The High Court has ruled that a patient who succeeded in a medical negligence action should recover 80% of her costs, after finding that an unsuccessful claim about a temporary pacemaker prolonged the seven-day trial to some extent.
In a costs judgment delivered on 10 May 2019, Mr Justice Barr said the action was complex and required a more nuanced approach than simply applying the general rule that costs follow the event. The patient had been awarded €63,112.48 in an earlier judgment.
The underlying case concerned the removal of the patient’s permanent pacemaker on 17 May 2014. She fainted and struck her head the following night. She alleged negligence in the decision not to insert a temporary wire and in her post-operative management, including allowing her to move freely around the ward despite her history of fainting and falls.
In the earlier liability judgment, the court rejected the claim that the doctors had been negligent in deciding not to insert a temporary wire. It found negligence in the management of the patient: her cardiologist had failed to instruct nursing staff to keep her in bed, and doctors and nurses had allowed her to walk freely. The patient succeeded on that management issue.
The defendant argued that the unsuccessful temporary-wire claim was significant and that about four of the six effective hearing days had been spent on it. The defendant sought the costs of four days, to be set off against the patient’s costs. The patient disputed that estimate and argued that expert witnesses had addressed both liability issues, with no appreciable extension of the hearing.
Justice Barr found that no additional witnesses had been called solely because of the temporary-wire issue. He rejected the defendant’s estimate of four days, saying it was not tenable given that the experts had addressed both issues. He also declined to disallow the costs of the second hearing day, which had been shortened when the patient’s nursing expert became ill. The patient’s husband had given evidence that day about her being allowed to walk around the ward, which the judge considered significant.
The judge accepted that investigating the temporary-wire issue had prolonged the trial, but only marginally. He concluded that an 80% costs award fairly reflected the patient’s success on the management issue and her failure on the temporary-wire issue. The judgment determined costs; it did not revisit the earlier liability findings or damages award.