What a pity the court failed to make clear whether the Plaintiff had made an error, by applying to the Personal Injuries Assessment Board for an authorisation to issue proceedings against the Defendant, or not.

In addition, did PIAB fail to alert her in timely fashion that she was wasting time?

(Injuries sustained in the provision of a health care service are exempt from the need to apply to PIAB. An application to PIAB in such a case is a waste of time. Time is often critical, especially in medical negligence cases. It does not stop running if PIAB has no jurisdiction. That is why it was desirable that the court recite all the facts in the judgment.)

You will shortly be Taoiseach. I know that my voice is not foreign to you. I have an accent (metaphorically speaking) like Dermot Gleeson SC. That should alarm you but I know it will not. This is not because you are schizophrenic (which you are), but because, in your field, you need to keep talking and the explication of process uses a lot of words. Lawyers can elaborate process and consequently generate words. Like an oasis in the desert they seem to offer life (political life, in your case) allowing you to hold the floor, to occupy space of every kind, but principally space in the minds of others.

There is no guarantee that this is of value of the listeners. Perhaps you disregard this, at least for a time. That is a mistake. Before he was chairman of Allied Irish Banks Dermot Gleeson SC was legal advisor to Michael Noonan, who was brought to the point where he said he would eschew legal advice if he had his life (political, again) to live over. Maybe he will (eschew legal advice AND live his [political] life over again).

The mere occupation of space is a miserable ambition. Look at the outgoing government.

This letter is to ask you to repudiate what is graphically currently known as “stuff”. Stuff is process; it is the surface. It is the shiny trivia of life.

I propose that you look instead to principles not process. I know nothing of the principles of banking beyond what commonsense might suggest to me. I do, however, know something of what is fair and I write this letter to suggest that you commit to fairness in this election. Fixing a bank will not secure fairness, but fairness, in principle, is a requirement to secure good banking.

Here are some easy reforms to bring fairness to the people of Ireland;

A) Restore the limitation period for personal injury plaintiffs from two to three years;

B) Repeal the Personal Injuries Assessment Board Act of 2003;

C) Repeal the provisions of S. 10 of the Courts and Civil Liability Act 2004;

Michael McDowell SC wanted to reduce the limitation period for personal injury plaintiffs from three years to one year. Arguably three years is unfair; in matters of contract the period is six years, but I am not urging that you decide on that; just that you bring it back to three years. For many injured people it is no difficulty to take action within three years of their being injured, but there are many exceptions. On a question such as this, every effort should be made to ensure that nobody is shut out of justice. To close the door of the Four Courts (yes, it happened, literally) to injured plaintiffs is to favour reckless free riders over innocent people who have no social organization to represent them.

REFORM 1: Why should the limitation period be three years rather than two?

ANSWER: A limitation period exists to protect society from old stale claims. If a claim is old and stale a defendant may be unable to rebut the evidence of the plaintiff due simply to the passage of time. If matters had been addressed in speedy fashion a defendant might be able, by evidence, to show that it is not liable for the plaintiff’s injury or that the plaintiff was contributorily negligent to a high degree. However, this is hypothetical. Most cases of personal injury (car crashes etc.) are immediately known to a wide circle of people, including the “defendant”. In those circumstances the plaintiff’s delay is irrelevant to the defendant’s ability to defend itself.

On the other hand, a plaintiff needs time to start his/her proceedings. There are many obstacles to a plaintiff in this regard. The injury incapacitates the plaintiff; he or she cannot get the time, energy or opportunity to instruct a solicitor. The plaintiff may have money problems. The plaintiff, compared to the defendant, will often know less of the injurious event than the defendant. The plaintiff needs time to gather the evidence.

This point is seen in the extreme in cases of medical negligence. The courts have opined that it is professional misconduct for a lawyer to issue proceedings in medical negligence cases without the back-up of an expert’s report confirming the negligence. How long does it take to get that? It can only be sought after the medical records have been received from the putative defendant. Thus, for such a plaintiff, gathering the evidence requires force of character; the recovery of medical records; the choice of expert to advise on the issues and the receipt of an opinion written, often, by a busy professional to a very high standard. None of these things can happen quickly.

