The High Court struck out medical negligence proceedings against surgeon Joseph Hanley, and any claim that the North Western Health Board was vicariously liable for his actions, after finding that prolonged delay had made a fair trial impossible.
The ruling followed an application by the first and second defendants to dismiss the proceedings for want of prosecution. Justice O’Neill heard the application in Dublin on 6 April 2006. He found the delay inordinate and not adequately explained or justified. He also concluded that, even if the delay had been excused, a fair trial could no longer take place.
The plaintiff, Cheryl Johnson, had surgery in September 1989 to remove a lump from her right armpit. The judgment says the lump was later found to be non-malignant. She subsequently reported numbness and muscle wasting in her right arm. She alleged that a nerve had been wrongly interfered with during surgery and that she had reported difficulties after the operation, but the surgeon’s note of a November 1989 visit recorded numbness and no complaint of weakness.
Proceedings were issued in July 1992. By early 2004, no statement of claim had been filed. The judge acknowledged the plaintiff’s solicitor had made substantial efforts and that repeated approvals from the Legal Aid Board had added to the delay. But he said the plaintiff had been in a position to prepare an adequate statement of claim by March 1994, and that long gaps in correspondence with doctors had not been sufficiently explained.
The judge said Hanley’s evidence was essential to disputes about what he did during the operation and what Johnson reported at the post-operative visit. The medical notes were available, but he described them as sketchy. Hanley was wholly incapacitated and unable to give instructions or evidence. Without his testimony, the judge said, the case could not fairly be tried.
The court ordered the proceedings struck out against Hanley and struck out the claim against the Health Board only insofar as it alleged vicarious liability for Hanley’s actions. The judgment does not state that the court determined the underlying negligence allegations. It does not record an order striking out claims against the other named defendants.