O'Riordan v Maher and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Birmingham
• Judgment Date: 10 July 2012
• Neutral Citation: [2012] IEHC 274
• Court: High Court
• Date: 10 July 2012

O'Riordan v Maher & Ors

BETWEEN

MICHAEL O'RIORDAN

PLAINTIFF

AND

MICHAEL MAHER, THE MATER PRIVATE HOSPITAL, DERMOT LANIGAN, BRIAN WHOOLEY,

AND

BON SECOURS HOSPITAL

DEFENDANTS

[2012] IEHC 274

[No. 7434 P/2008]

THE HIGH COURT

PRACTICE AND PROCEDURE

Dismissal of proceedings

Delay - Want of prosecution - Renewal of summons - Medical negligence - Interests of justice - Balance of justice- Whether inordinate or inexcusable delay - Whether good grounds for renewing summons - Chambers v Kenific [2005] IEHC 402, [2007] 3 IR 526; Primor Plc v Stokes Kennedy Crowley [1996] 2 IR 459; Desmond v MGN [2008] IESC 56, [2009] 1 IR 737 [2004] IESC 98; Gilroy v Flynn [2004] IESC 98, [2005] 1 ILRM 290; Stephens v Paul Flynn Ltd [2005] IEHC 148, (Unrep, Clarke J, 28/4/2005); Baulk v Irish National Insurance Company [1969] IR 66; McCooey v Minister for Finance [1971] IR 159, O'Brien v Fahy (Unrep, SC, 21/3/1997); Rainsford v Limerick Corporation [1995] 2 ILRM 561 and Cunningham v Neary [2004] IESC 43, [2004] ILRM 498 considered - Rules of the Superior Courts 1986 (SI 15/1986), O 8 - Reliefs refused (2008/7434P - Birmingham J - 10/7/2012) [2012] IEHC 274

O'Riordan v Maher

Facts The plaintiff had allegedly suffered injuries owing to the actions of the defendants in the provision of medical care. The plaintiff had issued a personal injuries summons which then had to be renewed as it had expired. The present application was brought on behalf of the defendants seeking to set aside the renewal of the summons and to have the case dismissed by reason of inordinate and inexcusable delay. On behalf of the plaintiff it was submitted that there were a number of complex issues to consider before issuing proceedings and that the situation had been complicated by the fact that the plaintiff had to initiate legal proceedings against doctors who were still treating him.

Held by Birmingham J in refusing to strike out the plaintiff's proceedings: There was real substance in the point that a patient who continued to be treated by his doctors would be very reluctant to initiate proceedings. In a situation where there was concern about the Statute of Limitations, the plaintiff and his advisors were not to be faulted in issuing a writ on a protective basis. While some of the delays were inordinate it could not be said that they were both inordinate and inexcusable. The defendants were in a position to mount a defence to the proceedings and their capacity to do so had not been diminished. The interests of justice would be served by allowing the parties to litigate the dispute.

CHAMBERS v KENEFICK 2007 3 IR 526

PRIMOR PLC v STOKES KENNEDY CROWLEY 1996 2 IR 459

DESMOND v MGN LTD 2009 1 IR 737

GILROY v FLYNN 2005 1 ILRM 290

STEPHENS v PAUL FLYNN LTD UNREP CLARKE 28.4.2005 2005/56/11682 2005 IEHC 148

BAULK v IRISH NATIONAL INSURANCE COMPANY 1969 IR 66

MCCOOEY v MIN FOR FINANCE 1971 IR 159

RAINSFORD v LIMERICK CORPORATION 1995 2 ILRM 561

CUNNINGHAM v NEARY 2004 2 ILRM 498

1 Judgment of Mr. Justice Birmingham delivered the 10 day of July 2012

The parties

2 1. The plaintiff is a married man and company director who was born in 1953. The first named defendant is a radiation oncologist practising at the second named defendant hospital. In the pleadings he is described as the director of radiotherapy with the second named defendant hospital. The third named defendant is a consultant urological surgeon, practising at the fifth named defendant hospital, while the fourth named defendant is a consultant general surgeon also practising at the fifth named defendant hospital.

3 2. Before the Court are applications on behalf of the third and fourth named defendants, who might be described as the principal moving parties, to set-aside the order of the High Court made on 14 ^th June 2010, which renewed the personal injuries summons that was issued in the present proceedings for a further period of six months as well as for an order dismissing the case by reason of inordinate and inexcusable delay; a similar application on behalf of the first named defendant to set aside the renewal of the summons and dismiss for want of prosecution; an application on behalf of the second named defendant to dismiss for want of prosecution by reason of delay and a similar application on behalf of the fifth named defendant to set aside the renewal of the summons and to dismiss for want of prosecution.

