The High Court has allowed a woman suing the Health Service Executive over her ankle treatment to serve seven interrogatories, but refused the remainder of her proposed questions.
In a judgment delivered on 26 July 2017, Mr Justice Barr ruled on the plaintiff’s application for leave under Order 31 of the Rules of the Superior Courts. The application concerned pre-trial questions to the HSE, whose defence had put the matters in issue. The court was deciding which questions could be served; it did not determine whether the treatment was negligent or decide the underlying damages claim.
The plaintiff alleges that she received negligent treatment at Mallow General Hospital and Cork University Hospital after an ankle fracture in August 2015. Her personal injury summons alleged, among other things, that surgery was unnecessary, a cast was improperly applied and left in place despite complaints, and remedial treatment was delayed. These remain allegations in the source judgment, not findings by the court.
The HSE opposed the application, arguing that some questions sought admissions of negligence, while others bundled together multiple issues, relied on subjective descriptions of symptoms or asked the defendant to confirm statements attributed to unidentified staff. The judge noted that the HSE had not responded to an earlier notice to admit facts. He also said the plaintiff’s application would have been stronger if she had shown that the HSE would not agree to have hospital records admitted at trial without formal proof.
The court allowed interrogatories numbered 1, 2, 3, 5, 11, 14 and 16. Question 1 was amended to refer to an “actual or suspected” fracture, and question 16 was amended to correct the year to 2015. The permitted questions concern matters such as hospital attendance, surgery, casting, prescriptions and physiotherapy that the judge considered ascertainable from medical records.
The remaining questions were refused. The judge rejected questions about subjective symptoms and attributed conversations, as well as questions that asked the HSE to admit alleged negligence or wrongdoing. He said the latter would be pointless while liability was disputed. The ruling did not require the HSE to admit negligence or establish any of the plaintiff’s claims. The judge said agreement to admit hospital records without formal proof could reduce the need for many of the proposed questions and save costs and court time.