High Court: Litigation restriction order made against mother and son in medical negligence proceedings

About this case:

• Citation:
  [2024] IEHC 747
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Ms Justice Niamh Hyland

Delivering judgment for the High Court, Ms Justice Niamh Hyland stated: “Given the nature of these proceedings, and the unfortunate history of A’s birth and subsequent problems, I would like to emphasise that I have no doubt that Ms AA believes she is acting in the best interests of A, that her actions are motivated by her wish to achieve what she perceives as justice for him, and that there is no bad faith on her part.”

Background

A, a 21 year-old man assisted by his mother AA, brought personal injuries proceedings concerning alleged medical negligence following his premature birth which allegedly led him to contract MRSA and to develop sepsis, resulting in him losing parts of his left foot. It was further alleged that inter alia A incurred other injuries resulting in him being diagnosed as autistic after he reached 18 and that hospital records had been fraudulently altered.

The proceedings formed part of a long history of litigation, with eight sets of proceedings in total having issued concerning the circumstances of A’s birth.

The defendants brought a motion to dismiss the proceedings as disclosing no cause of action, being bound to fail and/or as constituting an abuse of process on the basis of a lack of medical evidence to support them. The defendants also sought an ‘Isaac Wunder’ or litigation restriction order (LRO) and an order pursuant to s.10(3) of the Civil Liability and Courts Act 2004 (as amended) staying or dismissing the plaintiff’s claim on the basis of a failure to comply with the pleading requirements of the 2004 Act.

The High Court

Ms Justice Hyland noted at the outset that A was not a ward of court nor the subject of an order under the Assisted Decision-Making (Capacity) Act 2015, warning that if the matter was to proceed, his mother could only assist him as a McKenzie friend and that consideration should be given to retaining legal representation or to an application under the 2015 Act for the appointment of a decision-maker or a decision-maker representative.

In support of their motion, the defendants alleged that the three medical reports provided by the plaintiff did not identify negligence or causation. The plaintiff indicated that she would exclusively rely upon the reports of a Dr Foragasi, which the court considered were unclear as to the precise nature of the negligence alleged and did not identify causation.

Noting the strict rules in relation to identifying appropriate expert evidence in professional negligence cases as outlined in Greene v Triangle Developments Ltd [2008] IEHC 52, Ms Justice Hyland recounted that the motion had come before her previously and that she had adjourned them to permit A and AA to obtain additional evidence. 

A further report of Dr Foragasi was then tendered to the court at hearing which alleged that a malfunctioning arterial line should have been removed from A’s leg when his foot appeared dusky in colour and cool to touch, and that a secondary negligence occurred where the line and/or his intubation led to his contracting MRSA.

Ms Justice Hyland considered that it was “extremely borderline” as to whether the report met the criteria identified in Greene, but found that the causation identified in relation to the alleged late removal of the arterial line appeared to her to “just about meet the threshold required”.

Refusing to dismiss the proceedings as bound to fail, the court considered the reliefs sought under s.10(3) of the 2004 Act requiring that the personal injuries summons comply therewith. Noting that the latest views of Dr Foragasi did not feature in the proceedings as drafted, the court stayed the proceedings pending the delivery of an amended personal injury summons complying with the requirements of s.10(3) of the 2004 Act.

Ms Justice Hyland moved to consider the defendants’ application for a LRO, explaining that AA had indicated to her registrar that A would not bring any further proceedings, but that she intended to reissue a separate matter relating to her own Post-Traumatic Stress Disorder. 

Observing that AA could not bind A as to what proceedings he could take, and given the history of the litigation and A’s indication of her intention to issue further proceedings, Ms Justice Hyland determined that it was not possible to exclude the bringing of further proceedings relating to A’s birth, his treatment following his birth and/or other linked matters.

The court was satisfied that there had been repeated attempts to litigate these issues “despite the fact that Ms AA did not have sufficient medical evidence to bring many of those proceedings, and despite the fact that she had been advised by a solicitor in relation to the bringing of these claims and, when represented, had obtained medical evidence that did not support the claims of negligence or did not establish any causation”.

Ms Justice Hyland also highlighted that AA had made complaints to HIQA in relation to A’s birth and an investigation was carried out from 2014 to 2017, with AA then complaining to the Medical Council about the doctors involved in the HIQA investigation. 

The court emphasised the public interest in protecting limited court resources from being consumed by repetitive litigation and added: “It is not appropriate to seek to litigate the same events over and over again in different sets of proceedings. It is imposing a huge burden on the defendants both in terms of legal costs but also in terms of the time of their employees, and independent experts.”

Conclusion

Accordingly, the High Court refused to dismiss the proceedings, placed a stay thereon pending the amendment of the personal injuries summons, and made a LRO in the following terms:

Finally, it was proposed to award the defendants 75 per cent of their costs, and the matter was adjourned to the personal injury list.

A (A person with disabilities) suing by his mother and next friend AA v HSE & Anor [2024] IEHC 747