The widower of a woman who died three years after an alleged failure by a hospital to act on results which showed her cancer had returned is entitled to maintain a legal action against the HSE over her death, the High Court ruled.
The HSE had sought to strike out Joseph Hewitt's action over the death of his wife Dolores Hewitt, from Kentstown, Navan, Co Meath, in 2010.
It claimed the action should have been started within two years of the alleged failure to diagnose the return of her cancer in February 2007, or else it was statute-barred.
Ms Hewitt had been treated in Our Lady’s Hospital, Navan, Co Meath, in 2001 for breast cancer and made a full recovery. She was on a monitoring regime subsequently.
In February 2007, she attended the hospital for an ultrasound which disclosed two cancerous lesions on her liver.
Due to alleged inadvertence by the hospital, no action was taken on these results and it was only because of a chance meeting with her surgeon five months later that she underwent further scans which revealed further lesions on her liver, it is claimed.
She was treated for secondary cancer but died in June, 2010.
In January 2012, her widower began legal proceedings against the HSE both over alleged negligence while she was alive and for wrongful death.
The HSE asked the court to dismiss the case, arguing it was statute-barred because it should have been brought within two years of the Hewitts’ knowledge that no action had been taken over the February 2007 scans.
Mr Hewitt opposed the application.
Ms Justice Marie Baker ruled Mr Hewitt could not sue in relation to his wife's treatment before her death although he could have maintained an action, had it begun before she died, and within the two-year time limit, under section 7 of the Civil Liability Act, 1961.
However, under section 48 of the same Act, covering wrongful death, Mr Hewitt was entitled to maintain a claim and this was not statute-barred, she said.