An appeal by obstetrician Dr Michael Neary to the Supreme Court against the High Court's refusal to prevent a woman bringing an action against him alleging he unnecessarily removed her womb after she gave birth to a stillborn infant in August 1988 will be heard on Thursday.
Margaret Lynch, Tullyallen, Co Louth, is suing Dr Neary and Our Lady of Lourdes Hospital, Drogheda, for damages for personal injuries arising from the hysterectomy.
In High Court proceedings in February 2005, lawyers for Dr Neary argued the court should strike out the case because of the delay in bringing the proceedings, which were initiated in 2003. Due to that delay, relevant contemporaneous records were not available from the hospital, where the operation was carried out, and Dr Neary would be unable to defend the action without these records, it was claimed.
It was alleged that Ms Lynch had first become aware of her cause of action in 2001, when she visited a GP. Proceedings were instituted on her behalf in November 2003.
In refusing to strike out the action on grounds of delay, Mr Justice Paul Butler had said the court undoubtedly had an inherent jurisdiction to dismiss proceedings where there was inordinate and inexcusable delay and, in suitable cases, on the basis of delay alone. However, it must be very careful in exercising that jurisdiction.
To exercise that jurisdiction at this stage would be to deprive Ms Lynch - who, on her case, had suffered gravely and was not at fault for the delay - of her right to even present her case. More than 18 years would have passed between the incident and the hearing of the action should it be allowed to proceed, the judge noted.
There was no doubt the delay had been inordinate. However, at this stage of the case, at the very least it had not been established that the delay had been inexcusable.
Ms Lynch did not accept that hospital documents had been destroyed or were no longer available, the judge said.
The judge said he was satisfied that the prejudice which Dr Neary alleged as a result of delay had not yet been established and he refused the application. He stressed it remained open to a defendant to have delay issues tried at the hearing of an action.