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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Byrne -v- Heffernan & Anor [2014] IEHC 424 (19 September 2014)
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Cite as: [2014] IEHC 424
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Judgment Title: Byrne -v- Heffernan & Anor Neutral Citation: [2014] IEHC 424 High Court Record Number: 2009 11367 P Date of Delivery: 19/09/2014 Court: High Court Composition of Court: Judgment by: Kearns P. Status of Judgment: Approved |
Neutral Citation Number: [2014] IEHC 424 THE HIGH COURT [2009 No.11367P] BETWEEN: MARGARET BYRNE PLAINTIFF AND
ANDREW HEFFERNAN and THOMAS BRENNAN DEFENDANTS JUDGMENT of Kearns P. delivered on the 19th day of September, 2014 The plaintiff’s claim is for damages for personal injuries arising from the alleged negligence, breach of duty and/or breach of contract on the part of the defendants. The plaintiff alleges that many years ago she was negligently misdiagnosed as schizophrenic by the second named defendant when she was an in-patient in St. John of God’s Hospital, represented in these proceedings by the first named defendant, and that as a result she was subjected to assault, battery, physical and emotional abuse, false imprisonment, and further, that her constitutional rights were breached. By notice of motion the defendants seek an order dismissing the plaintiff’s claim on the grounds that it is statute barred by reason of the operation of the Statute of Limitations and in the alternative seek an order pursuant to the inherent jurisdiction of the Court dismissing the claim on grounds of inordinate and inexcusable delay which it is claimed has given rise to prejudice to the defendants and the risk of an unfair trial. BACKGROUND The plaintiff gave evidence of her time in St. John of God Hospital and stated that her circumstances went from bad to worse following her admission. The other patients at the hospital were primarily adults with serious mental illness. She recounted to the Court memories of being pinned to the ground by staff and sedated when she attempted to ‘escape’ from the hospital. The plaintiff described feeling utterly powerless and alone and says that she eventually gave up trying to ‘beat the system’ and became withdrawn and refused to speak to anybody. While the plaintiff does not recall specifically being told that she was diagnosed with paranoid schizophrenia, she recalls a family meeting when her parents were told of this diagnosis by a medical registrar. Her family was told that she was a danger to herself and others and weekly meetings were arranged with her parents to discuss how to deal with her illness. As a result of this diagnosis, a total of 55 courses of ECT treatment were administered to the plaintiff over the course of her time in the hospital. She recalls this as a terrifying ordeal whereby she was strapped to a gurney and sedated. An apparatus was placed in her mouth to prevent her from swallowing her tongue. When she regained consciousness she invariably experienced a pounding headache and drowsiness for a number of hours. She recalls feeling trapped in a cycle of either being sedated and heavily medicated whenever she attempted to resist the treatment, or else being subjected to the ECT treatment whenever she refused to speak to anybody. The plaintiff estimates that in the thirteen years subsequent to her turning fifteen years old she was in hospital for roughly eleven years. During this time she was allowed intermittent visits home. During these visits the plaintiff says that she was bullied by other children in the area and was forced to live in the same house as the brother who had sexually abused her. As a result, she attempted suicide on a number of occasions. While in the hospital she was supervised at all times, including when using the toilet and bathing, and was only allowed out to walk around the grounds. While resident in the hospital the plaintiff was sexually abused by a male trainee psychiatric nurse and religious brother who she had grown to trust. This abuse was the subject of a criminal complaint to An Garda Síochána and, as discussed further herein, was also the subject of separate civil proceedings. In her early years before she was first admitted to hospital and before she first raised the issue of sexual abuse in the family home, the plaintiff was heavily involved in athletics. She won a gold medal in the county championships and played basketball for a senior team at a very young age. As a result of the sexual abuse she suffered, she left school at