The High Court has refused a doctor’s application to dismiss a personal injuries claim arising from catastrophic injuries suffered by a baby shortly after birth, finding he had not established a real and substantial risk of an unfair trial.
In a decision delivered on 15 June 2022, Ms Justice Bolger said the trial could proceed despite the loss of many medical records and the doctor’s lack of recollection. She said any unfairness arising from gaps in the evidence could be addressed by the trial judge.
The plaintiff, Jane Harte, is described in the judgment as a person of unsound mind not so found, suing through her mother and next friend, Olivia Harte. She was born at Cork General Hospital on 8 October 1995, where the defendant, Pallany Pillay, was the principal attending consultant gynaecologist.
The plaintiff alleges that delays in treatment after signs of respiratory distress led to septic shock and meningitis. The judgment records that she will need full-time care and significant therapeutic support for the rest of her life. These are claims in the proceedings, not findings on liability.
The doctor sought dismissal on the basis that missing records, his lack of memory and the inability to locate two witnesses made it unjust to require him to defend the case. He said he had no recollection of the birth or the plaintiff’s care. He acknowledged that he and his secretary shredded the plaintiff’s Cork General Hospital chart in May 2015, after his retirement and before he knew of the proceedings.
Some records remain. They include an Erinville Hospital discharge summary describing the baby as grunting, tachypneic, cyanosed and in shock; a neonatologist’s note that she was critically ill with Group B Streptococcus septicaemia and meningitis; and the doctor’s 24 October 1995 letter to the plaintiff’s GP. The doctor’s letter described her as an unwell baby with an increased respiratory rate and explained the transfer to Erinville.
The judge said the available records were imperfect but sufficient for the defendant to address their reliability and relevance at trial. She also noted that he could give evidence about his usual practice, and that the plaintiff’s mother and grandmother would be available for cross-examination.
Ms Justice Bolger said the doctor’s responsibility for destroying his records in a manner that fell short of best practice was relevant to the circumstances. She did not suggest the destruction was malicious, noting it occurred before he knew of the plaintiff’s intention to sue.
The court refused the dismissal application. Its indicative view was that the plaintiff was entitled to her costs because the defendant had not succeeded. The case was listed for mention on 5 July 2022 for submissions on costs or final orders; the judgment does not state what was later decided.