Last Friday the Supreme Court handed down a decision that is deeply disturbing. Rosemary Cunningham was ordered to pay the legal costs of those who successfully sought to deny her a hearing in court, writes Mary Raftery.
Not only is she dealing with a serious medical injury resulting from her treatment by ex-obstetrician Michael Neary, but she now has to pay a sum estimated between €60,000 and €100,000 to his insurance company.
This has sent shock waves through the group of over 100 women suffering as a result of the treatment provided to them by Michael Neary.
The stark injustice of Rosemary Cunningham's plight is quite breathtaking. In her own case, she was the only private individual involved. Against her were ranged a large insurance company, the Medical Defence Union (MDU), the State in the form of the North Eastern Health Board, and the Medical Missionaries of Mary who ran the Drogheda hospital during most of Michael Neary's tenure there.
Rosemary herself has only modest means. Living with her husband and three children in an ordinary dormer bungalow in Co Cavan, she works as a dental nurse. She has no private funds and no means whatsoever to pay such a large debt.
That debt will hang over her for years. While the family home is unlikely to be taken, she could be forced to pay over a portion of her salary, and could also have to relinquish any inheritance or other sums which might come her way in the future.
All of this happened to Rosemary because she suffered the tragedy of an ectopic pregnancy in 1991. During subsequent surgery Michael Neary removed one of her ovaries. He has always denied all claims of negligence.
However, to remind us of the gravity of this case, it is worth quoting from the expert medical report provided to Rosemary by eminent UK obstetrician Dr Richard Porter, whose opinion will now, of course, never be heard in court. He stated that Michael Neary had "totally unnecessarily removed \ healthy left ovary" in what he described as "incompetent practice" and "substandard clinical care".
Leading the fight against the many victims of Michael Neary is his insurance company, the MDU. They have several weapons in their armoury. The statute of limitations (which caused Rosemary's case to be thrown out) is being extensively used. Each case which goes to court is thus likely to involve a trial within a trial, to ascertain whether it will be allowed to be heard at all. This of course pushes up the legal costs and raises the stakes for the women, who don't have the money to match the insurance company.
The MDU has also begun making court lodgements of amounts ranging from €20,000 to €150,000 for a number of the women's cases. What this means is that should their cases be thrown out (like Rosemary's), or should their ultimate award from the courts be less than the amount lodged, the women themselves become liable for the bulk of the other side's legal costs. The women's alternative to fighting their cases is to accept the amount lodged.
This (perfectly legitimate) tactic is widely used by insurance companies to pressurise injured parties to settle their actions for substantially less than they might receive in a successful court action. The standard set for Neary's victims is the €223,000 awarded by the courts to Alison Gough in 2003. None of the amounts lodged by the MDU comes close to this, even for the most seriously injured.
The Supreme Court decision forcing Rosemary Cunningham to pay all legal costs is a huge victory for Neary and his insurers in this psychological warfare against his victims. While it is certainly standard practice that the losers in legal actions pay all costs, it is not unusual for the courts simply to make no order on costs, meaning that each side pays its own bills. Given the fact that Rosemary clearly had a well-founded case - the High Court had after all found in her favour - it could be argued that the Supreme Court is being excessively punitive in loading on to her the entire burden of costs.
Even before Rosemary's case, though, some of Neary's victims had been intimidated into dropping their cases. One woman, a widow, very understandably feared that she could be evicted from her house if she lost. However, most appear determined not to be bullied out of what they believe is their entitlement to justice.
Overall, though, the whole business has become a harrowing nightmare for the women involved, with many feeling that the MDU's legal tactics are re-victimising them all over again. Their support group, Patient Focus, has repeatedly called on the Minister for Health to create a compensation scheme. This is now likely to be the only option for many of those whose medical records have vanished or whose claims will be statute-barred. And given Rosemary Cunningham's grim experience, such a State-sponsored scheme is probably the only humane and fair way that the women involved may receive some modicum of justice.
mraftery@irish-times.ie