Supreme Court allows medical negligence claim by finding plaintiff lacked sufficient knowledge of negligence until 2012.

AN CHÚIRT UACHTARACH

THE SUPREME COURT

[S:AP:IE:2018:000116]

O’Donnell J.

McKechnie J.

MacMenamin. J.

Dunne J.

Charleton J.

Between/

Leo Green

Plaintiff/Respondent

AND

Eilish Hardiman

Defendant/Appellant

Judgment of O’Donnell J. delivered the 2nd day of July, 2019.

1 I agree with Charleton J. that this appeal should be dismissed. However, since I took a different view from the majority of the court

in the companion case of O’Sullivan v. Ireland [2019] IESC 33, (Unreported, Supreme Court, 23 May 2019), and in deference to the

forceful and cogent submissions of counsel for the defendant, it is perhaps necessary to explain briefly why, unlike the view I took in

O’Sullivan, I consider that the proceedings in this case are not statute barred.

2 I agree that the decisions in all these cases are fact specific, and it is probably true that both the O’Sullivan case and this case lie

close to what is a difficult dividing line. The critical feature in this case is, I consider, that the plaintiff was given to believe, both by

his treating surgeon and by the consultant surgeon to whom he was referred by his GP, that the condition from which he suffered was

an unfortunate but not uncommon consequence of the surgery which it was necessary to perform.

3 The difficulty in this case was put by counsel for the defendant in this way. What did the plaintiff know in January 2011 when he

consulted his solicitor which he did not know three years earlier when, in the aftermath of the laparotomy, he became seriously ill and

had to be returned to hospital, was kept in intensive care for two further procedures, and was left with a hernia, resulting in a

significant impact on his health and lifestyle? It is suggested that he must be deemed to have sufficient knowledge from facts

ascertained by him as of that point, or, alternatively, that it would have been reasonable for him at that point to have obtained the

expert advice which he ultimately did through his solicitor in 2011. Accordingly, he must be deemed to have obtained sufficient

knowledge for the purposes of s. 2(1)(c) of the Statute of Limitations (Amendment) Act 1991 (“the 1991 Act”), namely that the

injury was attributable in whole or in part to an act or omission alleged to constitute negligence. However, the proceedings here were

commenced three years later than that, and, accordingly, on this view, the proceedings were still statute barred.

4 It is noteworthy, however, that this approach does not attribute any weight to the information the plaintiff received from his

treating surgeon as a result of the consultation in March 2008, or the new surgeon to whom he had been referred to by his GP as of

January 2009. The interpretation and application of s. 2 of the 1991 Act is undoubtedly difficult, and this case raises particular

complications. It is, however, important to approach the section logically, and to read it as a whole. Subsections 2 and 3, dealing

with deemed knowledge, are important in that they identify the key test to be applied under the 1991 Act: that is, to consider what

the plaintiff knew or must be deemed to have known at any given point. However, in addition to these difficulties, there is a further

complication: what it is the plaintiff must know or be deemed to know? In this case, as in O’Sullivan v. Ireland [2019] IESC 33,

(Unreported, Supreme Court, 23 May 2019), the knowledge involved is the vexed question of sufficient knowledge for the purposes of

s. 2(1)(a) (that the plaintiff has been injured), and knowledge for the purpose of s.2(1)(c) (that the injury is attributable in whole or

in part to the act or omission which is alleged to constitute negligence, nuisance, or breach of duty, albeit that it is not necessary to

know that the act in question constituted negligence, nuisance or breach of duty as a matter of law).

