The Supreme Court concluded that Rosemary Cunningham’s claim against a doctor and five other defendants was barred by the Statute of Limitations. In a judgment delivered on 20 July 2004, McGuinness J. agreed with Fennelly J.’s reasoning and conclusion and said the claim should be dismissed.
Cunningham’s claim concerned the removal of her ovary in 1991 by the first defendant. She testified in the High Court that she did not know the operation had been unnecessary until she received an independent medical report in April 2001.
The High Court had held that her claim was not barred under section 3 of the Statute of Limitations (Amendment) Act 1991, relying on the Supreme Court’s earlier decision in *Gough v Neary* [2003] 3 I.R. 92. In that case, the court found that the plaintiff’s knowledge that her hysterectomy was unnecessary began with media reports in late 1998.
McGuinness J. distinguished the circumstances. Cunningham had become aware of similar media reports in December 1998. The judgment also noted that she had earlier questioned the need for the operation, that a gynaecologist queried scarring from the earlier operation during a hysterectomy at Dublin’s Coombe Hospital in October 1998, and that a nurse encouraged her to complain to the Medical Council.
The judgment said Cunningham had enough information by December 1998 to begin proceedings, even without a definitive medical report. She consulted a solicitor in May 2000, when proceedings would still have been within the statutory time limit. Her expert’s report reached her solicitor in April 2001. The Supreme Court said that, if December 1998 was the date she acquired the required knowledge, the claim would not have become time-barred until December 2001.
However, the plenary summons was not issued until 22 March 2002. McGuinness J. said there was no doubt the claim was barred under the 1991 Act and concluded that it should be dismissed. The judgment records McGuinness J.’s agreement with Fennelly J.; this source contains McGuinness J.’s judgment and does not set out the court’s separate formal order.