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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Toal v. Duignan & Ors [1989] IEHC 30 (13 January 1989) URL: http://www.bailii.org/ie/cases/IEHC/1989/30.html Cite as: [1989] IEHC 30

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Neutral Citation No: [1989] IEHC 30

THE HIGH COURT

1984 No. 7447P

BETWEEN/

GREGORY TOAL

PLAINTIFF

AND

NIALL DUIGNAN AND THE BOARD OF GUARDIANS AND DIRECTORS OF THE COOMBE LYING IN HOSPITAL AND KEVIN FEENEY, NAOMI KIDNEY, MARIE CULHANE TOM McMANUS CHAIRMAN OF THE BOARD OF GOVERNORS OF HARCOURT STREET CHILDREN'S HOSPITAL AND THE BOARD OF GOVERNORS AND DIRECTORS OF HARCOURT STREET CHILDREN'S HOSPITAL AND MARGARET MAGILL

DEFENDANTS

Judgment of Mr. Justice Lynch delivered the 13th day of January, 1989.

Preliminary

What is before the Court for judgment now are two motions brought by the sixth, seventh and eight Defendants to dismiss the Plaintiff's action for alleged medical negligence summarily and without allowing the action to proceed to a Plenary hearing.

The first motion in point of time is that brought on behalf of the eight Defendant dated the 20th October 1988 and returnable for the 7th November 1988. That motion seeks an Order dismissing the Plaintiff's action against the eight Defendant on the grounds:

"(1) the Plaintiff's claim ht herein is statute barred: and /or

(2) the said claim has been brought after such lapse of time and delay that the ends of justice cannot be attained by a prosecution of this claim, and evidence in support of this Defendant's case has. been lost and/or diminished thereby."

On the hearing of that motion before me on the 5th and 6th December 1988 ground number (1) was abandoned (and rightly so because the action is clearly not statute barred) and only ground number (2) was relied upon.

The motion on behalf of the sixth and seventh Defendants is dated the 18th November 1988 and was returnable for the 5th December 1988.

That motion seeks an Order dismissing the Plaintiff's action against the sixth and seventh Defendants:

"for want of prosecution the Plaintiff having delayed in the prosecution of his claim herein or further or in the alternative an Order dismissing the claim against the sixth and seventh named Defendants in that due to the passage of time the said Defendants would be unable to properly or adequately defend the proceedings herein and a continuation of the proceedings herein would be contrary to natural justice and an abuse of the process of the Courts."

Again on the hearing before me the only ground relied upon by the 6th and 7th Defendants was that in the latter part of the above quotation that is to say the same ground as relied upon by the eight Defendant. I am satisfied on the facts that no such culpable delay on the part of the Plaintiff has occurred since the commencement of this action as would entitle the sixth and seventh Defendants to rely upon the first part of their motion as quoted above.

What I have to decide therefore in the words of the Supreme Court in giving judgment on other motions in this action brought on behalf of the first, second, fourth and fifth Defendants is whether:

"Even though, therefore, the Plaintiff may be blameless in regard to the date at which these proceedings have been instituted and with regard to the period ......... since the events out of which they arose, as far as these Defendants are concerned there would be an absolute and obvious injustice in permitting the case to continue against them."

The Facts

The Plaintiff was born in the Coombe Hospital Dublin on the 28th of June 1961. He was born with an undescended right testicle. This condition was not in fact detected by the staff in the Coombe Hospital either on the occasion of his birth or on a return visit some three months later with a complaint of vomiting and consequently no treatment was given to the Plaintiff in respect of the undescended right testicle nor any warning to the Plaintiff's parents to watch carefully to see if the right testicle would descend during the following two or three years and if not to seek further medical advice. It is in respect of the foregoing alleged omissions that the first, second, third and fourth Defendants were sued by the Plaintiff. I make no finding as to whether the condition of the right undescended testicle was or was not reasonably detectable while the Plaintiff was in the Coombe Hospital or at the time of his return visit.

The Plaintiff attended a private montessori school as an infant and did not therefore have the benefit of the medical examinations carried out by Department of Health doctors on children attending national schools. The first time the Plaintiff's genital area was examined by a medical doctor was in June 1971 when the Plaintiff was one or two weeks short of 10 years of age. In that month the Plaintiff developed mumps. In the Statement of Claim and the Plaintiff's first affidavit in these proceedings the date when the Plaintiff developed mumps is stated to be June 1970 but it is now clear that it was in fact June 1971.

