Kearney v McQuillan & North Eastern Health Board

• Jurisdiction: Ireland
• Judge: Mr. Justice Hardiman
• Judgment Date: 26 March 2010
• Neutral Citation: [2010] IESC 20
• Docket Number: [S.C. No. 343 of 2006]
• Court: Supreme Court
• Date: 26 March 2010

[2010] IESC 20

THE SUPREME COURT

343/2006

Hardiman J.

Fennelly J.

Macken J.

Kearney v McQuillan & North Eastern Health Board

Between:

OLIVIA KEARNEY

Plaintiff/Appellant

v.

ETHNA McQUILLAN and THE NORTH EASTERN HEALTH BOARD

Defendants/Respondents

DUNNE (AN INFANT) v NATIONAL MATERNITY HOSPITAL & JACKSON 1989 IR 91 1989 ILRM 735 1989/1/165

PRACTICE AND PROCEDURE

Strike out proceedings

Delay - Prejudice - Death of witnesses - Medical negligence claim - Symphysiotomy procedure - Delay in instituting proceedings - Claim concerning appropriateness of procedure - Whether delay inordinate and inexcusable - Whether prejudice to defendant - Whether plaintiff had knowledge of and consented to procedure - Whether procedure should have been carried out - Whether reformulation of claim removes prejudice to defendant - Dunne (an inf) v National Maternity Hospital [1989] IR 91 applied - Plaintiff's appeal allowed (343/2006 - SC - 26/3/2010) [2010] IESC 20

Kearney v McQuillan

Facts The plaintiff whilst giving birth had been subjected to an operation called symphysiotomy in 1969. The plaintiff only discovered that she had undergone the operation in 2002 and issued the present proceedings in 2004. The first-named defendant brought a motion in the High Court and it was ordered that the plaintiff's action be dismissed by reason of the inordinate inexcusable delay in instituting proceedings. The plaintiff contended that she had only discovered that she had undergone the operation after hearing a radio programme and having sought her medical records. In the High Court the first-named defendant relied primarily on the absence of useful witnesses. The plaintiff appealed to the Supreme Court seeking to have her claim proceed.

Held by the Supreme Court (Hardiman J delivering judgment, Fennelly J and Macken J agreeing) in allowing the appeal. The plaintiff's case would be allowed to proceed on a reformulated basis that there was no justification whatsoever for the operation to be carried out following delivery by caesarean section. This formulation would preclude any compliant about the manner the operation was carried out as opposed to the decision to carry it out at all.

Reporter: R.F.

1 JUDGMENT of Mr. Justice Hardimandelivered the 26th day of March, 2010.

2 Judgment delivered by Hardiman J. [nem diss]

3 This is an action for medical negligence, breach of duty and battery. The plaintiff's complaint fundamentally is that at the time of the birth of her first child, in 1969, she was subjected to a procedure called symphysiotomy, after her child had been delivered by caesarean section by a Dr. Connolly, a consultant at Our Lady of Lourdes Hospital, Drogheda, Co. Louth. A symphysiotomy is the cutting through of the cartilage that binds the two pubic bones thus permanently enlarging the pelvis.

4 The present issue in the case arises because the proceedings were not issued until the year of 2004. By that time, the surgeon Dr. Connolly, the anaesthetist, the radiologist and the senior house officer who attended in the theatre were all unfortunately dead. Of nineteen people identifiable as having been involved in the plaintiff's care a total of seven are dead, the whereabouts of another seven is unknown, two are believed to be in Africa and three are available. It was stated without contradiction that those three were nurses involved in the plaintiff's general care and had nothing to add on the topic of the symphysiotomy.

5 In those circumstances the first-named defendant, who is the representative of the hospital, brought a motion dated the 23 ^rd June, 2005in which she sought an order directing the trial of a preliminary issue as to whether:

"The plaintiff is estopped from proceeding further with her claim herein against the first-named defendant by reason of the inordinate and inexcusable delay on the part of the plaintiff in instituting the proceedings herein against the first-named defendant as a consequence whereof the first-named defendant has been severely prejudiced in the presentation of its defence to the said claim."

6 The first defendant had also sought a preliminary issue on the question of whether the action was statute-barred but did not proceed with this application. By order dated the 27 ^th July, 2006 the High Court (Dunne J.) ordered that the plaintiff's action against the first-named defendant "be dismissed by reason of the inordinate inexcusable delay on the part of the plaintiff in instituting the proceedings herein."

7 The reasons for this were given in the judgment of the High Court (Dunne J.) delivered on the 31 ^st May, 2006.

8 From this judgment and order the plaintiff has appealed.

The decision in the High Court.

9 The learned High Court Judge set out the considerable disadvantages which had accrued to the first-named defendant by the longdelay of thirty-seven years between the act complained of, the carrying out of the symphysiotomy, and the issue of proceedings in 2004. This delay in itself was explained by the plaintiff on the basis that she said she was never told that she had been subjected to a symphysiotomy and did not discover it until, after listening to a radio programme, she was moved to seek her medical records from the hospital in the year 2002. On the other hand, it must be noted that the carrying out of the symphysiotomy "before closure" but after the caesarean delivery, was plainly, if tersely, noted on the operation note. An important ground of the learned trial judge's decision to prevent the action proceeding was the difficulty of deciding the question of whether the plaintiff had or had not been told of the procedure carried out in the absence of Dr. Connolly.

10 The case which the High Court was dealing with was that...