5 These sections pose particular difficulties in claims alleging medical negligence. That is because persons who receive medical, and,

in particular, surgical intervention normally suffer from a condition and receive treatment which would both be considered personal

injuries if inflicted in other circumstances. It is now too late to revisit the question of whether any surgery carried out with the

consent of the patient can be considered to be an injury for the purposes of s. 2(1)(a), but the question of attributability of the

injury to an act or omission that is alleged to constitute negligence for the purpose of s. 2(1)(c) remained contentious, at least until

the decision of the majority of this court in O’Sullivan v. Ireland [2019] IESC 33, (Unreported, Supreme Court, 23 May 2019). For the

reasons I set out in the judgment I delivered in that case, I considered that the requisite knowledge could not be required to be at

the granular level of establishing the particular of negligence upon which it was alleged the plaintiff’s case should succeed.

6 I consider that this case lies just on the other side of the dividing line. There is a spectrum in cases of medical negligence which

can perhaps be illustrated by two somewhat exaggerated examples lying at either extreme. One is the situation where a procedure,

say an amputation of a limb, is carried out competently, but the advice to have that procedure is later alleged to have been wrong

and negligently given. At the other extreme, to take the same example, is a case where the amputation of a limb is intended, but the

wrong one is removed. In the first case, on the approach I take to the section, I do not consider time can be said to run until the

plaintiff has some reason to believe that the advice was wrong or questionable. In the second case, however, time would run

immediately, and it would not be necessary to seek any expert advice before it could be said the plaintiff acquired the requisite

knowledge for the purposes of s. 2(1)(c). This case and O’Sullivan v. Ireland [2019] IESC 33, (Unreported, Supreme Court, 23 May

2019) are of course more nuanced. However, I consider that in O’Sullivan, the plaintiff had sufficient knowledge once he was aware

that he had contracted MRSA. That was not an intended consequence of the surgery in question. It was extraneous to it, and gave

rise to quite separate physical sequelae. While MRSA can be contracted without negligence, the plaintiff in that case, on the view I

took of the issues, had sufficient knowledge for the purposes of s. 2(1)(c).

7 In the present case, however, there is an operation and a laparotomy which goes wrong, in the sense that the outcome is not that

intended by the medical team, or sought by the patient. In those circumstances, it would be reasonable to seek medical advice, not

necessarily with a view to identifying or attributing negligence, but rather to understanding what had occurred and what might be

done. It is possible that such advice would have a consequence of also informing the plaintiff sufficiently, so that it could be said that

the plaintiff had knowledge that his condition was attributable to an act of the defendant which could be alleged to constitute

negligence. If the advice he had been given at that point about his condition had the consequence that questions were raised about

the original surgery, even if stopping well short of suggesting negligence, that point would, I think, fix the plaintiff with sufficient

knowledge for the purposes of s. 2(1)(c).

8 The knowledge the plaintiff has or can be deemed to have at any point cannot be approached in the abstract. Not only did the

plaintiff not receive any such knowledge or information in January 2009 which would lead him to question the competence of his

original treatment, he was, if anything, pointed in the opposite direction. The outcome of his meeting with his treating surgeon, and

the later consultation with the new consultant surgeon, both suggested, if anything, that his condition was an unfortunate but

relatively common outcome. It would be unrealistic to expect the plaintiff to immediately question this further advice, and it is

reasonable that it would be some time before he would return to the question, as he did when he approached his solicitor. It was

therefore reasonable to seek the advice he did, and reasonable to accept it. If he did not have sufficient knowledge for the purposes

of s. 2(1)(c) in the immediate aftermath of the surgery, illness and treatment, he did not acquire it either after his meeting with his

treating surgeon in March 2008, or as a result of the consultation with the new consultant surgeon in January 2009.

9 Accordingly, in my view, the plaintiff only acquired sufficient knowledge for the purpose of s. 2(1)(c) of the 1991 Act when he

received the expert report in May 2012. While he could have been reasonably expected to acquire that information with the help of

medical or appropriate expert advice which it was reasonable for him to seek before that date, he cannot be fixed with such

knowledge in circumstances where he obtained appropriate advice at the time he did and acted upon it. Accordingly, if knowledge for

the purposes of s. 2(1)(c) was only acquired in May 2012, the proceedings were not statute barred, and I would dismiss the appeal.