The Plaintiff alleges that he was visited by the eight Defendant (instead of the fifth Defendant who had been requested to come but did not) at about 5 p.m. on the 3rd Monday in June 1971, that is to say, on the 21st of June 1971. The Plaintiff alleges that the eight Defendant examined him including his genital area and referred him at once to Harcourt Street Children's Hospital, that is to say, the sixth and seventh Defendants' Hospital. The Plaintiff alleges that he was detained in Harcourt Street Hospital for some four days (the sixth and seventh Defendants say it was only two days) during which time he was examined, including his genital area, which was also X-rayed. The Plaintiff further says that the eight Defendant saw him again at his home on Monday the 28th of June 1971 and again examined his genital area. The Plaintiff complains that neither the eight Defendant nor the sixth and seventh Defendants observed that he had an undescended right testicle or if they did observe the same that they failed to treat the same or to inform the Plaintiff's parents thereof and advise or refer the Plaintiff for suitable treatment.

The Plaintiff also alleges that when seen by the eight Defendant and when detained in Harcourt Street Childrens Hospital he had mumps orchitis and that the said Defendants failed adequately to treat the said condition as a result of which the Plaintiff's left testicle being his only descended testicle atrophied and became and is wholly sterile.

The Plaintiff further alleges that he attended the eight Defendant again in October 1977 for a sprained ankle and that his mother enquired of the eight Defendant as to the danger of any adverse consequences from his illness in 1971 and was not advised by the eight Defendant in relation thereto at all. As a result of these various alleged neglects and defaults of the sixth, seventh and eight Defendants the Plaintiff alleges that he is sterile: is on risk of testicular cancer unless his undescended testicle is removed and if it is removed that he will require hormone injections for the remainder of his life.

I am satisfied that the first time that the Plaintiff and his parents became aware that the Plaintiff had an undescended right testicle and an atrophied sterile left testicle was in the month of August 1983 when the Plaintiff attended his then General Practitioner, Dr. Raymond Murphy, who in turn referred him to Surgeon Fitzpatrick. These two medical men informed the Plaintiff and his parents of the Plaintiff's said condition.

The Plaintiff immediately sought legal and further medical advices and instituted these proceedings by Plenary Summons dated the 1st of October, 1984. The first intimation to the sixth, seventh and eight Defendants of the institution of such proceedings against them was by letter dated the 18th October, 1984. That was a period of some thirteen years since the events of June 1971 and some seven years since October 1977 when the eight Defendant last saw the Plaintiff. Although there has now elapsed another four years since the institution of these proceedings I am satisfied that this is not due to such culpability on the part of the Plaintiff as to be taken into account against him in deciding the issues now before me.

The eight Defendant's Motion

The evidence before me on the eight Defendant's motion consisted of:-

(1) An Affidavit sworn by the eight Defendant on the 20th October, 1988 and the exhibits therein referred to. (2) An Affidavit sworn by the Plaintiff on the 3rd of November, 1988 together with references by way of exhibit to extensive extracts from a file comprising 384 pages.

(3) A further Affidavit sworn by the eight Defendant on the 28th of November 1988 and

(4) An Affidavit sworn by the Plaintiff's mother Margaret Toal on the 30th of November 1988.

The eight Defendant says in her first Affidavit that she ceased to practise as a medical doctor on her own account in the year 1978 and transferred all her records to her successor at that time. She further says that when she was acting as locum for other doctors her records of visits to patients were given by her to such other doctors. She says that she has no records relating to the Plaintiff and no recollection of treating the Plaintiff in June 1970 at all. In her further Affidavit the eight Defendant says that she has no recollection of attending or treating the Plaintiff in June 1971 and has no recollection of receiving any record or communication from Harcourt Street Children's Hospital. She further says that she has no recollection of any conversations with the Plaintiff's mother in June 1971 or October 1977 although she does recollect seeing the Plaintiff in connection with the ankle injury incident of October 1977.

Medical witnesses by and large give evidence by reference to their notes and records. They cannot be expected to have a detailed recollection of every examination of every patient independently of their notes and records. See Dowd -v- Kerry County Council and Galvin (1970) I.R. 27 where Chief Justice O Dalaigh says at page 41:-

"Nor can the court fail to take notice of the fact that, for their evidence of the treatment of their patients, surgeons and physicians do and must rely on their written records to refresh their memories; that is to say, medical evidence in modern conditions is largely a matter of written records. Here the records are available."

