What happens in a medical negligence case where the defendant medical practitioner dies before proceedings are issued?
The recent case of Gannon Maguire v O'Callaghan sheds some light on the approach a court may take if a medical professional passes away before proceedings are initiated.
- In this case, the plaintiff, at the age of 15, visited her GP, Dr. O'Callaghan on the 5th of March 2013 complaining of a lump in her neck.
- The plaintiff alleged that upon examination, Dr. O'Callaghan came to the conclusion that the lump in question was just mere tissue and nothing to be considered serious.
- The plaintiff was then referred to Temple Street Hospital for a blood test. However, after having said test, she subsequently heard nothing further.
- On the 30th of September 2013, Dr. O'Callaghan passed away.
- It wouldn't be until the 25th of April 2015, over two years later that the plaintiff would be seen by another GP.
- Upon consultation, the plaintiff complained once more about the lump in her neck. She was referred for an urgent appointment to the Mater Hospital by the GP where a biopsy was done.
- The results of the biopsy led to a diagnosis of papillary thyroid cancer, which had spread to the plaintiff's lymph nodes.
- The plaintiff was immediately admitted for urgent surgery and radiotherapy sessions.
- On the 11th of October 2015, the plaintiff had attained her majority, and on the 13th of April 2017, a personal injuries summons was issued to the defendant, the executrix of her late husband.
At trial, the defendant sought a preliminary ruling as to whether the claim brought forward by the plaintiff would be statute barred under sections 8 and 9 of the Civil Liability Act 1961, legislation that covers the limitation period for initiating proceedings against a deceased defendant. The defendant contended that as proceedings were issued more than two years after Dr. O'Callaghan's death, the plaintiff's claim should be statute barred under section 9 of the 1961 Act as stated above. This section had previously been held to be constitutional by the Supreme Court in Moynihan v Greensmyth, which would therefore suggest the court would take a similar approach in the case at hand.
The plaintiff however, argued that section 9(2)(b) of the 1961 act was unconstitutional as such a constitutional issue can only be tried after a trial of the facts on oral evidence. Furthermore, the plaintiff contended that the defendant, the widow of the deceased doctor, could not rely on section 9(2)(b) as she was indemnified by an insurance company. Therefore, it would be "unconscionable and an abuse of process" for the insurance company to rely on said provision where there is no contest between the plaintiff and the estate of the defendant, the contest is instead between the plaintiff and the insurance company, resulting in a moot point of law. The plaintiff further argued that if section 9 of the 1961 act was found to be constitutional, it would therefore be incompatible with obligations the state has been given by the European Court of Human Rights.
When coming to its decision, the court considered previous cases that had dealt with similar issues to the case at hand. In Moynihan, as mentioned above, the plaintiff was injured in a road accident in 1966 when she was 16 years old. The defendant was killed in the accident and the nominated defendant was his personal representative. Proceedings were issued in 1969, and the plaintiff attained her majority in 1971. The plaintiff argued that section 9(2)(b) was invalid with respect to provisions of article 40.3 of the constitution. However, the court in case of Moynihan upheld the validity of the section.
Here in this case the court held that the defendant's application for a ruling on the Statute of Limitations would be granted. Section 9 of the Civil Liability Act 1961 had been held to be constitutional, thus making the plaintiff's claim statute barred. A short hearing to decide this matter as a preliminary issue was decided to be appropriate.
If viewed under a broader lens, Gannon Maguire v O'Callaghan has not brought about any significant change in the law. However, it has reaffirmed the current position laid out in Moynihan and Murphy in that section 9(2)(b) of the 1961 is constitutional, meaning proceedings taken against a nominated defendant after the death of a medical practitioner after a two year period would be statute barred by Irish law.
Ciaran Cronin is a student at the School of Law at University College Cork
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