Laurence Flynn v Bons Secours Health Systems Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 14 February 2014
• Neutral Citation: [2014] IEHC 87
• Court: High Court
• Date: 14 February 2014

[2014] IEHC 87

THE HIGH COURT

[No. 183CA/2013]

Flynn v Bons Secours Health Systems Ltd

BETWEEN

LAURENCE FLYNN

PLAINTIFF

AND

BONS SECOURS HEALTH SYSTEMS LTD.

DEFENDANT

FLYNN v MEDICAL COUNCIL 2012 3 IR 236 2012/15/4382 2012 IEHC 477

COOKE v CRONIN & NEARY UNREP SUPREME 14.7.1999 1999/5/1117 1999 IESC 54

REIDY v NATIONAL MATERNITY HOSPITAL UNREP BARR 31.7.1997 1998/10/2907

MEDICAL PRACTITIONERS ACT 2007 S57(1)

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

High Court – Litigation - Medical negligence - Personal injury - Negligence - Misdiagnosis - Duty of care - Medical evidence - Order ‘permanently staying proceedings’ - Appeal - Possession of a medical report - Reasonable grounds for litigation

Facts: In these proceedings, the plaintiff claimed he caused an injury to himself in 1987, which broke and moved his left pterygoid hamulus bone causing considerable pain and difficulty in swallowing. He sought medical treatment for the alleged injury but multiple investigations failed to confirm whether a bone was broken or find any reason for the pain. The plaintiff subsequently initiated a personal injuries action against the defendant, the Mater Private Hospital and Blackrock Clinic Ltd. for damages on the basis of medical negligence. The Mater Private Hospital then commissioned a report from Professor Nigel Hoggard, a specialist from the Academic Unit of Radiology at the University of Sheffield, who found that ‘the pterygoid hamuluses [did] look asymmetrical and in this context trauma is entirely feasible’.

The proceedings against the three defendants were then transferred to Cork Circuit Court so they could be heard together. On the 30th July 2013, an order was made in the Circuit Court ‘permanently staying’ all three sets of proceedings because the plaintiff was unable to produce a medical report of his own. These proceedings concerned an appeal of that decision. The plaintiff argued that he was under no obligation to produce his own medical report because one of the defendants was in possession of a report which, to some degree, supported some of the plaintiff”s factual contentions.

Held by Hogan J. that in Cooke v. Cronin [1999] IESC 54, it was held that it was an abuse of process to pursue an action in medical negligence in circumstances where there were no reasonable grounds for doing so. An appropriate basis for the action was said to be necessary because of potential damage to the reputation of the medical professionals involved. It was pointed out, however, that the plaintiff”s actions were against three hospitals and not medical professionals as such.

It was also held that there were clearly reasonable grounds for the plaintiff in bringing the actions for medical negligence because of the finding in Professor Hoggard”s report that the plaintiff”s basic complaint was consistent with the evidence. It was true that the alleged injury was of an exceptionally rare character, which could explain a misdiagnosis. Nevertheless, it was said that this did not mean that the plaintiff could not possibly establish negligence because the practice used by the medical practitioners could be found to contain inherent defects which should have been reasonably obvious to see given the circumstances of the plaintiff”s complaint. Further, it was noted that the ‘permanent stay’ order effectively amounted to a dismissal of the actions. It was said that at this juncture, the plaintiff”s right of access to the courts outweighed the defendants” entitlement to a timely disposition of the proceedings. Ultimately, the appeal was allowed, but it was directed that the plaintiff obtain a medical report within twelve months of the judgment”s date. In the event that such a report was not supplied, then the defendants would be entitled to apply by motion to the Circuit Court to have the action dismissed.

Appeal allowed

1 1. This is an appeal by the plaintiff against a decision of the Circuit Court (His Honour Judge Ó Donnabháin) on the 30 ^th July 2013 whereby he directed that the plaintiff's medical negligence proceedings against the defendant hospital be permanently stayed. A similar order was made in Flynn v. Blackrock Clinic Ltd. (Circuit Court, 2012, 00919) and in Flynn v. Mater Private Hospital (2012,01301). This judgment also covers the appeal in these cases ( 2013 CA 184 and 2013 CA 183 respectively).

2 2. These appeals presents a difficult issue against an unusual factual background. The issue is this: should the plaintiffs actions for medical negligence against all three hospitals be stayed permanently in circumstances where the plaintiff is unable to produce a medical report of his own, even though at least one of the defendants is in possession of a report which, to some degree, supports some of the plaintiff's factual contentions?

3 3. As it happens, I have already set out that background in quite separate judicial review proceedings involving the present plaintiff, Flynn v. Medical Council [2012] IEHC 477. Although those proceedings were entirely separate to the present proceedings, that judgment should really be read in conjunction with those earlier proceedings, not least given that I propose to reproduce and, where appropriate, adapt some of that summary for the purposes of the present case.

The background to the present proceedings

4 4. The plaintiff, Mr. Flynn, maintains that in his late teenage years he suffered a mishap when in 1987 he pressed the back of his palate with his finger and in the course of this accident broke and moved his left pterygoid hamulus bone. This is a hook like narrow bone around which the tendon of muscles of the soft palate glide at the very back of the palate of the mouth. As we shall see, the injury in question is exceedingly rare and not very often encountered, even by specialists.

5 5. As a result of this mishap Mr. Flynn contended that he suffered considerable pain and had difficulties in swallowing. In some respect it seems that this complaint was not received very sympathetically by the medical personnel he consulted in the years that followed. Thus, as late as November 1995 a Professor of Dentistry dismissed the suggestion that a bone on the left side of the mouth was broken, saying that:

"Multiple investigations have failed to find any reason for this pain and the only people who felt that they could help him in the past have been psychiatrists, although he dismisses them and says they did not help at all."

6 6. The contemporary psychiatric notes from the period are in a similar vein. Most of the comments were to the effect that the applicant was suffering from a delusion to the effect that there was a pathology "in his face which is either not there at all or [is] only minimal."

7 7. Yet Professor Gordon Russell of the Department of Dental Surgery at UCC noted in a letter of 16 ^th September 1994 that:

"At examination today for the first time I have found a tiny firm/bony swelling or nodule at the distal end of the hard palate well to the left of the mid-line of the tuberosity [protruding bone]. This nodule coincides with the centre of the painful symptoms which are now said to occur to a lesser extent on the right side of the neck."

8 8. A CT scan was performed on the applicant in September 1994 at Cork Regional Hospital. The radiologist in question, Dr. Ryder observed that:

"The only feature for comment is that the tergoid plate anteriorally on the right side is somewhat larger than on the left side. This is not pathological and would represent normal anatomical variation. However, it may be more susceptible to local trauma."

9 9. Mr. Flynn was not entirely happy with these investigations and in June 2006 he had another CT scan done at another private hospital. The consultant radiologist in question concluded that the "diagnostic quality" of the scan was excellent and that he did not see any abnormality in the study. He further added:

"I note that Mr. Flynn has had two previous CT scans, both reported as normal with reference to slight asymmetry of the pterygoid bone with normal limits on the study dated 26 ^th September 1994. There does not appear to be any discrepancy between the reports of those studies and the recent CT [scan]."

10 10. Another consultant radiologist reviewed the files and concluded in January 2008 that:

"Axial and...