THE HIGH COURT
									1995 No. 1926p		BETWEEN
TINA REIDY
									PLAINTIFF
AND
THE NATIONAL MATERNITY HOSPITAL
									DEFENDANT

Judgment of Mr. Justice Barr delivered on the 31st day of July, 1997.

	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."

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

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

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

	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.
	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."

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.
	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.  
	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 discovered that Tina had dislocation of both hips and despite a series of operations it is now clear that Tina will be left with a serious and permanent disability which Mrs. Reidy alleges was due to negligence on the part of the hospital and the medical attendants at that time.

	Our investigations into the entire circumstances surrounding Tina's disability are continuing and the purpose of this letter is to put the hospital, its servants or agents, on notice that we intend to pursue a civil claim in damages on Tina Reidy's behalf and to request the hospital forthwith through its solicitor to make the hospital notes and other records available to our client's medical attendants.  We should be grateful in the circumstances if you would give this matter your very early and immediate attention."

	This was the first time that a claim in negligence on the plaintiff's behalf was made against the hospital or its staff. Twelve months elapsed before the hospital furnished all of the records and related information sought by the plaintiff's solicitors.  It appears that they in turn then set about obtaining orthopaedic advice on behalf of their client.  In this regard all of the experts in Ireland whom they approached either refused to provide their services or failed to respond to the solicitors' request.  In the end it was necessary to obtain the benefit of advice from a consultant paediatrician in England, Dr. Peter Daish of the Department of Paediatrics, Northampton General Hospital.  He has sworn an affidavit in which he deposes that he has reviewed copies of hospital records and other correspondence relating to the plaintiff to which I have already referred and also a medical report from her general medical practitioner and a statement from the plaintiff's mother.
	Having quoted from the hospital documentation and Mr. Regan's letter of 21st February, 1978 to Dr. O'Brien,  the deponent continues as follows:-
1
	"9.	The hip is a 'ball and socket' joint where the rounded femoral head ('the ball') articulates with the cup-shaped acetabulum ('the socket').  The femoral head is held in the acetabulum mainly by strong ligaments around the joint.

	10.	Congenital dislocation of the hip (congenital dysplasia of the hip, neonatal hip instability, developmental displacement of the hip) occurs with an incidence of about 1.5 in 1,000 live births in north west Europe.  It is found 6 to 7 times more frequently in girls than boys; tends to occur unilaterally more than bilaterally (in a ratio of 2:1), involves the left hip more than the right and occurs more often in first born infants.

	11.	There is a strong association between congenital dislocation of the hip and breach presentation.  An analysis of 1,059,479 children born in Norway from 1970 to 1988 showed a five-fold increase in the rate of neonatal hip instability for those babies with breach presentation compared to those presenting by the vertex.  Recent data based on ultrasound examination suggest that an infant born in the breach position carries at 13 times risk of a hip ultrasound abnormality compared to that of a randomly selected child in the same birth population.  

	12.	It is generally accepted that in the vast majority of cases, congenital dislocation of the hip is a deformation rather than a malformation, i.e., an intrinsically normal hip becomes dislocated through the influence of environmental factors.

	13.	The significant psychological factors in the development of congenital dislocation of the hip are thought to be oestrogen and other maternal hormones which affect pelvic relaxation prior to delivery; these hormones go from the placenta into the baby and cause temporary laxity of the hip ligaments.  In some babies this ligamentus laxity is excessive and when combined with mechanical factors (such as intrauterine compression resulting from the reduced space available to the growing fetus near term or the trapping of the fetal pelvis in the maternal pelvis in those babies presenting by the breach) results in the femoral head becoming displaced (usually posteriorly) so that the 'ball' is no longer in the 'socket'.

	14.	Provided the ball is returned to the socket and remains in position as the effect of the maternal hormones diminishes (and the ligaments tighten) the hip will be normal.  However, if the femoral head remains out of the acetabulum neither the ball nor the socket will develop properly and the dislocation becomes progressively more difficult to reduce.  Thus the chances of obtaining a successful long term result diminish significantly even with the best available orthopaedic management.

	15.	The earliest age at which the changes of a dislocated hip can readily be detected on x-ray is six weeks.  Unless there is a gross dislocation or severe malformation of the joint, radiographic examination in the new born period has little to offer.

	16.	Neonatal screening by clinical examination will identify a large number of unstable hips; many of these will develop normally and do not require treatment.  Conversely, clinical examination in the neonatal period will miss a significant number of at risk hips; indeed many studies have shown that routine clinical screening of neonates has failed to reduce the incidence of late dislocation of the hip.  However, it is of interest that the 'missed' cases have usually been those of girls presenting by vertex whereas babies born following breach presentation tend not to be missed on neonatal screening. For example, of 96,891 infants screened in Malmö between 1956 and 1987, no child born in the breach position presented with a late dislocation.  These findings suggest that hip instability is easier to detect in the new-born period when it is due predominantly to mechanical factors (such as breach presentation) than when more subtle influences (familial factors, ligamentus laxity) are in operation.

