The High Court has dismissed the Health Service Executive’s application to set aside an order renewing an 81-year-old woman’s personal injuries summons over alleged medical negligence at a hospital in Mayo in March 2016.
The woman alleges that she was not properly treated for her symptoms and suffered a right parietal ischaemic infarct. Those allegations were not determined in this application. The court was considering whether the summons could be renewed, not the underlying negligence claim.
Mr Justice Kevin Cross ruled on 29 September 2020 that the absence of the expert opinions needed to ground the claim was a special circumstance justifying the renewal. He said there had been no culpable delay in obtaining the reports and dismissed the HSE’s application to set aside the renewal order.
The personal injuries summons was issued on 31 August 2018 as a protective measure to prevent the limitation period from expiring before the claim had the necessary expert support. An order made on 3 February 2020 by Ms Justice Murphy, following an application made without notice to the HSE, renewed it for three months. The summons was served on 19 February 2020.
The HSE argued that the solicitors had not acted with sufficient expedition, had neither notified it of the intended proceedings nor applied to the Master to renew the summons within 12 months. It also relied on the absence of expert reports when the summons was first issued. No specific prejudice to the HSE was alleged.
The plaintiff said the necessary opinions were not available until 14 January 2020. The court accepted that the plaintiff had mislaid a request for funds to cover outlays, including the expert report, and that her age and infirmity explained the delay in paying. It found no significant delay by the plaintiff, her solicitors or the medical advisers in obtaining the reports.
Justice Cross criticised the failure to notify the HSE or provide a courtesy copy of the summons, calling it unacceptable. But in the absence of specific prejudice, he found that omission did not defeat the special circumstances. He also said the decision not to serve proceedings until the reports were available was deliberate and reasonable in the circumstances, distinguishing the case from authorities concerning inadvertent failure to serve.
The ruling addressed only the renewal application. The judgment records that the HSE had indicated it would plead the statute of limitations if the application were refused; the court did not decide that issue or the merits of the negligence claim.