Ring v Mulcahy & Bon Secours Hospital Bon Secours Health System
| Jurisdiction | Ireland |
| Judge | Mr. Justice Kelly |
| Judgment Date | 20 April 2015 |
| Neutral Citation | [2015] IECA 148 |
| Court | Court of Appeal (Ireland) |
| Date | 20 April 2015 |
[2015] IECA 148
THE COURT OF APPEAL
Kelly J.
Irvine J.
Hogan J.
and
Appeal – Discovery – Medical Advice – Operation – Pain – Private Hospital – Practice and Procedures – Categories
Facts: In this case the plaintiff appealed against an order of the 10th March, 2014, striking out a motion which had been brought seeking discovery. The plaintiff, when she was then 64 years of age, sought advice from the first named defendant who was a consultant orthopaedic surgeon in respect of knee pain that she was experiencing. The advice which she was given, it was alleged, was that she ought to have a knee replacement operation. She had that operation in November 2008. Afterwards, unfortunately, she developed an infection and she continued to experience pain involving the knee. She was subsequently given the option to undergo a two stage revision surgery on the right knee, which he would perform. The revision surgery was carried out in November 2010. Subsequent to it, the knee deteriorated further and the plaintiff had to have an above the knee amputation of her right lower limb. Subsequently she brought proceeding against both the surgeon and against the Bon Secours Hospital Bon Secours Health System as defendants. The discovery which was sought was on foot of a notice of motion which was issued on the 5th February, 2014, and was first made returnable on the 24th February, 2014. The discovery was sought against the first named defendant Mr. Mulcahy. In October 2013, discovery had been sought and obtained against the second defendant. There existed an order of the 29th October, 2013, made by Cross J. in which he ordered three categories of discovery which were the three categories that were sought of him. They were replicated in the first of the three categories of discovery which were sought against Mr. Mulcahy in the motion which was the subject matter of this appeal.
Held by Justice Kelly in light of the available evidence and submissions presented that it was clear that the discovery which was ordered against the hospital months before this application was made did have a relevance to the application that was moved before O”Malley J. Consequently, the Court was of the opinion that it would be entirely wrong for a discovery order of the type which was sought to have been made by the judge here, in circumstances where there was already going to be discovery of three of those categories as a result the order made by Cross J. Consequently, Justice Kelly reasoned that the order of the High Court should be adjusted to accommodate what the Court indicated in categories 1, 2 and 3. Category 4 was to remain as decided and Category 5 was to be granted. Thus, it was suggested that the appeal should be dismissed subject to the variation in respect of categories 1, 2 and 3.
1. This is the plaintiff's appeal against an order of the 10 th March, 2014, made by O'Malley J. in the High Court, striking out a motion which had been brought seeking discovery. In order to understand how that order came to be made it is necessary to mention the background to this litigation.
2. The plaintiff in this case in 2008, when she was then 64 years of age, sought advice from the first named defendant who is a consultant orthopaedic surgeon in respect of knee pain that she was experiencing.
3. The advice which she was given, it is alleged, was that she ought to have a knee replacement operation. She had that operation. It was carried out on the 26 th November, 2008. Afterwards, unfortunately, she developed an infection and she continued to experience pain involving the knee.
4. In August 2010, she was described, it is alleged, by the first named defendant, the consultant surgeon, as having a persistent low grade infection in the knee. He then asked her to attend at his rooms and indicated that the option available to her was to undergo a two stage revision surgery on the right knee, which he would perform.
5. The plaintiff agreed to undergo that and she did so. The revision surgery was carried out in November 2010. Subsequent to it, the knee deteriorated further. Unfortunately for the plaintiff she ultimately had to have an above the knee amputation of her right lower limb which took place on the 17 th October, 2011.
6. Subsequently she brought these proceeding against both the surgeon and against the Bon Secours Hospital Bon Secours Health System as defendants.
7. The hospital is a private hospital and the consultant was carrying out a private practice at all relevant times.
8. The discovery which was sought was on foot of a notice of motion which was issued on the 5 th February, 2014, and was first made returnable on the 24 th February, 2014. The discovery was sought against the first named defendant Mr. Mulcahy.
9. It is important to bear in mind that in October 2013, discovery had been sought and obtained against the second defendant. There is an order of the 29 th October, 2013, made by Cross J. in which he ordered three categories of discovery which were the three categories that were sought of him. They are replicated in the first of the three categories of discovery which were sought against Mr. Mulcahy in the motion which is the subject matter of this appeal.
10. When O'Malley J. came to deal with the matter, she was told that this motion had been before her colleague O'Hanlon J. some few weeks...
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