By Daniel Keane
The High Court has allowed a medical negligence action brought by Michael O'Riordan against doctors and hospitals involved in his prostate cancer treatment to continue despite substantial delays in serving and progressing the proceedings.
O'Riordan underwent brachytherapy at the Mater Private Hospital in 2005 after being diagnosed with low-grade prostate cancer. The treatment involves placing radioactive material in or close to a tumour. According to his claim, he later developed severe complications, including sexual and urinary dysfunction, repeated need for surgery and a prostate-rectal fistula, an abnormal passage between the prostate area and rectum.
His case alleges, among other matters, that he was not adequately informed about the risks of brachytherapy or the alternative of radical prostatectomy. The defendants deny liability.
A personal injuries summons was issued in September 2008 but was not served within the required 12 months. The High Court renewed it in June 2010 for six months, after which it was served on the defendants in December 2010.
The defendants asked Mr Justice Birmingham to set aside that renewal and dismiss the case for want of prosecution, arguing that the delays were excessive and prejudicial.
The judge agreed that there had been inordinate delay. He identified several periods when progress had been slower than it should have been while O'Riordan's legal team sought expert opinions and tried to identify which doctors, if any, might bear responsibility.
However, he found the delay excusable. The case was medically complex, O'Riordan was continuing to receive treatment from some of the doctors he might sue, and his lawyers had been cautious about making professional negligence allegations before obtaining sufficient expert support.
The court also found little evidence that the defendants' ability to defend the case had deteriorated. The treatment complications had already prompted investigation, the medical records were available and the defendants remained closely familiar with O'Riordan's condition.
The judge concluded that the interests of justice favoured a trial. He refused to set aside the renewed summons or dismiss the proceedings, leaving the negligence allegations themselves to be decided later.