The Co Louth consultant obstetrician/gynaecologist, Dr Michael Neary, has lost a High Court bid to prevent a woman bringing an action against him alleging he unnecessarily removed her womb after she gave birth to a stillborn infant in August 1988.
Ms Margaret Lynch, Church Lane, Tullyallen, Co Louth, is suing Dr Neary and Our Lady of Lourdes Hospital, Drogheda, for damages for personal injuries arising from the hysterectomy.
Yesterday lawyers for Dr Neary argued the court should strike out the case because of the delay in bringing the proceedings, which were initiated in 2003.
It was claimed that, due to the delay, relevant contemporaneous records were not available from the hospital, where the operation was carried out, and that Dr Neary would not be in a position to defend the action without these records
In refusing to strike out the action on grounds of delay, Mr Justice Butler said Dr Neary argued there was inordinate and inexcusable delay on the plaintiff's side in commencing the proceedings and that the action should be struck out on the basis of delay alone.
It was alleged that Ms Lynch had first become aware of her cause of action in 2001, when she visited a GP. Proceedings were instituted on her behalf in November 2003.
The judge said Dr Neary had alleged, on the basis of what was described as voluntary discovery on the hospital's part, that he was prejudiced in that all relevant documents were unavailable.
What Ms Lynch alleged against the defendants was a most serious matter for her and the application must be considered in the light of her constitutional right of access to the courts which she, along with all others, enjoyed, the judge said.
The court undoubtedly had an inherent jurisdiction to dismiss proceedings where there was inordinate and inexcusable delay and, in suitable cases, on the basis of delay alone. However, it must be very careful in exercising that jurisdiction.
To exercise that jurisdiction at this stage would be to deprive Ms Lynch - who had suffered gravely and was not at fault for the delay - of her right even to present her case. There was no doubt the delay had been inordinate. However, at this stage of the case, it had not been established that it had been inexcusable.