Court: High Court
Judgment by: Costello J
This case concerned an application brought by the defendant, a consultant obstetrician and gynaecologist, to set aside an order of the High Court renewing a personal injury summons in a medical negligence claim. The plaintiff, a person of unsound mind not so found suing by his mother, suffered severe respiratory distress in the post natal period in 1995. As a result, the plaintiff is suffering from severe quadriplegia, cortical blindness and cerebral palsy.
The summons had originally been issued in 2008 and was renewed in 2013. The plaintiff had initially obtained a medical report dealing with the obstetric care relevant to the case. However, Senior Counsel advised that they required an appropriate expert paediatric neurological report before serving proceedings. A significant delay subsequently resulted from the plaintiff’s difficulty in finding a paediatric neurologist willing to provide an opinion. The plaintiff solicitor’s affidavit set out full and detailed particulars of the “very considerable efforts which she took to obtain the appropriate and necessary medical reports prior to proceeding with this case.”
The Court accepted it would be neither possible nor proper for the plaintiff’s case to proceed without the appropriate expert report. In weighing the question of justice between the parties, Justice Costello considered that if the case proceeded the defendant would have to face a claim in professional negligence, in relation to events that occurred nearly twenty years ago. However, the Court noted that there had been no reference to prejudice in the defendant’s affidavit.
On the other hand, the Court observed that a setting aside of the renewal of the summons could result in “a very grave injustice to the plaintiff”, especially if there was a difficulty in the future in issuing a fresh summons. The Court concluded that the hardship the defendant would suffer was less than the hardship that could be occasioned to the plaintiff, if he is later denied the opportunity to bring his case, which alleges the most serious of injuries.
In the circumstances, the High Court refused the application to set aside on the grounds that the plaintiff’s solicitor had made bona fide efforts to secure a relevant medical expert opinion.
Laura Gillen
Brophy Solicitors
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