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High Court of Ireland Decisions |
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Kearney v McQuillan & Anor [2006] IEHC 186 (31 May 2006) URL: http://www.bailii.org/ie/cases/IEHC/2006/H186.html Cite as: [2006] IEHC 186 |
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Judgment
Title: Kearney v McQuillan
& Anor Composition of Court: Dunne J. Judgment by: Dunne J. Status of Judgment: Approved |
Neutral
Citation Number: [2006] IEHC 186
The high
court [2004
No 6652 P]between olivia
kearney plaintiff
and defendants
ethna McQUILLAN AND NORTH EASTERN HEALTH BOARD judgment of Ms. Justice Dunne delivered on the 31st May 2006 The first named defendant herein seeks an order directing the trial of a preliminary issue namely whether the plaintiff is estopped from proceeding further with her claim herein by reason of the inordinate and inexcusable delay on the part of the plaintiff in instituting proceedings herein against the first named defendant as a consequence whereof it is alleged that the first named defendant has been severely prejudiced in the presentation of its defence to the claim herein. By the same notice of motion, the first named defendant raised an issue as to whether the plaintiff’s claim herein against the first named defendant was statute barred. However that application was not pursued before me and it was accepted for the purpose of the application before me, that the claim was not statute barred. It should be noted that the first named defendant is sued as the nominee of the Medical Missionaries of Mary which was the owner/occupier of Our Lady of Lourdes Hospital, Drogheda, Co. Louth, at the relevant time. Judgment in default of defence has been obtained against the second named defendant. It is common case that the plaintiff entered Our Lady of Lourdes Hospital (the Hospital) on 16th October, 1969, and on 19th October, 1969, Dr. Gerard Connolly performed an emergency caesarean section upon the plaintiff and thereafter carried out a further procedure on her known as a symphysiotomy. These proceedings are concerned with the circumstances surrounding the latter procedure, whether it was done with the consent or knowledge of the plaintiff and whether it was necessary or appropriate to carry out such a procedure on the plaintiff. It is alleged that as result of that procedure, she suffered personal injuries which, it is alleged still have to this date an adverse affect on the plaintiff. It would be useful to note at this point the history of the proceedings to date. I gratefully adopt the history of the proceedings to date set out in the legal submissions of the first named defendant herein.
In reply the plaintiff swore an affidavit on 12th January, 2006. She described therein the nature of a symphysiotomy, namely the cutting through cartilage that binds the two pubic bones, thus permanently enlarging the pelvis. She had attended Dr. Gerard Connolly. After her child was delivered by caesarean section a symphysiotomy was performed upon her. She averred that that was an unnecessary procedure performed on her without her consent. She added that she had never been told by Dr. Connolly that he had performed such a procedure on her. She outlined the consequences of that procedure having been performed - while it is not necessary to set these out in detail, it would be no exaggeration to say that she has been left with a legacy of problems including pain, which could not but have had a significant adverse affect on many aspects of her life. She emphasised that neither Dr. Connolly nor any other GP or doctor that she had attended informed her that such a procedure had been carried out upon her. The plaintiff takes issue with the complaint made by Ms. Gannon that records are “incomplete since the entries in the extant records were made over thirty five years ago.” She pointed out that her solicitors made enquiries from the Hospital solicitors as to the records that they had and as to the records that are said to be missing. No reply was received. She disagreed with the suggestion that records made thirty five years ago are necessarily less reliable than records made in more recent times. An affidavit was also sworn on behalf of the first named defendant by Roisin Maguire, the General Manager of the Hospital, on 14th February, 2006. She dealt with a number of matters she alleged were to the prejudice of the Hospital, namely, the death of Dr. Connolly on 17th March, 2000, the death of the senior house officer at the relevant time, Dr. Maureen McDermott, on 25th August, 1992, the death of the consultant anaesthetist who attended the Plaintiff, who died on 19th April, 1999, and the death of the consultant radiologist who reviewed the plaintiff’s x-rays around the relevant time. On that basis she averred that the hospital is deprived of the oral evidence of these medical specialists who would be essential to the hospital’s