Supreme Court: €100,000 negligence claim against Tallaght Hospital not statute barred

About this case:

• Citation:
  [2019] IESC 51
• Judgment:
  External link
• Court:
  Supreme Court
• Judge:
  Mr Justice Peter Charleton

Background

In November 2007, the plaintiff, Mr Leo Green, had surgery on his small bowel in Tallaght Hospital. During the surgery, an accidental tear was made in Mr Green’s small bowel, which allowed faecal matter to enter the abdominal cavity. Within a few days, Mr Green was “very unwell” and had an infection. 

Mr Green’s blood indicated a raised white cell count and there were elevated CRP figures and by mid-December, his abdomen became very distended and uncomfortable. The possibility of a leak was raised and a procedure akin to an X-ray of the colon was performed which showed that the colon repair was intact. No scan, however, was undertaken of his small bowel at that time. Accordingly, there was no explanation for Mr Green’s elevated white cell count or elevated CRP.

Mr Green’s condition deteriorated, and he was admitted to South Tipperary Hospital in January 2008. In February 2008 he was transferred to Tallaght Hospital to undergo further surgery. In March 2008, he was developing a ventral hernia, and told that he could be treated in 6 months when he had got better, however there was some mix up in his appointment and, in the end, he did not have any further surgery due to the risk of further infection and the fact that repair would be difficult, involving the insertion of a mesh.

in January 2011, Mr Green contacted a solicitor to ascertain whether the treatment he was given was correct or otherwise. In March 2011, his solicitor received his hospital records and an expert report concluding that the defendants were in breach of duty was completed in May 2012.

Personal injury proceedings

In August 2012, personal injury proceedings were commenced. The defendants filed a full defence, putting particular focus on the argument that the claim was statute barred.

In the High Court in 2017, Mr Justice Kevin Cross said that the failure to carry out a CT scan or other imaging of Mr Green’s small bowel, given the level of infection, was negligent. Finding that the claim was not statute barred, Mr Justice Cross awarded Mr Green a total of €96,403 in general and special damages.

In the Court of Appeal in 2018, Mr Justice Michael Peart upheld the claim, rejecting the argument that the claim was statute barred. Mr Justice Peart was satisfied that Mr Green could not have been aware of the negligent omission to carry out a CT scan after his surgery in 2007 until his solicitor had received his hospital records in March 2011, and an expert report had been completed in May 2012.

Supreme Court

Mr Justice Peter Charleton said it was certainly the case that there was an approximately two-year gap in which nothing happened between 2009 and 2011, but that in January 2009, Mr Green “had been steered in the direction of thinking that his abdominal condition arose due to the natural progression of a pre-existing condition”. Mr Justice Charleton said that as a result of that consultation, Mr Green “turned in the wrong direction consequent on professional advice”, reasonably thinking that his illness was due to natural causes.

Mr Justice Charleton said that the limitation period was “delayed in the exceptional circumstances of this plaintiff being given, in good faith and on the basis of a professional assessment, an incorrect set of facts in consequence of taking the reasonable step of consulting expert medical advice”. He said it would not be within the Statute of Limitations (Amendment) Act 1991 to require a plaintiff to reverse a conclusion based on expert advice, and that Mr Green was not aware of the fact of negligence until much later. At the point where he obtained the medical records and consulted with an expert, it was reasonable for him to act. As such, Mr Justice Charleton said that on the facts of the case, the judgment of the Court of Appeal should be upheld.

Concurring, Mr Justice Donal O’Donnell agreed that the proceedings were not statute barred.

• by Seosamh Gráinséir for Irish Legal News