High Court of Ireland Decisions

1. The plaintiff has brought an action against the defendant which commenced by Plenary Summons dated 14th March, 1995 in which she claims damages for personal injuries sustained by her in consequence of the alleged negligence, breach of duty and breach of statutory duty of the defendant, its servants or agents. An Appearance was duly entered on behalf of the defendant and a Statement of Claim was delivered by the plaintiff's solicitors on 1st June, 1995. It is pleaded that the plaintiff's mother was a patient at the defendant's hospital and there gave birth to the plaintiff on 7th May, 1976 by way of breach delivery. It is alleged that the baby was born with a congenital dislocation of both hips which was not diagnosed by the defendant's medical staff who attended her. It is contended that the condition in question ought to have been diagnosed during the period when the plaintiff was under the care of the defendants medical and nursing staff and that if it had been ascertained at that time and she had received appropriate treatment, she would have avoided subsequent pain, suffering and aggravation of her condition which has resulted in substantial permanent disablement and also continuing loss, damage and expense. A defence denying liability has been delivered on behalf of the defendant which also contains the follow plea:-

2. Pursuant to the foregoing plea, a motion on notice has been brought on behalf of the defendant in which, inter alia, an order is sought striking out the plaintiff's proceedings by reason of the alleged inordinate and inexcusable delay in instituting and prosecuting the action.

3. The facts relevant to the application are not in significant dispute and are as follows:-

4. The plaintiff was her mother's first child and was born at the defendant hospital on 7th May, 1976. She was an assisted vaginal breach delivery at 37 weeks, 2 days, having been found to be in the breach position during labour. Mrs. Reidy was then 23 years of age. Due to the passage of time some of the hospital records relating to the plaintiff may not be available. In particular, x-ray films taken soon after birth have been destroyed and there is no record (if one every existed) of what transpired at a follow-up examination of the plaintiff at the hospital in June, 1976 about 6 or 8 weeks after birth. Dr. Niall O'Brien, consultant paediatrician to the hospital, was the expert in that sphere who had charge of the plaintiff while she was in the defendant's care. Dr. Noel Lowry was a member of the hospital staff at that time and participated in the care of the plaintiff. He ceased working for the defendant on 30th June, 1977 and he is now in practice in Canada. However, the Medical Council of Canada are not prepared to disclose his address there and, so far, the hospital has been unable to contact him. It seems likely that a competent private investigator could trace him.

5. Certain hospital records relating to the plaintiff are available. They include an unsigned note following the admission of the baby to the nursery from the delivery suite to the following effect:-

6. A further undated note, having specified an incorrect date of birth, states that the left knee was noted to be held in flexion - not able to extend. There follows a phrase which is not easy to interpret but appears to be "L. [left] hip difficult to abduct". The note continues:-

7. An x-ray report dated 13th May, 1976 reads as follows:-

8. In a letter to the family doctor dated 15th June, 1976, Dr. Lowry comments:-

9. Dr. O'Brien has deposed that due to the lapse of time he now has no memory of the plaintiff. As previously stated, Dr. Lowry has not been traced, nor has it been possible to identify other hospital staff who dealt with the plaintiff before her final discharge in June 1976.

10. In February, 1978, soon after the plaintiff began to walk, it became evident that she had difficulty is so doing. This was the first time that her parents realised that she might have a problem with her left hip in particular. They took the matter up with their G.P. who in turn referred her to Naas General Hospital. After x-ray examination there she was transferred to Our Lady's Hospital for Sick Children, Crumlin, where she came under the care of Mr. Brian Regan, orthopaedic surgeon. He wrote to Dr. O'Brien on 21st February, 1978 in the following terms:-

11. Dr. O'Brien has a particular interest in hip abnormalities affecting babies. It is not in dispute that he received Mr. Regan's letter. At that time all hospital records relating to the plaintiff, including x-ray films, would have been available to Dr. O'Brien. Although he has no particular recollection so long after the event, having regard to his interest in such problems, it seems likely that in the light of Mr. Regan's information he would have looked at the plaintiff's records and may have discussed the matter with other members of the hospital staff. He makes no comment in that regard in his affidavit.

12. Mrs. Reidy in her affidavit deposed that her daughter was discharged from the hospital on 24th May, 1976. When she and her husband collected the child they were shown exercises which they were to carry out involving moving their daughter's legs in a bicycle type motion in addition to administering hot baths. They were informed that the purpose of the treatment was to get the child's legs back down as they were up towards her chest. On discharge an appointment was made for the baby to be examined again at the hospital about 6 weeks later. Mrs. Reidy deposed that on that occasion she was driven to the hospital with the baby by her father-in-law. On arrival the child was taken for examination by an unidentified member of the staff who also weighed her. After examination, which was not carried out in the mother's presence, the latter was informed that the baby was gaining weight too quickly and she was advised that the child's diet should be reduced. Otherwise the baby was stated to be fine and the mother was not advised of any other problem, nor was she asked to bring the baby back again for any further check-up or to refer her to any other medical expert or institution.