defence. She pointed out that part of the plaintiff’s case was that the symphysiotomy was an unnecessary procedure carried out without her consent, that she was never informed that it had been carried out and that she was not informed of the likelihood that such a procedure would be carried out. Roisin Maguire emphasised the importance of the evidence that could have been given by Dr. Connolly as to the discussions he would or could have had with the plaintiff which evidence is not now available. No other oral or documentary evidence can overcome this prejudice. In addition to the medical staff who are deceased, she also pointed out that a number of the nursing staff who were involved in the plaintiff’s care are also deceased. A number are out of the jurisdiction and the whereabouts of others are unknown despite efforts to trace them. She pointed out that certain medical records are missing and those which are available are wholly insufficient to overcome the prejudice suffered by the absence of the medical staff referred to above. The birth registers, theatre registers and blood books have been destroyed and discharge records appear to be incomplete. The plaintiff’s chart lacks detail and given the passage of time and the death of many of the personnel involved in the care of the plaintiff there is likely to be difficulty in interpreting and explaining all of the entries on the plaintiff’s chart. She added that as the first named defendant denies that the injuries allegedly suffered by the plaintiff were caused by the symphysiotomy it would be necessary for its medical experts to examine all of the plaintiff’s medical records from October 1969 to date. Having referred to these matters, she averred that the prejudice which will be suffered by the first named defendant in the presentation of its defence by reason of those matters has arisen because of the inordinate delay on the part of the plaintiff in instituting her claim for which no adequate explanation has been offered. She pointed out that the plaintiff has not specified when she became aware of the information to the effect that a symphysiotomy had been carried out. On that basis she argued that as the first named defendant has been severely prejudiced the balance of justice requires that the claim be dismissed. A supplemental affidavit was sworn herein by Roisin Maguire dated 9th March, 2006. In that affidavit Roisin Maguire sets out detailed information in relation to the efforts made to trace members of the medical and nursing staff who were named on the delivery chart in relation to the plaintiff and others believed to have been involved in the plaintiff’s care. As a result of inquiries by the Hospital in relation to the 19 people who have been identified as having been involved in the care of the plaintiff at the relevant time, 7 are deceased, the whereabouts of 7 remains unknown, 2 are in Africa and 3 have been located in this country. On that basis she repeated the view that the first named defendant is seriously prejudiced in seeking to defend the action by virtue of the lapse of time. Finally she added that because of the death of Dr. Gerard Connolly the first named defendant is not in a position to explain the clinical determinations made by him in respect of his treatment of the plaintiff. An affidavit was also sworn by Brigid Flanagan on behalf of the plaintiff. She was the plaintiff’s General Practitioner in 1969. After the birth of her child on 19th October, 1969, she was referred back to her GP by Dr. Connolly. In the referral back, no disclosure was made to her GP that the plaintiff had undergone a symphysiotomy following the birth. Dr. Flanagan did not become aware of that fact until informed that it had taken place following the receipt of medical records from Our Lady of Lourdes Hospital on 27th May, 2002. Dr. Flanagan deposed to the fact that she believed that the plaintiff was not aware that she had undergone a symphysiotomy until she received the medical notes. Finally a further affidavit was sworn by the plaintiff herein on 13th March, 2006. In that affidavit she explained that she requested her hospital notes as a result of hearing a radio programme in which the procedure known as symphysiotomy was discussed. It was only on receipt of the hospital notes and on reading same that she had an indication for the first time that a symphysiotomy had been carried out on her. She confirmed that on 15th November, 2004, she attended Mr. Roger Clements in his consulting rooms for the purpose of examination and medical and legal report. That report was exhibited in the said affidavit. A reference to the report of Mr. Clements may be of assistance. In his summary on page 17 of his report he concluded:
The operation was wholly improper and unjustifiable. That it was done without consent or explanation, in clear contravention of the hospital’s own ethical guidelines, adds to Mrs. Kearney’s grief and anger.”