approximately 14 years of age and worked in a local hotel having failed to complete the Junior Certificate cycle. The plaintiff described to the Court the severe frustration and trauma she suffered as a result of being forced to change from an outgoing, sociable and athletic person to being ‘locked up’ for long periods of time and not speaking to anybody. In or about 1992 the plaintiff was transferred to adult services and came under the care of Dr. Eadbhard O’Callaghan who informed the plaintiff that in his view she did not suffer from any mental illness. Medical records indicate that in Dr. O’Callaghan’s opinion the plaintiff had not displayed any symptoms of schizophrenia in the four previous years. Rather, the plaintiff was told she had a ‘personality disorder’ and this is recorded in a discharge summary dated 6th April 1992. The plaintiff told the Court that Dr. O’Callaghan did not specifically discuss the diagnosis of schizophrenia but outlined his plan to change her treatment and reduce her medication. While the plaintiff initially found it difficult to trust Dr. O’Callaghan, she gradually developed a good relationship with him and was pleased with the course of treatment he followed. She was weaned off the heavy dosage of various medications she had been prescribed and Dr. O’Callaghan arranged counselling with the Rape Crisis Centre in relation to the abuse in the family home and in the hospital. Between 2003 and 2004 the plaintiff received all of her medical records after she submitted a ‘Freedom of Information’ request. She told the Court that she had a number of questions surrounding her initial diagnosis and the treatment she received, particularly in light of Dr. O’Callaghan’s diagnosis. The plaintiff says she received the files in tranches and each time she got a new bundle of papers she found she had more questions. She noticed ambiguities and became aware of information which was contrary to what she had already been told. The plaintiff told the Court that she was not aware at that time that she had been misdiagnosed but that there were a lot of things she did not understand about her treatment and she was keen to have her questions answered in relation to why things went “so drastically wrong”. After making enquiries of Dr. O’Callaghan and a counsellor named Elizabeth Lawlor, a meeting was arranged with Ms. Jane McEvoy, who was the director of services at the defendant hospital. There is some confusion as to when exactly this meeting occurred. The plaintiff indicated that it was before she had consulted a solicitor in November 2002 while a note in the medical documentation records the plaintiff seeking such a meeting in December 2001. It is likely that the meeting occurred around this time. The plaintiff told the Court that the purpose of this meeting was to help her understand what happened to her and to receive an apology for her being ‘locked up’. The plaintiff told the Court that despite her willingness to commit to not taking legal proceedings against the hospital, Ms. McEvoy told her that she could not apologise on behalf of the hospital as this would leave them “legally wide open”. In the meantime, the plaintiff recommenced her studies in 2002 and completed the Leaving Certificate in 2004. She was awarded a scholarship from Bank of Ireland and completed a one year access course before studying an undergraduate degree in sociology and social policy at Trinity College. She completed this course and was awarded an honours degree. She also lived independently and worked on a part-time basis. During this time, in November 2002, the plaintiff first consulted a solicitor in relation to her time in the hospital and legal proceedings confined to the sexual abuse were commenced on the 15th September, 2005 and were eventually settled. In 2007 the plaintiff attended a number of consultations with Dr. Paul McQuaid who prepared a medical and psychiatric report. Following receipt of this report, a solicitor’s letter in relation to the present proceedings was sent to the defendants on the 3rd December, 2008, following which the personal injuries summons issued on the 15th December, 2009. PRELIMINARY ISSUE ON THE APPLICATION The plaintiff relied on Order 40 Rule 4 of the Rules of the Superior Courts in this regard:-
