILRM 135 and Toal v Duignan (No 2) [1991] ILRM 140 applied - Proceedings struck out (2004/6652P - Dunne J -31/5/2006) [2006] IEHC 186 Kearney v McQuillan

Ms. Justice Dunne

1 The first named defendant herein seeks an order directing the trial of a preliminary issue namely whether the plaintiff is estopped from proceeding further with her claim herein by reason of the inordinate and inexcusable delay on the part of the plaintiff in instituting proceedings herein against the first named defendant as a consequence whereof it is alleged that the first named defendant has been severely prejudiced in the presentation of its defence to the claim herein.

2 By the same notice of motion, the first named defendant raised an issue as to whether the plaintiff's claim herein against the first named defendant was statute barred. However that application was not pursued before me and it was accepted for the purpose of the application before me, that the claim was not statute barred.

3 It should be noted that the first named defendant is sued as the nominee of the Medical Missionaries of Mary which was the owner/occupier of Our Lady of Lourdes Hospital, Drogheda, Co. Louth, at the relevant time.

4 Judgment in default of defence has been obtained against the second named defendant.

5 It is common case that the plaintiff entered Our Lady of Lourdes Hospital (the Hospital) on 16th October, 1969, and on 19th October, 1969, Dr. Gerard Connolly performed an emergency caesarean section upon the plaintiff and thereafter carried out a further procedure on her known as a symphysiotomy. These proceedings are concerned with the circumstances surrounding the latter procedure, whether it was done with the consent or knowledge of the plaintiff and whether it was necessary or appropriate to carry out such a procedure on the plaintiff. It is alleged that as result of that procedure, she suffered personal injuries which, it is alleged still have to this date an adverse affect on the plaintiff.

6 It would be useful to note at this point the history of the proceedings to date. I gratefully adopt the history of the proceedings to date set out in the legal submissions of the first named defendant herein.

"On 4th February, 2004, the plaintiff's solicitors wrote to the Hospital indicating that legal action would be commenced on behalf of the plaintiff. (The plaintiff had first written to the Hospital seeking copies of her medical records in May, 2002.) A plenary summons duly issued on 11th May, 2004 and the statement of claim was delivered on 14th May, 2004, thirty four and a half years after the carrying out of the procedure which is the subject matter of the complaint. Particulars were raised on behalf of the first defendant on 19th May, 2004, to which replies were received on 12th July, 2004. A full defence was delivered on 13th December, 2004. The motion presently before the court which the first defendant has limited to seeking to have the plaintiff's claim dismissed by reason of the lapse of time since the events complained of and the probable date of trial, was filed on 23rd June, 2005."

7 A number of affidavits have been exchanged by the parties to this motion. I will refer to those insofar as may be necessary for the purpose of this application. An affidavit was sworn by Aisling Gannon on 22nd June, 2005, on behalf of the first named defendant. She deposed to the fact that Dr. Gerard Connolly had worked as an obstetrician/gynaecologist in the Hospital in 1969. He retired from practice in 1982 and died in the year 2000. She pointed out that there had been prejudice due to inordinate and inexcusable delay by virtue of the death of Dr. Connolly and due to the fact that the hospital records are incomplete and there are difficulties in establishing thirty five years later who made the relevant entries in the extant records and the whereabouts of those who made the relevant entries.

8 In reply the plaintiff swore an affidavit on 12th January, 2006. She described therein the nature of a symphysiotomy, namely the cutting through cartilage that binds the two pubic bones, thus permanently enlarging the pelvis. She had attended Dr. Gerard Connolly. After her child was delivered by caesarean section a symphysiotomy was performed upon her. She averred that that was an unnecessary procedure performed on her without her consent. She added that she had never been told by Dr. Connolly that he had performed such a procedure on her. She outlined the consequences of that procedure having been performed - while it is not necessary to set these out in detail, it would be no exaggeration to say that she has been left with a legacy of problems including pain, which could not but have had a significant adverse affect on many aspects of her life. She emphasised that neither Dr. Connolly nor any other GP or doctor that she had attended informed her that such a procedure had been carried out upon her.

9 The plaintiff takes issue with the complaint made by Ms. Gannon that records are "incomplete since the entries in the extant records were made over thirty five years ago." She pointed out that her solicitors made enquiries from the Hospital solicitors as to the records that they had and as to the records that are said to be missing. No reply was received. She disagreed with the suggestion that records made thirty five years ago are necessarily less reliable than records made in more recent times.

10 An affidavit was also sworn on behalf of the first named defendant by

11 Roisin Maguire, the General Manager of the Hospital, on 14th February, 2006. She dealt with a number of matters she alleged were to the prejudice of the Hospital, namely, the death of Dr. Connolly on 17th March, 2000, the death of the senior house officer at the relevant time, Dr. Maureen McDermott, on 25th August, 1992, the death of the consultant anaesthetist who attended the Plaintiff, who died on 19th April, 1999, and the death of the consultant radiologist who reviewed the plaintiff's x-rays around the relevant time. On that basis she averred that the hospital is deprived of the oral evidence of these medical specialists who would be essential to the hospital's defence. She pointed out that part of the plaintiff's case was that the symphysiotomy was an unnecessary procedure carried out without her consent, that she was never informed that it had been carried out and that she was not informed of the likelihood that such a procedure would be carried out. Roisin Maguire emphasised the importance of the evidence that could have been given by Dr. Connolly as to the discussions he would or could have had with the plaintiff which evidence is not now available. No other oral or documentary evidence can overcome this prejudice.

12 In addition to the medical staff who are deceased, she also pointed out that a number of the nursing staff who were involved in the plaintiff's care are also deceased. A number are out of the jurisdiction and the whereabouts of others are unknown despite efforts to trace them.

13 She pointed out that certain medical records are missing and those which are available are wholly insufficient to overcome the prejudice suffered by the absence of the medical staff referred to above. The birth registers, theatre registers and blood books have been destroyed and discharge records appear to be incomplete. The plaintiff's chart lacks detail and given the passage of time and the death of many of the personnel involved in the care of the plaintiff there is likely to be difficulty in interpreting and explaining all of the entries on the plaintiff's chart.

14 She added that as the first named defendant denies that the injuries allegedly suffered by the plaintiff were caused by the symphysiotomy it would be necessary for its medical experts to examine all of the plaintiff's medical records from October 1969 to date.

15 Having referred to these matters, she averred that the prejudice which will be suffered by the first named defendant in the presentation of its defence by reason of those matters has arisen because of the inordinate delay on the part of the plaintiff in instituting her claim for which no adequate explanation has been offered. She pointed out that the plaintiff has not specified when she became aware of the information to the effect that a symphysiotomy had been carried out. On that basis she argued that as the first named defendant has been severely prejudiced the balance of justice requires that the claim be dismissed.

16 A supplemental affidavit was sworn herein by Roisin Maguire dated 9th March, 2006. In that affidavit Roisin Maguire sets out detailed information in relation to the efforts made to trace members of the medical and nursing staff who were named on the delivery chart in relation to the plaintiff and others believed to have been involved in the plaintiff's care. As a result of inquiries by the Hospital in relation to the 19 people who have been identified as having been involved in the care of the plaintiff at the relevant time, 7 are deceased, the whereabouts of 7 remains unknown, 2 are in Africa and 3 have been...