Cunningham v. Neary & Ors [2004] IESC 43 (20 July 2004)

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
[Judgments delivered by McGuinness J. & Fennelly J., Hardiman J. concurred with both.]

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

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.
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.
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.”

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

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.
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.
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.
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.  
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.
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.
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.

THE SUPREME COURT
399/03 & 403/03
McGuiness 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 FENNELLY J.
This is an appeal from a judgment and order of O’Caoimh J, in which he determined, as a preliminary point of law, that the claim of the plaintiff/respondent for damages for the negligent removal by the first-named defendant/appellant (hereinafter “the defendant”) of an ovary was not barred by the provisions of section 3 of the Statute of Limitations (Amendment) Act, 1991 (hereinafter “the 1991 Act”).  The case involves some consideration of the decision of this Court in Gough v Neary [2003] 3 I.R. 92, involving the same defendant.  In that case, the claim was held not to be statute-barred, but the appellant argues that the facts are quite different in the present case.

The facts
The plaintiff, who is a Dental Nurse, commenced her action by Plenary Summons on 22nd March 2002, alleging professional negligence in the year 1991 against the defendant who was, at the material time, a consultant obstetrician and gynaecologist in the employment of the second, third, fourth and fifth-named defendants/appellants. Those defendants operate Our Lady of Lourdes Hospital, Drogheda, County Louth.
The plaintiff already had two children, when, in July and August 1991 she was attended by the defendant at the Our Lady of Lourdes Hospital.  In her Statement of Claim, she makes a number of criticisms of the defendant, including allegations of extremely rude behaviour. This last aspect for a time preoccupied her to an even greater extent than the acts of medical malpractice which she attributes to the defendant.  However, since this appeal is concerned only with the question of the applicability of the Statute of Limitations to her claim, it will suffice to identify the only real complaint now being made, namely the unnecessary removal of an ovary. 
The plaintiff had a ruptured ectopic pregnancy, when she was admitted to the hospital on 14th August 1991.  She was in great pain.  She was operated on for this condition on 15th August. On recovery from anaesthetic, the plaintiff says that the defendant told her that he had removed a fallopian tube, which she accepts was necessary to deal with the ectopic pregnancy.  However, he also told her that he had removed one of her ovaries.  Her central complaint against the defendant at present is that it was completely unnecessary and therefore negligent to remove the ovary.
In an affidavit sworn for the purpose of the preliminary issue, the plaintiff says that, some days later, she asked the defendant why he had removed the ovary and that he answered: “I did not like your bloody ovary anyway.” She says that, when she attended for a six-weeks check up, the defendant was again extremely rude, telling her, in effect, that: “By Church law, I should not have laid a finger on you and you should be six feet under. I saved your life and you should be grateful.”
She subsequently discussed the entire matter with her GP, who informed her that, in the circumstances, she was lucky to be alive and that, on the basis of what he had learned from the defendant, it had been necessary to remove the ovary.  She says that, at no stage did she realise that the removal of the ovary had been unnecessary.  She trusted her GP and accepted what he told her.
Thus, the plaintiff took no action against the defendant during the normal three-year period from the date of the injury of which she complains.
In October 1998, the plaintiff was admitted to the Coombe hospital in Dublin, where she had a hysterectomy.  While there, she told a nurse about her experience with the defendant.  The nurse encouraged the plaintiff to complain about the defendant to the Medical Council.  This she did in December 1998. Before examining this letter in greater detail, I should mention that the plaintiff says in her affidavit that she “subsequently” became aware of rumours about the defendant’s practice and of “how some expecting mothers had experiences with him that were far worse than mine and that some of them were contemplating suing him.”  She says that this caused her “to address the question of whether indeed it had been necessary to remove my ovary and I decided to seek legal and medical advice.”
In fact, the plaintiff did not go to a solicitor until May 2000, some eighteen months later. However, it seems probable that, when using the word, “subsequently” in relation to learning of rumours of the defendant’s practice, that she was referring to the period following her hysterectomy operation at the Coombe hospital, that is towards the end of 1998. The word, “subsequently,” appears at the point in her affidavit after her reference to the nurse in the Coombe hospital.  In cross-examination in the High Court, she said that she became aware of rumours when she heard it “on the local station.”  
The plaintiff’s letter of 19th December 1998 to the Medical Council ran to some three and a half pages and retailed all her complaints against the defendant.  She mentioned the two occasions in 1991, the first when in hospital and the second six weeks later when she had asked the defendant why he had removed her ovary.
Although the plaintiff consulted a solicitor on May 2000, proceedings were not commenced until 22nd March 2002.  In April 2001, Dr Richard Porter, an independent expert obstetrician, provided a report in which he advised that the removal of the plaintiff’s ovary had been unnecessary and represented incompetent medical practice.  The plaintiff swore in the High Court that she then learned that fact for the first time.

