The National Maternity Hospital in Holles Street, Dublin, yesterday lost a High Court bid to halt an action for damages brought against it alleging negligence in the circumstances of the birth there 34 years ago of a brain-damaged boy.
The action has been brought on behalf of Shane Maxwell by his mother Anna, of Fearnaught, Auhnamore Post Office, Carrick-on-Shannon, Co Leitrim.
Because of alleged negligence in the circumstances of the birth by Caesarean section of Shane at the hospital on March 30th, 1972, including alleged deprivation of oxygen to the placenta, it is claimed he suffered severe personal injuries.
As a consequence of the alleged negligence, it is claimed Shane has severe brain damage, global encephalopathy, epilepsy, and is dependent for most of his daily activities, including washing and dressing.
The legal proceedings were initiated in April 2000 and a notice of intention to proceed with the case was filed in October 2004. The hospital later brought a motion to have the action struck out on grounds that the delay in bringing it had prejudiced their right to a fair trial. This motion was heard yesterday by Mr Justice Iarfhlaith O'Neill.
After hearing from both sides, the judge said he would not halt the action at this stage but the hospital could bring a fresh application to that effect if there was a relevant new development in the case.
Charles Meenan SC, for the hospital, argued that significant prejudice would arise to his client if the action was allowed proceed. Dr John Stronge, the consultant obstetrician who was responsible for the care given to Ms Maxwell in hospital, and who delivered her son Shane, had died.
Certain hospital records were also no longer available including the chart used to record the foetal heart rate. The available records were also insufficient to provide for certain identification of nursing and medical staff who had attended on Ms Maxwell, he said. It was also most unlikely that any person who might be identified as having been involved in Ms Maxwell's care would be in a position to recall any of the events of March 1972, it was argued. The delay in bringing the action was inordinate and inexcusable.
Counsel for Ms Maxwell denied the hospital had been deprived of the right to a fair trial by the delay in bringing the proceedings. Ms Maxwell had written to Dr Stronge seeking an explanation for what had happened to her son, the court was also told. In an affidavit for Ms Maxwell, her solicitor stated that correspondence was initiated with the hospital from 1996 and it had been necessary to procure expert medical reports.