It is an order which disposes finally, subject to appeal, of a substantive right collateral to the main issue in the proceedings. On the other hand a final order determines the rights of the parties in relation to the subject matter of the proceedings, while an interlocutory order determines the rights of the parties in the context of the proceedings as a whole. In the case of a motion to dismiss for failure to plead a cause of action or for want of prosecution, no rights are being finally determined. The order either determines that there is nothing to be litigated or that the right to have a matter litigated has been forfeited. In the present instance, the right which has been affected by the order is the right of the defendant to object to the jurisdiction of the court. It is not an order which deals with the merits of the cause of action, but neither is it an order made in the context of that cause of action. An interlocutory order is an order made on an application which in effect prepares the way for the final hearing which I believe to be the view of the English Court of Appeal in White v. Brunton [1984] Q.B. 570. The present order has no such effect. It is much more of the nature of a final order than of an interlocutory one.” EXCERPTS FROM THE MEDICAL RECORDS A document entitled ‘Confidential Discharge Summary’ dated the 4th June, 1992 records Dr. O’Callaghan’s final diagnosis of the plaintiff as having a ‘personality disorder’. Further medical notes from October 1994 state that the plaintiff had “no symptoms of schizophrenia - positive or negative for at least 4 years”. In a document from 1998 entitled ‘Thought Record’, which Dr. O’Callaghan had asked the plaintiff to prepare on an ongoing basis, the plaintiff writes that her father “…can’t get it into his head that I’m not schizophrenic”. She further states that “I’ve tried telling him numerous times that it was a misdiagnosis…” and that “I know I’m not schizophrenic.” In her evidence to the Court the plaintiff stated that she never believed even at the earliest stage that she was schizophrenic. However, she says she remained unsure and afraid as to whether or not some other medical professional would diagnose her as such again, resulting in a possible further detention. Further medical notes dated August 2001 state that “Overall Maggie is coping well. She wants a resolution and apology from Dr. Brennan.” The plaintiff accepted in cross examination that she was seeking an apology at this time as she knew Dr. Brennan had done something wrong or that something had gone wrong with her diagnosis and treatment. On the 3rd November, 1998 Dr. O’Callaghan records the plaintiff as being “still upset around how we treated her in the early stages of assessment.” Similarly, a note of a consultation with Dr. O’Callaghan dated the 29th August, 2001 states that the plaintiff “continues to be angry re diagnosis at 15 - says her brother duped Dr. Brennan, wishes it could have been otherwise. Hard to deflect from this.” Later that year, on the 17th December, Dr. O’Callaghan reports that the plaintiff was “Still very angry regarding her diagnosis and the fact (as she sees it) that she was not believed re CSA and her family were…Wants to speak Director of Service.” A note of a counselling session with Elizabeth Lawlor dated the 24th February, 2003, states that by this time the plaintiff had given her file to a solicitor and was angry about her diagnosis. It also records the plaintiff as being concerned that any legal action she pursues will be troublesome for many people who were involved in her care. On the 1st May, 2003 Ms. Lawlor notes that the plaintiff informed her over the phone that she had instructed her solicitor to begin proceedings against the service. Again, the plaintiff - very honourably - did not disagree with any of these notes or records. THE STATUTE OF LIMITATIONS
(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.
(a) the substitution in subsection (1) of section 3 of “2 years” for “three years”, (b) the substitution in subsection (1) of section 4 of “2 years” for “three years”, (c) the substitution in subsection (1) of section 5 of “2 years” for “three years”, (d) the insertion of the following section: “5A.—(1) Where the relevant date in respect of a cause of action falls before the commencement of section 7 of the Civil Liability and Courts Act 2004, an action (being an action to which section 3(1), 4(1), 5(1) or 6(1) of this Act applies) in respect of that cause of action shall not be brought after the expiration of— 2 years from the said commencement, or (b) 3 years from the relevant date, whichever occurs first. (2) In this section ‘relevant date’ means the date of accrual of the cause of action or the date of knowledge of the person concerned as respects that cause of action whichever occurs later.”, and (e) the substitution in subsection (1) of section 6 of “2 years” for “three years”.
