July-16-2014 in Healthcare Law, Litigation & Dispute Resolution, Medico Legal
In her judgment of Wednesday 4 June in Joseph Hewitt –v- the Health Service Executive, Ms Justice Baker concluded that the Plaintiff, Mr Hewitt, who had issued proceedings on 25 January 2012, was not statute barred from taking a wrongful death action against the HSE over the death of his wife in June 2010.
Mrs Hewitt (deceased) underwent an ultrasound in February 2007 which revealed two lesions in her liver but only became aware of the finding when she met her surgeon by chance five months later (July 2007). She had further scans which revealed additional lesions in her liver and she died in June 2010.
The issue in this case was whether Mr Hewitt’s claims against the HSE, firstly for alleged negligence when his wife was alive and secondly, wrongful death were statute barred under the Civil Liability Act 1961 (the “Act”). The HSE maintained that both actions should have been started within two years of the alleged failure to diagnose the cancer otherwise it was statute barred.
Mr Hewitt sought to rely on Section 7 of the Act which allows a personal representative of the deceased to commence proceedings which the deceased was entitled to commence two years from the accrual of the cause of action or, the date of knowledge of the injured party. The Court found that such proceedings would be statute barred in this case as Mrs Hewitt did have sufficient knowledge in July 2007 for time to begin to run against her and therefore the statutory time limit ran out in July 2009. As the deceased had not commenced proceedings within the time limited by statute, “there existed at her date of death no action which could be continued by the personal representative nor was there vested in her any cause of action which could have been commenced”on behalf of her estate.
In respect of Section 48 of the Act which entitles dependants to take a wrongful death action, the question was whether the running of the statutory time limit against the deceased would also bar the wrongful death claim by the dependants.
Ultimately Ms Justice Baker held that the cause of action under Section 48 can only accrue at the date of death, so it cannot become statute barred before the date of death. She found the deceased’s statutory dependants had a right to bring a claim up to two years after her death and as that action was commenced within the statutory time limit, it was not statute barred.
It is not known at the time of writing whether this decision will be appealed, but at present, it provides some clarification on the issue as to whether the running of a statutory time limit against a deceased would bar a fatal injuries claim by dependents. Prior to this judgment, there was no decided case on this issue in Ireland or the UK.
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