The choice should not be between two years and three years, but between three years and some longer period.

REFORM 2: Why should the Personal Injuries Assessment Board Act 2003 be repealed?

ANSWER: There are several reasons;

a) PIAB favours defendants; the system is mandatory for plaintiffs and voluntary for defendants;

b) PIAB generates delay for a plaintiff in the resolution of his/her problems;

c) PIAB facilitates the decay or dispersal of evidence exclusively in circumstances that favour the defendant and hamper the plaintiff.

d) PIAB is becoming irrelevant save to the extent of the effects referred to at a), b) and c) above.

REFORM 3: Why should the provisions of S. 10 of the Courts and Civil Liability Act 2004 be repealed?

ANSWER: It hinders the issuing of proceedings for personal injury in timely fashion. Compliance with S. 10 requires the injured plaintiff to gather substantial quantities of evidence and instruct lawyers relating to same, before issuing proceedings. A Personal Injury Summons is a substantial lengthy document and not readily compiled at speed. In lawyers’ language, could anything be more calculated to favour defendants compared to (personal injury) plaintiffs? For upwards of fifty years before 2004, court rules permitted the quick issuing of a Plenary Summons for a personal injury claim. Thereafter, the plaintiff had to serve a Statement of Claim with proper details of the claim pleaded. However, any delay in so doing was amenable to control by the court; it was not subject to the severest sanction – the expiration of the statute of limitation period. It is that sanction that now hovers over every personal injury plaintiff and is brought closer by the provisions of S. 10.

Who knows the exact figure? Presumably, the Health Service Executive does. If it does, why is that information not made public? If it does not know, why does it not know?
Let us assume that the HSE is a competent body and infused with goodwill towards the patients. Would it not be a good idea to try to eliminate the causes of accidents or adverse events? If it is such a body, should it not direct all the health care institutions under its control to investigate adverse events to analyse how an accident or adverse event occurred, to prevent its repetition? If such an analysis took place would the findings not be required to be disseminated to the staff? Otherwise how would the staff know what to look out for to avoid repetition?
Now, in the light of the foregoing, is there a system in Irish hospitals of recording and reviewing adverse events? It appears there is not. The evidence for this is a) practical experience of looking for records and documents and discovering an absence of such notes recording relevant events and b) we are forced, at a macro level, to guess or estimate the level of adverse event occurrence as evidenced by public conference statements.
Admittedly, the hospital could omit written records and could call a conference of staff for the second Friday after the event to discover what went wrong and resolve, collectively, to try to avoid a repeat of the event in the future. No notes would be kept of this conference.
Why did the Supreme Court not canvass such possibilities in Doherty v Reynolds and St. James’s Hospital [2004] IESC? In that case the Plaintiff had heartburn. Following his operation to deal with his complaint he discovered quickly that he had an injured shoulder. Before he left the hospital he complained of severe pain in his shoulder to, sequentially, a nurse and two doctors (one of whom was the anaesthetist in the operation). He was sent home. His GP, on the same evidence, referred him to Beaumont hospital, which, on the same evidence, admitted him for treatment.
The Supreme Court although remarking:-

“I have not the slightest doubt that the trial judge in this case was entitled to accept the evidence of the plaintiff, his wife and Father Flanagan as to the complaints of severe pain and limitation of movement in his right shoulder and arm that the plaintiff was making in the immediate aftermath of the operation. The absence of any records of these complaints by any of the hospital staff is certainly remarkable and reflects, at best from their point of view, a singularly inadequate system of record keeping. It is clear that the plaintiff, who had gone into hospital for an operation intended to deal with a condition of heartburn and acid reflux but was otherwise in normal health, came out suffering from a painful and disabling condition in his right shoulder and arm which did not respond to any treatment until some six years later: so much, at least, is not in dispute in this difficult case.”

