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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Flynn -v- Bon Secours Health Systems Ltd [2014] IEHC 87 (14 February 2014)
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Cite as: [2014] IEHC 87
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Judgment Title: Flynn -v- Bon Secours Health Systems Ltd Neutral Citation: [2014] IEHC 87 High Court Record Number: 2013 183 CA Date of Delivery: 14/02/2014 Court: High Court Composition of Court: Judgment by: Hogan J. Status of Judgment: Approved |
Neutral Citation Number: [2014] IEHC 87 THE HIGH COURT [2013 No. 183CA] BETWEEN LAURENCE FLYNN PLAINTIFF AND
BONS SECOURS HEALTH SYSTEMS LTD. DEFENDANT JUDGMENT of Mr. Justice Hogan delivered on the 14th day of February, 2014 1. This is an appeal by the plaintiff against a decision of the Circuit Court (His Honour Judge Ó Donnabháin) on the 30th July 2013 whereby he directed that the plaintiff’s medical negligence proceedings against the defendant hospital be permanently stayed. A similar order was made in Flynn v. Blackrock Clinic Ltd. (Circuit Court, 2012, 00919) and in Flynn v. Mater Private Hospital (2012, 01301). This judgment also covers the appeal in these cases (2013 CA 184 and 2013 CA 183 respectively). 2. These appeals present a difficult issue against an unusual factual background. The issue is this: should the plaintiff’s actions for medical negligence against all three hospitals be stayed permanently in circumstances where the plaintiff is unable to produce a medical report of his own, even though at least one of the defendants is in possession of a report which, to some degree, supports some of the plaintiff’s factual contentions? 3. As it happens, I have already set out that background in quite separate judicial review proceedings involving the present plaintiff, Flynn v. Medical Council [2012] IEHC 477. Although those proceedings were entirely separate to the present proceedings, that judgment should really be read in conjunction with those earlier proceedings, not least given that I propose to reproduce and, where appropriate, adapt some of that summary for the purposes of the present case. The background to the present proceedings 5. As a result of this mishap Mr. Flynn contended that he suffered considerable pain and had difficulties in swallowing. In some respect it seems that this complaint was not received very sympathetically by the medical personnel he consulted in the years that followed. Thus, as late as November 1995 a Professor of Dentistry dismissed the suggestion that a bone on the left side of the mouth was broken, saying that:
7. Yet Professor Gordon Russell of the Department of Dental Surgery at UCC noted in a letter of 16th September 1994 that:
12. Mr. Flynn was still dissatisfied. He commenced a personal injuries action against the hospital in question, Mater Private Hospital, but as part of an agreement to discontinue the proceedings, the hospital agreed to commission a report from Professor Nigel Hoggard, a specialist from the Academic Unit of Radiology at the University of Sheffield. He reviewed the images from 1994 and concluded:
Interpretation The appearances support the contention that the pterygoid hamuluses are asymmetrical and hamulus related pain is a recognised pain syndrome. However, this is not common and most general radiologists would, in my opinion, be unaware of this. I am the radiology lead for an atypical facial pain service and for head and neck imaging in my centre which is a large teaching hospital and also incorporates a leading teaching dental hospital where there is an interest in atypical facial pain. During my time in this post I have never been asked to specifically comment on the pterygoid hamulus on a CT scan.” (emphasis supplied) 14. The importance of this report for Mr. Flynn should not, I think, be overstated. After all, a succession of medical practitioners had rejected his contentions and, moreover, some had thought that he was suffering from a psychiatric condition. In many respects, Mr. Flynn was doubly unlucky. He was unlucky in the first instance to have (probably) fractured his left hamulus in a freak incident, but he was secondly unlucky in that this condition is so rare that even the specialist radiologists whom he consulted were unaware of it. 15. In the end, the proceedings against the Mater Private Hospital were not discontinued, but were ultimately transferred to the Circuit Court, sitting in Cork along with the two other related cases which were to be heard at venue. The claim of negligence in all three cases is essentially related to the issue of diagnosis. 16. In June 2010 Judge Ó Donnabháin had adjourned generally the claim against the Bon Secours Health Systems Ltd. on condition that all of the other cases against the other defendants were heard in the same. Following the transfer to the Cork Circuit Court of the two other cases involving the Blackrock Clinic and the Mater Private, Judge Ó Donnabháin made an order on 30th July, 2013 “permanently staying” all three sets of proceedings. The plaintiff now appeals these orders to this court. 