The Court of Appeal has allowed a minor plaintiff’s appeal over pre-trial questions in her clinical negligence claim against consultant surgeon Michael O’Riordan and Mercy University Hospital Cork.
The appeal concerned an interlocutory order by the High Court, which had allowed eight of 29 proposed interrogatories and refused the other 21. The Court of Appeal concluded that the trial judge had erred in refusing many of the questions and allowed the appeal to that extent, setting out revised wording for most of those it permitted.
The claim concerns treatment at the hospital in June 2018, when the plaintiff was 14. Her case, as summarised in the judgment, is that she was referred with symptoms of appendicitis, underwent an appendicectomy the following day, and later developed complications related to sepsis caused by an intestinal leak. She remained in hospital until 30 November 2018. These are claims in the underlying proceedings, not findings of negligence by the Court of Appeal.
The plaintiff argued that the defendants’ defence gave little clarity about which parts of her account they accepted. The Court of Appeal said the defence’s statement that it did not require proof of parts of the claim only to the extent they matched hospital records was difficult to understand and did not make clear what was conceded. The court also said access to hospital records is not automatically an answer to interrogatories in a clinical negligence case.
The court allowed revised questions about matters including the plaintiff’s referral and admission, discussions and advice before surgery, reviews and discharge decisions, scans and fluid collections, requests for specialist advice, drainage and later procedures. It refused some questions, including those it considered vague or subjective, too convoluted, or framed to seek an admission of negligence. It stressed that courts do not generally have a duty to rewrite questions that were improperly framed, but did so here because the High Court had undertaken that exercise and a further motion could be avoided.
On costs, the Court of Appeal proposed that the plaintiff receive the costs of both the appeal and the High Court hearing. The defendants may file a written submission within 14 days seeking a different order, with the plaintiff allowed a further 14 days to respond. If no submissions are received, the proposed costs order will be made. The judgment was delivered electronically on 26 June 2023.