I hereby consent and give permission for a general anaesthetic...’” “Permission for anaesthetic
“1. The true test for establishing negligence in diagnosis or treatment on the part of a medical practitioner is whether he has been proved to be guilty of such failure as no medical practitioner of equal specialist or general status and skill would be guilty of if acting with ordinary care. 2. If the allegation of negligence against a medical practitioner is based on proof that he deviated from a general and approved practice, that will not establish negligence unless it is also proved that the course he did take was one which no medical practitioner of like specialisation and skill would have followed had he been taking the ordinary care required from a person of his qualifications.” In the light of those principles, Mr. Meenan argued that the evidence of the doctor who performed the operation is crucial. If as contended for by Mr. Clements there is no support in the literature for symphysiotomy to be performed in the circumstances herein, Dr. Connolly is the only one in a position to give evidence as to the course he took. Mr. Meenan referred to the paragraph I have quoted above from the summary of Mr. Clements report, and stated that in the face of such criticism that Dr. Connolly performed a gratuitous improper operation without explaining to Mrs. Kearney that the operation had been done that it would be entirely wrong to allow the action to proceed in the absence of the relevant witness. Mr. Meenan then referred to a number of authorities dealing with the issue of prejudice by reason of delay. He referred firstly to the judgment of the Supreme Court in the case of Toal v. Duignan and Ors. (No. 1) [1991] I.L.R.M. 135 at p. 138 of the judgment where it was stated by Finlay C.J.:
Finlay C.J. in Toal v. Duignan and Ors. (No. 1) went on to say having set out about the background to that particular case as follows:
Even though, therefore, the plaintiff may be blameless in regard to the date at which these proceedings have been instituted and with regard to the period of twenty five to twenty six years since the events out which they arose, as far as these defendants are concerned there would be an absolute and obvious injustice in permitting the case to continue against them. One cannot but be moved with sympathy for the plaintiff who obviously feels deeply the medical condition which he is advised he presently suffers from, but that sympathy could not be permitted to justify what would be unjust proceedings against these defendants. In the High Court it was held by Keane J. that the case was governed by the decision of this court in O’Domhnaill v. Merrick [1984] I.R. 151. I am in agreement with that view of the law. It is unnecessary for me to repeat here the principles laid down by this court in that case, that they may be summarised in their application to the present appeal as being that where there is a clear and patent unfairness in asking a defendant to defend a case after a very long lapse of time between the acts complained of and the trial, then if that defendant has not himself contributed to the delay, irrespective of whether the plaintiff has contributed to it or not, the court may as a matter of justice have to dismiss the action.”
Hospital who was sued as being responsible in particular for the actions of the gynaecologist and the paediatrician who attended the mother of the plaintiff at the time of his birth, as well as for other junior staff, either medical of nursing, who might have been involved at that time, is that in the case of the Coombe Hospital both the gynaecologist and the paediatrician involved were dead, the records which they might have maintained were wholly incomplete and wholly inadequate. In the case of the present defendant, however, the doctor involved is alive; has apparently personal records as well as some personal recollection; he has not made any affidavit indicating any particular difficulty or disadvantage in giving evidence although the affidavit filed on behalf of the hospital itself indicates the general disadvantage of a long lapse of time. There is no real evidence of a concrete kind with regard to the nature of the records which are available nor to any attempt by this hospital to ascertain the whereabouts or availability of other persons who were involved at the treatment of the plaintiff at the relevant time. A rather comprehensive note of his treatment written by Dr. Rees to the eight and fifth named defendants after his treatment in hospital is an immediate source capable of being used by him (Dr. Rees) to revive his memory. In all these circumstances I am satisfied that these defendants have not made out a case for probable injustice which would entitle them to be dismissed out of the action.” Mr. Meenan also referred to the decision in the case of Manning v. Benson and Hedges Limited [2004] 3 IR 556 a decision of Finlay Geoghegan J. dealing with the issue of lapse of time. In the course of the judgment in that case Finlay Geoghegan J. considered a number of authorities commencing at p. 564 to 569 of her judgment and having done, so enumerated a list of factors to be considered when the court is asked to dismiss an action upon the inherent jurisdiction to do so either on the basis that a fair trial cannot be conducted by the court or that it would be in breach of a defendant’s right to fair procedures to require him to defend the claim. The factors identified are as follows: “1. Has the defendant contributed to the lapse of time; 2. The nature of the claims; 3. The probable issues to be determined by the court; in particular whether there will be factual issues to be determined or only legal issues; 4. The nature of the principal evidence; in particular whether there will be oral evidence; 5. The availability of relevant witnesses; 6. The length of lapse of time and in particular the length of time between the acts or omissions in relation to which the court will be asked to make factual determinations and probable trial date.” She added:
Finally Mr. Meenan referred to a number of authorities in which the dismissal of a case has occurred by reason of lapse of time where the death of an important witness has been considered to be a specific prejudice such as to warrant the dismissal of the case. Turlough O’Donnell SC appeared on behalf the plaintiff herein. He agreed with the principles of law referred to by Mr. Meenan on behalf of the first named defendant herein. He also accepted that much of the factual matters set out were common case. He argued that insofar as the court is considering issues such as this that each case must be determined on its own facts. Mr. O’Donnell’s principal argument in relation to this particular matter was that if the plaintiff was in a position to produce evidence from someone such as Mr. Clements then there is no inhibition on the part of the first named defendant in producing like expert evidence. He argued that experts could engage on the issues in the case and that in that way a just result could be obtained. Mr. Clements in his report considered the state of medical knowledge at the time of the procedure carried out on the plaintiff, in coming to conclusions as to whether it was appropriate to have such a procedure. He argued that the first named defendant could do likewise as to the state of knowledge at the relevant time. Mr. O’Donnell pointed out that one of the issues in the case relates not just to the performance of a symphysiotomy on a general basis, but that there is a specific issue as to whether or not that it is appropriate to perform a symphysiotomy after a caesarean section and he quoted from the report of Mr. Clements to the effect that:
Mr. O’Donnell then turned to the issue of consent. He submitted that having regard to the onus of proof in this case, the onus of proving every material fact rests on the plaintiff. If she fails to do so she fails in the case as a whole and he argued that that onus on the plaintiff was a sufficient protection for the defence. I cannot agree with that argument. Mr. O’Donnell correctly identifies where the burden of proof lies but it is a burden easily discharged in the absence of any available evidence by way of rebuttal. Thus, I find it difficult to accept the contention that as the burden of proof lies on the plaintiff that is a sufficient protection for the defence. One of the issues that had been raised on behalf of the first named defendant was the adequacy or otherwise of the medical records available to the first named defendant. Mr. O’Donnell made the point that in considering that issue one had to examine the context in which these proceedings are taking place. Even though there has been a long lapse of time unlike many cases, this is a case in which there had been a system of record keeping available and thus he argued one must bear that in mind in considering the question of prejudice. There may be some merit in the argument but the problem highlighted by the defence is that while there is reference in the medical records to a symphysiotomy having been carried out, there is no explanation given as to the circumstances in which the procedure was carried out. He argued that this case raises systemic and conceptual points namely whether a symphysiotomy should be carried out after a caesarean section in the light of medical knowledge. On that basis, he could not see any reason why a defendant could not embark on an investigation of this point in the same way as the plaintiff had it done. He emphasised that a significant part of the plaintiff’s case related to the fact that the carrying out of the operation was concealed from her and that her GP was not informed either. He referred to the decision in the case of Primor Plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459 where it was stated by Hamilton C.J. at p. 494 as follows:
2. Is there by reason of the lapse of time (or delay) a clear and patent unfairness in asking the defendant to defend the action. Having referred to those authorities Mr. O’Donnell made the point that at the heart of the issue in this case is the fact that the defendant concealed the cause of action. Although it was contended for by Mr Meenan on behalf of the first named defendant that they did not cause or contribute to the delay in bringing proceedings the whole point of the delay was the failure on the part of the first named defendant to tell the plaintiff that she had had a symphysiotomy. That was what caused the delay in this case. Insofar as the defendant has a difficulty in locating witnesses he argued that the first named defendant had failed to pursue certain avenues of enquiry open to it. They had failed to engage someone like Mr. Clements, or a similar expert for an opinion in relation to the procedure that had been carried out. He argued that a defendant seeking to stop a trial should first see if it can defend that trial. Could an expert give a view? Not doing so is, according to Mr. O’Donnell trying to have it both ways. He argued that those witnesses who are available could be asked for their evidence on specific aspects of the case. For example, one could ask one of the nurses who are available was a symphysiotomy ever performed in the Hospital and they could also be asked whether a symphysiotomy had ever been performed at the hospital after a caesarean section. In conclusion Mr. O’Donnell argued that whilst there were difficulties from the point of view of the first named defendant in relation to certain aspects of the case there were avenues open to the first named defendant to deal with those difficulties. Mr. Meenan in reply distinguished the cases of Primor and Kelly v. O’Leary. The Primor decision was concerned with an application to dismiss for want of prosecution. In the Manning v. Benson and Hedges Limited case, Finlay Geoghegan J. was dealing with two separate applications, namely an action to dismiss for want of