Gunning -v- National Maternity Hospital Ors
High Court
Judgment given by Mr Justice O'Neill on November 11th, 2008
Judgment
An action for personal injuries arising out of an incident where a forceps broke inside a woman's abdomen fell within the definition of "carrying out of a medical or surgical procedure", which is excluded from the jurisdiction of the Personal Injuries Assessment Board (PIAB). Therefore, plaintiff did not need authorisation from PIAB to proceed with the action.
Background
In October 2005 the plaintiff was undergoing a laparoscopic cystectomy in the National Maternity Hospital. During the procedure a portion of a forceps broke and lodged in her abdomen, necessitating more serious surgery to retrieve it. She instituted proceedings against the hospital, the manufacturer of the forceps and the supplier.
She also made an application to the PIAB, which accepted it in relation to the manufacturer and the supplier, but stated: "If it is the case that the claim arose out of the provision of any health service, the carrying out of a medical or surgical procedure . . . then the board does not consider that the claim is one that requires Ms Gunning to make an application to the board for an authorisation".
Counsel for the hospital claimed that, as she did not receive an authorisation from the PIAB, she was precluded from pursuing her claim against the hospital through the courts.
He also claimed that the negligence she complained of arose from a defect in the forceps, and not the correctness or otherwise of the procedure.
Counsel for the plaintiff said that the proceedings came within the wording of the 2003 Personal Injuries Assessment Board Act, excluding medical procedures. The precise cause of the injury, whether because of a defect in the forceps or the use of the forceps, was not determinative.
The personal injuries summons issued against the hospital included reference to use and maintenance of the forceps, and training of staff regarding them.
Decision
Mr Justice O'Neill pointed out that Section 3 (d) of the Act of 2003 described a number of circumstances in the medical sphere where the Act did not apply. "In my view, S.3 (d) of the Act of 2003 should be construed as applying to the factual circumstances out of which the action arises, rather than applying to the specific legal causes of action set out in the legal proceedings," he said.
If the latter approach were followed, it could lead to some parts of the same grievance falling within the remit of PIAB while other parts fell outside, resulting in two aspects of the same personal injury complaint proceeding in parallel in two jurisdictions. The factual circumstances clearly occurred in the course of "carrying out of a medical or surgical procedure", and were well within the provision of S.3 (d) of the Act.
Accordingly, he refused the defendants the relief sought of striking out the plaintiff's proceedings, and allowed the plaintiff to succeed in her motion that the proceedings are excluded by Section 3 (d) of the Act.
The full text of this judgment is available on www.courts.ie
Bruce Antoniotti SC and Sara Antoniotti BL, instructed by Augustus Cullen and son, for the plaintiff; Charles Meenan SC and Hugh O'Keefe BL, instructed by Beauchamps, for the defendant