Reidy v National Maternity Hospital

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 31 July 1997
• Neutral Citation: [1997] IEHC 143
• Docket Number: 19262/1995
• Court: High Court
• Date: 31 July 1997

REIDY v. NATIONAL MATERNITY HOSPITAL

BETWEEN

TINA REIDY

PLAINTIFF

AND

THE NATIONAL MATERNITY HOSPITAL

DEFENDANT

[1997] IEHC 143

19262/1995

THE HIGH COURT

Words & Phrases:

C

Subject Headings:

*

Citations:

O DOMHNAILL V MERRICK 1984 IR 151

PRIMOR PLC V STOKES KENNEDY CROWLEY & OLIVER FREANEY & CO UNREP SUPREME 19.12.95 1995/20/5361

Mr. Justice Barr

1 The plaintiff has brought an action against the defendant which commenced by Plenary Summons dated 14th March, 1995 in which she claims damages for personal injuries sustained by her in consequence of the alleged negligence, breach of duty and breach of statutory duty of the defendant, its servants or agents. An Appearance was duly entered on behalf of the defendant and a Statement of Claim was delivered by the plaintiff's solicitors on 1st June, 1995. It is pleaded that the plaintiff's mother was a patient at the defendant's hospital and there gave birth to the plaintiff on 7th May, 1976 by way of breach delivery. It is alleged that the baby was born with a congenital dislocation of both hips which was not diagnosed by the defendant's medical staff who attended her. It is contended that the condition in question ought to have been diagnosed during the period when the plaintiff was under the care of the defendants medical and nursing staff and that if it had been ascertained at that time and she had received appropriate treatment, she would have avoided subsequent pain, suffering and aggravation of her condition which has resulted in substantial permanent disablement and also continuing loss, damage and expense. A defence denying liability has been delivered on behalf of the defendant which also contains the follow plea:-

"Without prejudice to the matters hereinafter pleaded, the defendant contends that having regard to the lapse of time since the events complained of herein and to the inordinate and inexcusable delay in initiating and prosecuting these proceedings, resulting in prejudice to the defendant, it would be unjust and unfair to require the defendant to defend these proceedings; and the defendant will apply for an order dismissing these proceedings and awarding the costs thereof to the defendant."

2 Pursuant to the foregoing plea, a motion on notice has been brought on behalf of the defendant in which, inter alia, an order is sought striking out the plaintiff's proceedings by reason of the alleged inordinate and inexcusable delay in instituting and prosecuting the action.

3 The facts relevant to the application are not in significant dispute and are as follows:-

4 The plaintiff was her mother's first child and was born at the defendant hospital on 7th May, 1976. She was an assisted vaginal breach delivery at 37 weeks, 2 days, having been found to be in the breach position during labour. Mrs. Reidy was then 23 years of age. Due to the passage of time some of the hospital records relating to the plaintiff may not be available. In particular, x-ray films taken soon after birth have been destroyed and there is no record (if one every existed) of what transpired at a follow-up examination of the plaintiff at the hospital in June, 1976 about 6 or 8 weeks after birth. Dr. Niall O'Brien, consultant paediatrician to the hospital, was the expert in that sphere who had charge of the plaintiff while she was in the defendant's care. Dr. Noel Lowry was a member of the hospital staff at that time and participated in the care of the plaintiff. He ceased working for the defendant on 30th June, 1977 and he is now in practice in Canada. However, the Medical Council of Canada are not prepared to disclose his address there and, so far, the hospital has been unable to contact him. It seems likely that a competent private investigator could trace him.

5 Certain hospital records relating to the plaintiff are available. They include an unsigned note following the admission of the baby to the nursery from the delivery suite to the following effect:-

"Small baby but not very thin. Hips in full flexion and knees in extension. Left leg very straight and cannot be fully flexed at knee. May be intrinsically abnormal."

6 A further undated note, having specified an incorrect date of birth, states that the left knee was noted to be held in flexion - not able to extend. There follows a phrase which is not easy to interpret but appears to be "L. [left] hip difficult to abduct". The note continues:-

"Both these problems improved slightly and opinion was divided if the problem was positional or pathological. It was decided (DO-B) that the problem was positional and that the baby would do her own physiotherapy and get better. X-ray - N. A.D. [no abnormality detected]. To be seen again in 6-8 weeks to note improvement."

