Michael Adamson v North Eastern Health Board and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 19 April 2013
• Neutral Citation: [2013] IEHC 191
• Court: High Court
• Date: 19 April 2013

[2013] IEHC 191

THE HIGH COURT

[No. 8027P/2003]

Adamson v North Eastern Health Board & Ors

BETWEEN/

MICHAEL ADAMSON

PLAINTIFF

AND

NORTH EASTERN HEALTH BOARD, TOM O'CALLAGHAN AND, BY ORDER, KEVIN O'CONNOR

DEFENDANTS

O'CONNELL v BUILDING & ALLIED TRADE UNION 2012 2 IR 371 2012 IESC 36

CONSTITUTION ART 40.3.2

I (I) v J (J) UNREP HOGAN 5.7.2012 2012/18/5024 2012 IEHC 327

MCBREARTY v NORTH WESTERN HEALTH BOARD & ORS UNREP SUPREME 10.5.2010 2010/31/7749 2010 IESC 27

MANNING v BENSON & HEDGES LTD 2004 3 IR 556 2005 1 ILRM 190 2004/29/6876 2004 IEHC 316

Medical Negligence – Negligent diagnoses and treatment – Joiner – Delay inordinate and inexcusable – Application to have joiner set aside –Prejudice resulting from delay – Statute-barred

Facts: The original proceedings concerned a claim for negligent diagnosis and treatment which resulted in the plaintiff suffering severe neurological injuries. In this application the third defendant applied to have the ex parte order joining him to the proceedings set aside on the basis that the delay of eleven years since that event was inordinate, inexcusable and statute-barred.

The preliminary motion was held not to be the appropriate forum for the issue of whether the joinder was statute-barred to be decided, as the sole consideration in the hearing was the question of whether a new party could be added to the proceedings, O”Connell v Building and Allied Trade Union [2012] IESC 36 considered.

Hogan J held the delay in joining would prejudice the hearing. A fair trial for the defendant would not be possible; he had no recollection of the plaintiff and could not defend the case on its merits relying on clinical notes. An objective evaluation of his professional conduct based upon this would amount to speculation, especially as there was no evidence referring to his involvement.

Allegations of professional negligence could impact on the good name of a practitioner; there were constitutional safeguards to protect the defendant from this occurrence, the main one being that claims against his name were heard and determined within a reasonable period of time. The delay had not been due to any wrongdoing on the plaintiff”s part but the court still had the jurisdiction to strike out the joinder for undue delay irrespective of fault, McBrearty v North Western Health Board [2010] IESC 27 applied.

1 1. In July, 2003 the plaintiff, Mr. Adamson, issued the present medical negligence proceedings arising from what he maintains were the deficiencies in treatment he received when he presented at Louth County Hospital ("the Hospital") in the early days of January, 2000. The plaintiff, who at the time was aged 45, contends that the first two defendants failed to provide appropriate clinical care and failed to make a timely or proper diagnosis of an inter-cranial abscess or otherwise to make appropriate arrangements for the plaintiff's clinical management. It is accordingly alleged that as a result of negligent diagnoses and treatment, Mr. Adamson suffered severe neurological injuries. The second defendant is a consultant physician attached to the hospital.

2 2. The present application concerns the joinder of the third defendant, Kieran O'Connor, by order made ex parte of this Court (O'Neill J.) on 23 ^rd April, 2012. Mr. O'Connor was, at the material time, a consultant physician employed by the Hospital. Mr. O'Connor now moves this Court to have this ex parte order set aside on the ground that the delay in joining him has been inordinate and inexcusable and, furthermore, that the claim is also statute-barred.

3 3. One of the difficulties for all the parties is that the reconstruction of the precise sequence of facts on the days in question is, at this remove, no easy task. Allowance must naturally be made for the fact that since this incident Mr. Adamson speech and general recollection have been impaired. Nor could the plaintiff be expected to recall the precise identity of the various clinicians who treated him at the Hospital on the days in question. It is, however, necessary to endeavour to assemble the relevant undisputed facts before examining the relevant legal principles.

4 4. The plaintiff first presented to the Hospital on 1 ^st January, 2000, suffering from headaches and a swollen face. It appears that influenza and an eye infection was suspected and Mr. Adamson was sent home. Mr. Adamson seems to have encountered difficulties with speech on 2 ^nd January. He attended his general practitioner on the following day, whereupon he was referred immediately to the Hospital's Accident and Emergency Department. Mr. Adamson was ultimately transferred to Beaumont Hospital in the afternoon of 4 ^th January, 2000, where he underwent emergency surgery to remove pus which was placing pressure on his brain.

5 5. The Hospital's clinical notes for the 3 ^rd January, 2000, suggest that Mr. Adamson had woken up that morning unable to speak and that he had felt ill on the previous day. The entry for 8.15pm that evening contains a note to the effect that the treating clinician had discussed the case with Dr. O'Connor. The entry in nursing notes for 5pm on the same day record that Mr. Adamson "appears very ill" and that "Dr. O'Connor [has been] informed".

6 6. It is important to stress that the clinical notes were first supplied by the Hospital to the plaintiff's solicitors in October, 2003 following a request in that behalf in August, 2003. There were further requests for medical records between then and the delivery of the statement of claim in February, 2009. At that point, the plaintiff's solicitor issued a motion for discovery and in June, 2009 the Hospital supplied the accident and emergency chart for 1 ^st January, 2000, and the nursing notes for 3 ^rd January, 2000.

7 7. Further requests for discovery were issued by the plaintiff's solicitors in January, 2011. The object of these requests was to identify the casualty doctor who treated Mr. Adamson on 1 ^st January 2000 and the duty roster for the medical staff at the Accident and Emergency Unit at the Hospital for the period from 1 ^st January, 2000, to the 4 ^th January, 2000.

8 8. A further affidavit of discovery was sworn on behalf of the Hospital in April, 2011. This affidavit identifies the Duty Registrar who treated Mr. Adamson on 1 ^st January, 2000. The duty roster disclosed by this affidavit suggests that Dr. O'Connor was the consultant physician on duty on 1 ^st, 2 ^nd and 4 ^th January, 2000.

9 9. The plaintiff's say that they only learnt directly of Dr. O'Connor's involvement following the supplemental discovery made in April, 2011. It was at the point they inquired whether the Hospital's...