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.” The plaintiff’s solicitor Mr. Pearse Mehigan told the Court that when the plaintiff first consulted him in November 2002 this was primarily in relation to the sexual abuse which occurred while she was an in-patient in the hospital. While proceedings in relation to that complaint were commenced in the normal way, Mr. Mehigan says that the issue of the negligent misdiagnosis was only focused upon in 2007 after receiving Dr. McQuaid’s psychiatric report. He was aware that the issue of misdiagnosis had been causing the plaintiff upset and formed part of a ‘general grievance’ against the hospital, but says that it did not lead to a formal instruction until 2007 and that at that stage the claim was pursued, counsel was instructed, and a preliminary letter was sent in December 2008. Ultimately, the personal injuries summons issued in December 2009. It is further submitted on behalf of the plaintiff that the statutory limitation periods do not apply in the plaintiff’s case as, despite being able to go about her daily life in an apparently normal manner, she was under an ‘impairment’ which prevented her from commencing proceedings and which places her outside the scope of the statute. Considerable reliance is placed in this regard on the decision of Ryan J. in Doherty v. Quigley [2011] IEHC 361. In that case Ryan J. considered the issue of impairment as follows -
s.48.—(1) For the purposes of this Act, a person shall be under a disability while— (b) he is of unsound mind, It is clear as a matter of logic and also on the basis on which the case was presented that no real issue arises under section 48 of the Statute of Limitations, 1957. In other words, it was not a serious issue in the case that the plaintiff is or was at any material time a person of unsound mind in the sense of being incapable of conducting her ordinary affairs in a general way…The plaintiff was capable of conducting her affairs, achieving a university degree, embarking on a career, having a relationship that led to marriage, working in this country and in the United States, becoming an Irish dancing teacher and acquiring a professional qualification as a teacher. All of these matters are put forward by the defendant as evidence showing that the plaintiff is not in fact impaired in any practical sense in the conduct of her ordinary life and that includes deciding whether or not to sue the defendant. That question must be considered in light of section 48A of the Statute. It is sufficient to say that there is no evidence in the case to suggest that the plaintiff is anything other than a person who is capable of looking after her own affairs in the ordinary way. The conclusion therefore is irresistible that the plaintiff cannot be considered to be a person of unsound mind.”
Prof. Browne’s overall clinical diagnosis was that Ms. Doherty suffered from PTSD at the severe end of the spectrum. Ms. Doherty can go about her daily business and do normal things for a large amount of time but her condition is there all the time and can be activated at any moment, at which point she will show all the disorganisation and emotion of the traumatic experience. He described it like there were two dimensions to the one person, both of which are there at any given time, although not always apparent. The core of her disassociation and her PTSD are still active and have not been resolved. In the rational, ordinary part of Ms. Doherty’s personality, she was capable of making those decisions but at any time she could move into the other part of her personality and be completely incapacitated… …The evidence of Prof Browne is that the plaintiff’s capacity to decide to sue or to make a reasoned decision to do so was seriously interfered with when her ever-present condition was activated, which means that for such time those capacities were substantially impaired. And accepting, as I do, that those active periods were and continued to be of such duration and frequency that they interfered significantly with the relevant capacities, then it follows that the conditions of the section are fulfilled and that the plaintiff was under a disability. It seems to me that, contrary to what Counsel for the defendant have suggested, carrying on one’s life with a semblance of normality does not preclude the possibility that there may be a myriad of complex and debilitating psychological problems lurking beneath the surface. I am satisfied that this was - and remains - the case with Ms. Doherty.” Counsel for the first defendant submits that the decision of Ryan J. in Doherty is distinguishable from the present proceedings as section 48A deals only with “Disability of certain persons for purpose of bringing certain actions arising out of acts of sexual abuse.” It is submitted that the concept of impairment as an additional disability relates specifically to cases in respect of sexual abuse and not to allegations of medical negligence or negligent misdiagnosis. While the plaintiff may have been able to rely on the concept of ‘impairment’ in the separate proceedings in relation to sexual abuse at the hospital, she may not do so here. The relevant test in these proceedings is whether the plaintiff has or had a disability or is a person of unsound mind as applied by Barron J. in Rohan v. Bord na Móna [1990] 2I.R. 425 and Murphy J. in Presho v. Doohan [2009] IEHC 631. Counsel for the