The Court of Appeal has dismissed a hospital doctor’s appeal against a High Court ruling that a patient’s medical negligence proceedings were not statute-barred.
The appeal concerned when Leo Green knew, or could reasonably have been expected to know, that his injuries were attributable to the alleged negligence. His personal injury summons was issued on 7 August 2012, more than two years after surgery at Tallaght Hospital in December 2007. The defendant relied on the statutory time limit; Green relied on the statutory “date of knowledge” provisions.
The negligence found by the High Court was a failure to carry out a CT scan or other imaging on 14 or 15 December 2007, when Green had signs of infection after abdominal surgery. The trial judge accepted expert evidence that imaging would have identified a full tear in the small bowel and led to earlier corrective surgery. The Court of Appeal noted that the trial judge had not found negligence in the surgeon’s failure to detect the tear during the first operation.
The defendant argued that Green knew enough by January 2009, when a consultant surgeon told him that he had an incisional hernia resulting from a second operation. Alternatively, the defendant said, Green’s concerns were sufficient by the time he first consulted a solicitor in January 2011. The defendant submitted that Green did not need to wait for an expert report to know of a possible claim.
The appeal court held that the relevant omission was the failure to scan, which had led to the need for the second operation and the later hernia. Knowledge of the hernia alone did not establish knowledge of that omission. The court accepted that Green could not have known that no scan had been performed until his solicitor received the hospital records in March 2011. It also upheld the trial judge’s conclusion that Green could not reasonably have been expected to pursue further inquiries before August 2010, given the consultant’s 2009 letter and the evidence about Green’s understanding at the time.
The Court of Appeal concluded that the trial judge was entitled to find the proceedings were brought within the permitted period and that the claim was not statute-barred. It dismissed the appeal, which was confined to the limitation issue. The judgment did not revisit the damages assessment.