prosecution and thereafter a consideration of the exercise of the courts inherent jurisdiction to dismiss for reason of delay even in the absence of any culpable delay by the plaintiff. Mr. Meenan also dealt with the argument that the first named defendant could deal with the points raised by engaging its own experts and he agreed that an expert could indeed give views as to what occurred but he argued that that was not sufficient. He referred to the second principle summarised in the case of Dunne (an infant) v. National Maternity Hospital set out above and argued that in the absence of a statement of evidence from Dr. Connolly as to what occurred it was not possible to say that what was done by him was inappropriate. In other words that is precisely the type of prejudice that the first named defendant will suffer in the absence of a critical witness. He made the point that this is an action based upon oral testimony and is not a matter of exchanging medical reports between the parties. He, Mr. Meenan, cannot put to Mr. Clements the reasons why the operation was required. That being so the purpose of a trial during which evidence is tested is completely negated. He also dealt with the point made by Mr. O’Donnell that the nurses who are available may be able to assist but he disagreed with that point of view. The information that they might be in a position to give does not answer the crucial question “was the operation justifiable in the circumstances.” Conclusions: This is a case in which a full defence has been delivered on behalf of the first named defendant. Although a full defence has been delivered denying that a symphysiotomy took place it is clear from the medical records and from the affidavit of Roisin Maguire sworn herein on 14th February, 2006, that such a procedure was carried out on the plaintiff. I have referred in passing to the effect that this procedure has had on the plaintiff as described in the pleadings herein. Her present condition is more fully described in the report of Mr. Clements at p. 8 and 9. I have already referred in general terms to the manner in which the plaintiff contends that she was affected as a result of the procedure carried out upon her. I am clearly not in a position to comment on whether all of the complaints contended for by the plaintiff can be attributed to the symphysiotomy but I can say that I have the utmost sympathy for the plight in which she now finds herself. At the heart of this case is the issue of the courts inherent jurisdiction to dismiss an action because of the lapse of time. I am satisfied that this issue falls to be determined by the principles enumerated in the cases of Toal v. Duignan (No 1 and No. 2) which are reported in [1991] I.L.R.M. at pps. 135 and 140 respectively as recently followed in the decision of the High Court in Manning v. Benson and Hedges Limited referred to above. In this case there is undoubtedly a significant lapse of time such that it clearly raises a question as to the fairness of any trial. In the Manning v. Benson and Hedges Limited case it was held that in assessing the affect of the lapse of time on the fairness of a trial, the court should consider whether the defendant contributed to the delay, the nature of the claim, whether the issues were factual or legal, whether oral evidence would be required, the availability of witnesses and the length of time between the acts or omissions and the probable trial date. In considering the issues outlined above there is an obvious difficulty in ascertaining whether the defendant contributed to the delay. The plaintiff in this case stated on affidavit that she first considered the possibility that a symphysiotomy had been carried out on her after hearing a radio discussion in respect of such operations. Thereafter she sought her medical records and having received those discovered that such a procedure had been carried out. It is a part of her case that she was never told that such a procedure had been carried out. It is clearly the case that her GP was not informed that such a procedure had been carried out. However whether or not the plaintiff was so informed is an issue in the case and could only be determined by oral evidence and it is equally clear that such oral evidence is not available due to the death of Dr. Connolly. To that extent it seems to me to be impossible to conclude that the defendant contributed to the delay. So far as the nature of the claim is concerned and whether the issues are factual or legal, it is clearly the case that there are a number of issues between the parties which are factual and could only be determined after the hearing of oral testimony. In relation to the question of whether or not the plaintiff consented to the procedure, one could only determine that issue having heard not just the plaintiff’s evidence but also the evidence of those who were present at the time the plaintiff gave the written consent. I have no doubt but that in an action such as this it would of necessity follow that there would have to be expert evidence available on both sides to debate the appropriateness of the procedure carried out on the plaintiff. Such oral testimony could not and would not be carried out in a vacuum. It seems to me that such evidence could only be considered in the light of the actual testimony from the person who carried out the procedure explaining the circumstances and the necessity for such a procedure arising out of that individual patient’s care. The discussion of the merits or otherwise of such procedures in academic terms would not in my view help to decide the principal issue in this case as to whether or not there had been negligence on the part of the first named defendant through its consultant in carrying out the procedure. In other words to refer to the principle in relation to medical negligence actions identified by Finlay C.J. in the case of Dunne and referred to above:
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