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Glynn v. Hospital for the Relief of Poor Lying-In Women, Dublin [2000] IEHC 41 (6th April, 2000)

THE HIGH COURT

1999 No. 574p

BETWEEN

RUTH GLYNN (A MINOR) SUING BY HER FATHER AND

NEXT FRIEND KEVIN GLYNN

PLAINTIFF

AND

THE GOVERNORS AND GUARDIANS OF THE HOSPITAL FOR

THE RELIEF OF POOR LYING-IN WOMEN, DUBLIN

DEFENDANT

Judgment of O’Sullivan J. delivered the 6th day of April, 2000 .

INTRODUCTION

1. The Plaintiff was born on 27th August, 1981 in the Defendant hospital (“the Rotunda Hospital”), her mother having been admitted on or about the 23rd. She was therefore under 18 when these proceedings were commenced by plenary summons on 20th January, 1999. The Plaintiff’s mother had a difficult labour and following her birth, the Plaintiff has suffered from cerebral palsy with mental retardation. She will never be able to take full care of herself.

2. In this application the Defendant seeks to have her claim dismissed for want of prosecution pursuant to the inherent jurisdiction of the Court because of the inordinate and inexcusable delay before these proceedings were instituted which has caused the Defendant to be severely prejudiced in their defence.

CHRONOLOGY

23.8.1981 Mother admitted to Rotunda

27.8.1981 Plaintiff born after inducement of labour having suffered severe intra-partem asphyxia

17.8.1984 Plaintiff’s next friend writes to Dr. Henry, Master of the Rotunda, seeking a full account of the Plaintiff’s mother’s confinement and her birth.

27.8.1984 Dr. Henry replies saying he will discuss these matters at a meeting if so desired.

19.11.1984 (or before) Undated letter from Plaintiff’s Solicitor seeking full medical history of confinement, treatment or diagnosis and prognosis of Plaintiff’s mother.

19.11.1984 Dr. Henry encloses his report on Plaintiff’s mother, report by Dr. Matthews (Paediatrician) on the Plaintiff dated respectively the 8th and 14th.

4.12.1984 Solicitors seek clarifications.

10.12.1984 Dr. Henry replies saying he would forward copy of case notes to an independent medical advisor.

16.8.1985 Plaintiff’s Solicitor requests these to be sent to Professor Dewhurst in London.

29.8.1985 Dr. Henry sends pregnancy and delivery notes to Professor Dewhurst, stating that neonatal notes have not yet been photostatted but as soon as they are available they will be sent on.

2.9.1985 Professor Dewhurst acknowledges receipt and no trace of foetal monitoring is included (CGT)

19.12.1985 Plaintiff’s Solicitors write to Dr. Henry reminding him Professor Dewhurst is still awaiting neonatal notes and CGT.

15.5.1998 Plaintiff’s present Solicitors wrote to the secretary of the Rotunda renewing enquiries.

20.1.2000 Plenary Summons issued.

3. It transpired that the CGT had been lost and has never been found and the neonatal notes were mislaid for a lengthy period and only came to light shortly before the Plaintiff’s present Solicitors came into the case which happened some time prior to the 15th May, 1998.

4. On that date they wrote to the secretary of the Rotunda Hospital stating that they had been asked to advise the Plaintiff, emphasising that they were not at that stage making any allegation of negligence but requiring copies of all hospital records in relation to the Plaintiff and her mother. Her mother had died in 1997.

5. The Defendant makes no serious allegations in regard to the dispatch with which the proceedings were then conducted by the Plaintiff’s present Solicitors, nor indeed in my view, would any such criticism be justified.

6. From the foregoing it will be seen that it was some three years after the Plaintiff’s birth before her next friend wrote to Dr. Henry seeking an account of her birth and her mother’s confinement. Some sixteen months later, Professor Dewhurst was (at least in all probability) put in possession of the following documentation:-

(i) Dr. Henry’s report on the Plaintiff’s birth (dated 8th November, 1984);

(ii) Dr. Matthews’ paediatric report on her first hours and months of life.

(iii) The obstetrical records kept by the hospital and sent direct to Professor Dewhurst.

7. He did not have the CGT because it has been lost and never found nor did he have the paediatric records which were lost and were found only shortly before these proceedings were initiated.