17. The question of what medical evidence the plaintiff proposed to lead at the trial was scheduled as a preliminary issue before Judge Ó Donnabháin. The plaintiff indicated that he was not in a position to lead any such evidence. This, in some respects, is not a great surprise. The plaintiff is unemployed and he is wholly dependent on disability benefit. He is not professionally represented and he informed me at the hearing of this appeal that his efforts to secure the attendance of Professor Hoggard as an expert witness on his behalf were unavailing. 18. It would appear that Judge Ó Donnabháin took the view that as the plaintiff was not in a position to lead any appropriate medical expert it was appropriate to grant a permanent stay on these proceedings. 19. In Cooke v. Cronin [1999] IESC 54 the Supreme Court held that it was an abuse of process to pursue an action in medical negligence in circumstances where there were no reasonable grounds for so doing. In her judgment Denham J. approved the following passage from the judgment of Barr J. in Reidy v. The National Maternity Hospital, High Court, 31st July, 1997, where he stated:
23. The defendants accepted that had the stitches been stitched too tightly that this would have amounted to negligence but they nevertheless denied that this had occurred and that the vaginal discomfort which she had suffered was not caused in this fashion. The plaintiff’s only medical evidence was a general practitioner who had been introduced to her for the first time a few days before the trial. In this Court, Quirke J. dismissed the action as against the first defendant and the second defendant was released by consent. Here it is important to state that the second defendant had had nothing, as such, to do with the plaintiff’s ante-natal care, a point which was emphatically stressed by Lynch J.:
In all cases of alleged negligence on the part of a qualified professional person in carrying out his professional duties there should be some credible evidence to support the plaintiff’s case before such an action is commenced.” 25. First, it must be noted that the proceedings here are not against the medical professionals as such, but are rather as against the three hospitals. This is not necessarily dispositive, because in such proceedings the reputations of the medical professionals concerned are also in practice at stake. It is nonetheless a consideration. 26. Second, it cannot be said that there is no appropriate basis for continuing these proceedings. Unlike the second defendant in Cooke, the hospitals concerned all treated the plaintiff and, furthermore, it is clear from Professor Hoggard’s report that the plaintiff’s basic complaint is, at least to some degree, well founded. It is true that Professor Hoggard also formed the view that this diagnostic failure was a result of the exceedingly rare nature of the condition. It is also true that I held in Flynn v. Medical Council that the Council was entitled to conclude on the basis of this particular evidence (and, specifically, these conclusions of Professor Hoggard) that the medical consultants who treated Mr. Flynn could not have been guilty of poor professional performance within the meaning of s. 57(1) of the Medical Practitioners Act 2007, precisely because of the exceptionally rare character of the injury. 27. Yet this does not necessarily mean that the plaintiff could not possibly establish negligence within the meaning of the test articulated by Finlay C.J. in Dunne v. National Maternity Hospital [1989] IR 91, even if this would be something of an uphill struggle. It is, for example, possible that the plaintiff will be able to show that even if the consultants in question followed a general practice, that practice nonetheless has, in the words of Finlay C.J. in Dunne, “inherent defects which ought to be obvious to any person giving the matter due consideration.” 28. Third, while the leaned Circuit Court Judge referred to the fact that he was imposing a “permanent” stay, this really must be adjudged to be in the nature of a dismissal of the action, since by reason of the nature of such a stay the plaintiff cannot either now or in the future advance his proceedings. To my mind an order of this kind would be premature. It is true that the defendants are entitled to a timely disposition of the present proceedings. But this must be balanced against the plaintiff’s right of access to the courts. Account must in particular be taken of the plaintiff’s limited personal and professional resources and the obvious difficulties which confront him in securing such specialist evidence. Conclusions 30. If, therefore, the plaintiff wishes to proceed with these proceedings, I will accordingly require him to obtain such a report within twelve months of today’s date and to supply a copy of same to the defendant’s solicitors. In the event that such a report is not supplied, then the defendants will be entitled to apply by motion to the Circuit Court sitting at Cork to have the action dismissed.
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