The High Court struck out a woman’s medical negligence claim against six hospital defendants and a consultant plastic surgeon, finding that proceedings had been issued outside the statutory limitation period.
In a judgment delivered on 20 February 2018, Mr Justice Binchy ruled on motions by the hospital defendants and the consultant. Each sought to have the claim struck out as statute-barred or, alternatively, to have the limitation question tried as a preliminary issue. The court granted the applications to strike out the claims against all defendants and said there was no need to consider a preliminary issue.
The claim arose from an abdominoplasty performed on 15 May 2009 at a hospital operated by the hospital defendants. The plaintiff developed a post-operative infection and later had liposuction performed by the consultant in September 2009. She also complained about abdominal scarring and underwent a further surgical procedure with another doctor in December 2011.
The defendants argued that the plaintiff had enough knowledge to bring proceedings by March 2010, when she consulted a solicitor because she was concerned that her treatment might have been substandard. The plaintiff argued that she did not know her injuries were attributable to the consultant’s care until she received a liability report in April 2014. She also said her first solicitor had failed to progress the matter.
The judge found that, by March 2010 at the latest, the plaintiff knew of the scarring, considered it significant, and connected it to the consultant’s procedure. He noted that she had complained about the scarring, received follow-up treatment and sought legal and medical advice. Under the 1991 Act, knowledge that conduct amounted to negligence as a matter of law was not required; the relevant question was whether she knew the facts connecting the injury to the alleged acts or omissions.
The court concluded that the 2014 report added no relevant fact to her knowledge for limitation purposes. Even assuming she consulted her solicitor on 31 March 2010, proceedings should have been issued by 30 March 2012. They were issued on 21 November 2013. The judge therefore held the claim was bound to fail and struck it out. The ruling addressed the limitation applications; it did not determine whether the defendants had been negligent.