second defendant further submits that section 48A makes no attempt to amend or supplement in any way the existing provisions of section 49 in relation to disability. It is submitted that the evidence clearly shows that the plaintiff was not under a disability which places her outside the Statute. I have carefully considered all of the evidence and am satisfied that the plaintiff’s date of knowledge was before the commencement of the 2004 Act and that a 3 year limitation period therefore applies. It is clear from the various records that the plaintiff had serious concerns in relation to her diagnosis at a very early stage. Certainly by August 2001 the plaintiff was seeking an apology from Dr. Brennan and sought a meeting with the director of services in an attempt to gain answers to the many questions she had in relation to her treatment. She was also contemplating consulting a solicitor around this time and subsequently did so in November 2002. The plaintiff was a very impressive witness who gave a clear and honest account of her evidence to the Court. Based on the plaintiff’s own evidence and the vast amount of records available, the Court cannot accept that the instruction to her solicitor in 2002 related solely to the sexual abuse claim while the misdiagnosis was simply a grievance at the ‘back of her mind’. On the contrary, her evidence was that she informed her solicitor of her contention that she was misdiagnosed and it is clear from the records that the possibility of a negligent misdiagnosis was very much at the forefront of her concerns at that time and was integral to her decision to consult with a solicitor in an attempt to obtain the answers she was entitled to. While the sexual abuse aspect of her complaint duly proceeded in the ordinary way, no steps were taken in relation to the misdiagnosis until December 2008. This issue, to put it simply, was ‘parked’. It is incumbent upon legal professionals to alert clients to various procedural requirements and matters such as the Statute of Limitations. The Court does not accept that the option of pursuing a claim in negligence for misdiagnosis emerged only after analysing Dr. McQuaid’s report in 2007. The plaintiff’s own evidence and various records indicate that this was not the case. The plaintiff made very clear in her evidence that she had made her solicitor fully aware of her belief that she had been misdiagnosed and that something had gone wrong in relation to her treatment. She described feeling frustrated that the ‘system and her family’ continued to disbelieve her and says she informed her solicitor in order to find out what legal options were available to her. It is clear that, at the very latest, the Statute began to run when the plaintiff consulted her solicitor in November 2002. To her great credit, the plaintiff has shown herself to be a remarkably resilient individual who gave entirely credible and honest evidence to the Court. In spite of her traumatic background she has achieved a great deal by way of resuming her education and attempting to lead as normal a life as possible. However, the purpose of these proceedings is not to consider the merits of the plaintiff’s claim. The Court must decide if and when the Statute began to run in the plaintiff’s case. The plaintiff instructed a solicitor in 2002 and for the reasons outlined above, I am satisfied that the statute began to run at this time. In addition to what she already knew as evidenced in the records, the plaintiff now had the benefit of legal advice which must be presumed to include knowledge of the Statute and the need to take appropriate legal steps to protect her interests. In light of the foregoing, the Court must find that the plaintiff’s claim is statute barred. DELAY As already stated, the Court does not find any culpable delay on the part of the plaintiff in these proceedings. She took appropriate steps at an early stage in an attempt to ascertain what had occurred in relation to her diagnosis and treatment and consulted a solicitor within the statutory time limits for commencing proceedings. However, it is now twenty-one years since the plaintiff was diagnosed as not suffering from schizophrenia and twenty-seven years since the diagnosis was first made. Dr. Brennan is now elderly and it is claimed that he has no serviceable recollection of having treated the plaintiff. Dr. O’Callaghan, whose evidence as the psychiatrist who changed the diagnosis is integral to these proceedings, has regrettably passed away. Dr. Louis O’Carroll, a registrar who was involved in the plaintiff’s treatment around the time of her initial diagnosis and two staff members of another medical facility attended by the plaintiff have also passed away. In addition, over fifty doctors and consultants have been identified in the records as having been involved in the plaintiff’s care whose memories of events are all likely to have been impaired owing to the lapse in time. It is submitted therefore that the defendants’ ability to call relevant oral evidence or to rebut or test the evidence of the plaintiff is therefore substantially impaired. While the plaintiff’s claim is now precluded by operation of the Statute of Limitations, had the Court been required to determine the issue of delay, for the reasons detailed above the proceedings would have been dismissed due to the lapse in time and the consequent substantial risk of an unfair trial. DECISION |