- went on to reverse the High court verdict in favour of the Plaintiff and order a new trial because it disagreed with the High court finding that the principle of “Res Ipsa Loquitur” applied in the case.
The hospital staff gave evidence of their usual practices. The evidence was that such practices were safe. They, generally, said they had no recollection of the individual events of the Plaintiff’s operation. This was unsurprising; they were giving evidence seven years after the event. However, there was an exception; one nurse did have an individual recollection. Beaumont hospital had raised a query with the surgeon, who in turn, raised a query with one of the nurses. This happened in the month following the operation. Thus, the High court had evidence that the Plaintiff had complained of his injury while still in St. James’s hospital and Beaumont hospital had enquired, in its investigations of the Plaintiff’s injury.
Why was there no investigation by St. James‘s hospital following these complaints? In fact there was; it appears, on the evidence, it was confined to a conversation between a surgeon and a nurse.
Bearing in mind that the Supreme court thought that the hospital had “…a singularly inadequate system of record keeping”, it was remarkably indulgent in accepting that evidence from staff, of what they would ordinarily do, as opposed to what actually happened, was a sufficient response to the Plaintiff’s evidence. It was reasonably clear that the High court judge believed that the hospital staff were culpably ignorant and that the failure of the hospital to call ALL its witnesses was to be deprecated (and justified his implied conclusion of culpable ignorance).
On a global view, the HSE, it would appear, supported by the Supreme court, thinks ignorance is bliss.

Now we know the statistic is wrong. It does not include the 58,000 adverse incidents from Tallaght Hospital.

A very large number of intelligent, knowledgeable, people must have known of the “systemic failure” in Tallaght. Every medical practitioner who read a Tallaght x-ray and acted on that reading knew that no confirmatory reading from a consultant radiologist had come to hand.

“Irish Health” reports;

“The remainder of the x-rays to be reviewed and reported on are understood to relate mainly to orthopaedics, and further new delayed diagnoses are thought to be unlikely at this stage.”

I imagine the reason for this is the tendency for failures to detect bone damage in x-rays to come to light by the pathetic return of the patient to the hospital with exacerbated injuries from neglect of the original injury.

For more information see our Colour Supplement HERE

Maurice Neligan is a case in point. In the Irish Times he has opined about the trauma of medical negligence claims on doctors.

He shouldn’t bother, unless he has monitored the latest available information (in the self-same Irish Times!)

That shows there are more than 4,000 adverse incidents in Irish Hospitals each month. That’s more than 48,000 per year.

The trauma to concern us should be the trauma of the victim patients, not the trauma of the doctors.

When does time begin running?

It depends on the facts of the case.

The Irish Medical Council has published Guidelines to doctors that they may be convicted of medical malpractice if they are not open to the patient or the family of the patient in the event of error.

This is good. It is good for two reasons; firstly, the Council’s ruling (although not entirely selfless) will allow injured persons to access legal advice promptly after an error (and retrieve evidence before it is lost).

Secondly, the situation referred to in this earlier post of McGarr Solicitors can be avoided. The situation was one where, due to the deceit of a doctor, the Statute of Limitations did not begin to run against a patient until she could find out about the injury and the full, true, circumstances in which it was inflicted.

In Bailey v The Ministry of Defence & Anor. [2008] EWCA Civ 883, the plaintiff suffered brain injury due to hypoxia. She was in the care of the defendants and suffered a heart attack when she aspirated her vomit. The heart attack deprived her of oxygen.

She had been very ill for some time. The illness reduced her capacity to deal with the vomiting.

The defendants denied that the plaintiff, in her litigation, had proved that anything they did or failed to do had caused her injury.

In fact the trial judge had found:

“One component was the weakness engendered by the pancreatitis, the other was the weakness engendered by the consequences of the negligence on 11 – 12 January, which led to a very stormy passage for the Claimant ending (purely from a surgical point of view) on 19 January when the packing of the liver was removed. Even leaving out of account the independent effect of the pancreatitis, it defies all common sense to say that she had recovered from the effects of all that by 26 January. I am satisfied, on the balance of probabilities, that she had not and that she was weakened as a result.”