"Both legs: bone maturity is approximately 35 weeks. Visualised bones appear normal."

An x-ray report dated 13th May, 1976 reads as follows:-

7 In a letter to the family doctor dated 15th June, 1976, Dr. Lowry comments:-

"It was also noted that his [sic] left knee and left hip were both held in flexion. His left hip was also very difficult to abduct. Dr. O'Brien felt that these problems were related to his breach position in utero and that they would subsequently resolve spontaneously. X-ray was normal. On 24/5/76 he was discharged from the unit and at the time of discharge his legs were vastly improved, however, we will follow him up in six weeks time to see how he is progressing."

8 Dr. O'Brien has deposed that due to the lapse of time he now has no memory of the plaintiff. As previously stated, Dr. Lowry has not been traced, nor has it been possible to identify other hospital staff who dealt with the plaintiff before her final discharge in June 1976.

9 In February, 1978, soon after the plaintiff began to walk, it became evident that she had difficulty is so doing. This was the first time that her parents realised that she might have a problem with her left hip in particular. They took the matter up with their G.P. who in turn referred her to Naas General Hospital. After x-ray examination there she was transferred to Our Lady's Hospital for Sick Children, Crumlin, where she came under the care of Mr. Brian Regan, orthopaedic surgeon. He wrote to Dr. O'Brien on 21st February, 1978 in the following terms:-

"Dear Dr. O'Brien,

This child was referred here on 8/2/78 and found to have widely displaced hips. I thought you would be interested to know about this.

Yours sincerely."

10 Dr. O'Brien has a particular interest in hip abnormalities affecting babies. It is not in dispute that he received Mr. Regan's letter. At that time all hospital records relating to the plaintiff, including x-ray films, would have been available to Dr. O'Brien. Although he has no particular recollection so long after the event, having regard to his interest in such problems, it seems likely that in the light of Mr. Regan's information he would have looked at the plaintiff's records and may have discussed the matter with other members of the hospital staff. He makes no comment in that regard in his affidavit.

11 Mrs. Reidy in her affidavit deposed that her daughter was discharged from the hospital on 24th May, 1976. When she and her husband collected the child they were shown exercises which they were to carry out involving moving their daughter's legs in a bicycle type motion in addition to administering hot baths. They were informed that the purpose of the treatment was to get the child's legs back down as they were up towards her chest. On discharge an appointment was made for the baby to be examined again at the hospital about 6 weeks later. Mrs. Reidy deposed that on that occasion she was driven to the hospital with the baby by her father-in-law. On arrival the child was taken for examination by an unidentified member of the staff who also weighed her. After examination, which was not carried out in the mother's presence, the latter was informed that the baby was gaining weight too quickly and she was advised that the child's diet should be reduced. Otherwise the baby was stated to be fine and the mother was not advised of any other problem, nor was she asked to bring the baby back again for any further check-up or to refer her to any other medical expert or institution.

12 Nothing else of relevance occurred, as already stated until in or about January, 1978, when the plaintiff began to walk and it was noted that she had difficulty in so doing and in particular dragged her toes along the floor. Shortly afterwards this led to her admission to Our Lady's Hospital, Crumlin under Mr. Regan and she was diagnosed as having congenital dislocation of the hips. She was put on gallows traction and over the following 10 years numerous surgical operations were carried out in an attempt to remedy the situation but with only limited success. Mrs. Reidy has deposed that until 1989 she and her husband at all times believed that having regard to the treatment she was receiving, their daughter would make a good recovery in time and would become able to enjoy a full and normal lifestyle. She has sworn that at all times they were reassured at Crumlin that the plaintiff's treatment would be successful. It was not until in our about 1989 that they realised the reality of the plaintiff's position and the fact that she would not make a complete recovery and would always have difficulties associated with the original congenital dislocation of her hips. It was at or about that time that Mrs. Reidy sought information in relation to the original cause of her daughter's continuing physical difficulty and ultimately she approached her solicitors for advice. They wrote to the defendant on 21st September, 1990 in the following terms:-

"We act on behalf of Mrs. Mary Reidy, 3369 Oaklawns, Kilmeague, Naas, Co. Kildare, whose daughter Tina was born in the National Maternity Hospital in or about 1976. Almost two years after her birth it was...