The Statute of Limitations (Amendment) Act, 1991.
As a result of the amendment, by the 1991 Act, of the Statute of Limitations, 1957, time now begins to run in cases of actions for damages for personal injury from “the date on which the cause of action accrued or the date of knowledge (if later) of the person injured.”  In the present case, the plaintiff’s claim is defeated by the statute unless she can show that she first had “knowledge” of her injury within the period of three years before 22nd March 2002.  This has to be considered in the light of section 2 of the Act, which provides:

“2.—(1) For the purposes of any provision of this Act whereby the time within which an action in respect of an injury may be brought depends on a person's date of knowledge (whether he is the person injured or a personal representative or dependant of the person injured) references to that person's date of knowledge are references to the date on which he first had knowledge of the following facts:
( a ) that the person alleged to have been injured had been injured,
( b ) that the injury in question was significant,
( c ) that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty,
( d ) the identity of the defendant, and
( e ) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant; and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.
(2) For the purposes of this section, a person's knowledge includes knowledge which he might reasonably have been expected to acquire—
( a ) from facts observable or ascertainable by him, or
( b ) from facts ascertainable by him with the help of medical or other 			appropriate expert advice which it is reasonable for him to seek.
(3) 	Notwithstanding subsection (2) of this section—
( a ) a person shall not be fixed under this section with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice; and
( b ) a person injured shall not be fixed under this section with knowledge of a fact relevant to the injury which he has failed to acquire as a result of that injury.”

O’Caoimh J held that the plaintiff’s claim was not statute-barred. Based on Gough v Neary, he held that the relevant knowledge for the purposes of section 2(1) was “that the operation had been unnecessarily performed.”  He held that she had neither actual nor constructive knowledge of this fact in 1998 or at any time prior to the receipt of the report of Dr Porter in April 2001.
Three aspects of this section were discussed in the course of the written and oral submissions of the parties.
Firstly, Mr Charles Meenan, Senior Counsel for the defendant said that the plaintiff had knowledge of the fact identified in section 2(1)(c) at least as early as December 1998, when she wrote to the Medical Council.  He accepted that the Court, as constituted for this appeal, could not overrule Gough v Neary, but contended that the plaintiff actually knew that the operation was unnecessary in the sense that she was dissatisfied with the lack of explanation from the defendant and he argued that her lack of knowledge that the operation was necessary was equivalent to knowledge that it was unnecessary.  The facts of this case are different from Gough v Neary.  Dr Forde, Senior Counsel, for the plaintiff relied on Gough v Neary and said that this was reinforced by the reference in section 2(1)(b) to knowledge that the injury is significant.
Secondly, Mr Meenan relied, as an alternative on sub-section 2.  The plaintiff ought reasonably to have knowledge of matters which were ascertainable with the help of medical or other expert advice which it would have been reasonable for her to obtain.  Dr Forde submitted that sub-section 3 had the effect of excluding subsection 2 in this case.  The plaintiff had obtained the advice of her GP back in 1991.  It was reasonable to rely on that.  Mr Meenan, however, argued that, even if that were so at the time when she consulted her GP, that state of affairs did not survive the events of late 1998, when her letter to the Medical Council showed her consciousness that she had no explanation of the reason for the operation.
Thirdly, Mr Meenan contended, contrary to the submission of Dr Forde on the point, that the plaintiff could not in any event rely on sub-section 3 to give her the right to rely totally on the advice of her GP, when she was conscious herself of the fact that she had no explanation from the defendant.

