LEGAL UPDATE:THE AWARD ON March 23rd to a woman of €450,000 in damages (reported in The Irish Times on March 24th) as a result of what a High Court judge described as "grave medical malpractice" has since obtained widespread coverage in the media. The Supreme Court's key role in allowing this matter to be heard, decades after the procedure, did not go unnoticed.
This recent decision was the culmination of many years of litigation, starting in 2004. Ms Kearney’s case was actually dismissed by the High Court for inordinate and inexcusable delay in issuing proceedings, only for the Supreme Court to later allow her claim to be heard.
In 1969, Olivia Kearney (then aged 18) underwent what was described by the High Court as a “wholly unnecessary” symphysiotomy procedure at a Drogheda hospital. The procedure involves the sawing of the pelvis during childbirth and left Ms Kearney with what Mr Justice Ryan described as a lifetime of pain.
It was not until 2002, when Ms Kearney heard a radio discussion about the symphysiotomy procedure that she sought her medical records from the hospital and learned that the procedure had been performed on her. This led to proceedings being issued in 2004.
In 2006, the High Court ruled that Ms Kearney had delayed too long before issuing proceedings and that her delay prevented her from proceeding further. The surgeon, the anaesthetist and the radiologist at the time of the procedure were all now deceased so that vital testimony was not available. Ms Kearney’s delay was “inordinate and inexcusable” and as a consequence the hospital was “severely prejudiced in the presentation of its defence to the claim”.
Ms Kearney appealed the decision to dismiss her claim on grounds of delay to the Supreme Court. Ms Kearney’s case up until this point largely revolved around whether she had provided consent to the procedure, which she denied. Testimony from the deceased medical practitioners would be needed by the hospital if they were to defend this allegation. However, on appeal to the Supreme Court her claim was that there was no justification, regardless of whether there was consent, for the performance of the procedure.
The Supreme Court in March 2010 allowed her appeal and so enabled her case to be heard. It held that the hospital was capable of defending the case as they could provide witnesses who could give some realistic reason for the carrying out of the procedure.
Two years later, she was successful in the High Court, where Mr Justice Ryan said it was disturbing how close “this victim of grave medical malpractice came to being sacrificed on the altar of fair procedures.”
The Supreme Court decision to allow the case to proceed 41 years after the event was very significant. It clearly makes it very difficult for defendants when so much time has passed and all the key witnesses are dead.
So is it the new position that a claim can never be struck out for any delay as long as a claimant can make some claim that does not require evidence from an eye witness?
Eoin McManus and Claire Callanan, partners, Beauchamps Solicitors