While we do not normally cover medical negligence cases this case is interesting from a time limits perspective and the potential it raises for employees to bring claims of Personal Injury under the exception to the time limit discussed herein.

This case focuses on whether the Plaintiff, Leo Green, should be entitled to compensation as a result of an action brought to the High Court for professional medical negligence. The Defendant argued that the claim was not brought within two years of the occurrence of the wrong and therefore was statute barred as per Section 3 of the Statute of Limitations (Amendment) Act 1991.

There is an exception to the two-year rule - time can be extended for concealed facts that might broadly establish negligence, but which were unknown to a Plaintiff.

The Plaintiff was admitted to Tallaght University Hospital for the procedure on the 11th of December 2007. During the operation his bowel was accidentally perforated. Although the procedure appeared to have went well and mandatory checks had seemingly been done nothing was discovered.

The Plaintiff was discharged and shortly afterwards he became seriously ill. He returned to hospital and was again sent home, despite the fact that the Defendants had not performed a CT Scan. The Plaintiff then had to undergo a mandatory second laparotomy operation which resulted in a stoma formation. Eventually, he was discharged on the 28th of December 2007. According to the Plaintiff, he was advised that “an internal suture had come away causing a leak”.

Proceedings were not issued by the Plaintiff until August 2012 which exceeded the time limit.

The High Court found that the Plaintiff “was not and could not have been aware that he had suffered an injury due to the failure of the defendant” until he obtained the medical records in 2011 which was within the statute.

The Court of Appeal, under Peart J, agreed with the decision of the High Court and dismissed the appeal. In the Supreme Court, the Defendant claimed that there was nothing to justify the Plaintiff apparently waiting a period from the time when he had received advice as to his hernia from the new surgeon he consulted, to the time he decided to consult a solicitor. This was a substantial two-year gap.

In reaching their decision, the court noted that the Plaintiff had been steered into thinking that his abdominal condition arose due to the natural progression of a pre-existing condition and that the surgeon advised against any further surgery which meant the Plaintiff “accordingly did nothing about the problem and hoped that his condition would improve”. Therefore, the limitation period was delayed in these exceptional circumstances and the Defendant’s appeal was dismissed.
http://www.courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/6f6b0c5d38c70d7b8025842b003ae724?OpenDocument