Wegner v Murphy

• Jurisdiction: Ireland
• Judge: Mr Justice Holland
• Judgment Date: 23 September 2022
• Neutral Citation: [2022] IEHC 525
• Court: High Court
• Docket Number: 2017/6259p

Between

Vera Wegner

Plaintiff

and

Michelle Murphy

Defendant

[2022] IEHC 525

2017/6259p

THE HIGH COURT

Discovery – Medical negligence – Necessity – Defendant seeking discovery of the medical notes of the plaintiff – Whether there was any factual basis for inferring the likely existence of any discoverable documents beyond those already in the defendant’s possession

Facts: The defendant in a medical negligence action listed for trial on 26 October 2022, Ms Murphy, by notice of motion dated 14 September 2022 sought, under Order 31 Rule 12 of the Rules of the Superior Court, discovery of the medical notes of the plaintiff, Ms Wegner, to date, categorised as follows: (1) notes of any general practitioner (to include any out-of-hours general practitioner service) attended by the plaintiff since August 2015; (2) notes of any consultant dermatologist attended by the plaintiff since August 2015; (3) notes of any consultant plastic surgeon attended by the plaintiff since August 2015; and (4) the plaintiff’s counselling, psychology and psychiatry records since 2010.

Held by the High Court (Holland J) that as to the surgical and dermatological notes, there was no reason to infer that the defendant would be at any litigious disadvantage by being confined to the records of Professors Powell and Earley which she already had or that any other such records existed. It seemed notable to Holland J that the defendants’ own surgeon and dermatologist were not relied upon by the defendant as suggesting such a litigious disadvantage. Holland J held that there was no evidential indicator suggesting the plaintiff’s prior medical history to be relevant. Holland J held that the public interest in the proper administration of justice is not confined to the relentless search for perfect truth; the just and proper conduct of litigation also encompasses the objectives of expedition and economy. Holland J that this motion was late and costly. Holland J held that the court should be willing to confine categories of documents sought to what is genuinely necessary for the fairness of the litigation. Holland J did not see that any substantial injustice would be done by refusing the defendant the relief she sought.

Holland J held that, having noted the defendant’s failure to articulate, and so address the legal principles relating to the true nature of application as being for inspection, further and better discovery and additional discovery, as opposed to “ordinary” discovery and also the absence of any factual basis for inferring the likely existence of any discoverable documents beyond those already in the defendant’s possession or any relevant pre-accident medical history, and hence the failure to identify that specific documents were likely to exist which documents would have a significant and important relevance of a specified and identifiable kind, he would refuse the defendant’s application in all respects – save for one matter. Given the unsatisfactory explanation by the plaintiff of the “crossed lines” with Mr Hegarty as to the number of the plaintiff’s attendances upon him, Holland J held that he would, in lieu of discovery, direct that an affidavit be sworn by her explaining the resultant error and confirming the correct position. Holland J left open the possibility of the defendant seeking directions from the trial judge in light of such affidavit. Holland J was provisionally of the view that, as the defendant had failed in the application save in respect of one matter which did not add appreciably to the duration of the application, the plaintiff should have the costs of the motion.

Application refused in part.

JUDGMENT OF Mr Justice Holland DELIVERED 23 SEPTEMBER 2022

Contents

JUDGMENT OF MR JUSTICE HOLLAND DELIVERED 23 SEPTEMBER 2022	1
INTRODUCTION	2
CHRONOLOGY	2
DISCUSSION	16
Introduction	16
Types of Discovery Order	20
The Redactions	21
Additional Discovery — No Continuing Obligation of Discovery	23
Additional Discovery — O.31 R.12	25
Timing of the Application	27
Alternative Orders	28
Prior Medical History	28
JUSTICE	30
CONCLUSION	31

INTRODUCTION

1 This is my judgment in a discovery motion by the Defendants in this medical negligence action which is listed for trial on 26 October 2022. The Defendant, by Notice of Motion dated 14 September 2022 seeks, under Order 31 Rule 12 RSC 1, discovery of the Plaintiff's medical notes to date, categorised as follows:

• 1. Notes of any General Practitioner (to include any Out-of-Hours General Practitioner Service) attended by the Plaintiff since August 2015.

• 2. Notes of any Consultant Dermatologist attended by the Plaintiff since August 2015.