Background facts

4 3. The plaintiff attended the third named defendant in July 2004, having been referred because of right testicular discomfort. Biopsies carried out on the 27 ^th October 2004, indicated the presence of what has been described as low grade prostate cancer. On the 10 ^th November 2004, the third named defendant wrote to the first named defendant seeking his views on the available treatment options.

5 4. Thereafter, the plaintiff underwent a course of treatment known as brachytherapy under the care of the first named defendant at the second named defendant hospital. The fourth named defendant became involved in the care of the plaintiff on the 21 ^st April 2006.

6 5. The treatment has been unfortunately most unsuccessful and the plaintiff has experienced severe pain and distress. By reference to the particulars of personal injuries referred to in the personal injuries summons, this has involved sexual dysfunction, urinary dysfunction, he has had to undergo protracted treatment associated with the treatment of his prostate condition and with the treatment of the complications arising which has culminated in prostate-rectal fistula, which, as I understand it, is an abnormal passageway. According to the summons, the plaintiff's life expectancy has been reduced, he has had to undergo repeated surgical procedures and the amenities of life have been completely destroyed. That the plaintiff has suffered and continues to suffer greatly is not in dispute.

7 6. A personal injury summons was issued dated the 10 ^th September 2008. The particulars of negligence are couched in rather general terms and individual particulars of negligence and breach of duty are not attributed to individual defendants. Instead the case is put on the basis that the defendants and each of them or alternatively one or other of them was negligent. The thrust of the case made raises issues in relation to informed consent and the kernel of the complaint is that the plaintiff was inadequately advised in relation to the risks relating to brachytherapy and that the advantages of an alternative course of treatment, radical prostatectomy, were not explained. In addition an issue in relation to the carrying out of rectal biopsies which it is suggested was contraindicated is raised on the pleadings, but again this complaint is not directed to a particular defendant. Brachytherapy, as I understand it, involves placing radioactive seeds in or near the cancerous tumour, giving a high radiation dose to the tumour, while seeking to reduce radiation exposure in the surrounding healthy tissues. Radical prostatectomy, on the other hand, is the more traditional operation designed to remove the prostate gland and some of the tissues around it.

8 7. On the 9 ^th November 2007, the plaintiff first consulted a solicitor and then on 10 ^th September 2008, a personal injuries summons issued. That summons was not served within the twelve month period prescribed for that purpose and in those circumstances an application was made ex parte to Peart J. to renew the summons, which he did on the 14 ^th June 2010, extending the summons for a period of six months.

9 8. Order 8 of the Rules of the Superior Courts envisages that a summons may be renewed in two circumstances: where reasonable efforts to serve within time have been made but were unsuccessful or where there is other good reason for the renewal. In this case, no attempts were made to serve within time, so the issue between the plaintiff and those defendants who have raised an issue in relation to the renewal of the plenary summons is whether there is other good reason for its renewal.

10 9. In these circumstances it is necessary to trace the history of the proceedings in greater detail. This exercise also has a relevance to the question of whether there has been inordinate and inexcusable delay such that the proceedings should be dismissed for that reason.

Procedural history

11 · 27 ^th July 2004, the plaintiff was referred by his general practitioner to the third named defendant.

12 · 10 ^th November 2004, the plaintiff was referred by the third named defendant to the first named defendant at the second named defendant hospital in relation to the treatment options available, including the treatment known as brachytherapy.

13 · February 2005, the plaintiff underwent radioactive seed implantation (brachytherapy) at the second named defendant hospital.

14 · April and May 2006, the plaintiff underwent examination, diagnosis, advice and treatment involving all defendants and in particular the fourth named defendant.

15 · 25 ^th May 2006, the plaintiff was informed by the fourth named defendant that his proctitis or inflammation of the rectum was radiation induced damage consequent on the brachytherapy.

16 · 9 ^th November 2007, the plaintiff first consulted a solicitor.

17 · 13 ^th December 2007, letter received by the third named defendant from the plaintiff's solicitor requesting medical records. There was no specific mention of an intention to issue proceedings or that such a course of action was under contemplation.

18 · 10 ^th September 2008, personal injuries summons issued.

19 · 9 ^th September 2009, the personal injuries summons expired

20 · 14 ^th June 2010, an order was obtained from Peart J. renewing the summons for a period of six months.

21 · 15 ^th October 2010, a letter...