The High Court has dismissed an application by St. Vincent’s Hospital to prevent a former cancer patient from pursuing an action for damages against the hospital as a result of its alleged negligent treatment of him from the year 1994 to 2001.  

The hospital had made an interim application to the High Court to have the man’s claim dismissed on the basis that it was statute barred.   

The patient, Mr. Edward Naessens, an actor, had surgery on his left parotid gland in St. Vincent’s Hospital in February 1994.  After the surgery, he re-attended the hospital, complaining of pain at the site of his operation and it was explained to him that this was due to scar tissue and nerve damage.  His pain continued and he was referred back to the hospital by his GP in November 1997, suffering from anxiety about follow up investigations and the possibility that his cancer would come back.  No scans were carried out by the hospital at that time and he was given comfort that the tumour had not come back.  

Mr. Naessen subsequently travelled to the USA for a second opinion and he was diagnosed as suffering from adenoid cystic carcinoma (ACC) in 2001.  He had to undergo elective surgery in February 2002 in St. James Hospital and underwent radiotherapy in St. Luke’s Hospital.   

After Christmas 2003, he considered the difference between the standard of care available in both hospitals, to include the level of scanning, x-ray’s taken and follow up care.  He was concerned that in St. Vincent’s Hospital prior to his initial surgery, no scanning had taken place.  In or about the same time, Mr. Naessens had seen an article in the Irish Times entitled “Mistakes by Medical Staff Estimated to kill a range of 14,000 each year”.  He then began to consider the possibility that the recurrence of his tumour might not have required such extensive and invasive surgery had his treatment in St. Vincent’s Hospital been difference.  This prompted him to seek legal advice and in April 2004, he instructed his Solicitors to investigate a possible negligence claim.

Through his Solicitors, reports were obtained from medical experts and in December 2006 he instituted High Court proceedings against the hospital.  This was some 4 years and 10 months after the second surgery in St. James’ Hospital. 

He clamed that St. Vincent’s Hospital were negligent in the delay and the diagnosis of the recurrence of his tumour, that he had been deprived of an opportunity to avail of an earlier intervention and therefore had been caused to undergo more extensive surgery than he would have otherwise been required to undergo.      

The Hospital in their Defence claimed that Mr. Naessens claim was statute barred.  They sought to have his claim dismissed on the basis that he should have instituted legal proceedings within a period of 3 years from 2001 as required by the Statute of Limitations Act of 1957 (as amended).  They claimed that he had the necessary knowledge at that time of the alleged failings of the hospital in its treatment of him.    

It was agreed that the provisions of the Statute of Limitations (Amendment) Act 1991 also applied to the facts of the case such that the limitation period did not run until his “date of knowledge” of matters provided for by that Act.   Section 2 of that Act states that:

1.—(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 a 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.

When cross examined at the Hearing Mr. Naessens said that he knew there had been a difference in treatment between the two hospitals but he was not aware of whether the difference was due to the fact that St. James’s was dealing with a recurrence of a tumour.   He stated that he knew there was a difference but he was not aware of the reason for the difference.

Judge Dunne held that the Statute of Limitations begins to run when a Plaintiff has knowledge of attribution i.e. that the injury was caused by the act or omission involved and knowledge that there was a connection between the injury and the matters alleged to have caused the injury.  In other words, the Plaintiff has to be able to make that connection.

The Judge held that while it was accepted that the Plaintiff was an intelligent, educated man who had a great deal of information in relation to his illness it was not possible to attribute knowledge within the meaning of section 2 (1) (c) of the 1991 Statute of Limitation (Amendment) Act to him.

The Judge held that it was reasonable to conclude that for a long period of time after his surgery in 2002 he did not make a connection between having such radical treatment then with the alleged failings in relation to his treatment in St. Vincent’s Hospital following his operation in 1994.

In the circumstances the Judge ruled that the Plaintiff’s claim was not statute barred and could proceed to trial.

This is an important decision as it opens up the possibility that not all medical negligence cases commenced outside the statutory time limit (which is now two years) are automatically time barred. It confirms that Judges have wide discretion when it comes to determining the date upon which time begins to run against Plaintiffs in medical negligence claims.

The Civil Liability Act 2004 which was introduced by former Justice Minister Michael McDowell reduced the time limit for victims of medical negligence to sue from three to two years. 

This has led to many injustices as many victims of medical negligence are not able to obtain the necessary liability reports and notes to enable them to properly establish liability against hospitals and doctors who treated them within the strict two year  time period.                                               

Liam Moloney, specialist Solicitor in medical negligence in Naas stated “this two year time limitation should be immediately extended to a period of 4 years to enable victims of medical negligence to take their cases without fear of their claims becoming statute barred.  These types of cases require far more time to investigate than the cases currently being assessed by the Injuries Board who provide a far longer period.  There are huge injustices being caused to thousands of victims of medical mistakes as many people are not even aware of the strict two year time limit.  The Statute of Limitations should be immediately amended by the Government to provide equal access to court  for all accident victims. “

There are in excess of 200,000 medical accidents in Ireland every year but less than 600 claims are taken for compensation.  The State Claims Agency, which defends many of the hospitals and doctors involved in these cases, is constantly using the Statute of Limitations as a Defence to prevent genuine cases being heard in the Courts.

Victims of medical negligence have no compensation scheme available to them and in all cases, the only way to recover compensation is to issue proceedings in the High Court.  In many cases, hospital medical notes and records have been mislaid, destroyed, gone missing or are in the personal possession of doctors. Without this information people in many cases cannot even commence their investigations into whether they have been treated negligently” 

Note:

For regular personal injury claims the Act which introduced the Injuries Board provides that the Statute of Limitations is frozen for a period of up to 15 months from the time they receive claimant’s applications and then starts again after they issue permissions for cases to go to court.