13. Nothing else of relevance occurred, as already stated until in or about January, 1978, when the plaintiff began to walk and it was noted that she had difficulty in so doing and in particular dragged her toes along the floor. Shortly afterwards this led to her admission to Our Lady's Hospital, Crumlin under Mr. Regan and she was diagnosed as having congenital dislocation of the hips. She was put on gallows traction and over the following 10 years numerous surgical operations were carried out in an attempt to remedy the situation but with only limited success. Mrs. Reidy has deposed that until 1989 she and her husband at all times believed that having regard to the treatment she was receiving, their daughter would make a good recovery in time and would become able to enjoy a full and normal lifestyle. She has sworn that at all times they were reassured at Crumlin that the plaintiff's treatment would be successful. It was not until in our about 1989 that they realised the reality of the plaintiff's position and the fact that she would not make a complete recovery and would always have difficulties associated with the original congenital dislocation of her hips. It was at or about that time that Mrs. Reidy sought information in relation to the original cause of her daughter's continuing physical difficulty and ultimately she approached her solicitors for advice. They wrote to the defendant on 21st September, 1990 in the following terms:-

14. This was the first time that a claim in negligence on the plaintiff's behalf was made against the hospital or its staff. Twelve months elapsed before the hospital furnished all of the records and related information sought by the plaintiff's solicitors. It appears that they in turn then set about obtaining orthopaedic advice on behalf of their client. In this regard all of the experts in Ireland whom they approached either refused to provide their services or failed to respond to the solicitors' request. In the end it was necessary to obtain the benefit of advice from a consultant paediatrician in England, Dr. Peter Daish of the Department of Paediatrics, Northampton General Hospital. He has sworn an affidavit in which he deposes that he has reviewed copies of hospital records and other correspondence relating to the plaintiff to which I have already referred and also a medical report from her general medical practitioner and a statement from the plaintiff's mother.

15. Having quoted from the hospital documentation and Mr. Regan's letter of 21st February, 1978 to Dr. O'Brien, the deponent continues as follows:-

16. This is an interesting observation and suggests that neonatal screening for the condition is totally unnecessary. However, it is likely that the factors which predisposed to late hip abnormalities in babies presenting via the vertex are different from those associated with hip abnormalities in babies presenting by the breach. There is good evidence that neonatal screening is of value for the latter group. I refer again to the study of 96,891 infants screed in Malmö between 1956 and 1987 where no child born in the breach position presented with a late dislocation.

17. The copies of the clinical notes clearly state that there was a problem with abduction of the left hip.

18. Dr. O'Brien in his affidavit has made several points in his own defence and that of the hospital which have been commented on by Dr. Daish. However, no affidavit has been sworn on behalf of the defendant contesting the case which the latter has made in his deposition.

19. A review of the judgments of the Supreme Court in O'Domhnaill v. Merrick [1984] I.R. 151 and Primor Plc. v. Stokes Kennedy Crowley and Oliver Freaney and Co. delivered on 19th December, 1995 (unreported) establish the following propositions regarding delay in the initiation and prosecution of actions which are relevant to the circumstances of the plaintiff's case herein:-

20. In essence the defendant's case in support of its motion to dismiss the plaintiff's claim is four fold. First, that there has been inordinate and inexcusable delay on the plaintiff's part in bringing and prosecuting her claim against the hospital. Secondly, that there are no countervailing circumstances which might justify the delay. Thirdly, that the defendant has been fundamentally prejudiced in the preparation and conduct of its defence by reason of the delay complained of. In this regard particular reliance is placed upon the fact that, due to lapse of time, Dr. O'Brien has no memory of the plaintiff while under his care; that Dr. Lowry has not been traced and that some hospital records, including x-ray films, are or may be missing. Fourthly, that in the premises it would be unjust to require the defendant to defend the plaintiff's claim so long after the happening of the alleged negligence.

