by Martha Wilson April-22-2014 in Healthcare Law
The High Court recently overturned a permanent stay imposed by the Circuit Court on three related medical negligence actions (1) .
The plaintiff sued three hospitals over alleged negligence but did not produce a medical report to support his claims. As a result the Circuit Court directed that the three cases should be permanently stayed. The plaintiff appealed to the High Court where the matter came before Judge Hogan earlier this year. The judge summarised the question before him as follows:
“should the plaintiff’s actions for medical negligence against all three hospitals be stayed permanently in circumstances where the plaintiff is unable to produce a medical report of his own, even though at least one of the defendants is in possession of a report which, to some degree, supports some of the plaintiff’s factual contentions?”
The judge referred to Cooke v Cronin [1999] IESC 54 noting it “it is clear from Cooke that it is inappropriate to commence (or for that matter to continue) medical negligence proceedings against a medical professional without an appropriate basis for so doing because of the reputational and other implications of such proceedings for the professional involved.”
Judge Hogan went on to ask whether this was a situation in the present case and concluded that it was not for three reasons.
Firstly, the patient’s proceedings were not against medical professionals but were against hospitals. Although he felt this was not necessarily dispositive because reputations of medical professionals concerned were also at stake he felt it was nonetheless a relevant consideration.
Secondly, he did not find there was no appropriate basis for continuing the proceedings. He came to this view based on a report from Professor Nigel Hoggard which had been commissioned by one of the hospitals and given to the plaintiff. According to Judge Hogan, Professor Hoggard’s report meant the plaintiff’s “basic complaint is, at least to some degree, well founded.” The judge referred to his earlier decision (2) in another related action in which he had held that the medical consultants who had treated the plaintiff could not be guilty of poor professional performance because of the exceptionally rare nature of the injury in question. He found that this did not mean the plaintiff could not possibly establish negligence within the meaning of Dunne v the National Maternity Hospital (3).
Thirdly, the judge was persuaded by the fact that a permanent stay in the circumstances was in the nature of a dismissal of the action because the patient could not now or in the future advance his proceedings. Judge Hogan concluded that such an Order would be premature in this case.
(1) Flynn v Bon Secours Health Systems Ltd 2013 CA 183, Flynn v Blackrock Clinic Ltd 2013 CA 184 and Flynn v Mater Private Hospital 2013 CA
(2) Flynn v Medical Council [2012] IEHC 477
(3) [1989] IR 91
At the same time, the judge also recognised the need to balance the plaintiff’s right of access to the Courts with the defendants’ right to timely disposition of the action. In order to account for this, he directed that the plaintiff would have 12 months to obtain a supportive expert report and provide it to the defendant hospitals’ solicitors. If he did not do so, the judge noted the defendants’ would be entitled to apply to have the actions dismissed at that point.
This case illustrates the lengths the courts may go to in order to facilitate a plaintiff’s access to the courts, particularly where (as in this case) the plaintiff has “limited personal and professional resources”.
It remains to be seen whether and to what extent the judgment will act as an impediment to applications to strike out clinical negligence actions at an early stage on grounds of want of prosecution, or that they are frivolous or vexatious, where the defendant is a hospital or the Health Service Executive.
For any further queries, please contact any member of our Healthcare team.
Martha Wilson
mwilson@hayes-solicitors.ie
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About the Author
Martha Wilson
Martha is a partner in the Healthcare team at Hayes solicitors. She works primarily in healthcare litigation, defending personal injuries claims taken against the Health Service Executive as well as against individual medical and dental practitioners.
In addition to contentious matters, Martha also advises on healthcare care related non-claims issues and represents doctors and dentists in relation to complaints to the Medical Council and Dental Council.