The High Court has refused the National Maternity Hospital’s application to strike out a patient’s personal injury proceedings, finding that the claim arose in the course of a surgical procedure and fell outside the Personal Injuries Assessment Board’s remit.
Maria Gunning was undergoing a laparoscopic right ovarian cystectomy at the hospital on 10 October 2005 when part of a forceps broke and lodged in her abdomen. The operation was converted to an open procedure to retrieve the metal fragment. She issued proceedings in October 2007 against the hospital, the supplier, Eurosurgical Limited, and the manufacturer, Richard Wolf GmbH.
The hospital argued that Gunning had not obtained the required Board authorisation to sue it. It characterised her claim as one about a defective product, rather than a medical negligence claim, and said the Board had not clearly declined jurisdiction. Gunning sought a declaration that the proceedings were excluded from the 2003 Act and challenged the relevance of an authorisation issued by the Board.
Justice O’Neill held that the Act’s medical exemption turns on the factual circumstances from which an action arises, rather than the particular legal causes of action pleaded. The injury occurred during a surgical procedure, so the claim came within section 3(d) of the Act, the judge found.
The judge added that the pleaded allegations against the hospital extended beyond an allegedly defective forceps. They included alleged failures in inspection, maintenance, assembly, staff training and equipment management. Even if a defective product claim were outside the exemption, that would not justify striking out the whole case, the judgment said.
The court refused the hospital’s application for relief. It also found that the correspondence relied on by the hospital did not amount to abandonment of any part of Gunning’s case or prevent her from pursuing the claims set out in her summons. The correspondence might have evidential value at the hearing of the action, the judge said.
The judgment records that Gunning succeeded in her motion, but does not set out the terms of a separate declaration or order. It decides the procedural dispute over the authorisation requirement; it does not determine liability for the injury.