The High Court has refused the Health Service Executive’s application to strike out Elizabeth O’Connor’s medical negligence proceedings over an emergency caesarean section in 2013.
In a judgment delivered on 10 February 2022, Ms Justice Siobhán Phelan rejected the application on both abuse of process and delay grounds. She found the delays in obtaining medical reports and progressing the case were inordinate and had not been satisfactorily explained. However, she concluded that the balance of justice favoured allowing the proceedings to continue.
Ms O’Connor alleges that negligent treatment during the caesarean section at St Luke’s Hospital, Kilkenny, on 15 August 2013 injured her ureter and caused kidney damage. The HSE denies no allegation in the judgment excerpt; the judgment records the claim and the application to strike it out, not a decision on whether negligence occurred.
The case followed an earlier set of proceedings issued in 2015. Those proceedings were brought before an expert report was available and initially pleaded accidental kidney damage. The first summons was not served within the period allowed. A further renewal was granted in 2019, but in October 2020 the High Court set that renewal aside, finding that the required special circumstances had not been established. That decision did not determine the medical negligence claim.
A second summons, issued in November 2019 with more detailed allegations informed by a later expert report, was served on 4 November 2020. The HSE argued that the second case duplicated the first and improperly circumvented the earlier ruling. Justice Phelan found that both sets of proceedings concerned the same cause of action, but held that maintaining the second set was not an abuse of process in the circumstances. The first claim had not been adjudicated, and the earlier ruling addressed whether its summons could be renewed for service.
On delay, the judge noted the long period between the surgery and the second summons, as well as delays after the expert report was received. She also considered the HSE’s concern that faded memories could affect evidence about what Ms O’Connor was told in December 2014. However, the court had no evidence that a key witness had died or was unwell, and the medical notes and records remained available. The judge said the claim could be assessed using those records and that striking it out would leave Ms O’Connor without a remedy for the alleged wrong.
The court refused to strike out the proceedings. It proposed that the HSE pay Ms O’Connor’s costs of the application, subject to written submissions on any alternative costs order by 25 February 2022 and a reply by 11 March 2022.