The immediate cause of her injury was aspiration of the vomit; however she had been weakened and her cough reflex was unable to deal with that. The weakness followed from, inter alia, acts of negligence occurring during her care by the defendants.

The court in finding that this had contributed materially to the immediate cause of the injury found for the plaintiff against the defendant.

…arising out of the provision of any health service to a person, the carrying out of a medical or surgical procedure in relation to a person or the provision of any medical advice or treatment to a person”

The 1st Defendant in the action, the National Maternity Hospital, took issue with the alleged failure of the Plaintiff to procure a certificate from the PIAB under the PIAB Act, prior to the issuing of proceedings. (Where a certificate is required, the issue of the certificate is a condition precedent to the bringing of proceedings in court).

The Hospital argued that the pleadings in the action alleged a defect with, or in, a forceps used in the Hospital. It argued that a claim that a forceps was defective was not a medical negligence claim (“…the correctness or otherwise of the surgical procedure being carried out”), but was a defective product claim.

The court remarked on the arguments on the point as follows:

In my view, s. 3(d) of the Act of 2003 should be construed as applying to the factual circumstances out of which an action arises, rather than applying to the specific legal causes of action set out in the legal proceedings. I say this because if the latter approach is followed, it would result in some parts of the same grievance or complaint falling within the remit of the P.I.A.B and others falling outside. This would clearly be an undesirable situation, as it could result in two aspects of the same personal injury complaint proceeding in parallel in two jurisdictions, i.e. the Courts and the P.I.A.B.”

Although that is a valuable pointer, it is not now any more clear what the words “arising out of the provision of any health service to a person , the carrying out of a medical or surgical procedure in relation to a person or the provision of any medical advice or treatment to a person…” means, even in the context of “…factual circumstances…”.

Does it mean that only claims challenging the consequences flowing from the provision of such services are exempted by Section 3 (d) of the PIAB Act and not any arising in connection with the provision of such services?

If a patient in a Hospital or other health care setting slips and falls on the floor of the facility is he/she obliged to seek a certificate from the PIAB, or not? On the basis of Gunning v National Maternity Hospital & Ors, it would appear not. However, if a potential Plaintiff, taking no chances, applies for a certificate and the PIAB declines jurisdiction it would be open to the defendant Hospital or health care facility to plead that the Plaintiff had not complied with the PIAB Act. Gunning suggests that the practical solution is to treat the identity of the Defendant as indicative of the application of Section 3 (d) of the PIAB Act, but there must be a limit to that approach. Is there a difference between a patient slipping and falling in the corridor of a Hospital and the same patient (ex-patient?) being knocked down in the Hospital car park as he/she leaves?

Will the only relevant point of difference be the identity of the person causing the injury?

In Chester v Afshar [2004] UKHL, the Defendant adopted that retort. He had operated on the Plaintiff for lower back pain. He had failed to warn her of a possible dangerous outcome of the operation. That outcome transpired. She became partially paralysed. This was a 3%-4% chance outcome of the operation.

Generally, to secure a victory in such circumstances a Plaintiff will be heard to say that, if the appropriate warning had been given the Plaintiff would have declined the operation. Ms. Chester declined to say that. Instead, she said she would have declined the operation that day. By this she meant she would have taken time to reflect on the terms of such a warning; she would have consulted friends and relations and then she would have decided.

The House of Lords found in her favour. In the majority, Lord Hope stressed that to deny her the verdict would render the requirement on doctors to advise and warn their patients of such risks, “…useless in the cases where it may be needed most”.

The Court conceded that in reaching this verdict, it was adjusting the usual burden on Plaintiffs in medical negligence actions.

The outcome was fair. After all, should the Defendant not, in those circumstances and on those facts, be required to prove that the Plaintiff would, in due course and despite the warning, have proceeded with the operation? In all such cases that is the implicit assumption of such Defendants. What is valid about that assumption?