McGregor v Health Service Executive

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 26 July 2017
• Neutral Citation: [2017] IEHC 504
• Court: High Court
• Docket Number: [2016 No. 5751 P.]
• Date: 26 July 2017

BETWEEN

MARSHA MCGREGOR

PLAINTIFF

AND

HEALTH SERVICE EXECUTIVE

DEFENDANT

[2017] IEHC 504

Barr J.

[2016 No. 5751 P.]

THE HIGH COURT

Practice & Procedures – O. 31 of the Rules of the Superior Courts – Leave to deliver interrogatories – Fair disposal of case – Medical negligence

Facts: The plaintiff sought leave pursuant to o. 31 of the Rules of the Superior Courts for serving interrogatories on the defendant in her claim for damages. The defendant objected to the grant of said leave on the ground that it would amount to admitting that the defendant was negligent, and thus, it would destroy the defendant's defence.

Mr. Justice Barr granted liberty to the plaintiff to serve interrogatories on the defendant in relation to certain questions while denying liberty for certain other questions. The Court opined that the manner in which the questions were framed would be prejudicial to the plaintiff. The Court, however, noted that in most of the personal injury cases, the plaintiff's hospital and medical records had been admitted into evidence without formal proof, which was not the case in the present proceedings. The Court, thus, allowed the plaintiff to serve the interrogatories as it related to the admission of the plaintiff in the hospital and the type of treatment rendered to her.

JUDGMENT of Mr. Justice Barr delivered on the 26th day of July, 2017

Introduction

1 In this action, the plaintiff seeks damages for injuries allegedly suffered by her, due to the allegedly negligent treatment furnished to her by servants or agents of the defendant when she attended at Mallow General Hospital and Cork University Hospital in August 2015, and subsequent thereto, for treatment of an avulsion fracture of the talus bone in her right ankle.

2 In this application, the plaintiff seeks an order pursuant to O. 31 of the Rules of the Superior Courts giving her liberty to serve interrogatories on the defendant. The defendant resists the application on the basis that the interrogatories posed, are unnecessary to enable the plaintiff to bring her case properly before the court and are unlikely to lead to any significant saving of costs. In addition, they claim that the questions as phrased, are inappropriate, insofar as they are questions relating to opinions, statements or the conduct of the servants or agents of the defendant. Furthermore, the defendant states that the questions should not be allowed, due to the fact that they effectively ask the defendant to admit that it was negligent in and about the care given to the plaintiff in the weeks and months following August 2015.

Background

3 In order to properly understand the context in which the plaintiff seeks leave to put the interrogatories to the defendant, it is necessary to set out briefly the core of the plaintiff's claim against the defendant and the progress of the pleadings to date.

4 The plaintiff is 38 years of age and is a married lady with young children. The narrative of the events giving rise to her action against the defendant was set out in the following terms at para. 5 of the personal injury summons issued by the plaintiff on 29th June, 2016:-

