The Supreme Court has cleared the way for a profoundly disabled man to sue a consultant paediatrician and the operator of Dublin’s Mount Carmel Hospital over catastrophic injuries allegedly suffered in the circumstances of and/or immediate aftermath of his birth.
Andrew Mangan (25), suing by his mother Lorraine, initially brought his personal injuries case in 2008 only against Dr Julian Dockeray, a consultant obstetrician and gynaecologist who performed a Caesarean section on Ms Mangan and was attending her when her son was born in 1995 at the hospital.
Dr Dockeray, now retired, later applied to join Dr Brian Denham, a consultant paediatrician who provided Andrew with neo-natal care at the hospital, and the Congregation of the Little Company of Mary, trading as Mount Carmel Hospital, as third parties. The company sold its interest in the hospital in 2006 and the hospital closed in 2014.
An affidavit by a solicitor for Dr Dockeray grounding the joinder application contended Mr Mangan’s injuries were as a result of negligent care provided by Dr Denham in the post-natal period and/or due to lack of specialist services in the hospital at the time.
Ms Mangan in 2016 successfully applied to the High Court to have Dr Denham and the company joined as co-defendants but the court later granted their applications to dismiss the claims against them over failure to disclose a reasonable cause of action.
On Wednesday, the five-judge Supreme Court allowed Ms Mangan’s appeal over the Court of Appeal’s upholding of the High Court decision.
Giving judgment, Mr Justice William McKechnie held the pleadings do not fail to disclose a cause of action against Dr Denham and the company.
The dismissal order was not appropriate and not a just application of the High Court’s inherent jurisdiction to strike out the claim against the co-defendants, he held.
While the 25-year delay since the events complained of was “stark”, the defendants had not established it was inordinate and inexcusable or any specific prejudice as a result of it, he held. The delay did not justify terminating the proceedings without a hearing on the merits.
The case, and any issues between the defendants, must now be processed “with all due diligence”, he stressed.
Earlier, the judge noted Ms Mangan was admitted to the hospital on December 28th, 1994 due to pre-rupture of the membranes, having been in and out of the hospital in weeks immediately preceding that, due to abnormal bleeding.
Her estimated delivery date was March 19th 1995 but her son was born at just over 30 weeks gestation on January 11th 1995 after she underwent an emergency Caesarean section performed by Dr Dockeray. Immediately after birth, the newborn required suction and was transferred to the special care baby unit under the management of Dr Denham, where he received ventilation between January 11th and 13th, 1995 and stayed there until discharged home on January 20th, 1995.
He remained under Dr Denham’s care and the latter, when assessing him at six months, expressed concern about his vision, the judge said. Any other developmental delay was thought to be as a result of premature birth. He was diagnosed at nine months with cerebral palsy.
The judge outlined Andrew underwent spinal surgery in 2012 for severe scoliosis, has severe visual impairment and very limited speech. His condition is considered lifelong and he has 24-hour nursing needs, provided by his family.
In granting the applications on behalf of Dr Denham and the hospital to strike out the claims against them, the High Court had said the plaintiff had made no allegations of negligence against them and relied instead on sworn averments by the solicitor for Dr Dockery.
In disputing that, it was argued on behalf of the plaintiff, pending discovery, he was entitled to rely on expert evidence referred to by Dr Dockeray’s solicitor in the joinder application.
Having analysed the evidence and correct approach to a strike out application, the judge said it had not been shown the plaintiff’s case against the co-defendants was bound to fail or the delay was such it must be dismissed.
He noted evidence that necessary medical records are available to all parties.
Addressing insurance issues, he further noted Dr Denham is a member of the Medical Protection Society and his interests are being covered by it.
Mount Carmel’s evidence concerning its insurance situation was “quite unsatisfactory” and, at its highest, suggested it has had no indemnity since 2006 for once-off cases. That “utterly surprising” claim was not sufficient to merit the case being dismissed.
The company will have to clarify its position on insurance and assets so some certainty can be brought to bear on this important issue, he stressed.
*This article was amended on November 5th, 2020
