A Look Back on Medical Negligence Litigation in 2024

1. Procedural Complaints at Trial
In Crumlish v HSE [2024] IECA 244, the Court of Appeal addressed procedural complaints and the treatment of expert evidence. The proceedings arose from an alleged failure by the defendant to detect and diagnose the plaintiff's breast cancer at her first visit to a symptomatic breast clinic in May 2017. The plaintiff was not diagnosed until her second visit in October 2017. The High Court dismissed the plaintiff’s claim, concluding that her cancer was not detectable during the first visit. 

The plaintiff alleged that the High Court erred in its handling of expert testimony and procedural fairness. 

The Court of Appeal upheld this decision. Noonan J identified the essence of the plaintiff’s complaint:

"As the appeal evolved, particularly following oral argument, it became clear that the essence of the plaintiff’s complaint is that the High Court was wrong to treat the issue of doubling time as dispositive of the claim and in doing so, ignored the evidence of Dr. Allen, Professor Ellis and the plaintiff herself on critical issues. It was said that this came about because the defence case was not properly or fairly conducted and further, because the judge erred in her treatment of the expert evidence" (§79).

The Court of Appeal noted that procedural complaints should be addressed at trial through applications for adjournments or amendments. Noonan J stated:

"If a party claims they are taken by surprise by such a development and prejudiced in consequence, the remedy is to make an application to the trial judge, usually for an adjournment so that, if necessary, pleadings on both sides can be amended to reflect the real issue that has arisen" (§123).

This decision underscores the importance of addressing perceived procedural unfairness promptly during the trial.

2. Treatment of Expert Witnesses
Crumlish also highlighted the treatment of expert witnesses. The Court of Appeal reiterated that findings of fact by a trial court will not be disturbed on appeal if based on credible evidence. The court must consider all expert evidence presented, even if it overlaps with other disciplines, provided there is no objection at trial.

Noonan J stated:

"Where an expert is called on one particular topic, but also gives evidence on another, such evidence might be the subject of objection by the opposing party before it is given on the basis that it infringes the rule. However, if the evidence is given without objection, it seems to me that the court is not free to disregard it but must treat it in the same way as any other expert evidence" (§138-§139).

The judgment makes clear, the importance of careful management of expert testimony and of timely objections to evidence outside an expert's primary field.

3. Recovery for Nervous Shock
Germaine v Day [2024] IEHC 420 revisited the criteria for recovering damages for nervous shock. The court reaffirmed the traditional test from Kelly v Hennessy, focusing on the requirement for a recognisable psychiatric illness caused by a sudden, shocking event. 

In Germaine, the plaintiff sought to recover damages for nervous shock alleged to have been sustained in the period immediately before, and as a result of, the death of her husband from lung cancer. The plaintiff alleged that as a result of the failure on the part of the defendant to diagnose her husband at the first available opportunity, she suffered from an adjustment disorder, brought about by having to witness the “sudden” and “frightening” deterioration of her husband’s condition.

The Court noted that three of the five criteria set out in Kelly v Hennessy were in dispute. Egan J held:

"In summary, I hold that the plaintiff’s case cannot succeed. The primary basis for my finding is that she cannot satisfy Kelly v. Hennessy criteria 2 and 3. As regards criterion 2, the injury was not shock-induced in the sense that that expression has been interpreted. There was no 'sudden calamitous or horrifying event in the nature of an accident'. Nor can the plaintiff satisfy criterion 3. The defendant’s negligence did not cause the deceased’s deterioration, which is alleged to be the sudden shocking event witnessed by the plaintiff" (§14).

Egan J further explained:

"The defendant clearly owed a duty of care to the deceased, its patient, but did it owe a duty of care to its patient’s relative, the plaintiff? The plaintiff suggests that in medical negligence cases, a doctor’s criterion 5 duty of care emanates from the duty of care owed by the doctor to their patient, in this instance the deceased. It does not seem to me that the duty of care in an action for nervous shock arising from actual or apprehended physical injury to another can simply be derived from the defendant’s duty of care to the person injured or imperilled" (§71-§72).

Germaine brings welcome clarification the boundaries for claims of nervous shock in medical negligence cases.

4. Application of the Personal Injuries Guidelines
In Collins v Parm & Ors. [2024] IECA 150, the Court of Appeal provided guidance on the application of the Personal Injuries Guidelines in assessing damages. The court emphasised the need to identify the "dominant" injury and apply the Guidelines accordingly, with appropriate adjustments for multiple injuries. The decision introduced the "step back" approach to ensure proportionality and fairness in awards, particularly when no single injury is dominant.

The plaintiff was traveling unrestrained in the back passenger seat of the defendant’s car when the driver lost control and collided with a tree. The plaintiff thought she had suffered a spinal injury, which she described as “extremely frightening.” She alleged psychiatric injuries, along with physical injuries to her back, neck, teeth, head, and some scarring. The High Court awarded her general damages of €95,000.00. On appeal, the Court of Appeal noted that the High Court judge considered the dominant injury to be an adjustment disorder with mixed anxiety and depression.

Noonan J explained:

"The 'step back' approach requires the court to look at the overall award in the round, in order to ensure that it is proportionate by reference to the well settled parameters identified in the cases" (§36).
The court adjusted the plaintiff's award downward, finding that the High Court's award was disproportionate and did not align with the Personal Injuries Guidelines.

5. Statute of Limitations
In Monaghan v Molony [2024] IEHC 287, the Plaintiff sustained an injury on May 21, 2015, when he had to jump over a wall to escape from a cow. Following the incident, he visited his General Practitioner (GP), the defendant, who diagnosed a tear in his pectoralis major muscle. The plaintiff alleged negligence, nuisance, and breach of duty by the defendant, primarily for failing to refer him for an MRI and an orthopaedic assessment in May 2015, which he claimed resulted in adverse consequences.

The plaintiff issued a personal injury summons on May 21, 2018, and later amended it in July 2022 to include details of his visits to a physiotherapist and an orthopaedic surgeon. The defendant argued that the original summons was issued outside the statutory time limit, making the claim statute-barred.

Justice Marguerite Bolger delivered the judgment on May 13, 2024. The High Court found that the plaintiff had knowledge of his injury and its causes within the statutory period prescribed by section 2 of the Statute of Limitations (Amendment) Act 1991. Consequently, the court dismissed the plaintiff's claim, ruling in favour of the defendant.

Written by: Johan Verbruggen