The High Court has refused to set aside the renewal of a summons in a proposed medical negligence claim against the Southern Health Board and Tralee General Hospital. Mr Justice O’Neill ruled that the plaintiff’s delay in securing a specialist opinion was inordinate and inexcusable, but the defendants had not shown actual substantial prejudice to their defence.
The application concerned an order made by Mr Justice McKechnie on 13 June 2005 renewing the plenary summons for six months. The defendants applied under Order 8, rule 2 of the Rules of the Superior Courts to have that renewal set aside.
The plaintiff alleges that after surgery in Tralee General Hospital in April 1999 to repair a ruptured patellar tendon, he suffered severe pain and that wire sutures had broken. He says an X-ray was requested but not taken at the time, and that physiotherapy was given despite his pain. A later X-ray allegedly showed broken wires and a re-ruptured tendon. He underwent a second operation in July 1999 to remove the wires. These are allegations recounted in the judgment, not findings on the merits of the medical care.
The plaintiff issued the summons in February 2002 but deliberately did not serve it while investigating the medical evidence. The court accepted that issuing proceedings to stop the limitation period and delaying service while investigating a claim could be legitimate, but said that this did not permit unnecessary delay. It found that the plaintiff had the relevant medical records by March 2002 and had known by May 2001 that a specialist such as Mr Kay was needed. The delay from July 2002 to Mr Kay’s engagement in October 2003 was inordinate and inexcusable, the judge said. After that engagement, the matter proceeded with acceptable expedition.
The court also held that a defendant challenging an ex parte renewal must provide new evidence that could have affected the original decision; the application is not an appeal on the same evidence. The plaintiff bore the burden of showing good reason for renewal, while the defendants bore the burden on matters they raised.
The defendants relied on presumed prejudice from the passage of time, saying a trial might take place about ten years after the alleged events and oral evidence would be needed. They did not claim actual prejudice at this stage. The judge held that renewal should not be refused where the claim would otherwise be time-barred unless the defendants showed a clear case of actual substantial impairment to their defence. He considered that such prejudice could be assessed later, once the claim was set out in a statement of claim.
The court therefore left the renewal in place. It did not decide whether the alleged negligence occurred or whether the defendants were liable.