‘On or about 19th August, 2015, the plaintiff was accepted for treatment at the said Mallow General Hospital in respect of an avulsion fracture of her right talus bone. Her injured right ankle and foot were placed into a half plaster. Later that evening of the same date she received a telephone call from Cork University Hospital advising her that she should attend the hospital at 10pm that night. At the Cork University Hospital she was told that she was already booked into theatre for 7am on the following morning for internal fixation of the fracture as the fracture was bad and required this treatment. She was retained as an in-patient at the said hospital and was operated upon on 24th August, 2015. After the said surgery, her right lower limb was placed in plaster to below the knee. On or about 28th August, 2015, the plaintiff returned to the said hospital as her leg was very swollen whereupon the plaster was loosened around her toes. On or about 7th September, 2015, a new plaster cast was applied at the said Hospital which extended to just below her right knee. The plaintiff, by approximately one week later, had developed severe cramp and severe pain with difficulty in sleeping. She experienced cramping and burning, tingling, hopping, pulling pain sensation which began to extend into her hip. She could not put her right foot on the ground. Since her initial presentation at Mallow General Hospital the plaintiff had been prescribed analgesia which was increased on an ongoing basis with the passage of time and the increasing intensity of the symptoms. On or about 14th September, 2015, the plaintiff again attended the Cork University Hospital Accident and Emergency Department, because of the extreme severity of her symptoms. She was advised by the doctor, who saw her on that occasion, that the symptoms which she was experiencing, were only what were to be expected in the aftermath of said surgery. She was further advised that the plaster cast could not be removed, as this would destroy the effect of the operation and she was discharged with a further prescription of analgesics. On the following day, she was referred to Mallow General Hospital by her general practitioner, but they refused to assess her and referred her to Cork University Hospital which she attended on the same day, when she was again told at the last mentioned hospital that her symptoms were only what were to be expected in the aftermath of the surgery which she had undergone and that the right lower limb would not be x-rayed and that the plaster cast would not be removed. She was discharged home with yet a further prescription for Diazepan and a morphine-based tablet. Her symptoms persisted unabated. She was unable to sleep and vomited frequently. On or about 5th November, 2015, (sic) she attended at Cork University Hospital and was x-rayed and seen by Ms. Sinead Boran, a consultant orthopaedic surgeon, who advised her that the plaster cast had been inappropriately applied to her right lower limb and caused the cast to be removed. She further referred the plaintiff for physiotherapy and prescribed exercises and a special boot for use on the injured foot. The plaintiff's symptoms continued and she remained on analgesics. On or about 12th October, 2015, the plaintiff was re-assessed and further physiotherapy was prescribed at Mallow General Hospital. The physiotherapy was wholly ineffective and the plaintiff's symptoms persisted. On or about 2nd November, 2015, Ms. Boran told the plaintiff that she should submit to Botox injections and an operation to release her Achilles tendon. On or about 13th November, 2015, the plaintiff underwent surgery for an Achilles tendon release and subsequently a cast was applied. She was also treated with Botox injections. On or about 23rd December, 2016, (sic) the cast was removed but she was left with tightness in her Achilles tendon. She was using crutches and a boot for several weeks. In January 2016, she commenced a course of physiotherapy and stretching exercises, but her condition failed to improve. She continues to have serious difficulty when walking. She is dragging her foot. Her ankle is swollen by night-time. During the day she experiences soreness and ache but pain develops before night-time. She has to rest to relieve the swelling. She requires ongoing paracetamol and is also on Vimovo. The plaintiff is a busy housewife and mother and has severe difficulty in doing heavy household work and coping with her duties as a wife and mother.’

5 Arising out of this narrative, the plaintiff alleged that the defendant, its servants or agents, in both Mallow General Hospital and Cork University Hospital, had been negligent in and about the treatment given to her from the time that she first presented on or about 19th August, 2015, until in or about the time when surgery was carried out to release the achilles tendon on or about 13th November, 2015. In her personal injury summons the plaintiff set out twenty particulars of negligence and breach of duty against the defendant. It is not necessary to set out these allegations in extenso. Her case in negligence is effectively contained within the following general areas:-

(a) failure to obtain informed consent from the plaintiff for the operation where there was internal fixation of the fracture to the talus bone;

(b) performing the internal fixation procedure, when it was unnecessary to do so;

(c) applying the plaster cast in an inappropriate and substandard manner and in particular in such a way as to cause injury to the plaintiff's achilles tendon;

(d) ignoring the plaintiff's complaints of severe pain and disability, caused by the plaster cast which had been applied on 7th September, 2015;

(e) treating the plaintiff with inappropriate amounts of analgesia;

(f) allowing the plaster cast to remain in place notwithstanding the plaintiff's symptoms and complaints; and

(g) failing to provide appropriate remedial treatment in a timely manner, in respect of the condition caused by the application of the plaster cast on 7th September, 2015.

6 On 13th January, 2017, a defence was filed on behalf of the defendant. In the defence, it was made clear that it was being delivered prior to the receipt of all necessary independent expert medical opinion by the defendant. In those circumstances it was indicated that the defence was, of necessity, preliminary in nature. The defendant reserved the right to amend its defence on completion of investigations and, in particular, on receipt of the independent expert medical opinion. With the exception of admissions made in respect of the preliminary matters pleaded at paras. 1 and 2 of the personal injury summons, the remainder of the defence put all matters in issue.

7 In...