Naessens (plaintiff) v Jermyn & O'Higgins

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne
• Judgment Date: 26 March 2010
• Neutral Citation: [2010] IEHC 102
• Court: High Court
• Date: 26 March 2010

[2010] IEHC 102

THE HIGH COURT

[No. 6476 P/2006]

Naessens v Jermyn & O'Higgins

BETWEEN

EDWARD NAESSENS

PLAINTIFF

AND

NICHOLAS C. JERMYN AND NIALL O'HIGGINS

DEFENDANTS

STATUTE OF LIMITATIONS 1957 S11

STATUTE OF LIMITATIONS (AMDT) ACT 1991 S2

HEALY MEDICAL MALPRACTICE LAW 2009 PARA 3.25

GOUGH v NEARY & CRONIN 2003 3 IR 92 2004 1 ILRM 35 2003/24/5584

HALFORD v BROOKES & ANOR (NO 1) 1991 1 WLR 428 1991 3 AER 559

FORTUNE v MCLOUGHLIN 2004 1 IR 526 2004/18/4099 2004 IESC 34

STATUTE OF LIMITATIONS (AMDT) ACT 1991 S2(1)(C)

CUNNINGHAM v NEARY & ORS 2004 2 ILRM 498 2004/11/2540 2004 IESC 43

TORT

Limitation of actions

Medical negligence - Trial of preliminary issue - Whether claim statute barred - Personal injury summons - Alleged negligent treatment of adenoid cystic carcinoma - Alleged delay in diagnosis of recurrence - Date of knowledge - Date of knowledge of attribution - Date when sufficient knowledge possessed to embark on preliminaries to issue of writ - Gough v Neary [2003] 3 IR 92; Halford v Brooks [1991] 1 WLR 428; Fortune v McLoughlin [2004] 1 IR 526 and Cunningham v Neary [2004] IESC 43 (Unrep, SC, 20/7/2004) considered - Statute of Limitations 1957, s 11 - Statute of Limitations (Amendment) Act 1991 (No 18), s 2 - Application refused (2006/6476P - Dunne J - 26/3/2010) [2010] IEHC 102

Naessens v Jermyn

Facts: The plaintiff issued a personal injures summons against the defendants. The plaintiff had surgery on his left gland in 1994 and he alleged negligence in his treatment. A recurrence of the tumor was diagnosed in 2001 and he underwent further surgery in 2002 and he alleged negligence in the delay in the diagnoses and treatment of the condition. In 2009, a trial of a preliminary issue was directed as to whether the claim of the plaintiff was statute barred pursuant to the Statue of Limitations 1957 and the Act of 1991, as amended. The defendants contended that the plaintiff had a three year period to demonstrate his date of knowledge of his injury for the purposes of s. 2 of the Act of 1991, as amended. In particular, he gave evidence as to having read a newspaper article in 2003 about medical negligence, causing him to question his previous treatment.

Held by Dunne J. that s. 2(1)(c) of the Act did not require a triggering event to start the statute running. The plaintiff was an intelligent and educated man who acquired a great deal of information as to his illness and it was not possible attribute knowledge within the meaning of the Act to him. It was reasonable to conclude that for a long period of time after his surgery in 2002 that the plaintiff did not make a connection between the requirement to have such radical treatment then with the now alleged failings in his treatment following his operation in 1994. The claim of the plaintiff was not statute barred and the application of the first and second defendants would be dismissed.

Reporter: E.F.

1 JUDGMENT of Ms. Justice Dunne delivered on the 26 day of March 2010.

2 The plaintiff herein issued a personal injuries summons on the 21 ^st December, 2006, against the defendants. The plaintiff is an actor/comedian and the first named defendant is being sued in his capacity as Chief Executive of St. Vincent's Hospital, Elm Park, Dublin 4 and the second named defendant is a medical practitioner who carried on practice as a Consultant Surgeon at St. Vincent's Hospital.

3 The plaintiff had surgery on his left parotid gland in or about the month of February 1994. He claims damages for personal injury, loss and damage by reason of the alleged negligence and breach of duty on the part of the defendants, their servants or agents in and about the management and treatment of an adenoid cystic carcinoma in the plaintiff's left parotid gland and in and about the follow up, including post surgical follow up of the plaintiff, delay in diagnosing recurrence of the plaintiff's tumour and/or in and about the advice given to him in that regard. Following the plaintiff's surgery in 1994, he attended St. Vincent's hospital and the second named defendant or his team, on a number of occasions between 1994 and 2001. A recurrence of the tumour was diagnosed on the 16 ^th January, 2001. On the 21 ^st February, 2002, the plaintiff underwent radical surgical resection of his left parotid gland tumour. He received post operative adjuvant radiotherapy.

