SOURCE – Irish Times
‘Exceptional’ circumstances led to limitation period delay, judge says
The Supreme Court has ruled a man was not out of time to sue over negligence by Tallaght University Hospital in not carrying out a scan and intervening after his bowel was accidentally perforated during a procedure.
Leo Green, who claimed the failure to intervene lead to him suffering a serious hernia problem and other difficulties, previously secured €96,000 damages against the hospital. It had not disputed findings by the High Court its treatment of him in December 2007 was negligent but argued his entire case, initiated in August 2012, was brought outside the applicable two year limit for person injury actions.
The Court of Appeal, rejecting the statute point, agreed with the High Court it was only when Mr Green got his medical records in 2011 the basis of the case and attribution of his injuries to events at Tallaght on December 14th and 15th 2007 became known. Amid concerns of possible inconsistency in decisions concerning date of knowledge for personal injury cases, the Supreme Court agreed to hear a further appeal by the hospital.
When dismissing the appeal on Tuesday, the five judge court stressed decisions on such statute points are specific to the facts of each particular case. Mr Justice Donal O’Donnell said Mr Green became seriously ill after a laparotomy procedure in late 2007, had to be returned to hospital, was kept in intensive care for two further procedures and was left with a hernia.
Not only did he not receive information which would lead him to question the competence of his original treatment, he was if anything pointed in the opposite direction until he got an expert report in May 2012, the judge said.
He found, for the purpose of section 2 of the 1991 Statute of Limitations (Amendment) Act 2011, Mr Green only acquired sufficient knowledge of the alleged negligence when he got the expert report in May 2012 and therefore his action was not statute barred. In his judgment, Mr Justice Peter Charleton said Mr Green was a very active man aged in his late sixties when admitted to the hospital in December 2007 where, during a laparatomy procedure, his bowel was accidentally perforated but this was apparently not detected. The operation appeared to be successful and he was discharged but leakage of digestive material into his abdomen meant he became seriously ill and was readmitted.
The hospital had admitted a CT scan was not performed to discover the cause of elevated levels of C-reactive protein and white cell count and no other intervention was made. Mr Green was sent home, returned even more ill days later, underwent an operation on December 19th 2007 and was discharged on December 28th. He was referred back to Tallaght in the new year feeling unwell where a stoma consequence of his previous operation was reversed.
He was discharged on February 13th 2008 and reviewed on March 27th 2008. His treating surgeon, in a letter dictated in March but not typed up until July 2008, said he had a ventral hernia as a consequence of having septic abdomen and an emergency laparotomy for that. The letter said his wounds had healed and the surgeon would see him in six months time.
The High Court found, due to an appointments mix up, there was no further involvement by that particular surgeon. Mr Green consulted a different surgeon in early 2009 and his hernia condition continued to develop. He consulted a solicitor in January 2011 who got his medical records in March 2011. Based on a May 2012 expert opinion the failure of intervention and testing on December 14th 2007 was the cause of Mr Green’s problems, proceedings issued in August 2012. Mr Justice Charleton said, while there was a two year gap between January 2009 and January 2011 when nothing was happening, it was also the case, on consulting the second surgeon in early 2009, Mr Green was steered towards thinking his abdominal condition arose due to natural progression of a pre-existing condition. The second surgeon advised against further surgery with the effect Mr Green did nothing and hoped his condition would improve.
The statute limitation period was delayed in the “exceptional” circumstances of Mr Green being given, in good faith and based on a professional assessment, an incorrect set of facts after seeking expert medical advice, the judge said. He was not aware until later the delay in treating him on second presentation in December 2007 was the operative cause of his hernia problem, the judge held.