The High Court has ruled that part of a woman’s personal injury claim against the Health Service Executive is statute-barred, but allowed her allegations about surgery to continue to trial, where the limitation issue remains unresolved.
Mr Justice White delivered the judgment on 2 December 2016 in Mary Kennedy v Health Service Executive and others, [2016] IEHC 696. The court was deciding a preliminary issue of law about whether the claim against the HSE was brought too late under the Statute of Limitations. It was not deciding whether the medical treatment was negligent.
The plaintiff alleges that there was a delay in diagnosing her cancer between November 2006 and March 2007, and that a left mastectomy and lymph-node clearance performed in March 2007 were excessive and unnecessary. The judgment records that a biopsy report in February 2007 found invasive ductal cancer. The later histology showed a 1.4cm tumour, completely excised, with none of 34 lymph nodes involved.
The HSE argued that the plaintiff knew, or should have known, of her claim by the time she sought legal advice in 2007. The plaintiff’s position was that she did not have the necessary knowledge until she received an expert report in July 2012. She had issued her personal injury summons in November 2012.
Justice White found that, when the plaintiff sought legal advice in June 2007, she had actual and constructive knowledge of the circumstances underlying the delay-in-diagnosis allegations. That part of the claim was therefore statute-barred. The court could not determine on the evidence whether she had constructive knowledge of the complaints about the surgery. It said evidence about her state of mind, her communications with advisers and any complaints to the hospital would be relevant at trial. The trial judge will decide the remaining limitation arguments after hearing evidence.
The judgment also rejected two arguments the plaintiff sought to raise against the HSE. It struck out her constitutional access-to-courts argument, finding that the fact that the HSE and Legal Aid Board are separate public bodies did not alter how limitation law applied. It also struck out the estoppel argument, noting there was no allegation of concealment or fraud, no prior acknowledgment of the claim by the HSE and no suggestion that records had been withheld.
The court confirmed that the plaintiff may continue her action against the HSE on the allegations remaining in the summons. The HSE may still argue at trial that those claims are time-barred and that the plaintiff’s knowledge arose earlier than July 2012.