The Supreme Court allowed an appeal by Michael Neary and Basil Cronin against Alison Gough, ruling that her claim over an emergency hysterectomy was statute-barred and setting aside the High Court order in her favour.
The appeal concerned the defendants’ limitation defence and the amount of damages. The High Court had awarded Gough €273,223.27 after finding for her in an action about the hysterectomy performed following the birth of her first child in October 1992. She alleged that the operation was unnecessary and that alternative treatments had not been attempted, or had not been adequately attempted.
Gough began proceedings in December 1998. The Supreme Court judgment, delivered by Justice Hardiman on 3 July 2003, said the claim would have fallen outside the ordinary three-year limitation period unless an exception applied. The key issue was when she had the knowledge required under the Statute of Limitations (Amendment) Act 1991.
The judgment recounted that Neary told Gough the hysterectomy had been necessary to save her life because of severe bleeding. At a later appointment, when she sought an explanation, he told her she was better off not knowing what had happened. Gough accepted his account until 1998, when media reports and a hospital helpline told her that Neary was under investigation over alleged unnecessary hysterectomies. She then contacted her solicitor.
The Supreme Court judgment described Neary’s explanation as inaccurate and said it discouraged Gough from making further inquiries. It also reviewed the High Court’s findings about the operation, including that the required oxytocin infusion had probably not been given and that conservative measures to stop the bleeding had not been adequately used. Those findings were not challenged on appeal.
Justice Hardiman said the circumstances could support an argument that Gough’s claim had been concealed by fraud under the 1957 Act, but that argument had not been pleaded or argued, so he made no finding on it. He rejected her separate argument that time under the 1991 Act did not begin until she knew the hysterectomy was unnecessary. In his view, the Act did not require knowledge that a procedure was unnecessary or negligent where the injury and the act causing it were known.
The judgment concluded that the claim was statute-barred and allowed the appeal. It did not make a finding on the unpleaded fraud question.