A woman who was prescribed the drug Ativan in 1979, a medicine used for treating anxiety conditions, cannot sue its manufacturers for alleged negligence because of "enormous" delay in the prosecution of her action, the Supreme Court held yesterday.
Joan Bernadette Keogh had continued to take the drug on prescription until 1984 and initiated legal proceedings in 1989.
The case was before the Supreme Court via an appeal by Wyeth Laboratories Ltd and John Wyeth and Brother Ltd against the High Court's refusal to dismiss Ms Keogh's claim on grounds of delay in the prosecution of the case.
Giving the judgment of the Supreme Court, Mr Justice Brian McCracken said the trial judge had erred in the exercise of his discretion and in some of the conclusions which he had drawn from the evidence.
In light of the "enormous delay", he believed justice would be served by allowing the appeal and striking out the claim of Ms Keogh (60), of Mount Olive Road, Kilbarrack, Dublin.
Mr Justice McCracken - with whom Mr Justice Hugh Geoghegan and Mr Justice Nicholas Kearns agreed - said Ativan was available only on prescription and was initially prescribed for Ms Keogh by her general practitioner in 1979 for the purpose of reducing anxiety and panic attacks.
She continued to take Ativan on prescription until 1984 when she became aware through a television programme that there were allegations that some people had difficulties with the drug. She tried to reduce her dosage and claimed she suffered serious withdrawal symptoms, including panic attacks, fear of leaving the house on her own, depression, difficulty making decisions and poor memory.
Ms Keogh claimed damages for personal injuries sustained by her by reason of the negligence and breach of duty of the two companies. Her basic claim was that they were negligent in that they knew that Ativan could be addictive but failed to give adequate warning to patients who took the drug or to the medical profession who prescribed it.
The proceedings were commenced by plenary summons dated January 27th, 1989 and a statement of claim was delivered dated March 3rd, 1989. The companies contended the delay since the issue of the proceedings was inordinate and inexcusable.
Mr Justice McCracken said the High Court found the delay generally was inordinate, and that the delay from February 1996 until the issue on December 4th 2001 of the motion to dismiss the action for want of prosecution, was also inexcusable. However, the trial judge went on to find in the exercise of his discretion and on the balance of justice that if he were to strike out the action, he would have a real sense of doing an injustice to Ms Keogh, and accordingly he dismissed the companies' application.
The only issue before the Supreme Court was whether the High Court judge had correctly exercised his discretion in refusing to strike out the proceedings, notwithstanding the inexcusable and inordinate delay.