4 Thus, the plaintiff's claim is that the defendants and their servants or agents were negligent and in breach of duty in and about the management and treatment of the adenoid cystic carcinoma in the plaintiff's left parotid gland and in and about their follow up, including post surgical follow up and in and about the advice they gave to the plaintiff and by their failure to use all due or reasonable care, skill, competence, diligence and judgement. The plaintiff claims that as a consequence of the foregoing there was a delay in the diagnosis of the recurrence of the plaintiff's tumour in the left parotid gland, that he was deprived of an opportunity to avail of earlier intervention therefore, that he has been caused to undergo more extensive surgery than he would otherwise have been required to undergo and to suffer pain and suffering that he would not otherwise have suffered. Full particulars of personal injury were set out in the personal injuries summons and damages were claimed.

5 An order was made on the 11 ^th May, 2009, directing the trial of a preliminary issue as to whether the plaintiff's claim against the second named defendant is barred pursuant to the provisions of the Statute of Limitations Act 1957 and 1991 as amended.

6 Counsel on behalf of the second named applicant identified three areas in which negligence is alleged against his client. They are, firstly, a criticism of the surgery carried out in 1994, secondly, a criticism of the follow up that took place and in particular the failure to diagnose a recurrence of the plaintiff's cancer in 1997 and/or 1998 and thirdly an allegation that the original surgery was not followed up with adequate treatment such as the provision of radiotherapy.

7 In the course of the submissions of the second named defendant a chronology of the treatment/review of the plaintiff was furnished to the court on behalf of the second named defendant, as follows:-

8 1. The plaintiff underwent his operation at the hands of the second named defendant in February of 1994.

9 2. The plaintiff was referred for outpatient review in 1996, 1997 and January 1998. It is disputed that he attended all appointments and further what took place when he did attend but it is common case that, on the dates he did attend, recurrence of cancer was not diagnosed.

10 3. In or about December 2000, the plaintiff attended A%E in the first named defendant's hospital suffering pain, underwent CT examination of the parotid gland. Diagnosis in January 2001, noted indicia highly suggestive of tumour recurrence.

11 4. Between December 2000 and February 2001 the plaintiff was referred to a variety of different specialists for second opinions from specialist cancer surgeons and/or further advice on the extent, nature and treatment required for his condition. These referrals were initiated, assisted and facilitated by the second named defendant.

12 5. For the purpose of these referrals the second named defendant made the plaintiff's treatment and other records available to the various experts whose opinion was being sought.

13 6. As early as March 2001, the plaintiff was advised that he needed urgent surgery.

14 7. The plaintiff underwent surgery on the 21 ^st February 2002.

15 8. The plaintiff commenced these proceedings on the 21 ^st December, 2006, four years and ten months later.

16 At this point it would helpful to refer to the provisions of the Statute of Limitations Act 1957 as amended. There is no dispute between the parties that the relevant limitation period for the plaintiff's is three years by virtue of the provisions of s. 11 of the Statute of Limitations Act 1957 as amended. It is the case that the provisions of the Statute of Limitations (Amendment) Act 1991, also applied to the facts of this case such that the plaintiff's cause of action does not accrue and therefore the limitation period does not run until his "date of knowledge" of matters provided for by that Act. Section 2 of the Act is in the following terms:-

17 2 "2(1) For the purposes of any provision of this Act whereby the time within which an action in respect of an injury may be brought depends on a person's date of knowledge (whether he is the person injured or a personal representative or dependant of the person injured) references to that person's date of knowledge are references to the date on which he first had knowledge of the following facts:

18 (a) that the person alleged to have been injured had been injured,

19 (b) that the injury in question was significant,

20 (c) that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty,

21 (d) the identity of the defendant, and

22 (e) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant;

23 and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.

24 (2) For the purposes of this section, a person's knowledge includes knowledge which he might reasonably have been expected to acquire û

25 (a) from facts observable or ascertainable by him, or

26 (b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek.

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