8. Professor Dewhurst never submitted a report. The Plaintiff’s next friend says of this in his Affidavit:-

“No report was ever obtained from Prof. Dewhurst. I believe a major material factor in this was the non-availability or alternatively the non-disclosure of records to him. In the light of the fact that no such report was received from Prof. Dewhurst and of the undue strain put on my wife, a decision was made not to pursue the matter any further.”

9. The reference to the non-availability of records refers to the non-availability of the paediatric records. It will be recalled that Dr. Henry had indicated that these would be sent on when photocopied and the matter seemed to have been left at that by the two medical professionals. Equally, it appears that the Plaintiff’s then Solicitors did not chase either Professor Dewhurst for a report or follow up further on the intimation that the paediatric records would be sent on.

10. A delay ensued of some eleven and a half years during which nothing of relevance was done by either party.

11. The Plaintiff’s mother died in 1997 and her father and next friend became concerned as he says in his Affidavit that he would no longer be able to cope fully with caring for her and particularly as she would no longer be a candidate for day care at St. Michael’s House when she reached 18 years of age. He decided to reopen investigations and instructed the Plaintiff’s present Solicitors.

DEFENDANTS’ SUBMISSIONS

12. Mr. Gallagher, S.C., for the Defendant submits:-

1. The eleven and a half year delay was inordinate and inexcusable;

2. The absence of the paediatric notes made no legitimate difference because:

(a) all significant features therein were contained in the paediatric report of Dr. Matthews which was available to Professor Dewhurst;

(b) the Plaintiff’s present proceedings were instituted at a time when her present paediatric consultant had not yet advised, thereby demonstrating that the initiation of proceedings was achievable (and achieved) on the basis of advice from an obstetrician (supported, it may be, by a report from a paediatrician).

3. The Defendant has been prejudiced in its defence in that:

(a) A key witness, Dr. Sabra, who attended the Plaintiff’s mother’s labour from 17.45 hours until delivery is no longer compellable (he having returned to his native Egypt).

(b) The Defendant fairly acknowledges, that Dr. Sabra had already returned some time probably prior to 1985 at which time no complaint could have been made regarding delay if proceedings were issued only then; however, in his absence staff midwife, Bernadette Beirne would be all the more a crucial witness as she was in charge of the labour ward immediately before, during and after the Plaintiff’s birth. She has no recollection of the Plaintiff’s mother or the relevant events, although she does say that normally she has a good memory. Mr. Gallagher, S.C., emphasised that in the absence of Dr. Sabra, her evidence becomes all the more important.

(c) Standards have increased during the years since the Plaintiff’s birth thereby making it more difficult and onerous for the Defendant to identify the appropriate standard at that time.

PLAINTIFF’S SUBMISSIONS

13. Mr. McCullough, S.C., for the Plaintiff submits:-

1. The delay was clearly inordinate but was excusable in the circumstance that the paediatric notes (not made available during the relevant period of inordinate delay) contained crucial information which was not communicated to Professor Dewhurst, namely:-

(i) a different “apgar” score to that indicated in the information sent to Professor Dewhurst. (There is no evidence before me, however, of the significance of such difference and I do not think I am entitled to infer that a “worse” picture emerges from the documentation than was sent to Professor Dewhurst; I can, however, infer that there is a conflict);

(ii) The paediatric notes indicate or at least suggest that the paediatrician saw significance in a reference (copied from the obstetric notes) to the fact that at 17.45 there was heavy (“plus”) soaking of a pad per vaginem . The fact that the paediatrician saw significance in this would not, it is submitted, of itself have been known to Professor Dewhurst.

(iii) A reference to the fact that “mother had type II dips in labour” appears in the paediatric notes but not otherwise. This indicates a worse condition than a “type I dip”.

14. Mr. McCullough, S.C., submitted that the non-availability of the foregoing information to Professor Dewhurst excuses the delay which he accepts was inordinate. The period covered by this excuse continued until the paediatric notes became available shortly before these proceedings were instituted.

2. Even if the delay is not excusable then, on the authorities, the Plaintiff should not be held responsible for such inexcusable delay if, as here, it ended before she reached 18 years and if, as here, she was not in control of those responsible for it.

3. If, contrary to the foregoing, this delay cannot be disregarded then there are countervailing circumstances as referred to by Henchy J in O’Domhnaill -v- Merrick , (1984): IR: 151 at page 157, namely:-

(i) The Defendant lost the paediatric notes which would have been of significance to the Plaintiff’s advisors; and

(ii) the Plaintiff was at all material times an infant (who was also subject to the further disability of mental incapacity).

