The High Court has refused to dismiss an action over alleged injuries to a baby girl born in an ambulance in 1977 while her mother was being taken to hospital.
The now 43-year-old woman claims, in an action brought two years ago, she was left physically and mentally incapacitated as a result of the circumstances of her birth.
The action is against the HSE which denies the claims.
The HSE asked the court to dismiss the case on grounds of inordinate and inexcusable delay and/or because a fair trial was not reasonably possible.
The woman’s lawyers opposed the application and argued, among other things, it had been brought just before a date was given for the hearing of the case.
Mr Justice Kevin Cross dismissed the HSE’s application.
He said the woman’s pregnant mother presented at a small country hospital with two maternity beds in May 1977 and advised the nurse in attendance of a bleed during the previous night. There was no resident doctor at the hospital but a local GP was on call.
A nurse admitted the woman and during the night she had a further bleed which led to the night nurse phoning the GP who arranged for her to be taken by ambulance to a larger country hospital. It took the ambulance about 30 minutes to get to her and on the return journey the baby was born.
Both baby and mother were apparently ill and the baby suffered significant seizures, the judge said.
The woman first contacted a solicitor in 2011 and proceedings were commenced in July 2018. She claims negligence because her mother ought to have been transferred to the larger hospital once she presented with the bleed at the local hospital.
The judge said the nurse who admitted her mother was now retired, believed to be unwell, and the HSE was not disposed either to interview her or to call her as a witness as they have been advised that she may be upset over any approach to her.
The night nurse has made statements but the HSE says she is a friend of the woman’s mother.
Nursing notes from the local hospital did not exist and notes from the larger hospital she was travelling to had been destroyed, it was also claimed.
Mr Justice Cross rejected the woman’s argument the HSE application was brought too late.
However, he also rejected the HSE arguments in relation to deficiencies in evidence and said these could be dealt with and tested at trial
He said the alleged friendship between the night nurse and the mother was no reason to dismiss the case as this could be tested in cross-examination during the trial if necessary.
In relation to the calling of the admitting nurse at the local hospital, he said the HSE had chosen not to even interview her to see if she was available. He could not conclude she was not available.
While the issue of the documentary evidence was more difficult, he said the parties, with the benefit of subsequent scans and tests on the mother, can litigate and examine witnesses on the basis of what those tests show.
The HSE had failed to establish the necessary grounds for its dismissal application and there was not any real or substantial risk of an unfair trial or an unjust result, he said.