High Court and Court of Appeal Reinforce Importance of Timely Medical Evidence in Medical Negligence Claims

In this article, Deirdre Ryan, Solicitor, CKT considers a recent High Court and Court of Appeal judgement involving Saint James’s Hospital, Dublin, and a Plaintiff who suffered from symptoms of swelling and persistent infections in her right lower limb, allegedly due to the hospital’s failure to identify and remove a surgical staple from an earlier childhood operation.

Both judgments underscore the necessity for timely independent medical expert reports to ground medical negligence proceedings and further highlight the importance of timely progression of proceedings on the part of Plaintiff.


The Plaintiff underwent surgery during childhood to realign her right lower limb. The surgery involved inserting an internal fixation device into the distal tibia. From around November 2011, the Plaintiff suffered with symptoms of swelling in her right lower limb which led to persistent infections and hospitalisations to the Defendant hospital. In November 2013, the Plaintiff underwent surgery to remove a staple from her right distal fibula and wound washout at the Defendant hospital. The Plaintiff’s symptoms abated post operatively. The Plaintiff’s claim was that her ongoing symptoms (from November 2011 to November 2013) were due to the Defendant’s failure to identify the staple as the source of the Plaintiff’s symptoms and to further remove the staple at an earlier point.

The Timeline

  • The Plaintiff issued personal injuries proceedings on 07 December 2015, which proceedings were served on the State Claims Agency, 11 months later, on 15 November 2015.
  • Upon service of the proceedings, the Defendant wrote to the Plaintiff’s solicitor notifying them that the proceedings had issued against the wrong Defendant and called upon them to amend the title to the proceedings.
  • The Plaintiff’s solicitors brought an ex-parte application before the Master of the High Court, over one year later, on 12 April 2018, to amend the proceedings to name the correct Defendant.
  • On 6 April 2017, the Defendant’s solicitors wrote to the Plaintiff’s solicitor putting the Plaintiff on notice of the necessity for independent medical expert opinion to support the Plaintiff’s claim and afforded the Plaintiff an opportunity to “mend her hand” and fully plead her case based on expert views.
  • The Defendant delivered a Combined Request for Further Information and a Notice for Further and Better Particulars on 30 July 2018.
  • The Plaintiff did not take any positive steps to progress her claim for the remainder of 2018, 2019 or 2020.
  • The Defendant’s solicitors wrote to Plaintiff’s solicitors on 30 March 2021 calling upon the Plaintiff to discontinue her claim and threatening to issue a motion seeking to have the Plaintiff’s claim dismissed for want of prosecution.
  • On 17 December 2021, the Defendant issued a motion seeking an Order dismissing the Plaintiff’s claim for want of prosecution, pursuant to Order 122, Rule 11 of the Rules of the Superior Courts for inordinate and inexcusable delay.

The High Court

Mr Justice Mark Heslin was critical of the conduct of the Plaintiff’s claim and the failure to obtain independent expert medical opinion before issuing medical negligence proceedings per Rooney v Health Service Executive [2022] IEHC 132. The Court highlighted the requirement to obtain such report with “reasonable expedition” in circumstances where proceedings must be issued on a protective basis.

In considering the absence of a medical report after such a significant period, the Court held that the Plaintiff herself was not completely blameless in respect of the delay.

The Court was satisfied that the Defendant met the burden of proof with respect to all three elements of the Primor test[1] and held that the balance of justice favoured dismissal. The Court was also satisfied that the test per the O’Domhnaill principles[2] had been met in that there was a serious risk that a fair trial would no longer be possible.

The Court accordingly dismissed the Plaintiff’s claim.

The Court of Appeal  

The Plaintiff appealed the decision of the High Court to the Court of Appeal

While four grounds of appeal were identified by the Plaintiff, the Court of Appeal considered two grounds of substance.  The first is that the High Court was wrong to dismiss the Plaintiff’s claim when the Defendant had failed to lead any evidence to show that it was prejudiced by the delay.  Secondly, it argued that the judge was wrong in holding that the prejudice suffered by the Defendant was sufficient to rule that the balance of justice was in favour of the Defendant.

In dismissing the Plaintiff’s appeal, the Court offered view that Mr Justice Heslin in the High Court was correct in finding that the balance of justice leans strongly in favour dismissal.

The grounds for dismissal were as follows:

  1. The personal injury summons had been issued in 2015, but no expert medical report had been obtained in the eight years since then. The Court referred to the failure to obtain such a report as a “little short of staggering”.
  1. The summons contained no indication that it was issued on a protective basis for the purpose of stopping time running, which the Court considered an abuse of process per the case of Rooney v Health Service Executive[2022] IEHC 132.
  1. Without an expert report, it was impossible to establish the case against the Defendant. Ironically, the Defendant could not point to prejudice in the case against it in the absence of such report/particulars.
  1. The Plaintiff could not avoid responsibility by seeking to rely on the fact that she was represented by three different firms of solicitors. The Court outlined that an alternative remedy may be available to the Plaintiff against her solicitors if she was correct in suggesting that they were responsible for the “extraordinary delay”


Both the High Court and Court of Appeal judgments reiterate and affirm the requirement for medical negligence proceedings to be grounded upon supportive medical expert opinion.   The judgments also highlight that in circumstances where proceedings are issued on a precautionary basis, to preserve a Plaintiff’s position vis a vis the Statute of Limitations, the Summons should clearly indicate that it is issued on a protective/precautionary basis.  The Court was unequivocal that when proceedings are issued on a precautionary basis, the Plaintiff must proceed with “reasonable expedition” thereafter to obtain the requisite medical report(s).

Both judgments also highlight the requirement for proceedings to comply with Section 10 of the Civil Liability and Courts Act, 2004 to allow a Defendant to know the case which it must meet and to further afford a Defendant the opportunity to investigate the claim made.

It is worth noting that in reaching their decisions, both Courts not only had regard to the conduct of the Plaintiff in the progression of her claim, but also the conduct of the Defendant, albeit neither Court was in any way of critical of the Defendant whom they noted to have done “all the running”.  

Finally, a Plaintiff can be held blameworthy for the conduct of their Solicitor in failing to progress their claim. The High Court commented that it was noteworthy that the Plaintiff had not herself sworn an Affidavit addressing this issue and noted other potential remedies were available to the Plaintiff against Solicitors engaged to act on her behalf.

[1] Primor plc v Stokes Kennedy Crowley [1996] 2 IR 459

[2] O’Domhnaill v Merrick [1984] IR 151