The High Court has struck Dr David O’Brien from a personal injuries action over treatment following a 1992 operation, concluding that the delay in bringing the case against him was inordinate and inexcusable and that he would face significant prejudice if it proceeded.
Mr Justice O’Sullivan delivered the judgment on 23 June 2006. The application sought to set aside a 7 November 2005 order by Mr Justice Johnson joining Dr O’Brien as a defendant. Justice O’Sullivan held that the High Court had jurisdiction to hear the application, including under its inherent power to control its own procedure.
The plaintiff, Brian Faughnan, was described in the proceedings as a person of unsound mind, not so found, suing through his father and next friend. The judgment says he was a 35-year-old Aer Lingus pilot who suffered severe injuries following complications after pituitary-gland surgery at Beaumont Hospital on 2 April 1992. The operation was performed by the third defendant under the second defendant’s supervision. The first defendant represented the hospital.
Dr O’Brien was a senior house officer on the neurosurgical team. The allegation against him was that he underestimated the plaintiff’s post-operative deterioration; one example cited was an alleged remark that the plaintiff had a “low pain threshold” after nurses reported severe headaches. These were allegations, not findings of liability. Dr O’Brien had no recollection of his involvement in the plaintiff’s treatment.
The plaintiff’s case was that he only learned the “low pain threshold” remark was attributed to Dr O’Brien when a solicitor read an affidavit sworn in July 2005. The defendants’ submissions were that relevant medical records had been available from the outset and showed nurses had raised concerns with Dr O’Brien. The judge was not impressed by the explanations offered for the delay, noting that the records did not establish who made the alleged remark.
Dr O’Brien was first personally made aware in 2004 that he might be involved as a party, according to the information before the court. Although an insurer was said in an affidavit to have known of his involvement since proceedings began in 1995, the judge distinguished that from Dr O’Brien himself being told. The first application to join him as a third party failed in July 2005; a later third-party application was abandoned when the plaintiff’s application to add him as a co-defendant was heard. Dr O’Brien’s counsel had not been served with or informed of that application before the November order.
Justice O’Sullivan found that Dr O’Brien would be significantly prejudiced because he could not recall the events or effectively give evidence or cross-examine witnesses about them. He also noted that, if Dr O’Brien were found legally responsible, the hospital defendant might be accountable as his employer, and other defendants remained in the case. The court ordered Dr O’Brien struck out as a defendant. It did not decide whether he was liable for the plaintiff’s injuries or resolve the separate dispute about the limitation period.