While the eight Defendant's recollection may be very limited she has not suggested that she has made any efforts whatsoever to enquire from her successor in her own medical practice or from her principals in relation to her practice as locum for other doctors as to what records they may have by reference to which she might refresh her memory relevant to the matters in issue in this case. I cannot overlook the fact that the sixth and seventh Defendants have exhibited records which include a copy letter dated the 2nd of July 1971 from Dr. Rees of Harcourt Street Children's Hospital to the eight Defendant enclosing a copy letter of the same date to Dr. M. Culhane (the fifth Defendant) giving details of the Plaintiff's condition on admission to hospital and thereafter whilst in hospital and his treatment while in hospital. The eight Defendant made no reference whatever to these letters in her Affidavits and it is quite obvious that she made no enquiry whatsoever from Harcourt Street Children's Hospital as to what if any records they might have which would be relevant to her defence of this action.

I am not at all satisfied that the eight Defendant will be unable adequately to defend this case or that she is in any significantly worse position now so far as defending the case is concerned than she would have been had the action commenced ten or twelve years ago. I am not satisfied that the eight Defendant has brought herself within the ambit of the Supreme Court's decision in favour of other Defendants in this case or in favour of the Defendant in the case of O'Domhnaill -v- Merrick (1984) I.R. 151.

I accordingly refuse the relief sought by the eight Defendant in her Notice of Motion dated the 20th October 1988. The sixth and seventh Defendants' Motion

The evidence before me on the sixth and seventh Defendants' motion consisted of:-

(1) An Affidavit of Derek Dockery, Hospital Administrator sworn the 17th November 1988 and exhibits referred to therein.

(2) An Affidavit of the Plaintiff sworn the 2nd December 1988 and exhibits referred to therein.

In his Affidavit Mr. Dockery says that the sixth and seventh Defendants' only involvement with the Plaintiff was in the month of June 1971 for two days when he was confined in Harcourt Street Children's Hospital and that the sixth and seventh Defendants have had no contact with the Plaintiff from the time of his discharge in June 1971 until Summer 1984 when Dr. Rees was contacted by the Plaintiff and his parents and that Dr. Rees has now retired from the staff of the hospital. Mr. Dockery also outlines difficulties created by retirement of other doctors, one of whom has emigrated and also changes in nursing staff. Mr. Dockery further exhibits such records as are still available to the sixth and seventh Defendants at the present time and they appear to me to be the full medical, nursing and hospital records for the Plaintiff's period of detention and treatment in Harcourt Street Children's Hospital. Mr. Dockery says that the recollection of Dr. Rees under whose' care the Plaintiff was whilst in the hospital is impaired by the passage of time but it seems to me on all the evidence that Dr. Rees has quite a good recollection of the relevant matters.

As I said in dealing with the eight Defendant's motion, medical evidence is given largely by reference to notes and records made at the time of treatment or examination. I

cannot see that the sixth and seventh Defendants are in any significantly worse position so far as defending this case is concerned than would be their position if the case had commenced ten or twelve years ago instead of four years ago. They have not shown that they will be unable to trace retired doctors or nurses insofar as they might require their evidence or that these doctors or nurses will be unable to give evidence having refreshed their memories from the records or that they would have been able to give more helpful evidence ten or twelve years ago. The sixth and seventh Defendants have not brought themselves within the ambit of the Supreme Court decision in favour of other Defendants in this case or in favour of the Defendant in the case of O'Domhnaill -v-Merrick.

I accordingly refuse the relief sought by the sixth and seventh Defendants in their Notice of Motion dated the 18th of November 1988.

I award to the Plaintiff as against the eight Defendant his costs of opposing the eight Defendant's motion and I award to the Plaintiff as against the sixth and seventh Defendants his costs of opposing their motion.

I further make an Order that the eight Defendant make discovery of documents within four weeks of this date that the sixth and seventh Defendants also make discovery of documents within four weeks of this date, such Affidavit of Discovery to be sworn by Mr. Derek Dockery: and that the Plaintiff make discovery of documents within four weeks of this date.

Defences have now been filed on behalf of the sixth, seventh and eight Defendants. I have a copy of the defence filed on behalf of the eight Defendant and it would appear that it is not necessary for the Plaintiff to deliver a formal reply thereto. However, in case that the Plaintiff wishes to reply thereto I extend the time for reply for four weeks from this date.

I do not have a copy of the defence filed on behalf of the sixth and seventh Defendants but again I extend the time for replying thereto in case the Plaintiff wishes to deliver a formal reply for a period of four weeks from this date.

The Plaintiff should serve notice of trial as against the sixth, seventh and eight Defendants and set the action down for trial as against those Defendants as soon as possible so that this case may be finally disposed of one way or the other without any further undue delay.