As a result of the reduction in the Statute of Limitations to 2 years in the case of personal injury claims enacted by Section 7 of the Civil Liability and Courts Act 2004, it is likely that great difficulties lie ahead for victims of medical negligence and their legal advisors. You may be aware that as a result of the introduction of the Personal Injury Assessment Board Act 2003 Section 50, the period of limitation is frozen for a period beginning on the date of receipt of an Application by PIAB and ending 6 months after the date that PIAB issues an authorisation or waiver in respect of the claim. However, it is important to note that under the PIAB Act Section 3 Medical Negligence actions are specifically excluded from the scope of PIAB and thus will have a two-year period of limitation.
The length of time that an ordinary personal injury claim is likely to be under assessment by PIAB could be in the order of 12 months and therefore the combined effects of Sections 3 & 50 of the PIAB Act 2003 in many personal injury cases could be to effectively add on an additional 18 months approx to time limits. The net effect of all of the foregoing is that for practical purposes, Medical Negligence Claims now have a period of limitation considerably shorter than for the more straight- forward type of personal injury claims This of course is the opposite of logic as Medical Negligence Claims are likely to be more complex and difficult to investigate than the relatively more straightforward type of personal injury claim. These factors combined with the natural reluctance on the part of Patients to sue their Doctor which results in victims of Medical error often consulting Lawyers late in the day, is undoubtedly going to cause many Plaintiffs and their legal representatives sleepless nights.
The Personal Injury Summons
Section 10 of the Civil Liability and Courts Act requires that proceedings for personal injuries must be commenced by a Personal Injury Summons. The Personal Injury Summons is to all intents and purposes a long form Statement of Claim. The difficulty of course is that the Personal Injury Summons has to contain very detailed information of the claim
i e name, address, PPS number, detailed particulars of injury, detailed particulars of special damage, full particulars of the alleged wrong and full particulars of the negligence alleged. Complying with these statutory pleading requirements so as to stop time expiring within two years from the date of the medical treatment complained of (assuming that to be the crucial date) in many cases will be impossible. This situation will often arise when a Client consults his Lawyer late in the day having initially been very reluctant to sue their Doctor for the medical error.
“A little knowledge is a dangerous thing”
Many injured patients consult lawyers many years after the medical treatment or surgery which they now wish to inquire into and will contend that they did not make enquiries sooner, as they did not suspect that their doctor had treated them negligently. As legal proceedings generally must be taken within 2 years of the negligent medical treatment, this could cause great injustice in individual cases. Sometimes it will be possible to argue that the time for taking a case can be postponed until the patient had actual knowledge that the treatment was below a reasonable standard. However, lest injured patients become complacent and rely too heavily on the “date of knowledge” saver contained in Section 3 of the 1991 Statute of Limitations Act, the case of Cunningham –v– Neary and Others 1 should act as a salutary warning. In that case the negligent treatment complained of occurred in 1991. A supportive Medical Expert report was not available to the Claimant’s Solicitor until April 2001 (some 11 months after first being instructed) and proceedings issued in March 2002. The Claimant’s Solicitor inter alia was 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. On the facts of Cunningham, the Supreme Court held that the Statute had begun to run no later then the 19th December 1998 when the claimant had written a letter of complaint to the Medical Council.
The rationale of the Court’s decision being that once she had decided to make the complaint in December 1998 to the Medical Council about the doctor’s treatment and behaviour she had the requisite knowledge and it was reasonable for the her at that time to seek Medical and other Expert advice. Therefore time began to run from that moment. The Supreme Court rejected the argument that time only began to run from the date that she received a supportive Expert report and thus in the event the claim was stature barred by approximately 12 weeks.
