The High Court has refused a consultant surgeon’s application to strike out a medical negligence action over delay, finding that although the delay was inordinate and inexcusable, it had not caused enough prejudice to justify ending the claim against him.
The action concerns treatment in April and May 2011. The plaintiff alleges that the hospital and surgeon treated her severe left leg pain as a back problem and failed to investigate a possible vascular cause. She says that after emergency surgery, her left foot was irreversibly ischaemic and her left leg was amputated below the knee on 1 June 2011. These are allegations; the court was not deciding liability for the injuries on this application.
The proceedings were issued in March 2013 on a protective basis and served on the surgeon in January 2015. The judge noted that further particulars setting out concrete allegations of negligence were not served until April 2021. The surgeon argued that the delay had prejudiced his defence. The plaintiff accepted that it was inordinate but argued that the solicitor’s difficulties, including problems obtaining records and serious illness, excused it. She also said the relevant medical records remained available and liability would largely turn on those records and expert evidence.
Justice Barr rejected the explanations for most of the delay, including the long gaps in obtaining expert reports and responding to correspondence. He accepted that the plaintiff’s solicitor’s serious illness from January to April 2021 excused inactivity during those four months. Overall, however, he found the delay inexcusable.
The judge then considered the balance of justice. He estimated that, if the action proceeded, it would likely be ready for a hearing date in 2023, around 12 to 12.5 years after the events. He recognised that the surgeon had not caused the delay and that the plaintiff was bound by her solicitor’s inaction. But he found that liability would largely depend on contemporaneous medical notes and expert assessment, and that the surgeon’s defence would rely on those records. In the circumstances, he found insufficient prejudice to strike out the claim, despite the delay.
The court refused the relief sought in the surgeon’s motion. It made no finding on the negligence allegations. Because the judgment was delivered electronically, the parties were given two weeks to make brief written submissions on the terms of the final order, costs and any other matters arising.