The High Court set aside third-party proceedings brought by two general practitioners against an oncologist, finding that the notices were issued and served too late and that the defendants had not provided appropriate expert evidence in time.
In a judgment delivered on 13 March 2015, Kearns P. ruled on the oncologist’s application under Order 16 of the Rules of the Superior Courts. The court said the third-party procedure had been taken “at the last possible moment” and struck out the proceedings against him insofar as they had been brought by both defendants.
The underlying claim concerned a lesion on the plaintiff’s left wrist, which he alleged the GPs had treated for years as a recurrent sore. After referral to specialists in 2009 and 2010, the lesion was diagnosed as squamous cell carcinoma. The plaintiff underwent radiotherapy and, in November 2010, amputation of his left forearm. The judgment records these as matters in the underlying claim and treatment history, not findings of negligence against the GPs or the oncologist.
The plaintiff issued his claim in September 2012. The GPs obtained permission to join the oncologist on 18 March 2014, one day before the scheduled trial, after seeking to do so around a week earlier. The plaintiff’s case against the GPs settled on the trial date, on terms unknown to the oncologist. The court had permitted the joinder without prejudice to the oncologist’s right to ask that it be set aside.
The oncologist argued that the defendants had delayed investigating whether they had grounds to allege he was a concurrent wrongdoer, and that he had been denied a meaningful opportunity to investigate or take part before the settlement. He also challenged the adequacy and timing of the expert evidence. The defendants relied on the need for caution in professional negligence claims and said expert advice had taken time to obtain.
The court found that no proper explanation had been given for the delay. It said information in the pleadings was sufficient to allow the defendants to take appropriate steps well in advance, and concluded the notices had not been served as soon as reasonably possible. It also accepted that the delay had caused prejudice, including because of the time since the medical treatment and the oncologist’s late involvement in proceedings that settled at trial.
Separately, the court said the first defendant had failed to obtain appropriate expert evidence before issuing the notice, while the second had left obtaining and sharing such evidence until the last moment. The court held that the delay alone was sufficient to dispose of the resistance to the application; it also accepted prejudice and the expert-evidence ground. The ruling set aside the third-party proceedings. It did not determine the underlying negligence claim, which had already settled between the plaintiff and the GPs.