Supreme Court dismisses medical negligence claim barred by Statute of Limitations due to plaintiff's delayed knowledge.

THE SUPREME COURT

399/03 & 403/03

McGuinness J.

Hardiman J.

Fennelly J.

BETWEEN

ROSEMARY CUNNINGHAM

PLAINTIFF

and

MICHAEL NEARY, MARGARET QUINN, VERONICA TARPEY, ANN MARIE O’GORMAN, KATHERINE MARY SHEA AND BARNEY

McENEANEY

DEFENDANTS

Judgment delivered on the 20th day of July 2004 by McGuinness J.

1. I have had the advantage of reading the judgment of Fennelly J. and I agree with his reasoning and the conclusion reached by him.

I wish to add a few brief comments.

2. The factual background to the proceedings has been fully set out by Fennelly J. in his judgment. The plaintiff in her evidence in the

High Court swore that she was unaware that the removal of her ovary by the first named defendant in 1991 had been unnecessary

until she received the report of her independent medical expert, Dr. Porter, in April 2001. In the High Court Ó Caoimh J. held that the

plaintiff’s claim was not barred by the provisions of section 3 of the Statute of Limitations (Amendment) Act, 1991. In so holding the

learned High Court judge relied on the decision of this court in Gough v Neary [2003] 3 I.R. 92.

3. In Gough v Neary it was held that the plaintiff in that case did not know that the hysterectomy performed on her by the defendant

was unnecessary until late 1998. It was only when she discovered that the operation was unnecessary that time started to run for

the purposes of the Statute. The relevant knowledge in that case included knowledge that the operation was unnecessary and that

that knowledge did not exist more than three years before the commencement of the action. In his judgment Geoghegan J. stated (at

page 65):-

“The plaintiff did not know that contrary to the false information given to her the hysterectomy was unnecessary until late

1998 or, indeed, some time after that when as a consequence of media coverage in relation to Dr. Neary and hysterectomies

which he had carried out on a number of patients in connection with birth deliveries, she acquired the knowledge that the

operation was unnecessary. That being so and in the absence of authorities, I would be of opinion that the plea of statute bar

must fail.”

4. In the present appeal senior counsel for the plaintiff relied heavily on the above passage in Gough v Neary.

5. In his judgment, in that case, however, Geoghegan J. went on to say (at page 68):-

“While it may not be necessary for the purposes of starting the statute to run to know enough detail to draft a statement of

claim, a plaintiff in my opinion must know enough facts as would be capable of at least upon further elaboration of establishing

a cause of action even if the plaintiff has no idea that those facts of which he has knowledge do in fact constitute a cause of

action as that particular knowledge is irrelevant under the Act.”

6. It is in this context that one must, in my view, consider and compare the facts of the two cases. It is accepted that in or about

December 1998 there were widespread reports in the media in regard to unnecessary gynaecological operations which had been

carried out by Dr. Neary. At the time of their respective operations both the plaintiff in Gough v Neary and the plaintiff in the present

case had been assured on medical authority that the operations were necessary and they seem to have accepted that this was so.

In Gough v Neary in seems clear that the plaintiff’s “knowledge” that her operation was unnecessary derived solely from the December

1998 reports in the media. This was the fact that was “capable at least upon further elaboration of establishing a cause of action”.

There is no indication that she had an expert medical report available to her before she initiated proceedings against the defendant.

Knowledge based on media reports rather than full medical knowledge was the “knowledge that her hysterectomy was unnecessary”

which was held by this court to mark the point at which the Statute started to run.

7. In the present case also the plaintiff became aware of the media reports in or about December 1998. Even prior to that date,

however, she had reason at least to question the necessity for the removal of her ovary. She had at an early stage queried the need

for the operation and received no very satisfactory answer. In October 1998, when she underwent a hysterectomy in the Coombe

Hospital, Dublin, her then gynaecologist raised critical queries about the scarring which had resulted from her previous operation

carried out by the defendant and, as pointed out by Fennelly J. in his judgment, she was encouraged by a nurse to complain to the

Medical Council about her general treatment by the defendant. It is significant that she wrote her letter of complaint to the Medical

Council not in October1998, when she had her conversation with the nurse, but in December 1998 at the time of the media reports of

which she was aware. In her letter she refers to the experiences of “many other women” and she also refers in her affidavit to her

knowledge of these media reports.

8. Under cross examination in the High Court the plaintiff said that the reason she had not initiated proceedings in December 1998

was that she “had nothing to go on”. While it is, of course, true that she had no definitive medical report indicating that the removal

of her ovary was not necessary she had if anything rather more information available to her in December 1998 than had Mrs Gough.

She had, in the words of Geoghegan J., “enough facts as would be capable at least upon further elaboration of establishing a cause

of action”. Nevertheless she did not consult her solicitor until May 2000.

9. It was argued on behalf of the plaintiff that she as an ordinary lay person did not have the required medical knowledge to take

immediate action in December 1998. It is perhaps understandable in the circumstances that she may have been hesitant about taking

the step of consulting her solicitor. However, once she had done so she not only had the information already available to her but also

had the benefit of legal advice. It must be presumed that this legal advice included knowledge of the operation of the Statute. In May

2000 proceedings initiated by the plaintiff would have been within the statutory limit.

10. It was submitted on behalf of the plaintiff in this court that it would be unwise for a solicitor to embark upon a medical negligence

action without convincing or at least persuasive, independent medical evidence to establish the claim. Such a practice, it was argued,

would have unnecessary and harmful effects on the medical profession. In general terms this is true but, as was pointed out by senior

counsel for the defendant, in a case where there is a danger of the Statute running against the plaintiff it is perfectly possible and

legitimate to issue a plenary summons and to delay serving it on the proposed defendant while investigating the available medical

evidence.

11. Even apart from this argument, the plaintiff’s medical expert, Dr. Porter, presented his report to her solicitor in April 2001. If one

accepts, as I do, that the plaintiff did not acquire the requisite knowledge that the removal of her ovary was unnecessary until

December 1998 her claim would not be statute barred until December 2001. Had her proceedings been initiated promptly after the

receipt of Dr. Porter’s report the present problem would not have arisen. In these circumstances it is difficult to understand why the

plaintiff’s plenary summons was not issued until 22nd March 2002.

12. From the point of view of the plaintiff it is very unfortunate that the issue of her proceedings was so long delayed. One cannot

but have sympathy for her position. In the light of the statutory provisions and of the decision of this court in Gough v Neary,

however, there appears to me to be no doubt but that her claim is barred by the provisions of section 3 of the Statute of Limitations

(Amendment) Act 1991. The plaintiff’s claim should, therefore, be dismissed.