The High Court has allowed part of an appeal by Laurence Flynn against permanent stays imposed on his medical negligence claims against three hospitals, giving him 12 months to obtain and provide a medical expert report.
Mr Justice Hogan said the claims had an appropriate basis to proceed, in part because a specialist report supported some of Mr Flynn’s contentions about an alleged injury and the hospitals had treated him. He said the claims could still face an “uphill struggle” and did not find that any hospital had been negligent.
The appeals concerned claims against Bon Secours Health Systems Ltd., Blackrock Clinic Ltd. and Mater Private Hospital. The Circuit Court had permanently stayed all three sets of proceedings on 30 July 2013 after Mr Flynn indicated he could not lead medical expert evidence at trial. He told the High Court that his efforts to secure the attendance of Professor Nigel Hoggard as an expert witness had been unsuccessful.
Mr Flynn’s case was that he injured a small bone at the back of his palate in 1987, causing pain and difficulty swallowing, and that the hospitals’ alleged negligence related to diagnosis. Earlier scans and reviews had generally found no fracture. But Professor Hoggard, whose report was commissioned by Mater Private Hospital, said images from 1994 showed asymmetry and a possible fracture of the left hamulus. He said trauma was feasible, while noting that the earlier imaging was not optimal and the condition was rare.
Justice Hogan distinguished the case from precedent concerning proceedings pursued without a reasonable basis. He said the report provided support for at least some of Mr Flynn’s factual contentions, although it also attributed diagnostic difficulties to the condition’s unusual nature. The court’s earlier decision in separate Medical Council proceedings had held that the Council was entitled to find, on that evidence, that the consultants could not have been guilty of poor professional performance under the relevant statutory test. That was a separate issue from whether negligence could be established in these claims.
The judge said the Circuit Court’s permanent stay operated in practice like a dismissal and was premature. He allowed the appeals in part on terms: if Mr Flynn wishes to continue, he must obtain a medical expert report and provide it to the defendant hospitals’ solicitors within 12 months of 14 February 2014. If he does not, the hospitals may apply to the Circuit Court sitting at Cork to have the action dismissed. The High Court did not itself dismiss the claims or determine their merits.