“Damned if you do and damned if you don’t”
In my opinion, it would be very unwise for a practitioner in light of “Cunningham” to assume that “date of knowledge” can always be postponed until such time as a supportive Expert report has been sought and received. Furthermore, the findings of the Supreme Court in the Cunningham case do place the practitioner in a serious dilemma. Does the practitioner simply now ignore the strictures of Denham J in the Cooke case and assume that they must issue proceedings to preserve their Client’s statutory rights even though they have not yet obtained a supportive report? Will the Court criticise such tactics and characterise them as Professional Misconduct as suggested by the Supreme Court in the Cooke case? In any event, there appears now to be a major practical difficulty barring a practitioner from adopting such a tactic presented by Section 10 of the Civil Liability and Courts Act 2004. It will now be very difficult for the Plaintiff to issue proceedings, to prevent the statute from running, without an Expert Report given the amount of detail now required to be contained in the a Personal Injury Summons. If a Plaintiff is brave enough to try and plead particulars of negligence in a Medical Negligence Action without an Expert Report in the expectation of being able to mend their hand at a later stage by applying to Court to amend his pleadings he could be in for a rude awakening. He may not be permitted to do so or only permitted to amend pleadings under penalty of costs. The Supreme Court has recently reviewed the law relating to amendment of pleadings and recently has refused liberty to a Plaintiff to amend his Statement of Claim to include claims of serious misconduct and fraud against a professional person acting in their professional capacity (see Croke –v– Waterford Crystal Ltd & IPT).3
“inordinate and inexcusable delay”
Even if a Plaintiff is fortunate enough to postpone the commencement of time beginning to run by coming within “the date of knowledge” saver in Section 3 of the 1991 Statute of Limitations Act they may still fall foul of a Defence Application to have proceedings stayed if the action is brought many years after the treatment complained of. The Authorities confirm that the Court has inherent jurisdiction to stay proceedings where there has been delay or lapse of time in bringing the action even if brought within the Statutory time limit and even where the Plaintiff was acting under a disability. The Defence argument being that although the action is not time barred, the passage of time has made it impossible for the Defendant to get a fair Trial and the balance of Justice requires the granting of an Order staying the proceedings. In the Writer’s experience these types of Applications are increasingly commonly made by Defendants and are being sympathetically entertained by the Courts. For example, see the recent Supreme Court decision in Keogh –v– Wyeth Laboratories Ltd 4.
The Dilemma for the Lawyer
The Statute of Limitations is now likely to be pleaded in every case by Defendants where proceedings are not brought within 2 years of the medical treatment complained of, leading to Trials of Preliminary issues in most medical negligence actions. As a consequence, extra costs, extra worry for meritorious Plaintiffs (never mind their Lawyers!) and delay in the final conclusion of the litigation will often occur. This would be ironic because it would be the direct opposite of the stated aims of Minister McDowell to reduce costs.
When a Client’s Medical Negligence claim is about to become time barred the choice of his Solicitor is between waiting for receipt of a supportive Medical Expert report so as to avoid an accusation of professional misconduct and to ensure accuracy of pleading and on the other hand launching proceedings without such a report as a protective measure to preserve a Client’s rights. Which option should the Solicitor take?! This is certainly a dilemma for the Solicitor who is an Officer for the Court and obviously cannot be party to an abuse of the process of Court. On the other hand a Solicitor clearly owes a legal professional duty to his client and is obliged to take steps to preserve a Client’s legitimate rights of access to the Court.
My personal opinion which I readily admit could be erroneous and frowned upon by the Court is that the lesser of two evils, surely must be to serve the Client’s interests first of all, so as to preserve his constitutional right of access to Justice and issue the proceedings. Surely in such circumstances, the Courts will have to be sympathetic and accept a Solicitors Bone Fides. The Rules of Court surely are there to serve the Constitution and Justice and not to impede it. The practical option in the Writer’s view therefore is to issue the proceedings as a protective step and to not serve the proceedings until such time as the claim has been properly investigated and a supportive Expert opinion obtained.
New Rule – Order 1A. II. Commencement of proceedings, Rule 6
The Rules Committee have adopted a new Order 1A which clearly appears to contemplate Plaintiff’s issuing Personal Injury Summons without all of the requisite information demanded by Section 10 inserted in the Summons and by later providing the missing information by way of amendment. SI 248 of 2005, Rules of the Superior Courts (personal injuries) 2005 Order 1A. II. Commencement of proceedings, Rule 6 reads as follows:
“Where a Plaintiff alleges that he was unable at the time at which a Personal Injury Summons was issued to include in the Personal Injuries Summons any information required by this Order to be specified in the Personal Injuries Summons, he shall include in the Personal Injuries Summons a Statement of the reasons why it is claimed that any such information could not provided at the time of issue of the Summons. The Plaintiff shall, at the time the Personal Injuries Summons is served or as soon as may be thereafter (whether by amendment or otherwise) provide such of the information required by this Order as was not included in the Personal Injuries Summons”.
One must assume that many Plaintiffs and their Lawyers will be citing this Rule on many occasions in the future and using it to preserve their Clients claims which would otherwise fall foul of the Statute.
Michael Boylan, Solicitor
- Cunningham –v– Neary and Others ( (2004) IESC 43) delivered 20th July 2004
- Croke –v– Waterford Crystal Ltd & IPT. Supreme Court, 27th November 2004
- Keogh –v– Wyeth Laboratories Ltd delivered by McCracken J, 12th July 2005.
05 July 2005