21. Reviewing the facts and the arguments advanced by each party in the light of the foregoing principles of law I have come to the following conclusions:-

22. I am not satisfied that the defendant has established that there has been inordinate and inexcusable delay on the part of the plaintiff in initiating and prosecuting her claim against the hospital. Mrs. Reidy has deposed that it was not until 1989 that she and her husband realised that their daughter would not make a full recovery from her hip dislocations notwithstanding assurances to the contrary that they had received over the years from staff at the Children's Hospital, Crumlin. Mr. Frank McManus, an emminent orthopaedic surgeon, has sworn an affidavit on behalf of the defendant in which he expresses grave doubt about Mrs. Reidy's contention about her state of knowledge of her child's progress and, in particular, that the surgeons who were looking after the plaintiff at Crumlin hospital did not indicate to her parents the potential gravity of their daughter's condition. Be that as it may and, of course, I do not doubt the bona fides of the views expressed by Mr. McManus, senior surgeons are not always informative and may have little, if any, personal contact with the parents of non-fee paying patients. Mrs. Reidy's informants may have been junior medical or surgical personnel or nursing staff and they may have expressed more optimistic views than the realities warranted. There is certainly insufficient information to establish that the plaintiff's parents were informed or ought to have been aware earlier than 1989 that their daughter had suffered permanent disablement and would not make a full recovery in time, and that situation could have been avoided if the defendant's staff had caused the plaintiff's hip problems to be properly investigated in the first few weeks of her life.

23. If the action had come to trial as early as 1990 i.e. within a year from the time when Mrs. Reidy deposes that she first became aware of the reality about her daughter's condition, it appears that the difficulties now relied upon by the defendant as amounting to unreasonable prejudice in the conduct of its defence would have been present then also. The passage of time since 1990 does not appear to have aggravated the problems resulting from delay which have been alleged by the defendant.

24. Having discovered that the plaintiff would never make a full recovery from her hip dislocations, it then became necessary for the parents to ascertain whether such problems could and should have been avoided by more positive treatment by the hospital experts before the child was discharged from their care about 8 weeks after birth. It is irresponsible and an abuse of the process of the court to launch a professional negligence action against institutions such as hospitals and professional personnel without first ascertaining that there are reasonable grounds for so doing. Initiation and prosecution of an action in negligence on behalf of the plaintiff against the hospital necessarily required appropriate expert advice to support it. It appears that experts in Ireland were not prepared to advise the plaintiff and eventually it was necessary to obtain the services of an English paediatrician. All in all, it seems to me that there is not a convincing case to be made that there was inordinate and inexcusable delay in bringing and prosecuting the plaintiff's claim against the defendant, prior to the year 1992 at earliest. Furthermore even if the plaintiff's claim should have been made against the defendant and prosecuted to trial long before 1989, which I do not accept, it seems to me that there are countervailing circumstances which justify a disregard of the delay. Such circumstances are that there is still in existence sufficient hospital records to establish the facts essential to a determination of the negligence issue between the parties i.e. the hospital notes made soon after the birth of the plaintiff and in the days following to which I have referred and the accuracy of which is not in dispute, together with Dr. Lowry's letter of 15th June, 1976 to the Reidy family doctor, establishes, inter alia, that there was a problem with the baby's left hip. She was a female breached delivery; her mother's first born and was found to have some difficulty with the left hip. She was, therefore, one of a category of baby which is more vulnerable than others to congenital dislocation of the hip - in particular on the left side. In those circumstances should she have been referred by the hospital to an orthopaedic surgeon for assessment? That is the root of the issues on liability between the parties. The hospital notes indicate that there was divided opinion on the cause of the plaintiff's hip problem. Dr. Lowry's letter to the G.P. implies that Dr. O'Brien decided that orthopaedic assessment was not necessary and it is not in dispute that no such assessment took place. In the light of expert knowledge prevailing at the time of the plaintiff's birth, did the hospital act reasonably in not referring her to an orthopaedic surgeon in all the circumstances? It is known that x-rays taken at the hospital were negative. In the light of the specific findings in the hospital record, it seems to me that the issue on liability between the parties is clearcut. It seems to me that the defence of the hospital is not dependant on an actual recollection of the plaintiff by Dr. O'Brien and/or Dr. Lowry or other hospital staff. The simple fact is that there was an early recorded problem as to the plaintiff's left hip and for the reasons already indicated she was vulnerable to congenital dislocation of the left hip in particular. In the light of these factors should the plaintiff have been referred to an orthopaedic surgeon for assessment? Dr. O'Brien argues that it was unnecessary to do so and Dr. Daish takes the opposite view. It seems to me that the question of delay has little, if any, bearing on the defence which the hospital makes to the plaintiff's claim. I have no doubt that in all the circumstances it would be unfair and unreasonable to prevent the plaintiff from prosecuting her action against the defendant. The balance of justice requires that she should be permitted to do so, notwithstanding the lapse of time since the happening of the events complained of. Accordingly, the defendant's application is refused.