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  • Too late to Claim for Medical Negligence?

    In the normal course a Civil Claim for compensation arising because of negligent Medical Treatment must be issued within 2 years; but what if the patient did not know at the time of the treatment that it was that treatment was negligent and it caused his subsequent symptoms? What if he only learned after the 2 year period that the negligent Medical Treatment caused his suffering? Is his Civil Claim Statute-Barred? This is where the “Date of Knowledge” principle under Sect. 2(1)(c) of the Statute of Limitations (Amendment) Act 1991 becomes relevant.

    The Statute of Limitations

    Under the Statute of Limitations Act 1957 a victim must issue his Civil Claim within 2 years of the relevant incident. It was previously 3 years and, for non-Medical Negligence cases, is complicated further by the provisions of the PIAB Act 2003 (for further information please refer to the Statute of Limitation page on the Morgan McManus website).

    A recent case on the “Date of Knowledge” principle

    In the case of Oliver O’Sullivan v Ireland, Attorney General, Minister for Health and Children and ors (Decision issued 24/1/2018) No. 2014/383 [2018] IECA 8 the Court of Appeal was required to deal with the question of the relevant date when the plaintiff patient, Mr O`Sullivan was deemed to have had the required knowledge that his MRSA had been caused by the Defendant hospital`s negligence.

    The Facts

    Mr O’Sullivan, contracted MRSA while he was undergoing abdominal surgery in the Bon Secours Hospital in Cork on 20th September 2005. On 19th August 2008, he issued a Personal Injury Summons claiming damages (compensation) from the hospital and other defendants. The relevant limitation period that applies in your particular case. This is a good reason for seeing a solicitor as soon as you think you may have a claim for compensation.</p> ">limitation period for the action was two years from the accrual of the cause of action or from the date of knowledge, if later, within the meaning of the Statute of Limitations (Amendment) Act 1991. That is, if the Court deemed that the starting point was the contraction of the disease, then the Summons was out of time by some 11 months and therefore Statute-Barred.

    The defendant hospital had appealed to the Court of Appeal against the Judgment and Order of Kearns P made on 10th February 2012 whereby the High Court held that the plaintiff’s claim was not Statute-Barred and had dismissed the hospital’s Motion to have the Proceedings struck out. The question before Mr Justice Kearns of the High Court and on appeal in the Court of Appeal concerned the date of knowledge provisions in s. 2 of the 1991 Act.

    Previous Case Law

    Many Solicitors will want to wait until they get a Report from a Lego-Medical Expert confirming that the relevant Medical Treatment was negligent and that accordingly a cause of action has arisen. It will then be submitted that the Statute of Limitations only arises at that point in time and the victim has 2 years from that date within which to issue Proceedings. Indeed, the victim`s solicitor will often need that Report before he can frame the detailed Particulars of Negligence which are required to be drafted for the Personal Injuries Summons. Furthermore, relying upon the Principles enunciated in the Supreme Court Decision of Denham J in Cooke v Cronin, to the effect that it would be an abuse of the process of Court and misconduct to issue Proceedings until a supportive Expert report was received, it could be unprofessional conduct for a Solicitor to issue a Summons without the benefit of such an Expert`s Report.

    However, there have been cases, such as Geogh v Neary, Cunningham v Neary and Farrell v Ryan, where the patient`s Claim was deemed to have arisen before the receipt of the Expert`s Report and where the plaintiff`s Claim was deemed Statute-Barred because he had not issued Proceedings by an earlier date. These were generally cases where in which the plaintiffs did not appreciate for a significant time that they had been injured at all, but where the Court held that at some point, because of suspicion based on anecdotal information, media reports and promptings from a concerned and knowledgeable person, the patient should have realized that they had a cause of action.

    Therefore the issue is by no means straightforward and one cannot assume that it is safe to wait for the Expert`s Report.

    Particular Circumstances of the O`Sullivan case

    Mr O`Sullivan`s case was also, to some extent, similar to the above previous cases in that it could be argued that, just as in those cases, there was other knowledge he had gained which suggested that he did not need to wait for an Expert`s Report before he could issue Proceedings:
    i. He had been told by Dr. Murphy on the 4th October, 2005 that he had contracted MRSA whilst in hospital;
    ii. He knew he had suffered very serious consequences as a result of his infection;
    iii. He was aware from his mother that there had been a programme on television concerning patients who had contracted MRSA in a hospital setting;
    iv. He had furthered his investigations concerning his infection by contacting Mr. Tony Kavanagh, a participant in the aforementioned television programme;
    v. He had been referred to a solicitor specialising in MRSA cases, had attended with that solicitor and had given him instructions to act on his behalf.
    vi. He had sought, with the assistance of his solicitor, his medical records to investigate the circumstances in which he had developed the life threatening complications of MRSA and when he had received those records he had delivered them to his solicitor.
    vii. The solicitor was aware from Mr. O’Sullivan’s medical records that the pathology report on a swab taken in the course of Mr. O’Sullivan’s stay in hospital was positive for MRSA.

    Court decided Medical Negligence Claim not Statute-Barred

    It was decided by Ryan P that Kearns P was correct to hold that the plaintiff’s action was not Statute-Barred and to dismiss the application. Ryan P held that Mr O’Sullivan did not have the information required by s. 2 (1)(c) as to relevant acts or omissions on the part of the hospital and concerning the connection thereof with his injury. Therefore, for Limitation purposes, the time only began upon his receipt of the Expert Report. Ryan P held that the Appeal should be dismissed. Edwards J concurred and also handed down a judgment, with Irvine J issuing a dissenting judgment.

    Lessons learned?

    One cannot assume that it is safe to await an Expert`s Report before a Decision is made to issue Proceedings. Indeed, once instructed it can often take a solicitor in excess of a year to get the Medical Records from the hospital and the required Expert`s Report. In some cases the patient may be reluctant to blame the hospital and may only instruct the solicitor 1 year after the treatment. Suddenly the 2 years has expired and the Claim is Statute-Barred!

    The safest option is always to instruct a solicitor as soon as you suspect that you have been injured as a result of Medical Negligence. That way, you are less likely to run into time Limitation issues in your Claim, with the hospital`s Insurers arguing that your Claim is Statute-Barred.

    For further information on Medical Negligence Claims contact:

    Brian Morgan
    Morgan McManus Solicitors

    Web: brilliantreddev.co.uk/morganmcmanus
    Email: bmorgan@morganmcmanus.ie
    Ph. No.: 00353 47 51011

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