	17.	It is my opinion that by virtue of her breach position, Tina Reidy was at increased risk of having abnormal hips.

	18.	The clinical findings shortly after delivery were abnormal and strongly suggest that her left hip was dislocated.

	19.	It is probable that early orthopaedic intervention would have been fully effective, i.e., her hips would have developed normally.

	20.	The failure to refer Tina to an orthopaedic surgeon was totally inexplicable and inappropriate even by the standards prevailing at the time.

	21.	I have reviewed the affidavit of Dr. Niall O'Brien sworn on the 17th day of December, 1996.  I agree with Dr. O'Brien's comments in paragraph 3 of his affidavit concerning the nomenclature of the condition from which Tina Reidy suffers.  Although the condition is usually developmental, I chose to use the term congenital dislocation of the hip throughout my report because this is the name by which the condition is commonly known and there is strong clinical evidence that this was the appropriate term to use in Tina's case.

	22.	I beg to refer to paragraph 4 of Dr. O'Brien's report where he states that:-

			'The condition is not necessarily discernible [sic] at or immediately after birth.  Checks conducted shortly after birth will not assist in the identification of the problem because it will not be until some months later that the problem itself develops.'  

		This is an interesting observation and suggests that neonatal screening for the condition is totally unnecessary.  However, it is likely that the factors which predisposed to late hip abnormalities in babies presenting via the vertex are different from those associated with hip abnormalities in babies presenting by the breach.  There is good evidence that neonatal screening is of value for the latter group.  I refer again to the study of 96,891 infants screed in Malmö between 1956 and 1987 where no child born in the breach position presented with a late dislocation.

	23.	I beg to refer to paragraph 5 of Dr. O'Brien's report that:-

			'The notes indicate that at the time the plaintiff had developed an extended knees [sic], that is her legs were incapable of bending.  This difficulty was not with either of the legs but with the knees.  I believe that clinically she did not have the problem known as C.D.H......'

		The copies of the clinical notes clearly state that there was a problem with abduction of the left hip.

	24.	The crucial observation made in the notes and reported in the subsequent letter was that the left hip was difficult to abduct.  Any difficulty in abducting the hip in a baby born by the breach is, prima facie, evidence of a dislocated or a hip at risk of dislocation.  The clinical evidence should have been acted upon in a more positive manner."

	Dr. O'Brien in his affidavit has made several points in his own defence and that of the hospital which have been commented on by Dr. Daish.  However, no affidavit has been sworn on behalf of the defendant contesting the case which the latter has made in his deposition.

THE LAW
	A review of the judgments of the Supreme Court in O'Domhnaill v. Merrick  [1984] I.R. 151 and Primor Plc. v. Stokes Kennedy Crowley and Oliver Freaney and Co. delivered on 19th December, 1995 (unreported) establish the following propositions regarding delay in the initiation and prosecution of actions which are relevant to the circumstances of the plaintiff's case herein:-
(1)	The test is whether the delay is inordinate and inexcusable without countervailing circumstances which would justify a disregard of such delay and that by reason of its duration and the consequences for the defendant it would not be fair and reasonable to compel the latter to defend the plaintiff's claim.
(2)	The function of the court is to strike a balance between the plaintiff's need to carry on his or her delayed claim against a defendant and the defendant's basic right not to be subjected to a claim which by reason of delay he or she could not reasonably be expected to defend.
(3)	The plaintiff's action may be struck out by reason of inordinate and inexcusable delay in bringing or prosecuting his or her claim even though the right to proceed is not statute barred.
(4)	In reviewing the circumstances the court should have regard to the conduct of both parties, including delay by the defendant.

