The Court of Appeal has dismissed Frances Kelly’s appeal against the dismissal of her medical negligence claim, finding that she had not presented the expert medical evidence required to establish a prima facie case against the remaining respondents.
The judgment, delivered by Ms Justice Power on 29 October 2020, upheld the High Court’s decision to dismiss the proceedings after Ms Kelly gave evidence but called no expert witness. The appeal concerned claims against University College Cork, the National University of Ireland and the Southern Health Board. Ms Kelly was no longer pursuing her claim against the first named respondent, Professor Duncan Sleeman.
Ms Kelly was injured in a car accident on 4 May 2000 and treated at Cork University Hospital. She alleged that a delay in medical or surgical treatment caused necrosis and the eventual removal of part of her tongue. Her pleaded case included allegations of negligent treatment and failure to suture her tongue promptly. The Court of Appeal described the appeal’s central complaint as an alleged 27-hour delay in treatment; it made no finding that the alleged delay or negligence occurred.
At the 2013 High Court trial, Ms Kelly represented herself. The trial judge dismissed the claim after she finished giving evidence, concluding that she had not made out a prima facie case. The Court of Appeal said her testimony was the only evidence she tendered at trial. A report by Professor Ayoub was not admitted, and he did not testify. The appeal court said Ms Kelly had not applied before trial for an adjournment or for permission for the expert to give evidence remotely, despite correspondence about those options.
The appeal court held that medical negligence claims require supporting expert testimony. It rejected the argument that the trial judge should have treated Ms Kelly’s own account, research or the fact that surgery occurred the following day as proof of negligence. It also agreed that the principle of res ipsa loquitur did not apply in the circumstances.
Ms Kelly also raised concerns about consent to treatment. The court said informed consent was not pleaded in the Statement of Claim and was not properly before it on appeal. It made no findings on whether consent had been given.
The Court of Appeal found no error in the High Court’s decision and dismissed the appeal. The respondents waived their costs in both courts. The appeal court made no order as to appeal costs and vacated the High Court order awarding costs to the respondents.