The High Court has struck out medical negligence claims brought by a couple against the estate of a deceased consultant over the alleged misreporting of a smear test for cervical cancer.
In his judgement, Mr Justice Cian Ferriter ruled that the couple's actions against the late doctor's estate must be struck out as their claims against it were brought outside the statutory two year period allowed.
The deceased doctor's estate is one of several parties being sued by the couple. The actions are against the HSE, Medlab Pathology Ltd, Clinic Pathology Laboratories Inc, Sonic Healthcare (Ireland) Ltd, Sonic Healthcare Ltd, Sonic Healthcare USA Inc , as well as several parties who cannot be named for legal reasons, including the personal representative of the late consultant's estate.
In a pretrial motion, the estate asked the High Court to dismiss the claims against it on the grounds that the actions were statue barred. The estate argued that its personal representative was joined to the action outside of the two year time limit allowed. The woman and her husband opposed the strike out applications.
In his judgement, Mr Justice Ferriter said the woman was diagnosed with cervical cancer in 2016 and required a hysterectomy. She developed significant post operative complications which required further surgery.
Her claims for damages arise in circumstances where she underwent smear testing as part of the HSE’s Cervical Check programme in 2013.
She says her samples were misreported leading to her developing cervical cancer when it could have been avoided.
She alleges negligence and breach of duty arising out of these failings as against the HSE, Medlab Pathology Limited who she claims were involved in the provision of laboratory testing facilities in the context of the Cervical Check programme.
The consultant was attached to a hospital who is alleged to have acted negligently in the testing and reporting of a histology sample carried out on the woman.
The couple brought separate proceedings in November 2018, the judge said.
She also sued the personal representative of the estate of a late medical consultant for alleged negligence in the testing and reporting of a histology sample carried out by the late doctor at an Irish hospital in 2014.
The consultant was attached to a hospital who is alleged to have acted negligently in the testing and reporting of a histology sample carried out on the woman.
The 2014 sample which had been tested in a private capacity and reported at an Irish hospital by the late consultant.
Following the consultant’s death the plaintiff ultimately obtained orders joining the personal representative of the late doctor’s estate, and the hospital as defendants to the action.
However the order joining the estate was made more than two years after the date of death of the consultant, the Judge said.
‘Considerable regret’
“With considerable regret, I feel compelled by the relevant jurisprudence and the existing state of the law to conclude that the plaintiff’s claim against the eighth named defendant is statute barred,” he said.
“In my view, the case law makes clear that in the absence of a representation inducing the plaintiff not to issue proceedings within the statute period, it is necessary to find unconscionability in the behaviour of the relevant defendant before the court can be in a position to consider the dis-application of any statute defence pleaded by that defendant.”
The judge said the estate did not act in any way unconscionably.
The plaintiff’s solicitor cannot be faulted for the steps taken on the client’s behalf in relation to this matter, he added. The unfortunate reality is that the plaintiff, and her solicitor, were left in a most difficult position, he said.
They only became aware just a few months before the two year period expired that there was a potential claim in negligence against the estate.
They did not know the identity of the next of kin or legal representative, or of the date of death of the doctor, he said.
All appropriate steps were then taken to identify the next of kin of the deceased and his date of death.
It was not possible to get the relevant information before the end of 2019, he said.
Accordingly, this is an unfortunate situation from the plaintiff’s perspective where neither side were to blame for the fact that the plaintiff was not in a position to make an application to join the doctor’s estate as a co defendant before the expiry of the two year period stipulated.
The judge added that the case did raise a lacuna or a gap in the law.
In all the circumstances the judge said he must strike out both the woman’s and her husband’s claims against the late consultant’s estate.
The judge said the claim by the woman’s husband against the estate was also brought outside of the two year period allowed.
It had been agreed by the parties that any decision made in the application to strike out the woman’s proceedings against the estate would apply to the husband’s proceedings against that defendant, the judge added.