• 3. Notes of any Consultant Plastic Surgeon attended by the Plaintiff since August 2015.

• 4. The Plaintiff's counselling, psychology and psychiatry records since 2010.

2 Ordinarily, one would expect the resolution of such a motion to be simple, but the sequence of events in this case has served to complicate the matter considerably. Accordingly, it is necessary to set out the chronological sequence of events at some length. The Defendant seeks discovery for reasons identified in the Chronology below. The Plaintiff resists discovery on various bases reflected below, inter alia in the notes to the Chronology.

CHRONOLOGY

Date	Event	Notes
August 2010	The Plaintiff says she first attended the Defendant, a dermatologist, for review of multiple moles and was under her care thereafter. She says the Defendant diagnosed the moles as benign and treated them accordingly.
April/May 2015	The Plaintiff says she attended Professor Powell, also a dermatologist. He arranged a biopsy which resulted in a mole on the Plaintiff's right cheek being deemed pre-cancerous 2/ Bowens Disease.	Counsel for the Plaintiff indicated at the hearing her understanding that Professors Powell and Earley have since retired.
August 2015	The Plaintiff says Professor Earley, a Consultant Plastic Surgeon, excised the lesion by excising an ellipse of skin measuring over 4 x 3.2 cm and performed a cheek rotation flap repair which, the Plaintiff says, has left a large and unsightly scar on her face which is intermittently itchy and painful. The largest dimension of the scar is alleged to be 10 cm.
July 2017	The Plaintiff issued the present proceedings alleging medical negligence. Particulars of injury allege, inter alia, that the Plaintiff was upset and attended counselling, initially weekly, later monthly.
September 2018	Particulars of negligence in essence allege failure over time to correctly diagnose the lesion, thereby depriving the Plaintiff of earlier treatment which would have avoided the injury of which she complains.	• These particulars were volunteered. • The Defendant did not at any point before these particulars or thereafter serve a letter for particulars. • Specifically, the Defendant never sought particulars of any relevant injuries or illnesses prior to the surgery of August 2015 or, more specifically, psychological or psychiatric injury or treatment prior to the surgery of August 2015.
Particulars of injury allege that • earlier treatment would have been substantially less invasive and resulted in a much better cosmetic outcome. • the injuries and their effects are continuing.
16 November 2018	The Defendant sought a complete set of medical records relevant to liability — specifically the records of Professors Powell and Earley.
20 February 2019	The Plaintiff sent the Defendant the records of Professors Powell and Earley.	On my inquiry, counsel for the Plaintiff indicated at the hearing of the motion that she was not aware that the Plaintiff had, since February 2019, attended Professor Powell or Professor Earley. She was inclined to think the Plaintiff had not, but had been unable, in the time available, to get clear instructions.
3 September 2019	The Defendant sought “up to date GP records along with any counselling records” as she had arranged review of the Plaintiff by a psychiatrist who had requested the psychology records. The request intimates the Defendant's intention to revert “shortly” with an appointment date for that review.	I am not told that any such appointment was ever arranged or that the Plaintiff has been examined by a psychologist or psychiatrist for the Defendant.
14 November 2019	The Defendant delivered a defence admitting that the Defendant treated the Plaintiff to May 2014 and denying all other allegations.	While there is a general denial of causation of injury, there is no plea that the Plaintiff's injuries and/or sequelae were caused by identified events other than by the events of which she complains.
28 February 2020	The Plaintiff served Notice of Trial and set the matter down for trial.
18 May 2020	The Defendant sought voluntary discovery of • 1 – The Plaintiff's General Practitioner's records in relation to the matter the subject of these proceedings to date. • 2 – The Plaintiff's records in relation to any attendances with a counsellor or psychologist in relation to the matter the subject of these proceedings.	I take category 2 to have in substance referred to the records of the counsellor or psychologist and that seems to be how the parties understood it.
10 December 2020	The Plaintiff agreed to discover the records sought in May 2020, up to September 2019, and enclosed an affidavit of discovery accordingly.	As is common and helpful, by attaching the documents to be discovered to the affidavit of discovery, the Plaintiff in effect amalgamated the discovery and inspection processes. The “GP note dated 19th February 2016” consisted of a single page which I infer to be a print-out from the GP's electronic records. The entry dated 19th February 2016 relates to removal of stitches. The...