Discussion and Conclusion
I will begin with a brief discussion of Gough v Neary.  The first thing to say is that there is an important difference between the facts of the two cases.  To the extent that the plaintiff in that case complained that the defendant had unnecessarily performed a hysterectomy on her in 1992, the essential facts are quite similar to start with.  Both plaintiffs complained of an unnecessarily performed operation, one in 1991, the other in 1992.  However, the plaintiff in Gough v Neary, commenced her action in December 1998, when, according to Geoghegan J at page 122 of the report, “as a consequence of media coverage in relation to the defendant and a number of hysterectomies which he had carried out in connection with birth deliveries, she acquired the knowledge that the operation was unnecessary.”  Clearly, that plaintiff, unlike the plaintiff in the present case, issued proceedings immediately after the media coverage in 1998.  Therefore, the remark of Geoghegan J that the plaintiff had actual knowledge that her own operation was unnecessary based on media reports has to be seen in context.  Once the proceedings were issued in that case, there was no further issue as to whether the plaintiff had constructive knowledge.  Personally, I doubt whether knowledge of media reports that other women had had unnecessary operations should be equated with actual knowledge that her own operation had also been unnecessary. Media reports of complaints that the defendant had performed unnecessary operations on other women may certainly have put the plaintiff on inquiry, but it can scarcely be said that, from such reports alone, she knew rather than suspected that her own operation had been unnecessary.
The important point of principle decided in Gough v Neary was that knowledge “that that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence…” for the purpose of section 2 (1)(c) includes knowledge that the operation was unnecessary.  Consequently, time did not commence to run until she had knowledge of the latter fact. Geoghegan J drew a distinction between that knowledge and knowledge that the act in question was, as a matter of law, a negligent act, which is, of course, rendered irrelevant by the proviso to sub-section 1.  On that particular matter, Hardiman J dissented and the matter may be open to debate in a future case.  However, it seems clear to me that the Court may not, in this case, reopen that issue and, as I have said, it has not been invited to do so.  In fact, however, this case can be decided by reference to sub-section 2.  While both Geoghegan J and McCracken J refer, in their judgments, to “constructive” knowledge, that expression does not appear in the section. Nonetheless, it is clear that they are referring to the provisions of sub-section 2.
I am prepared to accept that the plaintiff was entitled reasonably to rely on the advice of her GP, given some time after the operation, probably in late 1991, that the removal of her ovary had been unnecessary.  The question is whether she took “all reasonable steps” to obtain advice and to act upon it.  The GP is the natural first port of call for a patient.  He is the expert, so far as the lay person is concerned, in choosing consultants and explaining the results of their work. On that basis, the plaintiff did not have knowledge of the fact that the operation was unnecessary in 1991 and the statute did not commence to run.
However, the position changed significantly in late 1998.  While the plaintiff had understandably been greatly upset by the rude behaviour, as she saw it, of the defendant, she clearly carried with her unhappy memories of her medical treatment at the hands of the defendant.  I do not, by phrasing my reference to rude behaviour in a conditional way, mean to cast any doubt on the veracity of the plaintiff’s account.  This is not a matter, however, that can be decided on this appeal. Counsel for the defendant has informed the Court that the defendant disputes the plaintiff’s version. Returning to the point of the case, it seems clear that the plaintiff had a conversation with a nurse in the Coombe hospital which revived her own unhappiness at the way she had been treated both medically and personally by the defendant.  The nurse encouraged her to complain about the defendant to the Medical Council, a very serious step.  The letter of 19th December 1998 makes a number of grave allegations against the defendant.  Among them is an account of two separate complaints about the absence of an explanation for the removal of an ovary. In addition, the plaintiff learned from media reports that a number of women had made serious complaints about the defendant.  This is confirmed by the statement in her letter that, if she had complained earlier, “she might have saved many other women from going through the same kind of treatment.”  It was suggested at the hearing that this sentence did not necessarily mean any more than that she had been badly treated herself.  However, given the other evidence of the plaintiff’s knowledge, from media reports that “some expecting mothers had experiences with him that were far worse than mine,” I think it highly likely that the plaintiff was referring in her letter to these cases. 
Thus, at the stage when the plaintiff wrote to the Medical Council, she had knowledge of the fact that the defendant had removed her ovary in 1991, that she had twice asked him why he had done so, that she had received no explanation at all and that other women had made serious complaints about the defendant.  This knowledge was such that it was then “reasonable” for her to seek medical or other expert advice.  When she went to her solicitor in May 2000, it took a further eleven months to obtain the report of Dr Porter. This can, no doubt, be explained by the time needed to obtain the plaintiff’s medical records from the hospital.  It shows, however, that, if the plaintiff had gone to a solicitor in December 1998, she would have obtained the sort of advice which would have made out a case in negligence against the defendant.  Therefore, the key fact that the removal of the ovary had been unnecessary was “ascertainable” and, for the purposes of the section, the plaintiff is deemed to have had knowledge of it as of that date. I would add that I also fully agree with the analysis of the subsequent events in the judgment of McGuinness J.
Consequently, the three-year period commenced to run against the plaintiff’s claim not later than 19th December 1998 and her claim is out of time.  For these reasons, I would allow the appeal and determine the preliminary point to the effect that the 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.