	In essence the defendant's case in support of its motion to dismiss the plaintiff's claim is four fold.  First, that there has been inordinate and inexcusable delay on the plaintiff's part in bringing and prosecuting her claim against the hospital.  Secondly, that there are no countervailing circumstances which might justify the delay.  Thirdly, that the defendant has been fundamentally prejudiced in the preparation and conduct of its defence by reason of the delay complained of.  In this regard particular reliance is placed upon the fact that, due to lapse of time, Dr. O'Brien has no memory of the plaintiff while under his care; that Dr. Lowry has not been traced and that some hospital records, including x-ray films, are or may be missing.  Fourthly, that in the premises it would be unjust to require the defendant to defend the plaintiff's claim so long after the happening of the alleged negligence.
		Reviewing the facts and the arguments advanced by each party in the light of the foregoing principles of  law I have come to the following conclusions:-
	I am not satisfied that the defendant has established that there has been inordinate and inexcusable delay on the part of the plaintiff in initiating and prosecuting her claim against the hospital.  Mrs. Reidy has deposed that it was not until 1989 that she and her husband realised that their daughter would not make a full recovery from her hip dislocations notwithstanding assurances to the contrary that they had received over the years from staff at the Children's Hospital, Crumlin.  Mr. Frank McManus, an emminent orthopaedic surgeon, has sworn an affidavit on behalf of the defendant in which he expresses grave doubt about Mrs. Reidy's contention about her state of knowledge of her child's progress and, in particular, that the surgeons who were looking after the plaintiff at Crumlin hospital did not indicate to her parents the potential gravity of their daughter's condition.  Be that as it may and, of course, I do not doubt the bona fides of the views expressed by Mr. McManus, senior surgeons are not always informative and may have little, if any, personal contact with the parents of non-fee paying patients.  Mrs. Reidy's informants may have been junior medical or surgical personnel or nursing staff and they may have expressed more optimistic views than the realities warranted.  There is certainly insufficient information to establish that the plaintiff's parents were informed or ought to have been aware earlier than 1989 that their daughter had suffered permanent disablement and would not make a full recovery in time, and that situation could have been avoided if the defendant's staff had caused the plaintiff's hip problems to be properly investigated in the first few weeks of her life.
	If the action had come to trial as early as 1990 i.e. within a year from the time when Mrs. Reidy deposes that she first became aware of the reality about her daughter's condition, it appears that the difficulties now relied upon by the defendant as amounting to unreasonable prejudice in the conduct of its defence would have been present then also.  The passage of time since 1990 does not appear to have aggravated the problems resulting from delay which have been alleged by the defendant.
	Having discovered that the plaintiff would never make a full recovery from her hip dislocations, it then became necessary for the parents to ascertain whether such problems could and should have been avoided by more positive treatment by the hospital experts before the child was discharged from their care about 8 weeks after birth.  It is irresponsible and an abuse of the process of the court to launch a professional negligence action against institutions such as hospitals and professional personnel without first ascertaining that there are reasonable grounds for so doing.  Initiation and prosecution of an action in negligence on behalf of the plaintiff against the hospital necessarily required appropriate expert advice to support it.  It appears that experts in Ireland were not prepared to advise the plaintiff and eventually it was necessary to obtain the services of an English paediatrician.  All in all, it seems to me that there is not a convincing case to be made that there was inordinate and  inexcusable delay in bringing and prosecuting the plaintiff's claim against the defendant, prior to the year 1992 at earliest. Furthermore even if the plaintiff's claim should have been made against the defendant and prosecuted to trial long before 1989, which I do not accept, it seems to me that there are countervailing circumstances which justify a disregard of the delay.  Such circumstances are that there is still in existence sufficient hospital records to establish the facts essential to a determination of the negligence issue between the parties i.e. the hospital notes made soon after the birth of the plaintiff and in the days following to which I have referred and the accuracy of which is not in dispute, together with Dr. Lowry's letter of 15th June, 1976 to the Reidy family doctor, establishes, inter alia, that there was a problem with the baby's left hip.  She was a female breached delivery; her mother's first born and was found to have some difficulty with the left hip.  She was, therefore, one of a category of baby which is more vulnerable than others to congenital dislocation of the hip - in particular on the left side.  In those circumstances should she have been referred by the hospital to an orthopaedic surgeon for assessment?  That is the root of the issues on liability between the parties.  The hospital notes indicate that there was divided opinion on the cause of the plaintiff's hip problem.  Dr. Lowry's letter to the G.P. implies that Dr. O'Brien decided that orthopaedic assessment was not necessary and it is not in dispute that no such assessment took place.  In the light of expert knowledge prevailing at the time of the plaintiff's birth, did the hospital act reasonably in not referring her to an orthopaedic surgeon in all the circumstances?  It is known that x-rays taken at the hospital were negative.  In the light of the specific findings in the hospital record, it seems to me that the issue on liability between the parties is clearcut.  It seems to me that the defence of the hospital is not dependant on an actual recollection of the plaintiff by Dr. O'Brien and/or Dr. Lowry or other hospital staff.  The simple fact is that there was an early recorded problem as to the plaintiff's left hip and for the reasons already indicated she was vulnerable to congenital dislocation of the left hip in particular.  In the light of these factors should the plaintiff have been referred to an orthopaedic surgeon for assessment?  Dr. O'Brien argues that it was unnecessary to do so and Dr. Daish takes the opposite view.  It seems to me that the question of delay has little, if any, bearing on the defence which the hospital makes to the plaintiff's claim.  I have no doubt that in all the circumstances it would be unfair and unreasonable to prevent the plaintiff from prosecuting her action against the defendant.  The balance of justice requires that she should be permitted to do so, notwithstanding the lapse of time since the happening of the events complained of.  Accordingly, the defendant's application is refused.