The Supreme Court has allowed a claim arising from an alleged negligent mishap during a birth in 1981 to proceed against the North Western Health Board, now succeeded by the Health Service Executive, while striking out the plaintiff’s action against two doctors.
In a judgment delivered on 10 May 2010, Mr Justice Geoghegan allowed appeals by Dr John Glynn and Dr Jaspal Singh from a High Court decision refusing to dismiss the proceedings for delay. The court ordered that the plaintiff’s action against the doctors be struck out under its inherent jurisdiction. They remain co-defendants only for the health board’s indemnity and contribution claim against them.
The court also allowed the plaintiff’s cross-appeal against the High Court finding that there had been inordinate and inexcusable delay. It dismissed the health board’s appeal, leaving the claim against it in place. The judgment did not decide whether negligence occurred or determine liability or damages.
The plaintiff, Christopher McBrearty, is described in the proceedings as a person of unsound mind not so found by inquiry, suing through his mother and next friend, Anna McBrearty. The judgment says he has severe cerebral palsy and requires an electrically powered wheelchair. His claim alleges that the injury resulted from events during labour and delivery at Letterkenny General Hospital on New Year’s Day 1981.
The court said the family had not been told at the time that negligence might have occurred. The plaintiff’s parents began investigating after their GP raised the issue in 1999. Proceedings were issued in November 2001. The health board later joined Dr Glynn, then a senior house officer, and Dr Singh, a locum consultant, as co-defendants. The claim against the originally named doctor, Andrew McFarlane, was discontinued after it emerged he was not at the hospital that night.
The Supreme Court considered the case’s long procedural history, including difficulties serving Dr Singh in Canada and uncertainty over whether the Medical Defence Union would assist the doctors. It concluded that the delays did not justify a finding of inordinate and inexcusable delay overall. The court noted that the medical records were available and had supported expert reports, and that no specific missing record or unavailable witness had been identified.
Despite that conclusion, the court found it fundamentally unfair to require the two doctors personally to face trial. The judgment pointed to the potential financial exposure and distress they faced amid uncertainty over indemnity, including the possibility of substantial damages and legal costs. The health board was in a different position because it would be covered by its own insurer and had accepted that it would be vicariously liable for negligence by either doctor if established.
The plaintiff’s expert report alleged that a caesarean section should have been performed earlier and that the delivery method used contributed to the injury. Those remain allegations in the underlying action; the Supreme Court’s ruling addressed whether the proceedings could continue, not the merits of the negligence claim.