The High Court has ordered a preliminary hearing on whether a medical negligence claim brought by Ciara Gannon Maguire is time-barred. Mr Justice Noonan’s ruling does not decide the limitation issue or determine the underlying negligence claim.
The proceedings are against Eileen O’Callaghan, sued as executrix of her late husband, Dr Peter O’Callaghan. The claim concerns an alleged 2013 consultation, when Ms Gannon Maguire was 15 and complained of a neck lump. The judgment records that she alleges Dr O’Callaghan said it was tissue and nothing to worry about, and referred her for a blood test. The judgment does not determine whether that account is correct or whether the care was negligent.
In 2015, after seeing another GP with the same complaint, she was referred urgently to the Mater Hospital. A biopsy led to a diagnosis of papillary thyroid cancer that had spread to her lymph nodes. She underwent urgent surgery and later radiotherapy. Dr O’Callaghan died on 30 September 2013. The personal injuries summons was issued on 13 April 2017.
The defendant argued that the claim was barred under section 9(2)(b) of the Civil Liability Act 1961 because proceedings were issued more than two years after Dr O’Callaghan’s death. The plaintiff challenged the constitutionality of that provision and argued, among other things, that the dispute was in substance with an insurer and that the limitation provision should be read alongside date-of-knowledge rules. The parties agreed that the European Convention on Human Rights issue was not for determination at this stage.
Mr Justice Noonan rejected the argument that prior decisions prevented a constitutional issue from being heard as part of a preliminary process. He said the constitutional question should be considered only if non-constitutional issues that could resolve the case did not do so. He also found the alleged date of knowledge was accepted by the defendant for the preliminary issue only, without preventing it from being contested at the full trial.
The judge said the plaintiff’s argument that the issue was moot because an insurer was involved was not clear-cut. He concluded that a short preliminary hearing could resolve a potentially decisive issue and save the costs of a lengthy negligence trial. He granted the defendant’s application and said he would discuss the precise wording of the order with counsel. The judgment does not record the final wording of that order or the outcome of the preliminary hearing.