4. If none of the foregoing applies then on the authorities the Court must look at what justice requires. In this context the Defendant’s limitations in the conduct of its defence (notably the absence of Dr. Sabra and the impaired recollection of midwife Beirne) must be weighed against the catastrophic loss to the Plaintiff if she cannot now maintain her action. With regard to the Defendant’s assertion that standards have altered, whilst this may be so, it is not beyond the ingenuity of a Court to identify, through appropriate witnesses who are available, the relevant standard and to apply it.

15. Furthermore, while this is not a “documents case”, all relevant documents (except the CGT trace) are now available as is Professor Bonnar who can give evidence as obstetrician in charge and Dr. Matthews who has available to him now all relevant paediatric notes.

16. Mr. Gallagher, S.C., did point out for the Defendant that whilst the apgar score may not have been available per se , the information was available in another guise in the report of Dr. Matthews. The same can be said in relation to the inclusion of the reference to “type II dips” in the paediatric notes: namely, Professor Dewhurst had the information in relation to the foetal heart performance which was the “hard” information as distinct from the judgment or conclusion based thereon which is implied in the entry “type II dips”.

THE LAW

17. The Supreme Court has addressed the issue whether the Court has jurisdiction to dismiss an action brought and maintained within the statutory limitation period in O’Domhnaill -v- Merrick , ( loc. sit ) and Toal -v- Duignan & Ors. (No. 2) , 1991: ILRM: 140. Finlay CJ in the latter case (page 142) said:-

“In the course of the argument on these appeals a question was raised as to whether the Court had jurisdiction to dismiss by reason of delay an action which was in fact commenced within a time limit fixed by Act of the Oireachtas.

My judgment in the previous appeal in respect of the other defendants in this case was based on an acceptance of the principles laid down in the judgment of Henchy J in O’Domhnaill -v- Merrick , (9184): IR: 151, with which Griffin J agreed.

I have carefully reconsidered the principles laid down in that judgment on the question as to the jurisdiction of this Court in the interests of justice to dismiss a claim where the length of time which has elapsed between the events out of which it arises and the time when it comes for a hearing is in all the circumstances so great that it would be unjust to call upon a particular defendant to defend himself or herself against the claim made. I have also reconsidered the dissent from that view expressed by McCarthy J in the judgment delivered by him in O’Domhnaill -v- Merrick .

I adhere to the view expressed by me in the previous appeal in this case that the Court has got such an inherent jurisdiction. It seems to me that to conclude otherwise is to give to the Oireachtas a supremacy over the Courts which is inconsistent with the Constitution.

If the Courts were to be deprived of the right to secure to a party in litigation before them justice by dismissing against him or her a claim which by reason of the delay in bringing it, whether culpable or not, would probably lead to an unjust trial and an unjust result merely by reason of the fact that the Oireachtas had provided a time limit which in the particular case has not been breached would be to accept a legislative intervention in what is one of the most fundamental rights and obligations of a Court to do ultimate justice between the parties before it.”

18. McCarthy J in the same case (page 159) accepted that this was the preponderant view. He said:-

“Clearly, the weight of judicial opinion as to the jurisdiction of the Court to dismiss an action, brought and maintained within the statutory limitation period, such jurisdiction founded upon constitutional principles of fairness, is against the view I expressed in O’Domhnaill’s case and subject to any future review by the full Court (see Henchy J in Hamilton -v- Hamilton , (1982) IR: 466 at 484), I must accept that the Court has the jurisdiction that founded the order in O’Domhnaill’s case.”

19. Whilst there are dicta from the Supreme Court in other (including later) cases which might have suggested a different view, I accept the submission of Mr. Gallagher, S.C., that it was not the intention in such cases sub silentio to reverse a conclusion which had been reached not only once but twice and with solemn deliberation by the relevant majority of the Judges on the Supreme Court. In these circumstances I am obliged to conclude that this Court has jurisdiction in such circumstances where appropriate to dismiss an action brought within the statutory limitation period if there is inordinate and inexcusable delay and if, further, a failure to do so would result in an unjust trial and an unjust result.

20. I must next consider whether the delay, admittedly inordinate, is excusable by reference to the non-availability of the of the “new” information contained in the paediatric reports.

