The High Court has refused applications by three defendants to set aside the renewal of a summons in a medical negligence action arising from the birth of twins at Dublin’s Rotunda Hospital in 2001.
The decision, delivered by Ms Justice Dunne on 17 April 2008, concerned only whether the renewed summons should remain in force. It did not decide whether the treatment was negligent or determine the underlying claim for damages.
The plaintiff alleges that she suffered a significant haemorrhage after giving birth by Caesarean section on 31 October 2001, and that the decision to perform a hysterectomy and her subsequent treatment were negligent and in breach of duty. The summons was issued on 12 August 2004. In April 2006, the High Court extended the time to apply for renewal and renewed it for six months. It was served on the first and fourth defendants around 21 September 2006 and on the hospital defendant on 27 September.
The first, fourth and sixth defendants argued that the delay in investigating and serving the claim was inadequately explained and prejudiced their ability to recall events and defend the case. The plaintiff’s solicitor described efforts to obtain appropriate medical opinions, including a report from a consultant anaesthetist, as well as work to complete the hospital records and obtain further advice. The plaintiff accepted that the period between receiving one expert report in June 2003 and the anaesthetist’s report in February 2006 was inordinate, but argued it was not inexcusable.
Justice Dunne held that the further information before the court would not have led it to refuse renewal had it been available on the original application. She accepted that the delay was inordinate but not inexcusable, citing the difficulty in finding an appropriate anaesthetist to advise and the other steps taken during the period. The need to investigate the claim provided “other good reason” under the court rules in the circumstances of this case.
The judge criticised the failure to notify the first and fourth defendants earlier that proceedings were contemplated, saying they lost an opportunity to make enquiries, preserve evidence and prepare statements. She noted that the hospital defendant had been in correspondence with the plaintiff’s solicitor from an early stage. However, the defendants had asserted no specific or actual prejudice beyond the effect of time on witnesses’ recollections. Balancing that against the prejudice to the plaintiff if renewal were set aside, the court found the plaintiff’s prejudice outweighed the defendants’ and refused the relief sought.