21. I have carefully considered the submissions of both Counsel on this aspect of the case and have come to the conclusion that all significant elements contained in the paediatric notes were available to Professor Dewhurst in the material sent to him.

22. Given that I must not infer that a “worse” apgar score was available but not communicated to Professor Dewhurst and bearing in mind that the information underlying such a score was largely if not wholly available otherwise to him, I must conclude that so far as this point is concerned no significant new material came to light towards the end of the eleven and a half year period of delay. With regard to the reference to type II dips, I consider that the underlying information was also available to Professor Dewhurst. The third point, to the effect that the paediatrician saw significance in the reference (contained in the obstetric notes and therefore available to Professor Dewhurst) to the effect that at 17.45 there was significant loss of blood per vaginem does not appear to me to be of such import that it excuses a decision not to bring proceedings in circumstances where this information is not known.

23. Mr. McCullough, S.C., submits, further, that even if the inordinate delay is not excusable (as I have just held) I must now move to consider whether there are countervailing circumstances and if there are then the Defendant’s application must automatically fail.

24. I have, in light of this submission, considered the authorities. Whilst there is justification for such a submission, it appears to me that the more flexible approach enunciated by the then Chief Justice Hamilton CJ in Primor Plc -v- Stokes Kennedy Crowley , (1996): 2: IR: 459, at page 475/6 better expresses the settled law on this topic.

25. These principles are as follows:-

“The principles of law relevant to the consideration of the issues raised in this appeal may be summarised as follows:-

(a) The Courts have an inherent jurisdiction to control their own procedure and to dismiss a claim when the interests of justice require them to do so;

(b) It must, in the first instance, be established by the party seeking a dismissal of proceedings for want of prosecution on the ground of delay in the prosecution thereof, that the delay was inordinate and inexcusable;

(c) Even where the delay has been both inordinate and inexcusable the Court must exercise a judgment on whether, in its discretion, on the facts the balance of justice is in favour of or against the proceeding of the case;

(d) In considering this latter obligation the Court is entitled to take into consideration and have regard to:

(i) the implied constitutional principles of basic fairness of procedures,

(ii) whether the delay and consequent prejudice in the special facts of the case are such as to make it unfair to the defendant to allow the action to proceed and to make it just to strike out the plaintiff’s action,

(iii) any delay on the part of the defendant - because litigation is a two party operation, the conduct of both parties should be looked at,

(iv) whether any delay or conduct of the defendant amounts to acquiescence on the part of the defendant in the plaintiff’s delay,

(v) the fact that conduct by the defendant which induces the plaintiff to incur further expense in pursuing the action does not, in law, constitute an absolute bar preventing the defendant from obtaining a striking out order but is a relevant factor to be taken into account by the Judge in exercising his discretion whether or not to strike out the claim, the weight to be attached to such conduct depending upon all the circumstances of the particular case,

(vi) whether the delay gives rise to a substantial risk that it is not possible to have a fair trial or is likely to cause or have caused serious prejudice to the defendant,

(vii) the fact that the prejudice to the defendant referred to in (vi) may arise in many ways and be other than that merely caused by the delay, including damage to a defendant’s reputation and business.”

CONCLUSIONS

26. In light of the relevant principles, as I understand them, the fact that the Plaintiff was in her minority during all the relevant period of inordinate and inexcusable delay; the fact that some of the material of relevance (although not of crucial relevance) was not available to the Plaintiff’s advisors during the relevant period of delay are features of the case which, whilst they do not of themselves and without more entitle the Plaintiff to have this application dismissed, must, nonetheless, be weighed in the balance by me in deciding whether the interests of justice requires that the Plaintiff be permitted to continue or not.

27. On the other side of the scales, I must bear in mind that Dr. Sabra is not available to the Defendant by way of compulsion. The Defendant fairly accepts that he would not have been available probably after 1985 and therefore might not have been available even at a time where they could have had no complaint about delay. This makes more crucial, they submit, the faded memory of midwife Beirne who was midwife in charge of the labour ward and who recognises her handwriting in significant entries in the obstetric notes.

28. Whilst of course this is not a “documents only” case, nonetheless full contemporaneous records, both pre and postnatal, are available. Professor Bonnar is available. Midwife Beirne is available, albeit with an impaired memory. Dr. Sabra is not available. The Plaintiff’s consultant obstetrician and paediatrician has been enabled to assert negligence and causation upon the basis of documents only. The foetal heart record (CGT) is not available but the Defendant cannot complain about this: in any event its absence cuts both ways.

29. In attempting to apply the principles enunciated in Primor I also have regard to the following observations, mutatis mutatndis , of the then Chief Justice, Finlay CJ, in Toal (No. 2) (at page 145), namely:-

“The vital difference between the position of the Coombe Hospital who were sued as being responsible in particular for the actions of the gynaecologist and paediatrician who attended the mother of the Plaintiff at the time of his birth, as well as for other junior staff, either medical or nursing, who might have been involved at that time, is that in the case of the Coombe Hospital both the gynaecologist and the paediatrician involved were dead. The records which they might have maintained were wholly incomplete and wholly inadequate.

In the case of the present defendants, however, the doctor involved in alive; has apparently personal records as well as some personal recollection; he has not made any affidavit indicating any particular difficulty or disadvantage in giving evidence, although the affidavit filed on behalf of the hospital itself indicates the general disadvantage of a long lapse of time... A rather comprehensive note of his treatment written by Dr. Rees to the eighth and fifth named defendants after his treatment in hospital is an immediate source capable of being used by him (Dr. Rees) to revise his memory.” (This defendant was held not entitled to be dismissed out of the action).

30. Again, in the same case, Griffin J. (page 149) said:-

“I have set out the foregoing facts at some length as in my opinion they underscore the importance of the availability of contemporaneous records where there are allegations of the nature made in this case. Insofar as the plaintiff’s case against Dr. McGill is concerned, the most important events and dates both from the point of view of the plaintiff and of Dr. McGill is that of the visit which it is alleged she made after the plaintiff’s discharge from hospital. It was originally claimed that this visit was made on the 28th June, 1971, but that has now been amended to 21 June, although the plaintiff and his parents must be aware that the hospital records purport to show that he was admitted to hospital on 24 June, 1971. The availability of the notebooks to which Dr. McGill has referred would be of vital importance to her on the question as to whether or not there was any such visit either on 21 June or 28 June, being a time which is now 19 years ago.”

31. I note, further, that in Brennan -v- The Western Health Board & Anor ., (unreported: Macken J: 18th May, 1999):-

“There are, however, no notes or records of any description... Absent those notes, it seems to me that the defendant would be put into an impossible position in seeking to defend itself. While it is true that the plaintiff’s mother may have a good recollection of events, and was a midwife, and while it is just as true that the present live witnesses for the defendant might also be in a position to give oral evidence as to some or other of the events of so long ago, nevertheless what did or did not happen - and which would be recorded on the charts or records - is likely to be essential, and these no longer exist.”

32. The learned Judge reluctantly came to the view that the case could not be properly defended and had to be dismissed.

In Reidy -v- The National Maternity Hospital , (unreported: Barr J: 31 July, 1997) a period of some 19 years elapsed between the plaintiff’s date of birth and issue of the proceedings. In dealing with this aspect (viz. the prejudice to the defence by reason of delay) Barr J said:-

“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...

.... it seems to me that there are countervailing circumstances which justify a disregard of the delay. Such circumstances are that there are still in existence sufficient hospital records to establish the facts essential to a determination of the negligence issue between the parties, ie., 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, (which) establishes, inter alia, that there was a problem with the baby’s left hip.... The hospital notes indicate that there was divided opinion on the cause of the plaintiff’s hip problem. Dr. Lowry’s letter to the GP implies that Dr. O’Brien decided that orthopaedic assessment was not necessary and it is not in dispute that no such assessment took place.... 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.”

33. Bearing in mind the principles enunciated in Primor and the manner in which these principles have been applied, and in particular the value to be attached to the survival of full notes (as in this case) together with an authoritative contemporaneous medical professional witness in the person of Professor Bonnar, I am not persuaded that the probability is that if the plaintiff’s case proceeds the delay would “ lead to an unjust trial and an unjust result ...”, to use the phraseology of Finlay CJ in Toal -v- Duignan (No. 2). Certainly there will be difficulties for the defendant. Equally, there will be difficulties for the plaintiff. In my opinion, however, the plaintiff should be permitted to continue with her action and accordingly I refuse to dismiss it for want of prosecution.

CSJO’SULLGLYNN.LWP